MASTER SUBCONTRACT GENERAL CONDITIONS
A. OBLIGATIONS, RESPONSIBILITIES, AND NOTICE
It is agreed that Subcontractor will assume toward Contractor all obligations and responsibilities which Contractor has assumed under the Main Contract to the extent of the Work herein subcontracted, and Subcontractor shall be entitled to all privileges and protections granted Contractor under the Main Contract. In case of conflict between the terms of this Subcontract and the Main Contract, the term imposing the greater obligation on Subcontractor shall control, as determined by Contractor in its sole discretion. In the event of any conflict between these General Conditions and any Subcontract exhibits, attachments, or terms, the term imposing the greater obligation on Subcontractor shall control, as determined by Contractor in its sole discretion. Subcontractor shall designate in writing all lower-tier subcontractors to Contractor and shall not subsequently change lower-tier subcontractors without Contractor’s approval. Contractor shall furnish to Subcontractor, upon Subcontractor’s request, the legal description of the premises covered by the Main Contract. A copy of the Main Contract will be made available upon request.
As a condition precedent to any right to recover for any instances of interruption, disruption, extra work, additional work, changed work, delay, hindrance and/or efficiency loss of any nature whatsoever in Subcontractor’s Work (collectively “Impact”), believed by Subcontractor to be caused by the acts or omissions of Contractor, other subcontractors, Owner, Architect/Engineer or the employees or agents of any of them, Subcontractor shall provide written notice to Contractor within 5 days or within sufficient time to allow Contractor to give notice to Owner pursuant to the Main Contract (whichever is sooner), after occurrence of the Impact. Such written notice shall identify the cause of the Impact, the party Subcontractor believes is responsible for the Impact, and a rough order of magnitude as to the extra cost and/or time resulting from the Impact. In the event Subcontractor believes it is entitled to receive compensation due to damages from such an Impact and/or is entitled to an extension of time, Subcontractor’s Statement of Claim (setting forth in detail all claim related details required by the Main Contract and, at a minimum, the facts and contract terms supporting Subcontractor’s alleged entitlement and quantum basis for Subcontractor’s claim with supporting data and/or the facts and contract terms to support an extension of time) shall be delivered to Contractor within an additional 15 days after the Incident or within sufficient time to allow Contractor to forward Subcontractor’s Statement of Claim to Owner (whichever is sooner), to meet any applicable Main Contract requirements. FAILURE OF SUBCONTRACTOR TO PROVIDE TIMELY WRITTEN NOTICE, AS PROVIDED IN THIS PARAGRAPH, AND/OR FAILURE BY SUBCONTRACTOR TO TIMELY PROVIDE ITS STATEMENT OF CLAIM FOR AN INCREASE IN THE SUBCONTRACT AMOUNT, OR FOR AN EXTENSION OF TIME SHALL RESULT IN A WAIVER OF SUBCONTRACTOR’S RIGHT TO RECOVER ANY ADDITIONAL COST OR TIME RESULTING FROM THE IMPACT.
Contractor does not waive the requirement for timely written notice and/or timely written submission of the Statement of Claim unless Contractor’s waiver is unequivocal, explicit, in writing, and signed by one of Contractor’s Members/Managers.
B. SUBMITTALS & DRAWINGS
Subcontractor agrees to furnish all submittals, including but not limited to product data, shop drawings, samples, specifications, final selections of materials and other specified items in the format, type and quantity required by the Main Contract for approval by Owner or Owner’s agent so as not to delay progress of the Work.
C. SCHEDULING
Contractor shall give Subcontractor advance notice of anticipated starting date for Subcontract Work. Subcontractor shall start work on the date named by Contractor, as may be adjusted from time to time by Contractor, and shall complete the several portions and the whole of the Work herein described at such times as will enable Contractor to timely comply with the Main Contract. If Contractor provides Subcontractor with the Construction Schedule, Subcontractor shall follow such schedule including all commencement dates, milestone dates, and completion dates. Contractor may change the schedule from time to time for any reason, and Subcontractor shall perform in accordance with such modified Construction Schedule(s). Subcontractor shall coordinate its Work with the work of Contractor and other subcontractors. Subcontractor will be bound by any provisions in the Main Contract for liquidated damages and, if liquidated damages are assessed against Contractor by Owner, shall pay such damages for any delay to the extent caused by Subcontractor. The preceding language shall not be construed to deprive Contractor of any right to recover separate or additional damages for delay to the extent caused by Subcontractor.
Subcontractor shall promptly notify Contractor in writing of any and all submittals and material/equipment procurements that may impact Subcontractor’s ability to timely perform its Work in accordance with the Construction Schedule as provided. Subcontractor shall identify the specific date such submittals or procurements must be approved by Contractor (or otherwise be approved as required by the Main Contract) to allow Subcontractor to timely complete its Work according to the Construction Schedule. Subcontractor is responsible for ensuring submittals and procurements are provided with sufficient time to not impact its ability to perform the Work.
If required by the Main Contract or otherwise requested by Contractor, for every day Subcontractor performs Work, Subcontractor shall daily submit a report to Contractor. The daily report shall describe, at a minimum: the Subcontractor’s work activities for the day; a work force count by trade for the Subcontractor and its sub-tier contractors; all major deliveries; and any adverse impacts to Subcontractor’s ability to perform its work. Subcontractor’s daily reports are not a substitute for any written notice requirements of this Subcontract, and nothing in the contents of the daily reports shall be deemed to excuse Subcontractor from strict compliance with written notice and claim procedures in Section A.
D. PAYMENTS
Subcontractor’s right to any and all payments for performance under this Subcontract is subject to the following:
Payment Contingent on Owner Payment. It is agreed that as a condition precedent to any payment by Contractor to Subcontractor hereunder the Contractor must first receive payment from the Owner for the Work of Subcontractor for which payment is sought. Subcontractor specifically agrees that it is relying upon the Owner’s credit (not the Contractor’s) for payment, and Subcontractor specifically accepts the risk of nonpayment by the Owner. At the reasonable request of Subcontractor, Contractor agrees to furnish such information as is reasonably available to Contractor from Owner regarding Owner’s financial ability to pay for performance under the Main Contract. The parties agree Contractor does not warrant the accuracy or completeness of information provided by Owner.
Subcontractor shall submit to Contractor applications for payment at such times as will enable Contractor to timely apply for payment from Owner. Unless otherwise mutually agreed, Contractor shall withhold retainage from Subcontractor in the amount of 5% or as required by law. Contractor’s obligation to release retainage to Subcontractor shall be subject to proof that there are no unpaid claims which would provide the basis of a lien against the premises, retainage or payment bond, or subject to (1) withholding of sufficient funds, as determined by Contractor, or (2) furnishing an adequate and sufficient payment and performance bond in an amount determined by the Contractor. Subcontractor shall be paid for Work to date of Contractor’s last progress billing date, as approved by Owner or its representative, within ten days after Contractor has received payment for such progress billing. Final payment for Work under this Subcontract shall be made within ten days after Contractor has received final or complete payment provided Subcontractor has completed its Work and fulfilled each of its obligations under this Subcontract. As a prerequisite for any payment, Subcontract shall provide in a form satisfactory to Contractor partial lien releases, claim waivers and affidavits of payment from Subcontractor, and its lower-tier subcontractors and suppliers of any tier, for the completed portion of Subcontractor’s Work. As a further prerequisite for any payment, Subcontract shall provide in a form satisfactory to Contractor partial lien releases, claim waivers and affidavits of payment for the completed portion of Subcontractor’s work from all third parties including, but not limited to, union trust funds to which Subcontractor is required to pay fringe benefits or other contributions for work to be performed on the Project.
If the Main Contract permits payment for materials delivered to the jobsite or to satisfactory storage facilities, Subcontractor may invoice for materials so delivered and receive payment as outlined above; provided, however, that such stored materials shall be at the risk of Subcontractor until acceptance of the Subcontract Work. Subcontractor acknowledges that all payments accepted by it or which are otherwise due under this Subcontract shall constitute a trust fund in favor of laborers, materialmen, governmental authorities, and all others who are legally entitled to claim a lien on the premises covered by this Subcontract or otherwise file a claim against any retainage or payment bond. Subcontractor shall pay its own subcontractors, suppliers, and all others who are legally entitled to claim a lien on the premises covered by this Subcontract or otherwise file a claim against any retainage or payment bond all sums owed them within ten days of receipt of payment from or on behalf of Contractor.
Progress payments shall be deemed advances and are subject to adjustment at any time prior to final payment for errors, overpayment or Contractor’s good faith determination that the remaining balance of payment may be insufficient to insure completion of Work covered by this Subcontract or to pay lien, retainage, or bond claims. In making progress payments, Contractor is relying in good faith on Subcontractor’s representations as to the Work it has performed. Progress payments shall not be construed as acceptance of Subcontractor’s Work, performance, or entitlement to the paid amounts. If Contractor determines in good faith that Subcontractor is obligated to Contractor or anyone else for labor, fringe benefits, taxes, supplies, materials, equipment rental or other proper charges against the Work covered by this Subcontract, the amount of such obligation may be deducted by Contractor from any payment or payments, including retainage, made under this provision. Provided further that Contractor may from time to time require, and Subcontractor shall promptly provide within 3 days after written demand, a statement in writing, including supporting documents setting forth what amounts, if any, are due or payable by Subcontractor to third parties for labor, fringe benefits, taxes, supplies, materials, equipment, or other proper charges against the Work in connection with, or arising out of the performance of, this Subcontract. In the event such statement with supporting documentation is not provided by Subcontract, Contractor may withhold payment until such statement with supporting documentation is provided and/or terminate this Subcontract without further notice, in addition to any other rights or remedies available under the law or equity. In case of such termination, and in addition to any other rights and remedies Contractor may have, Contractor shall have all rights due as specified in Section J of this Subcontract. Upon payment from Contractor to Subcontractor of amounts due and owing under this Contract, Subcontractor shall defend, indemnify and hold Contractor harmless against all claims for payment to third parties for labor, fringe benefits, taxes, supplies, materials, equipment, or other proper charges against the Work in connection with, or arising out of the performance of, this Subcontract. If retainage is held in an interest bearing account, then proportionate interest will be paid to Subcontractor.
With respect to any and all payments to be made by Contractor to Subcontractor under this Subcontract, Contractor, at its option, may issue joint checks payable to Subcontractor and any of Subcontractor’s creditors (including but not limited to laborers, materialmen, suppliers, sub-subcontractors, trust funds, and taxing authorities) to the extent Contractor in good faith deems it appropriate to ensure that payments required from Subcontractor or any of its subcontractors with respect to the Work are paid, and then charge all such amounts to Subcontractor’s account. Payment by joint check shall not create any contractual relationship between Contractor and Subcontractor’s payees. Contractor is entitled to offset any amounts owed by Subcontractor from this Project by withholding monies otherwise due on any other project and is entitled to offset amounts owed by Subcontractor on any other project from this Project.
Subcontractor agrees not to subcontract any portion of the performance of this Subcontract without the prior written consent of Contractor. Subcontractor shall require any assignee, who takes an interest in the Subcontract as collateral, to agree that: (1) it shall have no right to payment unless and until all sub-subcontractors, suppliers, employees, union trust funds and taxing authorities have been paid, and any claims of Contractor have been satisfied; and (2) it will repay to Contractor immediately upon request any amount overpaid. Any assignee taking an assignment of any payment otherwise due under this Subcontract shall be bound to the terms and the limitations regarding payment contained in this Subcontract Agreement. Subcontractor shall notify Contractor of the assignment of the proceeds of this Subcontract prior to such assignment and shall require the acceptance by Assignee of the terms of this Subcontract including the obligation for adjustments and return to Contractor of overpayments. Subcontractor agrees that no assignment of any payment otherwise due under this Subcontract shall be effective without first securing the express approval of any assignee to the limitations contained in this subsection.
For Work Subcontractor performs on a lump sum basis, as a condition precedent to payment, Subcontractor shall submit a schedule of values that is acceptable to Contractor and Owner allocating the entire Subcontract Price to the various portions of the Work, and which shall be prepared in such form and supported by reasonable evidence to substantiate the values. Subcontractor shall bill on the percent of completion basis unless otherwise specified in this Subcontract. All changes shall be billed as separate line items. Subcontractor’s failure to submit an acceptable schedule of values entitles Contractor to withhold all monies demanded by Subcontractor without incurring any liability to Subcontractor.
Contractor may, at its sole and absolute discretion, agree to release early payment for a portion of the Subcontract Price to Subcontractor upon written request from Subcontractor; however, Contractor shall be entitled to reduce such early payment by the then then applicable prime interest rate as consideration to Contractor for such early payment. A deductive change order shall be processed along with any such early payment reducing the Subcontract Price to reflect such consideration.
E. CHANGE ORDERS
Contractor may, without invalidating this Subcontract, order in writing extra work or make changes by altering, adding to, or deducting from the Work and the Subcontract price shall be adjusted accordingly. All such Work shall be executed under the conditions hereof and of the Main Contract, except that any claims for extension of time caused thereby must be agreed upon at the time of ordering such change. Subcontractor shall make no claims for extras unless the same shall be agreed upon in writing by Contractor prior to the performance of any such extra work. If additional work has been fully accepted by Owner, payment shall be made to Subcontractor within 10 days after payment to Contractor unless the request for additional work originated with Contractor, rather than with Owner, in which case payment will be made in a reasonable amount of time following acceptance of the Work by Contractor. In case of any dispute over adjustment of the Subcontract price or time, Subcontractor shall proceed with the Work and the dispute shall be resolved in accordance with the procedures set forth in the Main Contract, to the extent that Contractor is bound by such procedures, otherwise by the procedures set forth in Article U. Subcontractor shall not be entitled to any additional compensation or extension of time unless Subcontractor shall have provided written notice to Contractor in accordance with Section A, above. Subcontractor acknowledges that, unless expressly stated otherwise within a written change order, any change in the contract price and time effected through a written change order shall constitute full payment and accord and satisfaction for all cost incurred including, but not limited to, overhead, profit, labor performed, material and equipment furnished, and any delay, acceleration, or loss of efficiency associated with the change in the Work.
F. NATURE OF WORK
Subcontractor has satisfied itself as to the nature and location of the Work, the character, kind and quantity of material to be encountered, the character, kind and quantity of equipment needed, the location, conditions and other matters which can in any manner affect the Work under this Subcontract, and acknowledges that Subcontractor has had a reasonable opportunity to examine the site, all of the Main Contract documents and this Subcontract. Prior to commencing Work, Subcontractor shall examine the site and any surfaces upon which Work is to be performed, and shall notify Contractor in writing of any conditions which might adversely affect its Work; failure to do so will constitute a waiver of entitlement to any additional compensation or contract time arising out of such conditions. This clause shall not be understood to relieve Subcontractor of any additional notice requirements under this Subcontract or the Main Contract.
G. SUBCONTRACTOR EMPLOYER
Subcontractor has the status of “employer” as defined by the Industrial Insurance, Workers’ Compensation, Unemployment Compensation, Social Security, and other similar federal, state, and local statutes. Subcontractor further warrants and acknowledges the following: (a) Subcontractor is customarily engaged in an independently established business of the same nature as the Work performed under this Subcontract; (b) Subcontractor is responsible for filing a schedule of expenses with the IRS for the type of business Subcontractor is conducting; (c) Subcontractor has an account with the Department of Revenue and other appropriate state agencies for the payment of all applicable state taxes, and has registered for and received a unified business identifier number from the State of Washington and (d) Subcontractor maintains a separate set of books or records that reflect all items of income and expenses of its business; and (e) Subcontractor verifies and warrants by signing this Subcontract that, as the time of bid and/or execution of this Subcontract, that it meets all responsibility criteria listed in RCW 39.04.350 and RCW 39.06.020 and is licensed to perform all work in Subcontractor’s scope. Subcontractor shall include all of the verification requirements of this Section G(e) in every subcontract of every tier issued by Subcontractor for the Project.
Subcontractor shall withhold from its payroll applicable Social Security taxes, Workers’ Compensation and Unemployment Compensation contributions, and any other lawfully required withholding and pay the same; Contractor shall be in no way liable as an employer of, or on account of, any employees of Subcontractor. Before final payment is made under this Subcontract, or as otherwise required by Contractor, Subcontractor shall furnish Contractor affidavits certifying that it has complied with these laws, rules, and regulations. Subcontractor hereby agrees to defend and indemnify Contractor for any and all liability under such laws arising from the Work performed under this Subcontract.
H. PERMITS, TAXES
Subcontractor shall obtain and pay for all permits, fees, and licenses necessary for the performance of this Subcontract and shall pay any and all federal, state, and local taxes, applicable to the Work to be performed under this Subcontract. Owner or Contractor shall obtain and pay for the initial building permit applicable to the Main Contract.
I. MATERIALS
Materials delivered by or for Subcontractor and intended to be incorporated into the construction hereunder shall remain on the jobsite and shall become property of Owner upon payment, but Subcontractor may repossess any surplus materials remaining at the completion of the contract. All scaffolding, apparatus, ways, works, machinery, and plants brought upon the premises by Subcontractor shall remain its property. It shall be Subcontractor’s responsibility to unload, store, and protect its materials, to bear the risk of loss thereof and to protect such material against loss until actually incorporated into the Work, and until the Work is accepted, even though title thereto may previously have passed to the Owner under the preceding provisions, except that Subcontractor shall not bear that portion of such loss to the extent it arose out of the fault of Contractor or its employees.
J. TAKEOVER
- Termination/Suspension by Owner. In the event Contractor’s Work under the Main Contract is terminated, other than for Contractor’s default, prior to Project completion, an equitable adjustment to the contract price for Work performed under this Subcontract prior to such termination will be made as provided for in the Main Contract; if no such provision exists, then by mutual agreement; or, failing either of these methods, as provided for in the Disputes clause of this Subcontract. Subcontractor shall be entitled to prospective profits on unperformed Work only to the extent Contractor is able to recover such profits from the Owner.
In the event Owner, for any cause other than Contractor’s default, temporarily suspends Work under the Main Contract, Contractor may order Subcontractor to suspend Work under this Subcontract. Subcontractor shall not be entitled to any additional compensation or damage for such suspensions, except, and only to the same extent, Contractor receives additional compensation from Owner under the provisions of the Main Contract for Subcontract Work.
- Termination/Suspension for Convenience. Upon three (3) calendar days’ written notice to Subcontractor, Contractor may terminate this Subcontract in whole or in part for Contractor’s convenience and/or at its option. Subcontractor’s remedy for such convenience or optional termination is limited to the following: (1) payment pursuant to the terms of this Subcontract for all Work properly performed prior to termination; (2) partial payment for lump sum items of Work on the basis of the percent complete of such items at the time of termination; and (3) Subcontractor’s reasonably close-out costs. In no event shall Subcontractor be entitled to any compensation for loss of anticipated profits or unallocated overhead on work not performed.
- Termination for Default. If Subcontractor refuses or fails to supply enough properly-skilled workers or materials to maintain the schedule of Work, refuses or fails to make prompt payment to lower-tier subcontractors or suppliers of labor, materials or services, fails to correct, replace, or re-execute faulty or defective Work done or materials furnished, disregards the law, ordinances, rules, regulations or orders of any public authority having jurisdiction, files for bankruptcy, or breaches this Subcontract, and fails to correct the default and maintain the corrected condition within not less than three (3) working days of receipt of written notice of the default, then Contractor, without prejudice to any rights or remedies otherwise available to it, shall have the right to any or all of the following remedies:
- Supply such numbers of workers and quantity of materials, equipment, and other facilities as Contractor deems necessary for the completion of Subcontractor’s Work, or any part thereof, which Subcontractor has failed to complete or perform after the above notice, and to charge the cost thereof to Subcontractor who shall be liable for the payment of same including reasonable overhead and profit.
- Contract with one or more additional subcontractors to perform such part of Subcontractor’s Work as Contractor shall determine to provide prompt completion of the Project and charge the cost thereof to Subcontractor.
- Withhold payment of any monies due or to become due Subcontractor pending corrective action to the extent required and to the satisfaction of Contractor.
- Terminate this Subcontract, use any materials, implements, equipment, appliances, or tools furnished or belonging to Subcontractor to complete Subcontractor’s Work and furnish those materials, equipment, and/or employ such workers as Contractor deems necessary to maintain the orderly progress of the Work. Subcontractor’s equipment shall only be utilized when equivalent equipment is not locally available to lease and will not be supplied by a substitute subcontractor and when procurement of substitute equipment will not delay completion of the Main Contract. All of the costs, including reasonable overhead, profit and attorneys’ fees, incurred by Contractor in arranging to and performing Subcontractor’s Work shall be charged to Subcontractor and Contractor shall have the right to deduct such expenses from monies due or to become due Subcontractor. Subcontractor shall be liable for the payment of any expenses incurred in excess of the unpaid balance of the Subcontract Price.
In the event Contractor terminates Subcontractor for Default and it is later determined by the dispute resolution proceedings set forth herein that Subcontractor was not in default, then such termination shall be automatically deemed a termination for convenience under Subparagraph J(2) above and Subcontractor shall be compensated according to Subparagraph J(2) above.
In the event of any emergency, Contractor may proceed as above without notice.
If Subcontractor files or otherwise becomes subject to bankruptcy proceedings, Contractor and Subcontractor agree that any delay attendant to the assumption or rejection of the Subcontract by the bankruptcy Trustee or a debtor-in-possession will be prejudicial to Contractor. Consequently, Subcontractor, to minimize delay to the Project and to mitigate damages and/or other prejudice suffered by Contractor, hereby stipulates to a notice period of ten (10) calendar days for Contractor’s motion to require Trustee or debtor-in-possession to assume or reject the Subcontract.
- UNIT PRICE
In the event this Subcontract contains unit price items it is understood and agreed that any quantities mentioned are approximations only and subject to change as required by the Main Contract or as ordered and directed by Contractor.
- QUALITY
Materials or Work condemned by Contractor, Architect/Engineer, or Owner as failing to conform to the Main Contract, shall, upon notice from Contractor, be immediately removed by Subcontractor. Failure of Contractor to immediately condemn any Work or materials as installed shall not in any way waive Contractor’s right to object thereto at any subsequent time.
- WARRANTY
Subcontractor warrants the Subcontract Work and materials furnished here under to Contractor and Owner for the same period as Contractor warrants the work to Owner under the Main Contract. Subcontractor warrants that all Subcontract Work shall comply with all terms and conditions of the Contract Documents, shall be performed in accordance with industry standards, and will of good quality and new, unless otherwise required or permitted by the Mater Contract, that the Subcontract Work of this Master Subcontract will be free from defects not inherent in the quality required or permitted. All Subcontract warranties shall be in addition to and not in limitation of other warranties or remedies required and/or were arising pursuant to applicable law. The warranty requirements of this Subcontract shall survive any termination of this Subcontract.
- JOB DAMAGE
Job damage caused by Subcontractor, its lower-tier subcontractor or supplier of any tier, to Work other than its own shall be reported immediately to Contractor and Subcontractor shall be responsible for its repair. Job damage caused by Contractor to Work of Subcontractor shall be reported immediately to Subcontractor and Contractor shall be responsible for its repair.
- SAFETY
Subcontractor and its lower-tier subcontractors shall take all reasonably necessary safety precautions pertaining to its Work and its Work performance, including compliance with applicable laws, ordinances, regulations and orders issued by a public authority, whether federal, state, local or other, OSHA/DOSH (Washington State Division of Safety and Health), and any safety measures requested by Contractor. Subcontractor shall at all times be responsible for providing a safe jobsite and be responsible for the Work performance and safety of all employees, personnel, equipment and materials within Subcontractor’s or its lower-tier subcontractors’ care, custody or control. Subcontractor and its lower-tier subcontractors shall furnish all required safety equipment for its Work and ensure all of their employees and lower-tier subcontractors’ employees have and wear personal protective equipment in compliance with applicable OSHA/DOSH requirements and Contractor’s safety rules, as provided in writing to Subcontractor.
Subcontractor certifies that it and its lower-tier subcontractors are registered contractors. Subcontractor certifies that it and its lower-tier subcontractors maintain a written Accident Prevention Plan and a jobsite-specific safety plan in compliance with applicable OSHA/DOSH regulations. Subcontractor’s Accident Prevention Plan should address subcontractor’s role and responsibilities pertaining to safety on the jobsite, training and corrective action and be tailored to safety and health requirements for the Work involved. Subcontractor shall have and enforce a disciplinary action schedule in the event safety violations are discovered. When and as requested by Contractor, Subcontractor shall provide information regarding safety matters.
Subcontractor shall promptly provide Contractor with written notice of safety hazard(s) or violation(s) found on the jobsite or of any injury to its or its lower-tier subcontractors’ workers incurred on the jobsite.
Contractor’s supervisor may direct Subcontractor’s superintendent to remove employees not in compliance with the requirements of this Agreement. In the event Subcontractor does not promptly correct its safety violation, Contractor may order Subcontractor to stop Work until the violation is corrected, and may correct the violation and charge all costs of compliance to the Subcontractor.
Subcontractor agrees to defend, indemnify and hold Contractor harmless from all DOSH and/or OSHA claims, demands, proceedings, violations, penalties, assessments or fines that arise out of or relate to Subcontractor’s failure to comply with any safety-related laws, ordinances, rules, regulations, orders or its obligations hereunder. Contractor may charge against the sums otherwise owing to Subcontractor the Amount of the fine and the fees, costs and expenses incurred by Contractor in the defense of the claims citation and/or fine arising from or relating to the Subcontractor’s above-referenced failure.
- HOUSEKEEPING, CLEAN UP AND HAZARDOUS MATERIALS
Subcontractor shall regularly remove all refuse, waste and debris produced by its operation. Refuse shall not be permitted to accumulate to the extent that it interferes with free access to the jobsite, creates a safety hazard or otherwise violates the Contract Documents. Avoidance of safety hazards through good housekeeping is an important part of Subcontractor’s obligations. In the event Subcontractor or its lower-tier subcontractor fails or refuses to meet these requirements, Contractor may remove refuse and charge all costs to the Subcontract, provided that Subcontractor has received 24 hours or one full working day, whichever is greater, prior written notice. In the event Contractor determines emergency conditions exist, Contractor may proceed as above without prior notice.
Subcontractor shall comply with all applicable hazardous waste regulations under federal, state or local laws. Subcontractor shall provide Contractor with all Material Safety Data Sheets for any and all hazardous substances covered under all applicable laws before commencing Work. Subcontractor shall, prior to commencing Work, inform Contractor of its intent to use any hazardous substances at the Project and shall continuously update the Contractor of any new hazardous substance brought to the Project during performance of the Work. Failure to comply with this paragraph may result in fines and damages being assessed to Subcontractor. Subcontractor shall defend, indemnify and hold Contractor harmless from any and all costs and expenses, including attorneys’ fees, arising from the use or discharge of any hazardous substance by Subcontractor at or off the Project site.
- BOND
If line number four on page two of this Subcontract requires Subcontractor to supply bonds for this project, then Subcontractor shall as its own expense furnish contractor, within ten (10) days of receipt of this Subcontract, performance and payment surety bonds, acceptable to Contractor, in an amount equal to the Subcontract price. The bonds shall be conditioned upon the full and faithful performance of all terms, provisions, and conditions of this Subcontract and upon payment for all labor, materials, equipment, and supplies used in the prosecution of the Work described herein. If Subcontractor fails to timely provide the required bond Contractor may terminate this Agreement without further notice or liability to Subcontractor.
- WORKERS’ COMPENSATION
Subcontractor shall furnish to Contractor evidence that it has in force Workers’ Compensation Insurance including Employer’s Liability, as may be required by the jurisdiction or jurisdictions in which the Work is being performed. Where applicable, this shall include United States Longshoremen’s and Harbor Workers’ Insurance including Coverage B – Employer’s Liability (Maritime) with limits not less than the Bodily Injury limits required of the Contractor by the Main Contract, but in no event less than $1,000,000. Such evidence of insurance shall be in the form of an Insurance Certificate issued by an insurer satisfactory to Contractor and shall provide for not less than 30 days prior written notice to Contractor of cancellation or reduction in coverage. In the event Subcontractor fails to maintain any and all insurance required by this Subcontract during the entire life of this Subcontract and for three (3) years following final acceptance of the Project by the Owner, Contractor may at its option, and without waiver of other available remedies, purchase such insurance in the name of Subcontractor and deduct the cost of same from payments due Subcontractor.
- INSURANCE
Subcontractor shall obtain and keep in force during the term of this Subcontract and for six (6) years following final acceptance of the Project by the Owner, commercial general liability insurance and such other insurance specified in, and with dollar limits and coverage equal to, or greater than the minimum specified in the Main Contract for Contractor and not less than the types and amounts of coverage noted at the front of this Subcontract and in full compliance with the requirements of Attachment “B” Insurance Requirements to this Subcontract. Such insurance shall be, except in the case of professional liability insurance, “occurrence-based” and shall include contractual liability coverage applicable to the indemnity provisions of this Subcontract and “completed operations” coverage. Whenever design and/or professional services are a part of Subcontractor’s Work, Subcontractor shall procure professional liability insurance in the amount specified at the front of this Subcontract and in full compliance with the requirements of Attachment “B” Insurance Requirements to this Subcontract. Subcontractor shall furnish to Contractor evidence of this insurance including the provision regarding notice of cancellation or reduction in coverage. Such evidence of insurance shall be in the form of an Insurance Certificate issued by an insurer satisfactory to Contractor and shall provide for not less than 45 days prior written notice to Contractor of cancellation or reduction in coverage. In the event Subcontractor fails to maintain any and all insurance required by this Subcontract during the entire life of this Subcontract, Contractor may at its option, and without waiver of other available remedies, purchase such insurance in the name of Subcontractor and deduct the cost of same from payments due Subcontractor.
Subcontractor shall provide insurance that: (1) names Contractor and Owner as additional insureds for liability arising out of the Subcontractor’s work, including completed operations losses, without qualification, limitation or reservation; (2) is endorsed to be primary and non-contributory with any insurance maintained by Contractor or Owner; (3) does not contain a “cross liability” or similar exclusion that would bar coverage for claims between or among insureds; (4) contains a severability of interest provision in favor of Contractor and Owner; and (5) contains a waiver of subrogation against Contractor and Owner. Before commencing work, Subcontractor shall provide a copy of the additional insured endorsement to Contractor as evidence of additional insured status.
If Builder’s Risk or any other property insurance is provided by others, Contractor and Subcontractor waive all rights against each other and Owner, and subcontractors, agents and employees each of the other, for loss or, damage to the extent covered by Builder’s risk or any other property or equipment insurance, except such rights as they may have to the proceeds of such insurance. Subcontractor shall be responsible for that portion of the Builder’s Risk policy’s deductible (or self-insured retention) which is proportionate to the loss or damage resulting from acts or omissions attributable to Subcontractor. Subcontractor shall procure and maintain, at Subcontractor’s own expense, property and equipment insurance for portions of the Subcontract Work stored off the site or in transit. Contractor and Owner neither represent nor assume responsibility for the adequacy of the Builder’s Risk insurance to protect the interests of Subcontractor. It shall be the obligation of Subcontractor to purchase and maintain any supplementary property insurance that it deems necessary to protect its interest in the Work.
Contractor makes no representations that the required minimum amount of insurance is adequate to protect Subcontractor. The procuring and/or carrying of insurance shall not limit Subcontractor’s obligation or liability pursuant to this Subcontract or as a matter of law.
If the Subcontractor maintains higher insurance limits than the minimums required herein, the Contractor shall be insured for the full available limits of Commercial General and/or Excess or Umbrella liability maintained by the Subcontractor, irrespective of whether such limits maintained by the Subcontractor are greater than those required by this Agreement or whether any certificate of insurance furnished to the Contractor evidences limits of liability lower than those maintained by the Subcontractor.
- LOWER-TIER SUBCONTRACTORS
Any lower-tier subcontractor shall be bound to Subcontractor to the same extent Subcontractor is bound to Contractor and to the same extent Contractor is bound to Owner. This form may be used for lower-tier subcontracts and when so used the term “Owner” (in the General Conditions) shall include any entity in privity with Contractor for which Contractor performs work or assumes duties and/or obligations. This Section S and the lower-tier subcontractors’ obligations herein shall be included in each lower-tier subcontract and shall expressly cross-reference this Subcontract Section S.
- COMPLETE INTEGRATION / MODIFICATIONS
This Subcontract represents the entire integrated agreement between Contractor and Subcontractor with respect to the Project and supersedes all prior negotiations, proposals, price terms, assumptions, clarifications, correspondences, representations, or agreements, whether written, oral, express, or implied. No modification to, or waiver of any rights under, this Subcontract shall be valid or binding on the parties to this Subcontract unless the same be in writing and signed by Contractor. Failure of Contractor to insist upon strict performance of any term or condition of this Subcontract, or to exercise any option herein conferred on one or more instances, shall not be construed to be a waiver of such performance or option, or of any other covenants or agreements, on subsequent occasions, but the same shall be and remain in full force and effect. Without limiting the generality of the foregoing, the terms and conditions of Subcontractor’s proposal, if any, (whether attached or not attached to this Subcontract) shall not amend, add to or modify the terms of this Subcontract. If any Subcontractor proposal is attached hereto the only term or condition of the proposal which shall be binding on the parties is the pricing contained in the proposal.
- DISPUTES
(1) Claims: In the event of any dispute or claim between Contractor and Owner which directly or indirectly involves the Work performed or to be performed by Subcontractor, or in the event of any dispute or claim between Contractor and Subcontractor caused by or arising out of conduct for which Owner may be responsible, Subcontractor agrees to be bound to Contractor and Contractor agrees to be bound to Subcontractor to the same extent that Contractor is bound to Owner by the terms of the Main Contract and by any and all procedures and resulting decisions, findings, determinations, or awards made thereunder by the person so authorized in the Main Contract, or by an administrative agency, board, court of competent jurisdiction or arbitration. If any dispute or claim of Subcontractor is prosecuted or defended by Contractor together with disputes or claims of Contractor’s own, and Subcontractor is not directly a party, Subcontractor agrees to cooperate fully with Contractor and to furnish all documents, statements, witnesses, and other information required by Contractor for such purpose and shall pay or reimburse Contractor for all expenses and costs, including reasonable attorneys’ fees incurred in connection therewith, to the extent of Subcontractor’s interest in such claim or dispute.
Subcontractor agrees to be bound by the procedure and final determinations as specified in the Main Contract and agrees that it will not take, or will suspend, any other action or actions (including but not limited to any arbitration(s) or action(s) commenced pursuant to the Federal Miller Act, state lien statutes, Bond or Retainage Act(s)) with respect to any such claims and will pursue no independent litigation with respect thereto, pending final determination of any dispute resolution procedure between Owner and Contractor. It is expressly understood and agreed that as to any and all claims asserted by Subcontractor in connection with this project arising from the actions or fault of Owner, Contractor shall not be liable to Subcontractor for any greater amount than Owner is liable to Contractor, less any markups or costs incurred by Contractor. As to any claims asserted by Subcontractor for or on account of acts or omissions of Owner or its agents or design professionals, at the sole option of Contractor, Subcontractor agrees to prosecute such claims in Contractor’s name. For any amount recovered or collected (whether through proceedings or settlement) by Subcontractor, Contractor shall be entitled to 10% of such amount received or collected as its mark-up for such claims. Subcontractor shall have full responsibility for preparation and presentation of such claims and shall bear expenses thereof including attorneys’ fees.
(2) Arbitration/Litigation: At the Contractor’s sole option, all other claims, disputes, and other matters in question between Contractor and Subcontractor arising out of, or relating to, the Main Contract or this Subcontract, the breach thereof, or Work thereunder (for which a dispute resolution procedure is not otherwise provided in the Main Contract), shall be decided by arbitration conducted in accordance with the Construction Industry Arbitration Rules of the AAA then governing, or by an arbitrator mutually agreed upon by the parties. If Contractor elects to arbitrate any such dispute, Contractor and Subcontractor shall be bound by any findings and award of such arbitration finally and without recourse to any court of law other than for the enforcement of the arbitrator’s decision. As between the parties to this Subcontract, the substantially prevailing party in any arbitration shall be entitled to an award of its attorneys’ fees, costs and expert fees incurred. Contactor and Subcontractor expressly grant the arbitrator the authority to award attorneys’ fees and costs.
If the Contractor does not select Arbitration as the means of dispute resolution, all other claims, disputes and other matters in question between Contractor and Subcontractor arising out of, or relating to, the Main Contract or this Subcontract, the breach thereof, or work there under (for which a dispute resolution procedure is not otherwise provided in the Main Contract), shall be decided by an action filed exclusively in the Superior Court of Whatcom County, Washington. The parties irrevocably waive their right to federal court jurisdiction and their right to a trial by jury. The substantially prevailing party in any such litigation shall be entitled to an award of its attorneys’ fees and costs.
(3) Mediation: As a condition precedent to the hearing of any trial or arbitration, the parties to this Subcontract shall submit any and all disputes between them to non-binding mediation with the assistance of an experienced mediator. The parties shall each designate a representative with full settlement authority who will participate for at least four hours in the mediation. The parties shall bear equally all expenses, exclusive of attorneys’ fees, associated with the mediation.
(4) No claim, dispute, or controversy shall interfere with the progress and performance of the Work and, unless otherwise agreed in writing, Subcontractor shall carry on the Work and maintain the Construction Schedule as directed by Contractor pending resolution of any dispute, including arbitration or litigation, and, if so, Contractor shall continue to make payment of undisputed amounts due to Subcontractor in accordance with this Subcontract.
W. INDEMNIFICATION
Subcontractor shall defend, indemnify and hold harmless Contractor, its officers, employees and agents from every claim, risk, loss, damage, demand, suit, judgment and attorney’s fee, and any other kind of expense arising from, resulting from, or in any manner directly or indirectly connected with, performance of the Work under this Subcontract, by Subcontractor or Subcontractor’s agents, employees, sub-tier Subcontractors or suppliers, to the fullest extent permitted by law and subject to the limitations provided below:
Subcontractor’s indemnity obligations hereunder do not extend to liability resulting from the sole negligence of the Contractor, its agents, or employees.
If the claim, suit, or action for injuries, death, or property damage is caused by or results from the concurrent negligence of (a) the Subcontractor or its officer, employee or agent and (2) the Contractor, its officers, employees or agents, this indemnity provision shall be enforceable only to the extent of the negligence of the Subcontractor, its officers, employees, or agents.
FOR PURPOSES OF THE FOREGOING INDEMNIFICATION PROVISION ONLY, AND ONLY TO THE EXTENT OF CLAIMS AGAINST SUBCONTRACTOR BY CONTRACTOR UNDER SUCH INDEMNIFICATION PROVISION, SUBCONTRACTOR SPECIFICALLY WAIVES ANY IMMUNITY IT MAY BE GRANTED UNDER THE WASHINGTON STATE INDUSTRIAL INSURANCE ACT, TITLE 51 RCW OR ANY OTHER APPLICABLE FEDERAL OR STATE WORKERS’ COMPENSATION ACTS. THE INDEMNIFICATION OBLIGATION UNDER THIS SUBCONTRACT SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE TO OR FOR ANY THIRD PARTY UNDER WORKERS’ COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER EMPLOYEE BENEFIT ACTS.
Defense cost recovery shall include all fees (of attorneys and experts), and costs and expenses incurred in good faith. In addition, Contractor shall be entitled to recover compensation for all of its in-house expenses (including materials and labor) consumed in its defense. In the event of a dispute relating or pertaining to Subcontractor’s indemnity and defense obligations, Contractor shall be entitled to its attorney’s fees, expert fees, costs, and expenses incurred in proving Subcontractor’s indemnity obligations.
Subcontractor agrees that in the event a third-party timely brings a claim against Contractor for which Subcontractor owes a duty of defense and indemnification, then so long as Contractor brings a claim against Subcontractor no later than one (1) year after the filing of such claim against Contractor Subcontractor’s defense and indemnity obligations to Contractor under this Subcontract survive any limitation imposed by any statute of repose or limitation including but not limited to RCW 4.16.300, 4.16.310, or 4.16.326, and in such case Subcontractor hereby waives any and all defenses under any statue of repose or limitations. Subcontractor agrees that Contractor’s rights to defense, indemnity and to be held harmless by Subcontractor as set forth herein shall accrue upon discovery by Contractor of a claim, risk, loss, damage, demand, suit, or expense within the scope and coverage of this indemnification provision.
X. MISCELLANEOUS
This Subcontract shall be considered to have been made in and shall be interpreted under the laws of the State of Washington.
Any written notice required to be given to a party shall be deemed effective when: i) hand-delivered, ii) delivered via certified mail return receipt requested (or upon failure to accept receipt of the same) to the address of that party indicated above, or iii) emailed to the Contractor’s Project Manager and Project Foreman or Subcontractor’s Project Manager and Project Foreman, respectively. Subcontractor shall comply with all federal, state, and local laws, regulations and orders prohibiting discrimination on the basis of race, religion, sex, or national origin. This Subcontract represents the final understanding of the parties and Contractor assumes no responsibility for any different understanding or any representations made by any of its officers, agents, or others prior to the execution of this Subcontract unless expressly stated herein. Time is of the essence in this Subcontract.
Where this Subcontract requires some action be taken within five (5) or less “days,” the
“days” shall be measured as “work days” unless otherwise stated in that provision. A “work day” shall be any day that any work occurs on the Project site whether such day is a regular business day, weekend, or holiday. Otherwise, all references to “days” shall be “calendar days” unless otherwise stated in that provision.
Y. SEVERABILITY
In case any one or more of the provisions contained in this Subcontract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Subcontract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
Z. NEUTRAL AUTHORISHIP
Each of the provisions of this Subcontract has been reviewed and negotiated and represents the combined work product of all parties hereto. No presumption or other rules of construction which would interpret the provisions of this Subcontract in favor of or against the party preparing the same shall be applicable in connection with the construction or interpretation of any of the provisions of this Subcontract.
