SUBCONTRACTAGREEMENT
ALSTON CONSTRUCTION COMPANY INC., a California Corporation, hereafter called “Contractor” (“Contractor” shall also mean “Design-Builder” when used in the Prime Contract), with offices at One O'Hare Center, 6250 N. River Rd., Suite 4050, Atlanta, GA 30326, and [SUBCONTRACTOR], hereinafter called the “Subcontractor”, whoseaddress is: , StateContractor’sLicense No. ,phone: ,fax: , agree as follows (this “Agreement” or“Subcontract”):
Subcontractor having thoroughly investigated and informed itself of the conditions, locality and site of the Work, and nature and difficulty of the Work, by thorough examination and comparison of all plans and specifications, and Project site conditions insofar as they relate in any way to the Work to be undertaken herein such that Subcontractor can perform all Work and requisite duties, obligations and responsibilities, including those reasonably inferable there from, under this Agreement for the cost specified below, subject to adjustments as permitted in this Agreement, agrees to complete the Work described below to the best of its ability and in a professional and workmanlike manner, in strict accordance with the requirements herein, including all documents incorporated herein and details illustrative thereof. Subcontractor enters into this Agreement on the basis of its own examination, investigation and evaluation of all such matters and not in reliance upon any opinions or representations of Contractor, Owner, or any of their respective officers, agents, servants, oremployees.
1.Project Name: ProjectLocation: Owner:
2.Scope of Work: Subcontractor agrees to perform the following work (“Work”): Provide all material, labor, equipment, applicable permits, hoisting and supervisionrequiredto , and as additionally specified in ExhibitC
- Scope ofWork.
3.Subcontract Documen ts: The Subcontract Documents shall consist of thefollowing:
(a)thisAgreement;
(b)Addenda, ifany;
(c)Change Orders issued in accordance with Section13;
(d)the Prime Contract between Owner and Contractor for the Project, including all contract documents included thereto, as redacted by Contractor at its sole discretion (“PrimeContract”);
(e)SubmittalLog;
(f)CloseoutLog;
(g)Exhibit A – Plans, a list of which is attachedhereto;
(h)Exhibit B – Specifications, a list of which is attachedhereto;
(i)Exhibit C – Scope ofWork;
(j)Exhibit D – Contractor’s Schedule(“Schedule”);
(k)Exhibit E – Subcontractor SafetyRequirements;
(l)Exhibit F – Payment Application and Lien Waivers(Textura);
(m)Exhibit G – Prime Contract FlowDown;
(n)Exhibit H – Subcontractor WarrantyForm;
(o)ExhibitI –.
The Subcontract Documents are incorporated into this Agreement byreference.
In case of any inconsistency, conflict or ambiguity among the Subcontract Documents, the documents shall govern in the following order: (a) Change Orders and written amendments to this Agreement; (b) this Agreement, including Exhibits and Addenda; (c) the Prime Contract (however the Prime Contract or a portion of it shall take precedence over this Agreement) including Exhibits and Addenda; (i) to the extent a provision in the Prime Contract states that such provision must be inserted in this Agreement (i.e. Subcontract), or such similar language and intent, or (ii) the Prime Contract states that the Prime Contract as a wholetakesprecedenceoverthisAgreement;(d)Specifications;(e)Drawings;(f)approvedsubmittals;and(g)otherdocuments
listed in this Agreement. Information identified in one of the Subcontract Documents and not identified in another shall not be considered a conflict orinconsistency.
4.Subcontract Price: Contractor shall pay to Subcontractor, as full compensation for the performance of all Work and the furnishing of material and appliances of every nature which Subcontractor is obligated to perform and furnish under this Agreement, the following lump sumamount:
dollars andno/100------$(“SubcontractPrice”)
.1The Subcontract Price shall include all applicable Sales, Use, Franchise, Excise and other taxes, and license and permit fees, which may now or hereafter be levied orrequired.
.2Any increase in the Subcontract Price to be paid to Subcontractor hereunder shall be limited to the extent specified in Section 13 “Changes” in thisAgreement.
5.Owner – Contractor A greement (Prime Contract): To the fullest extent allowed by law, it is the goal of Contractor and Subcontractor under this Agreement that Contractor will only be liable to Subcontractor to the extent Owner is liable to Contractor. Therefore, with respect to the Work to be performed and furnished by the Subcontractor, Subcontractor shall comply with and be bound to Contractor by any and all of the obligations, duties, terms, conditions, and responsibilities in the Prime Contract as if incorporated herein in full, and in addition to all other rights and remedies Contractor may have under this Agreement, the Prime Contract, and under law, Contractor shall have the same rights and remedies against Subcontractor as Owner has towards Contractor as set forth in the Prime Contract as if each such right, remedy, term and provision were set forth in full herein. Where in the Subcontract Documents reference is made to Contractor and the provision pertains to a subcontractor or subcontractor's trade, craft or type of work, then such provision shall be interpreted to apply to Subcontractor instead of Contractor. This Agreement, the provisions of the Prime Contract and the other Subcontract Documents are intended to supplement and complement each other and shall, where possible, be thus interpreted. The Prime Contract, along with the other Subcontract Documents, has been made available to Subcontractor for its review and evaluation prior to execution of this Agreement, although certain confidential business terms and conditions may be redacted. In that regard, by executing this Subcontract, Subcontractor affirmatively represents that the Prime Contract and other Contract Documents have been made available for examination by Subcontractor at all reasonable times at Contractor’s office, and that Subcontractor has carefully examined and read the Prime Contract and other Contract Documents and understands all of the obligations, duties, terms, conditions, and responsibilities in the Prime Contract and Contract Documents as applicable to Subcontractor. Subcontractor hereby waives any claims against Contractor or Owner that the Prime Contract or other Subcontract Documents were not made available to Subcontractor prior to execution of this Agreement. Notwithstanding any of the foregoing, if any provision of this Agreement irreconcilably conflicts with a provision of the Prime Contract and the other Subcontract Documents, the provision imposing the greater duty or obligation or more strict limitations on Subcontractor shallgovern.
6.Time: Time is of the essence in the performance of the Subcontractor’s Work and with respect to all aspects of this Agreement. The Subcontractor shall commence Work promptly as directed by the Contractor and prosecute the same energetically and expeditiously, in full cooperation with the Contractor, other Subcontractors and in accordance with the requirements of the Subcontract Documents and Schedule as determined by the Contractor until fully completed and accepted by Contractor and Owner for the price specified herein. Subcontractor shall complete the Work in accordance with the Contractor’s Schedule, except as otherwise modified as permitted by the terms herein. If Contractor deems it necessary due to Subcontractor’s failure to timely perform Work in accordance with the Subcontract Documents and the Schedule, Subcontractor, at its own expense and on demand of Contractor, shall provide additional work forces, work overtime and additional shifts, and shall pay premium costs for material and for expediting the furnishing of materials and make other accommodations so as to meet the Contractor's Schedule. The Work under that Schedule shall be deemed to have commenced upon the earlier of a notice to proceed from Contractor or Subcontractor’s actual commencement of any portion of the Work. Subcontractor agrees to reimburse Contractor for any and all liquidated damages or other delay damages that may be assessed against Contractor by Owner, which are attributable to or caused in whole or in part by Subcontractor's failure to perform the Work as provided herein. In addition, Subcontractor agrees to pay to Contractor such other and additional damages as Contractor may sustain by reason of any delay or failure to perform the Work or any requirement under this Agreement by Subcontractor. Payment of such damages by Subcontractor shall not release Subcontractor from its obligation to otherwise fully perform this Agreement. Unless otherwise specified, the term day shall mean a calendarday.
7.Subcontractor’s Dutie s; Non-Assignability: Subcontractor shall at its sole cost and expense comply with all state, federal and local laws, ordinances, codes and regulations of all governmental authorities relating to the Work or persons involved in this Agreement, including but not limited to health, safety, employment, including compliance with prevailing wage laws, if applicable, taxes, building codes and environmental laws, employ labor under conditions satisfactory to the Contractor and remove and replace any employees unsatisfactory to the Contractor; protect its Work, the work of others and the Project from damage caused by its activities; secure and protect all its materials until permanently installed; furnish and maintain all insurance policies hereinafter required; insure its own risk in or about the Project; remove and replace promptly all its defective, deficient or non- conformingWorkor materialatitssolecostandexpense;coordinateitsWorkwith othersubcontractorsandvendors;and
immediately report to Contractor in writing any errors, inconsistencies, or omissions relating to its Work, any substrate or related work if Subcontractor’s Work shall be installed or performed on top of or in relation to another subcontractor’s work. By performing its Work on top of or in relation to another subcontractor’s work, Subcontractor represents that it has inspected the underlying or related work and that such work is sufficient to receive Subcontractor’s Work and such underlying or related work does not contain any patent defects or deficiencies. Subcontractor shall not assign or sublet this Agreement, or any portion hereof, nor any monies due or to become due Subcontractor hereunder, without previous written consent of the Contractor; and Subcontractor shall not deviate from said plans, specifications and details, except on written order of the Contractor. Subcontractor warrants and represents that Subcontractor, its sub-subcontractors and any other persons or entities of any tier retained by Subcontractor to perform any portion of the Work are licensed to perform the Work by all applicable public and governmental agencies and entities. Subcontractor shall prepare shop drawings and all submittals accurately and provide such shop drawings and submittals to Contractor in a timely manner in strict accordance with Contractor’s Schedule and Submittal Log. Contractor’s or Owner's review or approval of the Work shall not relieve Subcontractor of its obligations to perform the Work in accordance with the Subcontract Documents and in a good and workmanlike manner. Contractor’s or Owner’s review or approval of the Work shall in no way release, modify, reduce or affect Subcontractor’s responsibility (a) for performance of its Work in accordance with the Subcontract Documents and in a good and workmanlike manner, or (b) for deficiencies or defects in the Work; nor shall such review or approval constitute a waiver of Contractor's rights against Subcontractor under thisAgreement.
8.Subcontractor as Inde pendent; Indemnification: In consideration of the first $1,000 of the Subcontract Price and other good and valuable consideration, to the fullest extent permitted by law, the Subcontractor shall protect and fully indemnify, immediately defend and hold harmless theOwner, Contractor, and surety (and other entities identifiedin theOwner/Contractor agreement to be indemnified by the Contractor) and all of their respective employees, agents, consultants, parents, subsidiaries or affiliated companies, members, stockholders, officers, directors, insurers, successors and assigns (“Indemnified Parties”) from and against all claims, demands, suits, arbitrations, causes of action, liability, losses, damages, injuries (including death), penalties, fines, allegations, expenses, costs, attorneys’ fees, paralegal, consultants and expert fees, other legal expenses and dispute resolution costs, loss of use, liens, stop notices, or bond claims, of every kind and nature (“Claims”) arising out of, in connection with or incidental to Subcontractor's operations or Work under this Agreement, including without limitation any act or omission of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may beliable.
.1The indemnity obligatio ns herein and those contained in any other Subcontract Document shall survive the termination of this Agreement for any reason and shall survive both Subcontractor’s and Contractor’s completion of their Work on the Project. In all instances, this indemnity obligation shall survive irrespective of whether Subcontractor’s insurance coverage as required by this Agreement has been maintained, changed, cancelled, or otherwise terminated since the termination of this agreement or since Subcontractor’s or Contractor’s completion of their Work. Nothing in this provision or Agreement shall relieve the Subcontractor of its duty to defend the Indemnified Parties pending determination of the respective liabilities of the Subcontractor, its sub-subcontractors of any tier, material suppliers, vendors, anyone else for whom Subcontractor is responsible or who is performing any portion of the Work and the IndemnifiedParties.
.2It is agreed with respec t to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under this Section 8, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force andeffect.
.3In the event the Indemn ified Parties must take action to enforce their rights under the indemnification provisions of this Section 8, the Indemnified Parties shall be entitled to recover their reasonable attorneys' fees and costs and all other expenses incurred in pursuing and enforcing their rights under this indemnificationprovision.
.4The indemnification ob ligation in this Section 8 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor under workers' compensation acts, disability benefit acts, employee benefit acts or other legislation or rule of law, whether legislative, judicial, and administrative or commonlaw.
.5The acceptance by Co ntractor of any certification of insurance to be provided by Subcontractor pursuant to this Agreement shall in no event be deemed a waiver of any of the provisions of these indemnity obligations. The indemnifications set forth in this Section 8 shall not be limited by the insurance requirements set forthherein.
9.Insurance: Certificates of Insurance and Endorsements in compliance with this Section 9 will be furnished to Contractor prior to commencement of any Work on the Project. Subcontractor shall, at its sole cost and expense, procure and maintain the following insurance covering Subcontractor’s Work and obligations under this Agreement on all of its operations with companies lawfully authorized to do business in the jurisdiction in which the Project is located acceptable to Contractor for the life of this Agreement, or for such time that Contractor may be subject or exposed to claims, lawsuits or liability under Federal or State law involving the Work, whichever is longer; however, in no event less than three (3) years from the date of Substantial Completion of the Project (“Required InsurancePeriod”):
.1Workers’ Compensation covering Subcontractor and all employees and as required by law including Employers Liability with minimum limitsof:
a.Bodily injury by accident: $1,000,000 each accident
b.Bodily injury by disease: $1,000,000 eachemployee
c.Bodily injury by diseas e: $1,000,000 policylimit
d.If leased employees are used, issuance of an Alternate Employer’s Endorsement namingContractor.
.2Commercial General Liability: Commercial General Liability Insurance shall be on ISO CG0001 12/07 or an equivalent form, and shall have the following limits and requirements: a minimum $1,000,000 per occurrence, or the greatest amount available under the policy (per occurrence or aggregate), whichever is greater, with a maximum deductible or Self Insured Retention of $25,000 or as approved by Contractor, $2,000,000 general aggregate, $2,000,000 products/completed operations aggregate including products/completed operations for the duration of the Required Insurance Periodand,
a.Additional Insureds: Contractor,Owner,or other Indemnified Party, and all oftheirrespectiveemployees, agents, consultants, parents, subsidiaries or affiliated companies, members, stockholders, officers, directors, insurers, successors and assigns, and other entities as may be reasonably requested or required by the Prime Contract, shall be named as additional insureds under these policies, whether during the performance of the Work or any time thereafter, that may in any respect be applicable to matters, claims or suits arising out of or related to this Agreement. The insurance afforded to the Additional Insured’s shall be at least as broad as that afforded to the first named insured under Subcontractor’s policy(ies). Subcontractor and its sub-tier subcontractors shall furnish Contractor with an original certificate of insurance and original additional insured endorsement(s) for the coverage required hereunder before commencement of theWork;
(The ISO CG2010 11/85 form; CG2010 10/01 with CG2037 10/01 forms; or their equivalents meet this requirement. Subcontractor’s coverage and responsibility shall be for liability arising from “your work” or “your operations”. “Your ongoing operations” language alone is notacceptable.)
A Blanket Additional Insured Endorsement providing coverage to Contractor, Owner, and all other additional insureds identified in this Agreement that meets the coverage requirements listed herein is acceptable; however, any additional insured endorsements must include products/completed operations coverage for the Additional Insureds, and shall be provided to the Additional Insureds for no less than three