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SAMPLE SUBCONTRACTOR AGREEMENT

THIS AGREEMENT, made and entered into this  ("Contract Date") by and between

 GENERAL CONTRACTOR NAME
 (hereinafter called the "Contractor") and

 SUBCONTRACTOR NAME
 (hereinafter called "Subcontractor") for work to be performed at

 PROJECT NAME                
(hereinafter referred to as the "Project").

 Contractor and Subcontractor covenant and agree as follows:

ARTICLE 1 SCOPE OF WORK

a.  Subcontractor agrees to perform and furnish all the work, labor, materials, as herein specified, and plant, equipment, tools, scaffolds, hoists, and everything of sort for accomplishing the work (hereinafter called the "Work") as described in the attached Exhibit 2, “Scope of Work”


b.  Subcontractor represents that it is fully qualified to perform this Agreement. Subcontractor hereby agrees that the Work will be performed in strict accordance with the Contract Documents as hereinafter defined in Article 2 and any Work not conforming to this Agreement's requirements, including substitutions not properly approved, may be considered defective.  Subcontractor agrees to perform the Work to the full satisfaction of Contractor, the Inspecting Architect, and the Owner.  Subcontractor shall commence the Work immediately when notified by Contractor and shall prosecute said Work in a good and workmanlike manner with due diligence and without delay.  The Subcontractor shall immediately repair or replace all defective Work upon discovery or notification by the Contractor.  The Contractor reserves the right to have any portion of the Work, which the Subcontractor has not been directed to proceed with or has not begun, accomplished by his own forces or by others. 

c.  Subcontractor shall assume all obligations, risks and responsibilities, which the Contractor has assumed with respect to the Owner in accordance with the Contract Documents. Subcontractor shall have the right to enforce its rights and remedies and to defend against claims against it by the Owner as provided herein.

d.  This agreement is fully inclusive and shall not be affected by any changes in labor rates, transportation charges, costs of materials, etc., and the Subcontractor agrees that the price includes all taxes that he shall incur as a result of his prosecuting the Work.
ARTICLE 2 CONTRACT DOCUMENTS

a.  The Contract Documents for this Subcontract shall consist of this AGREEMENT and the EXHIBITS:||

     Exhibit 1 – List of Contract Documents
     Exhibit 2 – Scope of Work
     Exhibit 3 – General Requirements for Subcontractors (included in this sample)
     Exhibit 4 – Payment Schedule 
     Exhibit 5 – Insurance Requirements (included in this sample)
     Exhibit 6 – Tax Payer Identification Number
     Exhibit 7 – Acknowledgement of Payment and Settlement Date 
     Exhibit 8 – Payment & Performance Bond (if applicable)
     Exhibit 9 – Project Schedule
     Exhibit S – Subcontractor Safe Start Agreement
     Other Exhibits as required by Project

     The Contract Documents also include the contract between Contractor and Owner which contract is incorporated by reference, as set forth in Article 5 herein, and any subsequent amendment to any Contract Document. 


b.  Subcontractor represents and agrees that prior to the execution of this Agreement, it has (a) by its own independent investigation ascertained (i) the work required by this Agreement and the Contract Documents, (ii) the conditions involved in performing the work, and (iii) the obligations of this Agreement and the Contract Documents; and (b) verified all information furnished by the Contractor or others satisfying itself as to the correctness and accuracy of that information, No allowance in the form of additional compensation is to be made by reason of any error on the part of Subcontractor with respect to such matters, nor will Subcontractor be relieved from its responsibilities hereunder by its failure to properly investigate.  This Subcontractor Agreement and Exhibits attached hereto shall constitute the complete contract and all prior negotiations, prior commitments and prior agreements whether oral or written are superseded hereby.  This Agreement may only be amended by a writing, including a change order issued by the Contractor and signed by both parties. 

ARTICLE 3 CONTRACT SUM AND PAYMENT PROCEDURES

a.  The Contractor agrees to pay to the Subcontractor for the satisfactory performance and completion of the Work and of all the duties, obligations and responsibilities of Subcontractor under this Agreement the Sum of ZERO DOLLARS AND ZERO CENTS, ($0.00)hereinafter, the Subcontract Amount.

b.  Partial payments will be made monthly on approximately the   day of each month following receipt of payment by the Contractor from the Owner for Work completed by this Subcontractor during the previous month, provided the Subcontractor shall have submitted its request for payment on or before the  DAY day of such previous month.  Partial payments shall be due to the Subcontractor in the amount of NaN% of the work in place which has been approved by the Contractor, Owner, the Owner’s Lender and Inspecting Architect and for which payment has been made to the Contractor by the Owner.  All payments will be made per the Payment Schedule attached hereto as Exhibit “4” and made a part hereof. A request for payment for an item noted in the Payment Schedule may only be made by the Subcontractor upon completion of that item to the satisfaction of the Contractor, Inspecting Architect and Owner. 

c.  All invoices shall be supported to the extent required by the Contractor by affidavits, or other evidence satisfactory to Contractor, showing that all labor and material bills, taxes and all other indebtedness incurred by the Subcontractor for the Project up to and including the date of invoicing have been paid in full. The Contractor may at its sole discretion withhold payments due the Subcontractor until satisfactory evidence of payment of all the Subcontractor's obligations has been accomplished.  A Partial Waiver of Lien and Subcontractor’s Affidavit shall be provided with each request for payment, including the current request for payment, and a Final Waiver of Lien and Subcontractor's Affidavit shall be submitted with request for final payment.  All Waivers of Lien and Subcontractor's Affidavits shall be in a format acceptable to the Contractor.

d.  No payment (final or otherwise) made under or in connection with this Agreement shall be conclusive evidence of the performance of the Work or of this Agreement, in whole or in part, and no such payment shall be construed to be an acceptance of defective, faulty or improper work or materials nor shall it release Subcontractor from any of its obligations under this Agreement; nor shall entrance and use by the Owner constitute acceptance of the Work or any part thereof.

e.  Anything herein contained to the contrary notwithstanding, the Contractor reserves the right, at its sole discretion and without any fault or breach by Subcontractor, to make any payments directly to laborers, materialmen, subcontractors, sub-subcontractors, or any subcontractors or materialmen of any of them, for or on account of work performed or materials furnished under this Agreement. If such payments are made in good faith and upon reasonable evidence of their validity, the Contractor shall have no liability to Subcontractor in connection therewith and shall deduct such payments from any balance owed to the Subcontractor.

f.  Subcontractor shall, prior to the submission of the first request for payment, supply Contractor with the names, addresses and telephone numbers of all suppliers furnishing or to furnish materials for the Work covered hereby.  No payment shall be made to Subcontractor until such information is furnished.  Contractor reserves the right and is hereby authorized by Subcontractor to make all payment checks jointly payable to Subcontractor and material suppliers of Subcontractor. 

g. All material and work incorporated into the Project or for which partial payment has been made shall become the property of the Contractor or, if the Contract Documents so provide, the property of the Owner; however, this provision shall not relieve Subcontractor from the sole responsibility and liability for all work and materials upon which payments have been made until final acceptance thereof by the Owner.

h.  The Contractor may withhold amounts otherwise due under this Agreement or any other agreement between the parties to cover the Contractor's reasonable estimate of any costs or liability the Contractor has incurred or may incur for which Subcontractor may be responsible under this Agreement or any other agreement between the parties. For purposes of this paragraph, the phrase "any other agreement between the parties" shall be deemed to include any agreement between Subcontractor and the Contractor or any joint venture or other entity in which the Contractor has an ownership interest. Appropriate adjustments to the withheld sums shall be made when the exact amounts owed are determined.

i.  Final payment, subject to withholdings permitted hereunder, shall not be due until after the last of the following to occur: (a) Subcontractor's work has been completed and approved by the Owner and the Inspecting Architect, (b) the entire Project is complete, (c) all final payment prerequisites under the Contract Documents have been satisfied, (d) satisfactory proof of payment of all amounts owed by Subcontractor in connection with this Agreement has been provided, and (e) the Contractor has been paid in full for the entire Project.

ARTICLE 4 LIEN RIGHT 

a.  Subcontractor acknowledges that no lien shall attach to the Project real estate by virtue of any work done hereunder by the Subcontractor or by any suppliers, employees, materialmen, or others subcontractors employed by him if the Subcontractor is paid to date in accordance with this Agreement for work accepted and approved; and the Subcontractor warrants that all such parties shall be advised of the same and shall certify to the Contractor that they are aware thereof and bound thereby. 

b.  Subcontractor will immediately discharge or cause to be discharged all liens, claims or attachments which may be filed in connection with the Work and will hold Contractor harmless therefrom if Subcontractor is paid to date for work accepted and approved. Failure to comply with the requirements of this Article within a period of seven (7) days after receipt of written notice from the Contractor of any lien, claim or attachment that may have been filed in connection with the Work shall place the Subcontractor in default and entitle the Contractor to exercise any of its remedies, including the right to terminate this Agreement in accordance with the provisions of Article 13.

c.  In the event that the Subcontractor fails to pay and discharge when due, any bills or obligations of any kind or nature whatsoever incurred by the said Subcontractor by reason of or in the fulfillment of this Agreement, whether or not a lien or notice of lien has been or may be filed with respect thereto, which bills or obligations in the opinion of Contractor are proper, the Contractor, at its sole option but without being obligated to do so, may pay all or any part of such bills or obligations. The Subcontractor hereby appoints the Contractor as agent and attorney-in-fact of the Subcontractor for the purpose of payment and discharging such bills and obligations, and the Contractor may deduct the amount of such bills as well as any expenses incurred in the payment of same, including interest, court costs and attorney's fees, from any sums due or to become due to the Subcontractor.  The Subcontractor hereby expressly waives any right of redress or recovery against the Contractor by reason of any act or omission of the Contractor while acting as such agent and attorney-in-fact of the Subcontractor. 

ARTICLE 5  SUBCONTRACTOR BOUND BY OWNER/CONTRACTOR AGREEMENT 

a.  In respect to the Work covered by this Agreement, the Subcontractor shall be bound to the Contractor by the terms of this Agreement and the contract between the Owner and Contractor, and shall assume toward the Contractor all the obligations, risk and responsibilities which the Contractor, by that contract, assumes toward the Owner, provided that where any provision of those contract documents between the Owner and Contractor is inconsistent with any provision of this Agreement, this Agreement shall govern.

b.  In event of a dispute between Contractor and Owner involving in any way the work of Subcontractor and if such dispute results in a proceeding, to which Subcontractor may become a party, then Subcontractor will join in such proceeding and will be bound by the result thereof. 

ARTICLE 6  TIME IS OF THE ESSENCE  

a.    Time is of the essence in the performance of the Work referred to in the Contract Documents, inasmuch as failure of the Subcontractor to commence and complete its Work as and when required by the Contractor may cause grave injury and damage to the Contractor by virtue of increased costs for construction financing, loss of interest on invested funds, loss of sales and good will, delayed receipt of income from rental units, extension of overhead costs and otherwise.  Accordingly, the Subcontractor shall be prepared to commence Work within seven (7) days after receipt of notice from the Contractor to do so and will thereafter actually commence Work when and as required to do so by the Contractor.  Such notice shall be given as the Project reaches the stage of construction, in accordance with the plans and specifications, where the Subcontractor's services are to be used, or at such earlier date as set forth in any supplement hereto.  The Subcontractor further agrees to prosecute the Work with due diligence and will not in any manner delay or otherwise interfere with the work of the Contractor or other subcontractors.

b.  Subcontractor agrees to conform with the progress schedule, which the Contractor shall issue. This schedule shall allow the Subcontractor adequate time to complete his Work and, unless the Contractor is notified otherwise by the Subcontractor in writing within five (5) days of the receipt of the schedule, it shall be binding on the Subcontractor.  The Contractor reserves the right to amend the progress schedule from time to time as the overall progress of the Project dictates, and the Subcontractor hereby discharges the Contractor from any liability incurred on account of such changes.

c. If, however, the progress of the Work or of the Project be delayed by any fault or neglect or act or failure to act of the Subcontractor, then the Subcontractor shall, in addition to all of the other obligations imposed by this Agreement upon the Subcontractor and at its own cost and expense, work such overtime as may be necessary, in the opinion of the Contractor, to make up for all time lost and take all necessary measures to avoid delay in the completion of the Work and of the Project, and, in any case, Subcontractor shall be responsible for all loss, costs and damages incurred by the Contractor as a result of such delay, including but not limited to all delay damages assessed against the Contractor by the Owner.

d.  Subcontractor will coordinate its work with the work of the Contractor, other subcontractors, and the Owner's other contractors, if any, so no delays or interference will occur in completion of any part or all of the Project.

e.  Subcontractor may be entitled to additional compensation for compliance with schedule amendments or to damages for delay but only to the extent that the contract documents between the Owner and Contractor entitle the Contractor to damages or to a contract adjustment increasing the price or Guaranteed Maximum Cost of the contract between the Contractor and Owner. 

f. The extent to which the Contractor provides temporary heat and temporary enclosures shall be at the sole discretion of the Contractor and shall be based upon general overall job progress, and the Subcontractor understands that the Project and Subcontract Amount are based upon this condition.

ARTICLE 7  CHANGE ORDERS AND FIELD WORK ORDERS

a.  The Contractor may, at any time, unilaterally or by agreement with Subcontractor, without notice to the sureties, make changes in the Work covered by the Contract Documents. Any unilateral order or agreement under this Article 7 shall be in writing.  Subcontractor shall perform the work as changed without delay. 

b.  Subcontractor shall submit to the Contractor any requests or claims for adjustment in the price, schedule or other provisions of the Agreement for changes directed by the Owner or the Contractor, as a result of deficiencies or discrepancies in the Contract Documents, or for circumstances otherwise permitted by the Contract Documents. Said requests or claims shall be submitted in writing by Subcontractor within seven (7) days of the date that Subcontractor knew or should have known that it had a claim for an adjustment or within such shorter time as may be necessary to allow the Contractor to comply with the applicable provisions of the Owner-Contractor agreement.  If the claim is not made within seven (7) days or the appropriate shorter period, the claim is waived.  The Contractor shall process said requests or claims in the manner provided by and according to the provisions of the Contract Documents so as to protect the interest of Subcontractor and others including the Contractor.  Agreement adjustments shall be made only to the extent that the Contractor is entitled to relief from or must grant relief to the Owner and the Subcontractor has complied with this Article.  Further, each Agreement adjustment shall be equal only to Subcontractor's allocable share of any adjustment in the Contractor's contract with the Owner.  Subcontractor's allocable share shall be determined by the Contractor, after allowance of the Contractor's normal overhead and profit on any recovery and the Contractor's expense of recovery, by making a reasonable apportionment, if applicable, between Subcontractor, the Contractor and other subcontractors or persons with interests in the adjustment.  This paragraph shall also cover other equitable adjustments or other relief allowed by the Contract Documents.

c. Payment on account of pending changes made by the Owner shall be made only if the Contractor receives such payment from the Owner for Subcontractor's changed work and the Subcontractor has complied with this Article. Each payment to Subcontractor on account of pending change orders shall be equal to Subcontractor's allocable share of the Contractor's payment from the Owner for the pending change as determined by the Contractor.  Amounts paid on account of pending changes are provisional and not an admission of liability and shall be repaid to the Contractor on demand whenever the Contractor determines there has been an overpayment.

d.  For changes ordered by the Contractor independent of the Owner or the Contract Documents, Subcontractor shall be entitled to equitable adjustment in the Subcontract Amount. If Subcontractor considers any action or inaction by the Contractor other than a formal change order to be a change, it shall so notify the Contractor within three (3) days of said action or inaction and seek a confirmation from the Contractor.  Failure to comply with said confirmation procedure shall constitute a waiver of the right to compensation for the action or inaction.

e. For all changes in the work, the Subcontractor shall charge no more than the actual labor cost, including burden, of those individuals actually performing the changed work plus the actual cost of materials, including the cost of delivery, plus the actual direct cost of equipment utilized in the performance of the changed work, which in no event shall be greater than Industry Standards. The Subcontractor’s markup for overhead and profit on the actual direct labor and material cost shall not be greater than that allowed by the Contract Documents and in no event shall be greater than 15%.  Overhead and profit shall not be charged on change orders, which are the result of another subcontractor’s performance (i.e., a backcharge to another subcontractor).  Subcontractor shall, at the Contractor’s request, provide copies of payroll invoices, cancelled checks, invoices, receipts for all labor and material, and/or other documents which relate to a change. 

f. Subcontractor shall, within seven (7) days of a Contractor request, submit a reasonable price quotation for proposed changes. If Subcontractor does not and the Contractor is required to submit a price quotation to the Owner which includes a proposed change to Subcontractor's work, the Contractor shall use its best estimate of the proposed change as it affects the Agreement in its quotation to the Owner, which estimate shall be the maximum equitable adjustment due to Subcontractor.

g.  In no event shall the Subcontractor perform any additional work without first receiving written authorization to do so from the Project Manager for the Contractor. Field staff, including Contractor's superintendents, are not allowed to give such authorization.  Any claim for an adjustment that did not receive prior written approval from the Project Manager is void.

ARTICLE 8  COMPLIANCE WITH LAWS, ORDINANCES, ETC.  

a.  The Subcontractor shall obtain all permits, licenses, and other governmental fees of any kind that may be necessary for the proper performance of its Work. Subcontractor shall cooperate fully with and obtain such additional permits, if any, which may be required so that Contractor may at Contractor's cost and expense, connect with, attach to or add to Subcontractor's Work.  All fees for such additional permits shall be paid by Contractor.  The Subcontractor, its employees and all others acting under its direction or control, shall at all times comply with and abide by all Local, State and Federal statutes, ordinances, rules and regulations as well as those of any other public body having authority concerning the Work, including but not limited to the Occupational Safety and Health Act and all similar state and local safety codes and the Immigration Reform and Control Act of 1986 and any other applicable immigration laws or regulations.  The Subcontractor shall assume all liability and responsibility for all royalties, licenses, patent fees, and any other charges made in connection with the use of patented processes upon the Work or in connection therewith.  Subcontractor shall be responsible for the payment of all taxes of any nature related to the performance of its Work and shall pay all contributions and taxes for unemployment insurance or old age retirement benefits, annuities or pensions now or hereafter imposed by the United States or any state or governmental subdivision thereof, or labor organization measured by the wages, salaries or other remuneration paid persons employed by the Subcontractor engaged in the performance of the Work.  The Subcontractor shall comply with all rules and regulations applicable thereto.  In the event that the Contractor is held liable for payment of any taxes, penalties, fines or contributions as a result of the Subcontractor's noncompliance with the provisions of this Article, the Subcontractor shall supply the Contractor with all records necessary to compute such taxes or contributions and shall fully reimburse the Contractor upon demand for the amount thereof (including penalties and interest).  The Subcontractor shall hold and save the Contractor harmless and indemnified against all claims including attorney's fees, arising out of any violation or noncompliance with the provisions of this Article.

b.  If hazardous substances are being used or located on site by the Subcontractor or the Subcontractor's subcontractors, the Subcontractor shall immediately give written notice to the Contractor of its chemical composition and dangers. If the Subcontractor encounters asbestos, PCB, or other hazardous substances while completing its Work, Subcontractor shall immediately stop work and notify the Contractor's representative at the Project site.

ARTICLE 9 INSURANCE 

a.  This Subcontractor shall provide insurance in accordance with the requirements of Exhibit #5 attached hereto and the Subcontract Amount includes the cost of said insurance. The Subcontractor shall provide certificates of insurance naming the Contractor, the Owner, and such other parties designated in Exhibit #5 as named insureds, on all insurance coverages set forth in Exhibit #5.

b. Evidence of insurance coverages noted in Exhibit #5 shall be provided to the Contractor at least seven (7) days prior to the start of any work by the Subcontractor in the field. Any failure to so provide such insurance coverage on behalf of the Contractor, the Owner or other parties shall not relieve this Subcontractor in any way of his responsibilities, obligations and indemnification of the Contractor and the Owner from any acts, damages, accidents, injuries, claims and  the like, that occur at the Project site as a result of the operations and activities of this Subcontractor.  This Subcontractor agrees to indemnify, defend (with counsel chosen by Contractor), and hold harmless the Contractor and Owner in all respects thereto. Insurance shall be carried by this Subcontractor for the duration of the entire construction of the Project including The Guarantee Period.  All insurance provided by the Subcontractor on the Project is non-cancelable without first providing the Contractor with thirty (30) days advance notice by registered mail of said cancellation.  Failure to maintain insurance coverage as described hereto and further set forth in Exhibit #5 shall be a breach of this Agreement by the Subcontractor.

c. Subcontractor waives all rights of recovery against the Contractor, the Owner, and such other parties as are required by the Contractor and/or the Contract Documents for losses within the scope of Subcontractor's insurance. Subcontractor will ensure that its subcontractors also waive such claims against the Contractor and Owner.

d. If the Subcontractor fails to secure and maintain the required insurance, the Contractor shall have the right (without any obligation to do so, however) to secure the insurance in the name of and for the account of the Subcontractor, in which event, the Subcontractor shall pay the cost thereof and shall furnish, upon demand, all information that may be required in connection therewith.

e.  The obligations of Subcontractor in this Article shall survive termination of this Agreement.

ARTICLE 10 ASSIGNMENTS 

a.  Subcontractor shall neither assign this Agreement nor employ other subcontractors for the execution of any part or all thereof without the express written approval of the Contractor and the Subcontractor’s surety. Such consent, if given, shall not release the Subcontractor from its obligations hereunder.  The Subcontractor agrees that it will be responsible for the acts and omissions of its subcontractors, sub-subcontractors and their employees to the same extent that it is responsible for acts and omissions of persons directly employed by it.  The Subcontractor agrees to bind every subcontractor and sub-subcontractor, and every subcontractor and sub-subcontractor agrees to be bound, by the terms of the Contract Documents so far as they are applicable to its Work.


b.  Subcontractor, by execution of this Agreement, contingently assigns to the Contractor all Subcontractor's subcontracts. The assignment of each of Subcontractor's subcontracts shall take effect only upon Subcontractor's termination for default under Article 13 and the Contractor's affirmative acceptance of the assignment of the specific subcontract by written notice to Subcontractor and Subcontractor's subcontractor.  The Contractor shall have no liability to any of Subcontractor's subcontractors unless and until the Contractor affirmatively accepts the assignment as provided above.

c.  In the event of a termination by the Owner of the Contractor for default under the Owner/Contractor contract, the Owner may take assignment of this Agreement. 

d.  This Agreement shall inure to the benefit of Contractor and its successors, and assigns, heirs and legal representatives, and shall be binding upon Subcontractor, its successors and permitted assigns, if any, pursuant to the terms hereof.  
ARTICLE 11 LOSS OR DAMAGE TO WORK  

a.  The Contractor shall not be responsible for loss or damage to equipment or materials belonging to the Subcontractor, except where incorporated or installed into the Project in a satisfactory manner in accordance with the provisions of this Agreement. The Contractor shall not be responsible for loss or damage to materials, tools, equipment, or other personal property owned, rented, or used by the Subcontractor or anyone employed by it in the performance of the Work, however caused. 

b.  Subcontractor shall pay for any damage to the work of another caused by Subcontractor, its employees, subcontractors, sub-subcontractors or agents. Subcontractor shall not claim or be entitled to receive any compensation or damages because of failure of Owner, Architect or Contractor or other subcontractors to have related portions of the Project completed in time for the Subcontractor's Work. 

c.  Subcontractor shall protect its work, materials, tools and equipment against any loss or damage by fire, theft, accident or other cause. In the event of any injury, loss or damage to Subcontractor, its agents or employees or to its work, materials, or equipment, Subcontractor shall make no claim against Contractor by reason thereof.
ARTICLE 12 CLEANUP 

a.  All debris resulting from the Work shall be removed from the Work areas by the Subcontractor to locations on the Project Site designated by the Contractor as and when instructed by the Contractor's Superintendent. The Contractor shall have the right, where the Subcontractor fails to comply with its obligations under this Article, after 24 hours prior written notice, to accomplish the Subcontractor's cleanup with its own forces and equipment, and withhold the amount of all costs incurred in so doing from any amounts due the Subcontractor.
ARTICLE 13 SUBCONTRACT’S FAILURE TO PERFORM OR DEFAULT 

a.  If, in the sole opinion of the Contractor, Subcontractor shall at any time (1) refuse or fail to provide sufficient properly skilled workers, adequate supervision or material of the proper quality, (2) fail in any material respect to prosecute the Work according to the Contractor's current schedule, (3) cause, by any action or omission, the stoppage or delay of or interference with the work of the Contractor or of any other contractor or subcontractor, (4) fail to comply with any provision of this Agreement or other Contract Documents, (5) make a general assignment for the benefit of its creditors, (6) have a receiver appointed, or (7) become insolvent, then, after serving three (3) days' written notice and the Subcontractor fails to eliminate the condition specified in that notice within the time allowed, the Contractor, at its option, without voiding the other provisions of this Subcontract and without notice to the sureties, may (i) take such steps as are necessary to overcome the condition, in which case the Subcontractor shall be liable to the Contractor for all cost, expenses, and damages resulting therefrom, (ii) terminate this Agreement, or (iii) obtain specific performance or interlocutory mandatory injunctive relief requiring performance of Subcontractor's obligations hereunder, it being agreed by Subcontractor that such relief may be necessary to avoid irreparable harm to the Contractor and/or the Owner. In the event of termination by the Contractor, the Contractor may, at its option, (a) enter on the premises and take possession, for the purpose of completing the Work, of all materials and equipment of Subcontractor, (b) take assignment of any or all of Subcontractor's subcontracts, and/or (c) either itself or through others complete the Work by whatever method the Contractor may deem expedient.  In case of termination by the Contractor, Subcontractor shall not be entitled to receive any further payment until the work shall be fully completed and accepted by the Owner and payment in full is made by the Owner.  At such time, if the unpaid balance of the price to be paid shall exceed the amount of all costs, expenses, and damages incurred by the Contractor including its reasonable overhead and profit, such excess shall be paid by the Contractor to Subcontractor.  If such amount shall exceed such unpaid balance, the Subcontractor shall pay the Contractor the difference immediately upon demand.

b. If the Contractor wrongfully exercises its option under Article 13, that action shall be treated as a deductive change. If the Contractor wrongfully exercises its option under Article 13, that termination for default shall be considered a termination for the Contractor's convenience and Subcontractor shall be entitled to the applicable compensation provided in Article 18.  Subcontractor's remedies under this Article 13.b. shall be exclusive.  Nothing herein shall bar withholdings by the Contractor permitted by other provisions of this Agreement. 

c.  Any claim arising out of or related to this Agreement shall not be subject to any requirement to mediate or arbitrate unless the parties mutually agree to such a proceeding. Any mutual agreement to mediate or arbitrate any one claim shall be strictly limited to the one claim and no other.
ARTICLE 14 GUARANTEES 

a.  Subcontractor warrants and guarantees that all the Work shall be free from defects in workmanship and materials at the time that it is completed and for a minimum period of one (1) year from date Owner accepts the Project (hereinafter the “Guarantee Period”) and promptly upon Contractor's request, will correct by repair or replacements, without charge, any such defects (and any damage to other property, including without limitation the work of other subcontractors resulting therefrom or from the correction thereof) which may appear in the Work. Where the contract documents between the Owner and Contractor, or governmental bodies or agencies require guarantees extending beyond one year, or any additional warranties or guarantees are included in this Agreement, the Subcontractor's obligation shall remain in effect for such extended period of time.                   

b. If the Subcontractor fails to commence and to complete the repair or replacement of improper or defective work, as specified, within a reasonable period of time as determined by the Contractor in its sole discretion, the Contractor may proceed to arrange to have such work completed and do so by whatever method it may deem expedient and may charge the cost thereof against any monies due to the Subcontractor. If the unpaid balance of the Subcontract Amount shall exceed the expense of finishing the Work, including proper allowance for additional managerial and administrative expenses, such excess shall be paid to the Subcontractor.  If such expense shall exceed such unpaid balance, the Subcontractor shall pay the difference to the Contractor immediately upon demand.             

c.  If the Subcontractor shall cover any portion of the Work prior to the Inspecting Architect having a reasonable time and opportunity to inspect, the Subcontractor, upon the request of the Architect, shall uncover that portion of the Work, and the costs of uncovering and replacing the Work shall be at the Subcontractor's sole expense.

d.  The obligations of Subcontractor in this Article shall survive termination of this Agreement.
ARTICLE 15 LABOR TO BE EMPLOYED/SUBCONTRACTOR REPRESENTATIVE 

a.  The Subcontractor shall not employ men, means, material or equipment which may cause strikes, work stoppages or any disturbances by workmen employed by the Subcontractor, Contractor, or other subcontractors on or in connection with the Work or the Project or the location thereof. 

b.  Subcontractor understands that the Contractor, other subcontractors and/or other contractors of the Owner may employ both Union and NonUnion workers on the Project. If required by the Contract Documents or specified in an Exhibit to this Agreement, Subcontractor agrees to employ Union labor. 

c.  The Subcontractor shall at all times enforce strict discipline and good order among its employees and shall not employ on the Work any person unfit for or not skilled in the work assigned to him. Subject to the foregoing and to preserving good relations with the public and requiring the discharge of any employees causing a breach of peace or other disturbance of said relations, the Contractor shall not in any way interfere with the Subcontractor's right to hire and fire its employees, assign duties to them, and fix their working hours, wages or terms and conditions of employment, which right shall be absolute.  Exceptions to this provision shall apply in those instances where Federal, State or Local Agencies having jurisdiction over the Project dictate a level of prevailing wage or oversee and establish minimum working standards or establish non-working hours for the Project. 

d.  Subcontractor shall maintain a foreman on the job at all times with full authority and expertise to execute and direct the Subcontractor's Work in accordance with the Contract Documents and as directed by the Contractor's Superintendent. The Subcontractor shall notify the Contractor's Superintendent upon arrival and departure of the Subcontractor's men from the job site.  The Contractor shall from time to time schedule job meetings, which shall be attended by an authorized representative of the Subcontractor with authority to make commitments, which shall be binding, on the Subcontractor. 

e.  Should the Subcontractor fail to carry out or comply with the provisions of this Article, it shall be in default and the Contractor shall have the right to terminate this Agreement in accordance with Article 13 hereof.

ARTICLE 16 SEPARABILITY  

In the event that any provision of this Agreement or any part of any Article thereof shall be declared invalid by a court of competent jurisdiction, it shall not affect the validity of any other parts of this Agreement or any other provisions of an Article containing an invalid provision, which shall remain in full force and effect.

ARTICLE 17  LIABILITY FOR DAMAGES AND INJURY 

a.  Subcontractor shall defend (with a mutually agreeable attorney), indemnify, hold harmless and reimburse Owner, Contractor and their agents, officers, and employees (the "Indemnitees") from all claims, damages, losses and expenses (including, but not limited to attorney's fees and costs) attributable to bodily injury, sickness, disease or death or injury to or destruction of tangible property, including but not limited to the loss of use resulting therefrom, arising out of or in connection with the performance of the Work or any negligent act or omission of Subcontractor at or in connection with the Project, by anyone directly or indirectly employed by Subcontractor, its lower tier sub-subcontractors and suppliers, or anyone else for whose acts Subcontractor is liable even if caused jointly and concurrently by the negligence of the Indemnitees and Subcontractor (or any one or more of either of them). In any and all claims against the Indemnitees by any employee of Subcontractor or anyone for whose acts Subcontractor may be liable, the indemnification obligation under this paragraph shall not be limited in any way by any limitation on the amount of or type of damages, compensation or benefits payable by or for Subcontractor or any sub-subcontractor under Workers' or Workmen's Compensations Acts, disability benefits or other employee benefit acts nor by any requirement for insurance.  Subcontractor does not assume liability for loss or damage due solely to the negligence of Contractor.  The Subcontractor shall promptly reimburse the Contractor therefore, and if any such claims or suits remain outstanding at the time the Work is completed, final payment shall be deferred until they are adjusted.  The Subcontractor shall ensure that all of its subcontractors agree to bring any claims for damages or injuries against Subcontractor and not to bring such claims against the Contractor or Owner to the fullest extent permitted by law.   

b.  Subcontractor shall be liable to the Contractor for all costs the Contractor incurs as a result of Subcontractor's failure to perform this Agreement in accordance with its terms. Subcontractor's failure to perform shall include the failure of its lower-tier subcontractors or materialmen to perform.  Subcontractor's liability shall include but is not be limited to (1) damages and other delay costs payable by the Contractor to the Owner; (2) the Contractor's increased costs of performance, such as extended overhead and increased performance costs resulting from Subcontractorcaused delays or improper Subcontractor work; (3) warranty and rework costs; (4) liability to third parties; (5) excess re-procurement costs; (6) consultants' fees; and (7) attorneys' fees and related costs.     

c.  Subcontractor's assumption of liability herein includes but is not limited to assumption of all liabilities on account of or in any way related to Subcontractor's Work, which the Contractor has assumed under the Contract Documents or under agreements with third parties who may be affected by construction of the Project.

d.  Subcontractor's assumption of liability is independent from, and not limited in any manner by, the Subcontractor's insurance coverage obtained pursuant to Article 9, or otherwise.  All amounts owed by Subcontractor to the Contractor as a result of the liability provisions of this Agreement shall be paid upon demand. 

e.  The Subcontract Amount includes one hundred dollars ($100.00) as specific consideration for indemnification under this Agreement.
ARTICLE 18 TERMINATION FOR CONVENIENCE  

a.  The Contractor, at its sole discretion, may terminate this Agreement without cause at any time by giving at least ten (10) days' prior written notice of such termination to the Subcontractor. Upon any termination of this Agreement pursuant to this Article, and subject to all of the terms and provisions herein contained, the Subcontractor shall be entitled to payment up to the Contract Amount for all accepted work furnished or installed by it.  However, the Contractor may retain from any monies due the Subcontractor, an amount sufficient to cover the Subcontractor's obligations under the Article 14. Guarantee.  Upon the expiration of such obligations, the balance of such amount, if any, shall be paid to the Subcontractor.  The Subcontractor, upon termination of this Agreement, shall forthwith peaceably and quietly surrender to the Contractor all premises, facilities, machinery, and equipment furnished by or belonging to the Contractor and shall cooperate with the Contractor in facilitating the transition of work to a new party.     

b.  Subcontractor shall not be entitled to anticipate profits on work unperformed or on material or equipment unfurnished.

ARTICLE 19 DISCONTINUANCE OR SUSPENSION OF WORK 

If, as a result of fire, earthquake, Act of God, war, strike, picketing, boycott, lockout or other cause beyond the control of Owner or Contractor, Owner or Contractor decide, in their sole discretion, that it is inadvisable to proceed with the Work hereunder then Subcontractor shall, upon receiving written notice thereof from Owner or Contractor, immediately discontinue any further work hereunder until such time as Owner or Contractor may deem it advisable to resume said Work.  Subcontractor will resume the Work promptly upon receiving notice from Contractor to do so and Subcontractor shall not be entitled to any damages or compensation on account of any such cessation of work as a result of any of the causes set forth herein. 

ARTICLE 20 SUBCONTRACTOR'S BOND; SUBCONTRACTOR DEFAULT INSURANCE 

Contractor shall have the option to require Subcontractor at the time of execution of this Agreement to (a) enroll in Contractor’s subcontractor default insurance program; or (b) furnish a bond or bonds in the form and amounts satisfactory to Contractor. In the event Contractor requests that Subcontractor enroll in Contractor’s subcontractor default insurance program, Subcontractor agrees to furnish Contractor, within seven (7) days of Contractor’s request, all requested documents and information necessary to include Subcontractor in such program, including, but not limited to, audited financial statements, WIP schedules, backlog schedules, safety performance reports, insurance certificates, trade references, etc. Contractor may request this information from time to time throughout the project.           

Should Contractor require the Subcontractor to furnish a bond or bonds, Subcontractor will be paid additional reasonable compensation for the cost of such bond or bonds. Any Subcontractor’s bonds shall cover the faithful performance of this Agreement, the payment of all obligations arising therefrom and the maintenance of the completed improvements for one (1) year from the date of final approval and acceptance (and also where any governmental bodies or agencies or the Contract Documents, including the contract between Owner and Contractor, require guarantees extending beyond one (1) year, for such extended period) against defective workmanship and materials (even where furnished by Contractor or its suppliers) and liability for damages resulting therefrom. Any bond(s) will be issued by a surety acceptable to Contractor, and must be in the form attached hereto as Exhibit #8.

ARTICLE 21 USE OF CONTRACTOR'S EQUIPMENT  

Contractor's equipment will be available for use by Subcontractor only at Contractor's discretion and upon mutually satisfactory terms.  In using such equipment or facilities (including but not limited to rigging, blocking, hoisting equipment and scaffolding), Subcontractor shall be responsible for and shall indemnify, defend (with counsel chosen by Contractor), and hold Contractor harmless from and against any and all claims, actions, demands, damages, liabilities or expenses, including attorney's fees, which may arise from such use.  Subcontractor has examined and will examine all such equipment and understands that Contractor makes no warranty regarding the same, such use being at Subcontractor's own risk.   

ARTICLE 22  SAFETY  

This Subcontractor is to provide adequate and proper safety protection for its men and equipment and shall strictly comply with all the rules and regulations of the federal and state Occupational Safety and Health Acts.  Hard hats will be worn by all personnel employed on the job by this Subcontractor at all times.  Payments may be withheld for any failure by Subcontractor to comply with the requirements of this Article.  Accidents to employees or sub-subcontractors of this Subcontractor will be promptly reported in detail to the Job Superintendent.  Fines resulting from acts of this Subcontractor for failure to comply with the safety regulations and the requirements of OSHA or a state or local agency will be promptly paid by this Subcontractor or deducted from its Subcontract Amount.

ARTICLE 23 EQUAL OPPORTUNITY AND NON-DISCRIMINATION

Subcontractor agrees to indemnify, defend (with counsel chosen by Contractor), and hold Contractor harmless of, from and against any and all loss, cost, damage, charge or expense, caused or contributed to by the violation or claimed violation by the Subcontractor of the Labor Management Relations Act of 1947, as amended, the equal employment opportunities laws, and any applicable and valid order, rule or regulation issued by any appropriate governmental agency in accordance with those laws.  

Subcontractor agrees to abide by and comply with all federal, state and local nondiscrimination laws, rules and regulations including but not limited to the Fair Housing Act, Americans with Disabilities Act, and similar state and local laws as they may apply to the Work.

ARTICLE 24 ATTORNEYS' FEES

Should any litigation or arbitration be commenced between the parties hereto concerning the Work, any provision of this Agreement or the rights or obligations of either party in relation hereto, the party, Subcontractor or Contractor, prevailing in such litigation or arbitration shall be entitled to a reasonable sum for attorneys' fees in such proceedings, unless any part of this litigation or arbitration is related to an Article 13 default as part of Contractor's claim against Subcontractor or as part of Contractor's defense to Subcontractor's claim for payment. 

ARTICLE 25 DEMANDS AND NOTICES

All notices, demands, requests and other communications required or permitted to be given hereunder or by law to either party hereto shall be in writing and shall be deemed duly served or delivered when personally delivered to the party to whom it is addressed or when personally delivered to a supervisorial employee of said party or, when in lieu of said personal service, deposited in the United States Mail, first class postage prepaid, addressed to the Contractor or Subcontractor at the address that appears for each of them in this Subcontract.  Either party hereto may change its address for the purposes of this Article by giving written notice of such change to the other
party in the manner provided in this Article. 

ARTICLE 26 CAPTIONS

The captions used for the sections in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of the intent of this Agreement, or any section thereof.

ARTICLE 27 SINGULAR NUMBER

Whenever used in this Agreement, the singular number shall include, the plural, and the use of any gender shall be applicable to all genders.

ARTICLE 28 AUTHORITY  

If Subcontractor is a corporation, the person signing this Agreement on behalf of such corporation hereby warrants that he or she has full authority from such corporation to sign this Agreement and obligate the corporation. 

ARTICLE 29 FAILURE TO NEGOTIATE PAYMENTS  

Any payment hereunder that remains unclaimed or un-cashed or otherwise unconverted by the Subcontractor shall after a five (5) year period, automatically, without any further action of any party, become the sole property of Contractor. 

ARTICLE 30 CONFLICT IN INTEREST                                 

Until Subcontractor's obligations under this Agreement are completely fulfilled and the Project is complete, Subcontractor agrees not to perform any work related to the Project directly for the Owner, other contractors or any other entity or deal directly with the Owner's representatives in connection with the Project, unless otherwise directed in writing by Contractor.  All work for this Project performed by Subcontractor shall be processed and handled exclusively through Contractor.  

ARTICLE 31 SUBCONTRACTOR'S OBLIGATION TO THE OWNER 

a.  In addition to its contractual obligations pursuant to the terms of this Agreement, Subcontractor is obligated directly to the Owner for the quality of work. 

b.  The services to be provided by Subcontractor hereunder are for the benefit of one or more partnerships, corporations, limited liability companies or joint ventures formed or to be formed to own and/or develop the project involved (together, the "Owner"). The Owner possesses some identity of interest with the Contractor and it is agreed that the Owner can enforce directly against Subcontractor all warranties or common law or statutory remedies, or contractual obligations with respect to the quality of the Work by a lawsuit for damages without the necessity of including the Contractor as a party to the litigation or arbitration.  In this respect, Subcontractor expressly waives any requirement of privity between it and the Owner for the purposes of the Owner's making claims for defective work under this Agreement on any of the above said grounds. 

c.  If for any reason the abovesaid waiver is not enforceable, Subcontractor agrees that Contractor may assign to Owner at any time all of the benefits of this Agreement with respect to the Subcontractor's obligation to provide a work product free from defects and that Owner may then enforce those obligations directly as if it had contracted with Subcontractor directly. 

d. If claim is made against Owner in any way arising out of the quality of Subcontractor's work, Subcontractor agrees to indemnify, defend (with counsel chosen by Contractor), and hold harmless Owner against any and all monetary damages sustained by Owner including attorney fees, incurred as a result of such claim. It is agreed that the statute of limitations controlling such claim by the Owner shall begin to run at the earliest from the date of any judgment against the Owner arising out of Subcontractor's defective work.  This obligation shall survive termination of this Agreement.  

Exhibit 3

GENERAL REQUIREMENTS FOR SUBCONTRACTORS

PROJECT SPECIFIC 

1. WORK HOURS: ENTER HERE 

Subcontractor will provide Contractor three (3) working day notices for requests to work weekends or other than normal working hours.

All supervisors must report to the Contractor’s jobsite trailer daily prior to entering the project site. Supervisors shall report how many workers they intend to have onsite, and locations and scope of work to be performed each day.

2. DELIVERY HOURS – ENTER HERE

3. DELIVERY, STORAGE AND HANDLING ‐ This Subcontractor includes the expediting, receiving, handling, hoisting, rigging, storage and protection of all materials and equipment required for the performance of this Subcontract, whether purchased by this Subcontract or others. Subcontractor shall notify and coordinate with the Contractor prior to scheduling the delivery of any materials.

a.  All deliveries are to be in strict accordance with the Site Logistic Plan if available as well as the Contractor and drivers are to follow the direction given by the Contractor.

b.  Deliveries shall be scheduled down to the minute of arrival. Any deliveries and/or trucks that do not report, or are not pre‐approved, will be waived off and not permitted to enter the site. Trucks are not permitted to park and block traffic in the neighborhood.

c. CONTRACT DRAWINGS

4. PHASED CONSTRUCTION AND MOBILIZATIONS – Subcontractor will not affect the current use of or the occupants of the project during construction. Any impacts will be the responsibility of the offending Subcontractor. This Subcontractor will execute the mobilizations necessary to accommodate phased construction of this Project. (PROJECT SPECIFIC MOBILIZATIONS TO BE INCLUDED IN THIS SECTION). 

5.  PHASING This Subcontractor understands this Project will be completed in various phases. This Subcontractor shall provide the necessary measures to accommodate the schedules as presented. Phased construction may involve temporary measures to accommodate and maintain uninterrupted service of building systems. This shall be considered part of the Work and is included in this Agreement at no additional cost.

6. MATERIALS STORAGE ON SITE – This Subcontractor shall not store any materials on site unless volume and location is approved by the Contractor. 

7. OUTAGES – Subcontractor shall coordinate and schedule all outages required for the Work with Contractor a minimum of three (3) working days prior to the date of the anticipated outage. 

8. TEMPORARY POWER AND LIGHTING – This Subcontractor is responsible for providing and maintaining all temporary/portable power and lighting necessary to complete the Work. (PROJECT SCHEDULE TO BE INCLUDED IN THIS SECTION) 

9. SYSTEM SHUTDOWN/INTERUPTION NOTICE – Subcontractor will give Contractor seven (7) calendar days written notice prior to all required shutdowns of systems, interruption of traffic or parking, or any item of work that will affect the daily operation of the facility. 

10. COORDINATION DRAWINGS ‐ This Subcontractor shall provide coordination showing locations of your work for coordination with other trades as required. Coordination drawings will be drawn accurately to a scale large enough to indicate and resolve conflicts. This Subcontractor shall participate in weekly meetings (or as required) until all coordinated drawings have been developed. These drawings shall include all residential units and common area spaces, management office, garage areas, site, etc. Drawings shall include reflected ceiling plans to coordinate ceiling penetrations. The Subcontractor's drawings will provide critical dimensions to HVAC, Sprinkler, and Plumbing installation as it relates to the electrical system. 

11. QUALITY MANAGEMENT PROGRAM – Subcontractor shall participate in the Bozzuto Quality Management Program as described in Bozzuto’s Quality Management Program (Exhibit X). Subcontractor shall provide an on‐site Subcontractor Quality Representative who shall be responsible for performing and maintaining daily quality control functions on Subcontractor’s behalf, and including: participating in preconstruction and initial meetings; development of project‐specific inspection and testing criteria and checklists based upon initial installations (e.g. in‐place mock‐ups) for each condition of Work, inspection of delivered materials, Work substrates, and Work installed. 

12. LEED/GREEN COMMUNITIES/NAHB GREEN BUILDING. This Subcontractor will meet all sustainable/environmental building program requirements as detailed in the Contract Documents and shall provide all required certifications, submittals, material tracking, and documentation required. (Exhibit X). 

13. CERTIFIED PAYROLL – as required – This Subcontractor will submit Certified Payroll as required (each week) to meet standards required under the prime contract agreement. This Subcontractor will meet wage standards as noted in the Wage Scale General Decision MD20100020 dated 01/20/2012 (Exhibit X). The Subcontractor must also provide copies of outgoing paychecks (whenever requested) to assure compliance. 

14. DAVIS BACON – as required – All workmen employed for the completion of the Work of this Subcontract Agreement shall paid be in accordance with the “Davis Bacon” Residential prevailing Wage Scale (Exhibit X) as applicable for this Subcontractors workmen. This Subcontractor shall submit all documentation and certifications required by Contractor and governing officials in a timely fashion and as required verifying compliance with the Davis Bacon requirements. 

15.  FIRST SOURCE ‐ as required – This Subcontractor acknowledges and understands the requirements of the First Source hiring and reporting and acknowledges First Source participation within this Subcontract set forth in Exhibit X.  

GENERAL 

16. SUPERVISION – Subcontractor will provide competent English‐speaking supervision at the construction site at all times while work under this Agreement is being performed. 

17.  INSPECTIONS ‐ This Subcontractor will secure all inspections as required for the successful completion of the Work. This Subcontractor is responsible for the management of the inspection process to ensure no adverse effects on the project or project schedule. This Subcontractor will coordinate inspections and testing with local code authorities and Owner’s testing and inspection agency. Included are any incidental material and labor required for successful testing/inspections. The testing and inspection agency may provide recommendations for issues encountered in the field. However, a directive for any recommendation must come solely from Contractor. This Subcontractor will ensure all inspections necessary prior to commencement of the Work have been successfully completed. 

18.  COORDINATION OF WORK– The Subcontractor shall familiarize itself with the methods of construction and the Work sequence that Contractor plans to use in order to plan the Work in such a way as to expedite construction operations. This Subcontractor shall setup and maintain a rate of progress subject to Contractor's direction and control for purposes of coordinating the overall construction progress. This Subcontractor shall obtain all field measurements and coordinate the Work with other Subcontractors, Contractor and the Contract Documents. Subcontractor will make reasonable adjustments to installation locations and practices to accommodate all required Work. Contractor shall be notified of any discrepancies prior to Subcontractor proceeding with the Work. This Subcontractor shall immediately notify Contractor of any deviations or discrepancies between Contract Documents and work already installed and, in such case, shall not proceed with the Work  until he has received instructions from Contractor. Should any work be necessary for the proper completion of the Project, such work shall be performed as fully as if described and delineated herein. If Subcontractor proceeds with work, it has accepted the condition of the site and work previously performed. In the event of any inconsistency (with respect to the Scope of Work being provided by this Subcontractor) between items contained within this Agreement and/or between items contained within this Agreement and the Contract Documents, the higher standard or larger quantity shall govern and be included within this Agreement. 

19.  ACCESSIBILITY ‐ This Subcontractor will ensure that all Work meets the accessibility standards and guidelines of applicable codes and requirements, including but not limited to the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA) and the American National Standard Institute (ANSI). 

20. PRINCIPAL AXIS LINES – Contractor shall establish a single benchmark on which Subcontractor shall layout the Work. However, Subcontractor shall layout the Work and be responsible for the accuracy thereof, using care to insure that all finished surfaces are in perfect alignment. Subcontractor shall be liable for any damage suffered by Contractor or other Subcontractors caused by failure to layout and install the Work correctly.  

21. QUANTITIES – The quantity of all materials, as it relates to the Work described within this Agreement, is the responsibility of this Subcontractor. No adjustments shall be made to the cost of this work as it relates to material cost or quantities, so long as the Contract Documents have not changed or the Owner or Contractor has not directed additional work beyond this scope and the Contract Documents. 

22. MATERIALS ‐ This Subcontractor will supply all labor and equipment necessary to receive, unload, manage, protect, handle, distribute and stockpile in a location approved by the Contractor, the materials required to complete the Work of this Agreement. This Subcontractor is responsible for maintaining proper protection of installed equipment and materials in order to prevent damage from other trades. This Subcontractor will assist with materials that are furnished by others and installed under this Agreement. 

23.  EXECUTION OF CONTRACT AND INSURANCE – Subcontractor will not proceed with the Work of this Subcontract until an executed Subcontract and approved insurance certificate(s) and bonds (as required) are received by Contractor. 

24. INSURANCE. Contractor requires minimum $2.0 MM of General Liability coverage plus $5.0 MM of Excess Liability coverage. See Exhibit 5 for further information and project specific requirements. 

25.  PAYMENT APPLICATIONS – This Subcontractor shall submit all payment applications through the electronic GCPay system for approval. Instructions for GCPay will be provided by Contractor to the Subcontractor. 

26.  DEFECTS – Subcontractor shall report in writing to Contractor any alleged defects in the work of any other party, on or in which Subcontractor is to install the Work and Subcontractor's failure to do so shall be deemed to be an acknowledgment by Subcontractor that such other work is fit and proper for the Work of Subcontractor, and Subcontractor shall thereby waive any claim or defense based upon such alleged defect to justify any failure of performance on Subcontractor's part including rework costs.

27. CONTRACT DOCUMENTS –Contract Documents will be available electronically and/or on file at a printer selected by Contractor. Any Contract Documents must be purchased directly from the printer at no cost to Contractor.

28.  DOCUMENTATION – This Subcontractor will provide the requested copies of shop drawings and submittals. This Subcontractor is to provide submittals for all equipment and materials that are supplied and installed for the project as called for in the Contract Documents.

29.  MATERIALS AND SAMPLES – Prior to delivery of material, the Subcontractor shall submit to the Contractor and Owner for approval or rejection, a sample and, if required, product data for each item to be supplied by him. These samples, after such approval, shall constitute a minimum acceptable standard for the Project, provided they meet all specifications required by the Agreement. Materials not in accordance with the accepted sample or the specifications shall not be installed and shall be removed and replaced by the Subcontractor at his expense. The Subcontractor, at his own expense, shall furnish such samples of the Work and make or cause to be made such material tests or test of the Work performed as may be required from time to time by Contractor and any governmental agencies that may have jurisdiction over the Project.

30.  SHOP DRAWINGS – Before installation, the Subcontractor shall submit to Contractor, Owner and Architect, for their approval, complete Shop Drawings as Contractor, Owner or Architect may deem necessary for the proper performance of the Work, shall make such corrections in any such Shop Drawings as may be required by Contractor, Architect or Owner and shall resubmit corrected Shop Drawings to Contractor without delay. Approval of any Shop Drawings shall be general and shall not relieve Subcontractor from responsibility of furnishing and installing the Work in accordance with the Contract Documents or for proper measurements and fitting of the Work. All Shop Drawings shall be submitted so as to cause no delay in Contractor's progress schedule for the construction. In addition, Subcontractors shall furnish Contractor with a duplicate copy of all plans and specifications, drawings, diagrams and applications prepared and submitted in conjunction with obtaining such permits as may be required by law, regulation or ordinance. 

SAFETY 

31. SAFETY – All Work is to be completed in accordance with, at a minimum, the Occupational Safety and Health Administrations’ (OSHA) Construction Industry Standards, 29 CFR Part 1926 (and updates), Bozzuto’s Master Safety Program , and all site specific safety requirements. This Subcontractor shall have a Competent Person on site at all times while work is being performed under this Agreement. All trenches, openings and holes will be protected with appropriate barricades meeting current OSHA Standards. Maintain constant monitoring of in‐place safety measures throughout construction and make safe any safety measure temporarily dismantled by this Subcontractor as quickly as possible. If the installation of Subcontractor’s Scope of Work will cause the permanent removal of or will compromise a safety measure, this Subcontractor shall notify the Contractor of this action for review and approval prior to the installation.

a.  Subcontractors are directly responsible for damage to property and injuries to people that result from their failure to adhere to the specifications in the references noted previously. 

b. Subcontractor employees are required to participate in a first day safety orientation.

c. Subcontractor will conduct weekly tool box talks, or safety meetings, with their onsite personnel. Submit copies of the attendees and topics covered to the superintendent no later than 10 am the following day.

d. In addition to compliance with OSHA’s 29 CFR 1926, Construction Industry Regulations, Subpart M – Fall Protection, Subcontractor will provide and use fall protection when employees are exposed to any fall hazards greater than 6’, including but not limited to:

i.  Scaffolds, 
ii. Steel Erection, including decking and connectors,
iii. Excavations,
iv. Leading edge work, and
v.  Any area where an employee could fall 6’ (or more) to a lower level.

e. Subcontractor shall immediately reinstall, repair, or replace guardrails, handrails, barricades, floor opening protection, perimeter fall protection, dust partitions, tree protection, sediment control, construction fencing, and any other safety provisions if removed or damaged by Subcontractor’s forces.

f. Subcontractor employees who disregard the established safety rules or the established work‐rules for the Project may be removed from the site immediately.

g. Contractor reserves the right to have any employee of the Subcontractor or Supplier submit to a post ‐ accident drug and alcohol test as soon after an accident as possible, but no later than thirty–two (32) hours after an accident for drugs and no later than eight (8) hours for alcohol. An individual who fails or refuses a post – accident test shall not be allowed entry onto the construction site. Nothing in this Subcontract shall be construed to require the delay of necessary medical attention for injured persons following an accident or to prohibit a Subcontractor’s employee from leaving the scene of the accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary medical care. It is the Suhf the test are to be sent in writing to Contractor within forty‐eight (48) hours of occurrence.

h. This Subcontractor shall maintain a Certified OSHA Competent person onsite at all times. 

i. Any safety violations that are witnessed on the project site are to be reported to the Contractor immediately.

j. This Subcontractor is responsible for their compliance with OSHA standards. Any fines levied against Contractor, the Owner, or the Owner’s agents by any agency by fault of this Subcontractor, shall be borne by this Subcontractor.

k. This Subcontractor shall attend all project safety meetings, inspections, and walks as required by Contractor.

l.  Contractor enforces hardhat and personal protective equipment requirements on the jobsite at all times. Short pants, sleeveless shirts, and sneakers will not be permitted onsite.

m.  This Subcontractor shall issue to all employees on the site safety vests having their company name clearly printed on the back of the vest. These vests will be worn at all times while on site. This includes break time and lunch time if the person is on site.

n. This Subcontractor shall maintain on site a copy of their Corporate Safety Program and MSDS.

o.  This Subcontractor will notify Miss Utility, prior to the commencement of any trenching or excavation work, and will keep a written record of such calls and confirmation numbers onsite with the Contractor. This Subcontractor will ensure Miss Utility has an open ticket for the duration of all trenching, excavation and all sub‐grade activities.

p.  This Subcontractor shall provide all certified flagmen, traffic controls, traffic plates and traffic barricades that may be required for the completion of the Work.

q. Subcontractor shall complete Bozzuto’s Daily Report and submit it to Bozzuto’s field office by 10:00 AM of the next business day.

32.  SAFETY INFRACTIONS ‐ Upon 1st safety infraction, the offending worker will be asked to leave the project for the day. Upon 2nd safety infraction, the offending worker will not be allowed back on the project for the duration of the project. Upon 3rd safety infraction, the subcontractor is required to pay for company‐wide safety training by Contractor’s safety consultant consisting of a minimum (4) hour training session paid by the Subcontractor. 

SITE CONTROLS 

33.  EXCAVATED MATERIAL PLACEMENT ‐ All excavated material shall be placed in an area designated by Contractor. 

34.  EROSION CONTROL – Avoid, wherever possible, disturbing the existing vegetation of the site, and in the event vegetation is disturbed, stabilize the disturbed area after completion of the work to minimize erosion. See contract documents for minimum requirements. In the event this Subcontractor disturbs, either intentionally or unintentionally, any erosion control structures to do the Work, he will replace or repair said structures at the close of each working day. Subcontractor must take all Control measures to prevent all erosion, siltation and sedimentation of existing site vegetation, wetlands, waterways, construction areas, adjacent areas and off‐site areas.

a.  Erosion control measures shall include, but are not limited to: Siltation control fencing, construction entrance/exit station, inlet protection and catch basin inserts.

b. Erosion control measures shall be accomplished adjacent to or in the work areas including but not limited to: soil stockpiles, debris and recycling stockpiles, and cut and fill slopes and other striped and graded areas.

c. Additional means of protection shall be provided by the Subcontractor as required for continued or unforeseen erosion problems.

d.  Stockpiles to be rolled and covered.

e. Subcontractor guarantees positive water drainage where design meets or exceeds a two percent (2%) slope.

35. VEHICLE / ROAD CLEANUP – This Subcontractor will ensure all vehicles are cleaned before leaving the site. Provide all required personnel and equipment necessary to prevent dirt and sediment to be tracked or spilled on streets and sidewalks. This Subcontractor will take immediate action to clean public streets of mud, debris, and dust resulting from actions by this Subcontractor. This Subcontractor shall clean all on‐site paved areas to the same standard as public areas. Included are all vehicular debris as well as debris tracked off site by foot traffic.

36. TRENCHING ‐ This Agreement includes all excavation, trenching, associated sheeting and shoring, ditch boxes, backfill, and compaction and the like as necessary to complete the Work in a safe manner as described in the OSHA regulations and as indicated in the plans and specifications. This Subcontractor will be responsible for maintaining the fill materials in such a way as the materials can be used for future backfill and stockpile spoils as directed by the Contractor for removal from site by others. Return building pad to its original condition with respect to your Work. 

37. WASH OUT RACK ‐ All wash out to be performed in area designated by Contractor. 

38. HAND DIGGING ‐ This Subcontractor includes hand digging as required.

39.  WATER INTRUSION PROTECTION – This Subcontractor is to provide temporary measures for the Work to maintain continuous watertight conditions around and through floor, roof and wall openings, and penetrations to prevent water passage. Any water (standing or infiltrating) caused by the Work of this Subcontractor must be immediately removed and dried to prevent mold formation. Any mold growth on materials attributable to water contamination caused by the Work of this subcontractor shall be removed, properly disposed, and the affected materials replaced at this Subcontractor’s cost. No porous building materials shall be delivered to the project or installed in a wet or damp condition.

40.  CUTTING AND PATCHING – This Subcontractor will be responsible for all cutting and patching required for the Work. Any cutting or patching required as a result of this Subcontractor's failure to prosecute or coordinate the Work in a timely manner will be this Subcontractor's responsibility at no additional cost to Contractor and/or Owner. This Work will include any sealing (fireproofing) at any penetrations through walls, ceilings or floors and restoration of any other Subcontractors work damaged.

41.  SLEEVES ‐ This Subcontractor will layout, furnish, coordinate, and install all sleeves and boxouts with Concrete Subcontractor or Masonry Subcontractor and the Structural Engineer as part of the coordination drawings. Sleeve all penetrations through and under footings, walls, concrete slabs and elevated decks per the contract documents. Underground work will not be installed in the area that extends out at a 45‐degree angle from the bottom of the footings. Provide supervision during all concrete pours that contain the work of this Subcontract and be prepared to make adjustments to facilitate concrete placement. Include incidental overtime as required to meet Concrete Subcontractor’s schedule.

42.  CORE DRILLING ‐ This Subcontractor will provide all core drilling of concrete and masonry floors and walls required to complete the work of this agreement if required sleeving is not installed prior to concrete installation. All costs associated with this work, such as engineering, x‐ray, design, engineering review, layout, inspections, etc. will be the sole responsibility of this Subcontractor. 

43. FIRE‐STOPPING – This Subcontractor will fire‐stop its penetrations as required. This Subcontractor will ensure all penetrations through rated assemblies are completed using approved materials and methods rated for that purpose.

44.  STORED MATERIALS – This Subcontractor may be eligible for payment for materials properly stored if allowed by Owner, Owner’s Lender, and Contractor. If allowed and in addition to any other requirements contained herein, Subcontractor will prepare and execute a "Bill of Sale" that explicitly describes the materials sold to Contractor on a form acceptable to Contractor, Owner, and Owner's lenders. Subcontractor shall provide an "All Risk" insurance policy in an amount sufficient to cover the replacement cost of the material. This policy will name as the insureds Contractor and Owner. The deductible on this policy is $100.00 per occurrence. Payment for materials stored offsite will in no way be acknowledged by Contractor as acceptance of materials. It will be the responsibility of the Subcontractor to assure delivery and installation of all materials as specified in this Contract.

45.  CLEANUP – This Subcontractor will be responsible to cleanup after himself on a daily basis and deposit such trash as is generated by the Work in a receptacle to be designated by the Contractor. If Subcontractor fails to cleanup the debris as herein specified, Contractor is hereby granted the authority to cleanup the Subcontractor's debris at this Subcontractor's expense and to back‐charge this Subcontractor for all expenses incurred, including a 15% overhead factor. 

46.  CLEANING ‐ This Subcontractor is responsible for cleaning of equipment so that the Work is left in a clean conditon.

47.  MEETINGS – An authorized representative of this Subcontractor shall attend all on site job progress and safety meetings while this Subcontractor is working on site and at other times as requested by Contractor. A fine may be imposed for repeated violations.

48.  SIGN POSTING – Subcontractor agrees that neither he nor any of his tier subcontractors nor any of their personnel shall place any sign on any portion of the site without the express written permission of Contractor.

49. SITE ACCESSIBILITY – This Subcontractor is to use the assigned construction entrance for all deliveries and access to the site.

50.  HOISTING, RIGGING AND SCAFFOLDING – This Subcontractor shall provide all hoisting, rigging, scaffolding and equipment as required to perform the Work. 

CLOSEOUT 

51.  INSTRUCTIONS – The Subcontractor will thoroughly instruct the Owner's designated representatives in the proper operation and maintenance of all systems.

52. SERVICE / MAINTENANCE MANUAL – The Subcontractor shall submit to Contractor (prior to acceptance of the first phase or units) three (3) typed service and maintenance manuals. At a minimum, the manuals shall include operating information, troubleshooting information; instructions for ordering parts; recommendations for stocking of spare parts; names, addresses and phone numbers of suppliers and local maintenance facilities.

53.  AS‐BUILT DRAWINGS ‐ This Subcontractor will maintain a set of red line as‐built drawings at the site to indicate any deviation from the Bid Set for the duration of the project. This Subcontractor shall submit final “as‐built” information in a format acceptable to the Owner and Contractor for review and approval including as‐builts required for new and if abandoned utilities. As‐built drawings must show complete dimension information.

54.  OPERATING TESTS – Upon completion and prior to acceptance of this Subcontractor’s Work, this Subcontractor will subject all systems installed to such operating tests as may be required by Contractor, Owner, the Architect, and Federal, State and local inspectors to demonstrate satisfactory functional and operating efficiency. All instruments, facilities and labor required to conduct the tests will be provided by this Subcontractor at no cost to Contractor and/or any other parties. 

55.  OWNER PUNCHLIST – Contractor will provide Subcontractor with punchlist(s) from the Owner:

a.  All punchlist items shall be deemed as part of the Work.  

b. Subcontractor shall have sufficient manpower on site to complete the Work as indicated on the punchlists within two (2) days of the date of issuance. 

c.  In the event that the Work indicated within the punchlist(s) includes the procurement of materials, Subcontractor will provide Contractor with the following within 24 hours of the date of issuance:  

A copy of the Purchase Order(s) for all materials
- Contact information for each supplier
- Projected delivery date for the material(s).  

d. Should Subcontractor fail to comply with any of the aforementioned requirements, Contractor reserves the right to supplement Subcontractor’s forces and complete any/all of the punchlist items on Subcontractor’s behalf. If supplemented, Subcontractor will be responsible for all associated direct costs as well as Contractor’s management time (superintendent, project manager, etc.) required to complete the Work.

56. TAGGING AND IDENTIFICATION ‐ This Subcontractor includes all tagging and identification for the Work. 


END OF EXHIBIT “3”

Exhibit 5

INSURANCE REQUIREMENTS

A. Types of Insurance and Limits. Prior to the commencement of any Work under this Agreement, the Subcontractor shall at its sole expense secure and maintain the insurance as listed in this Section A as will protect the Subcontractor, Contractor, the Owner, the Owner’s representative, the Lender, and the Architect from claims which may arise in whole or in part from operations by the Subcontractor or any of its subcontractors or anyone directly or indirectly employed by either of them, or anyone for whose acts either of them may be liable: 

1. Commercial General Liability. Commercial general liability (“CGL”) insurance, written on an occurrence (not claims-made) basis, on Insurance Services Office, Inc. (“ISO”) form CG 00 01 04 13 (or another occurrence-based form with coverage at least as broad and approved by the Contractor in writing), covering liability for all ongoing and completed operations of the Subcontractor, including ongoing and completed operations under all subcontracts, and covering claims for bodily injury, including without limitation sickness, disease or death of any persons, injury to or destruction of property, including loss of use resulting therefrom, personal and advertising injury, and including coverage for liability arising out of:  

(1)   an Insured Contract (including the tort liability of another assumed in a contract). 
(2)   Completed operations/Products liability. 
(3)   Property damage and loss of use. 
(4)   Explosion, Collapse and Underground (“XC&U” Perils), where applicable. 
(5)   Terrorism and acts of terrorism (whether caused by a foreign or domestic source). 
(6)   Premises. 
(7)   Ongoing and completed operations. 
(8)   Work performed by subcontractors. 
(9)   EIFS exclusion removed if applicable 

The per occurrence and aggregate coverage minimum limits required under this Section 1 shall be the greater of (i) the limits set forth in the Subcontractor’s commercial general liability policy or (ii)  the amounts set forth below, shall be specific to this Project and apply separately to the Subcontractor’s Work under the Agreement.   
  
a.  Limits

$1,000,000 - ea. occurrence (bodily injury/property damage) personal and advertising injury (any one person)
$2,000,000 - general aggregate per project (other than products-completed operations)       
$2,000,000 - products – completed operations aggregate
$100,000    - damage to rented premises (each occurrence) 
$5,000        - medical expense (any one person)

2. Workers’ Compensation; Employers’ Liability. Workers’ compensation insurance in the form prescribed by statutory law and with limits of at least the amounts set forth below, and employers’ liability insurance with limits of at least the amounts set forth below.  All insurance required by this Section 2 shall include a waiver of subrogation for the benefit of the Contractor and Owner, Owner’s representative, Lender, Architect, and other Indemnified Parties. 

a.  Minimum Limits

Workers’ compensation:  as required by applicable statute(s)

Employers’ liability:                               

$500,000 - bodily injury each accident
$500,000 - bodily injury each employee by disease
$500,000 - bodily injury each disease aggregate

3. Commercial (Business) Automobile Liability. Commercial (business) automobile liability insurance written on ISO form CA 00 01 10 13 (or another form with coverage at least as broad and approved by the Contractor in writing) including coverage for all owned, hired, borrowed and non-owned vehicles and equipment used by the Subcontractor, with minimum per accident limits equal to the greater of (i) the limits set forth in the Subcontractor’s commercial automobile liability policy or (ii) the amounts set forth below, exclusive of defense costs. 

a.  Limits:   $1,000,000 - ea. occurrence (bodily injury, death or property damage)

4. Commercial Umbrella Liability. Commercial umbrella liability insurance with minimum limits equal to the greater of (i) the limits set forth in the Subcontractor’s umbrella liability policy or (ii) the amounts set forth below, following the form and in excess of the underlying employers’ liability, commercial general liability, and commercial automobile liability policies, with an effective date that is concurrent with such liability policies. The insurance required under this Section 4 shall be written in a form that annually reinstates all required limits.

a.  Limits:  $5,000,000 - per occurrence
                 $5,000,000 - annual aggregate 

5. Personal Property Insurance on Owned or Rented Equipment. Whatever all-risk insurance the Subcontractor may deem necessary to protect itself against loss of owned or rented capital equipment and tools, and any tools, equipment, scaffoldings, stagings, towers and forms owned or rented by the Subcontractor.  The requirements to secure and maintain such insurance is solely for the benefit of the Subcontractor.  Failure of the Subcontractor to secure such insurance or to maintain adequate levels of coverage shall not obligate the Contractor or anyone else for any losses of owned or rented equipment.  The Subcontractor waives any claims and right of recovery against the Contractor, Owner, Owner’s representative, Lender, Architect, and other Indemnified Parties for losses of owned or rented capital equipment and tools, and of any other tools, equipment, scaffoldings, stagings, towers and forms owned or rented by the Subcontractor.  The Subcontractor’s personal property insurance shall be endorsed accordingly to include a waiver of subrogation in favor of the Contractor, Owner, Owner’s representative, Lender, Architect, and other Indemnified Parties. 

6. Contractor’s Pollution Legal Liability – If Applicable. Pollution legal liability insurance covering losses caused by pollution conditions that arise from the ongoing or completed operations of the Subcontractor under this Agreement and completed operations.  Completed operations coverage shall remain in effect for at least five (5) years after Final Completion of the Work.  Such insurance shall apply to bodily injury, property damage (including loss of use of damaged property or of property that has been physically injured), cleanup costs, liability and cleanup costs while in transit, and defense (including costs and expenses incurred in the investigation, defense and settlement of claims).  There shall be neither an exclusion nor a sublimit for mold-related claims.  The minimum limits required under this Section 6 shall be equal to the greater of (i) the limits set forth in the Subcontractor’s pollution legal liability policy or (ii) the amounts set forth below.  If such coverage is written on a claims-made basis, the Subcontractor warrants that any retroactive date applicable to coverages under the policy precedes the Subcontractor’s performance of any Work under the Agreement and that continuous coverage will be maintained or an extended reporting period will be exercised for at least five (5) years after Final Completion. Such coverages must be maintained with limits of at least the amounts set forth below.

a.  Limits:             

$1,000,000 - each loss
$1,000,000 - annual aggregate 

7.  Professional Liability – If Applicable. For all Work performed by the Subontractor on a design/build basis, the Subcontractor shall provide and maintain professional liability insurance covering errors and omissions in the performance of such Work with limits of at least the amounts set forth below and with a deductible, if any, acceptable to the Contractor.  The Subcontractor warrants that any applicable retroactive date precedes the date the Subcontractor first performed any such design/build Work for the Project and that continuous coverage will be maintained or an extended reporting period will be exercised for a period of five years after the Final Completion of the Work. 

a. Minimum Limits

$1,000,000 - each claim
$1,000,000 - annual aggregate

8.  Subcontractor Insurance. The Subcontractor shall require its subcontractors of all tiers to comply with the insurance requirements in this Exhibit although limits may be lower if advanced notice is provided to Contractor.

B. General Requirements. The Subcontractor’s and sub-subcontractors of all tiers’ insurance shall be subject to the following requirements: 

1. Certificates of Insurance, Endorsements, and Policies. Subcontractors’ insurance required in connection with this Project shall be written by insurance companies with an A.M. Best Insurance Guide rating of at least A- VII (and the equivalent by any other rating agency) and licensed in the jurisdiction in which the Project is located.  Before commencing any Work, the Contractor shall furnish to the Contractor certificates of insurance on ACORD form 25 (or such other form approved by the Contractor) and copies of any applicable endorsements evidencing (i) the coverages required to be carried by the Contractor as set forth in this Agreement, and (ii) the Additional Insureds’ status.  Upon the Contractor’s request made at any time prior to five (5) years following Final Completion of the Work, the Contractor may request and the Subcontractor shall promptly deliver updated certificates of insurance, endorsements indicating the required coverages, and/or certified copies of the insurance policies.  Certificates, endorsements and/or policies which, in the Contractor’s opinion, are incomplete or do not reflect the required coverage, limits or terms may be returned by the Contractor for resubmission by the Subcontractor.  If the insurance initially obtained by the Subcontractor expires prior to Final Completion of the Work, renewal certificates of insurance and additional insured and other endorsements (conforming with the requirements set forth in this Exhibit) shall be furnished to the Contractor prior to the date of expiration of all such initial insurance.  For all coverage required to be maintained after Final Completion, an additional certificate of insurance evidencing such coverage and the Additional Insureds’ status as additional insureds shall be submitted to the Contractor on an annual basis as the coverage is renewed (or replaced).     

2. Additional Insureds. The Contractor, Owner, the Architect, the Lender, the Owner’s representative, other Indemnified Parties, and other persons or entities designated by the Contractor in writing (together, the “Additional Insureds” and each an “Additional Insured”) shall each be included in all policies required hereunder to be maintained by the Subcontractor and its subcontractors (except for workers’ compensation and professional liability insurance) as additional insureds for claims against them relating to this Project, with the understanding that any affirmative obligation imposed upon the insured Subcontractor or its subcontractors (including without limitation the liability to pay premiums) shall be the sole obligation of the Subcontractor or its subcontractors, and not of any of the Additional Insureds.  The Additional Insureds’ status under the Subcontractor’s and it subcontractors’ CGL insurance policies shall be effected using the ISO Additional Insured Endorsement form CG 20 10 11 85 (or CG 20 10 07 04 and CG 20 37 07 04) or such other endorsement or combination of endorsements providing coverage at least as broad and approved by the Contractor in writing.  The insurance afforded to each Additional Insured shall be at least as broad as that afforded to the first named insured under each policy.  All of the Subcontractor’s and its subcontractors’ liability policies (except for workers’ compensation and professional liability insurance) shall be endorsed using ISO form CG 20 01 04 13 or its equivalent so as to indicate that such policies provide primary coverage (without any right of contribution by any other insurance or self-insurance, including any deductible or retention, maintained by an Additional Insured) for all claims against the Additional Insureds arising out of the performance of this Agreement by the Subcontractor or its subcontractors, or anyone for whom the Subcontractor or its subcontractor may be liable.  These policies shall include a separation of insureds clause applicable to each Additional Insured.

5.  Duration of Coverage. The Subcontractor shall maintain all required insurance coverage in full force and effect until Final Completion of the Work, except that the products and completed operations coverage under the CGL  and pollution legal liability insurance, and coverage under the professional liability insurance, required under this Exhibit shall be maintained (or if applicable, an extended reporting period will be exercised) for the period of any applicable statute of limitations, statute of repose, or five years, following Final Completion of the Work, whichever is longer. 

6.  Renewal or Cancellation of Policies. All policies shall be endorsed to state that such insurance shall be non-renewed or canceled only after written notice to the Contractor from such insurance company or companies, mailed to the Contractor in the same method as would be required under the law of the jurisdiction in which the Project is located for mailing such notice to the first named insured, no less than thirty (30) days in advance or 10 days for non-payment of premium. If at any time the above policies shall be cancelled, terminated or modified so that the insurance is not in effect as above required, then, if the Contractor shall so direct, the Subcontractor shall suspend performance of the work covered in the Subcontract.  If the said work is so suspended, no extension of time shall be due on account thereof.  If said work is not suspended, then the Contractor may at its option obtain insurance affording coverage equal to that afforded above and the cost of such insurance shall be deducted in full amount from the monthly requisition of payment due the Subcontractor.  

7.  Liability Not Limited. By requiring the insurance herein, the Contractor does not represent that the required coverage and limits will necessarily be adequate to protect the Subcontractor or its subcontractors.  Neither the insurance requirements set forth in this Exhibit nor the Contractor’s review and approval of any insurer or insurance policy shall be deemed to limit the Subcontractor’s obligations under the Agreement Documents or the Subcontractor’s underlying liability in any manner.  The insurance requirements herein merely prescribe the minimum amounts and forms of insurance coverage that the Subcontractor and all its subcontractors are required to maintain.  Any failure by the Contractor to enforce in a timely manner any of the provisions of this Exhibit shall not act as a waiver to enforcement of any of such provisions at a later date. Any insurance not described above which this Subcontractor desires for his own protection shall be at his own responsibility and at his own expense.

8. Waiver of subrogation language to be written by legal counsel.

9. Indemnification to be written by legal counsel.

END OF EXHIBIT "5"

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