SUBCONTRACT TERMS AND CONDITIONS - DEW
SUBCONTRACT TERMS AND CONDITIONSThe following Subcontract Terms and Conditions are incorporated in the Subcontract between Contractor and Subcontractor.ARTICLE1SUBCONTRACT DOCUMENTS1.1The Prime Contract consists of the constructioncontract between Contractor and Owner for the Project andall addenda, modifications, and revisions thereto, togetherwith all drawings, project manuals, specifications, conditions(general, technical, supplementary, and special), and all otherdocuments listed in or referenced by the Prime Contract. ThePrime Contract is incorporated herein by reference and to theextent it is applicable to this Subcontract and notcontradicted or amended by this Subcontract it is made anintegral part of the Subcontract.1.2The Subcontract consists of the Agreement betweenContractor and Subcontractor and all addenda, modificationsand revisions thereto, together with all exhibits thereto,including, without limitation, these Subcontract Terms andConditions, the Project-Specific Supplemental Terms, and thePrime Contract to the extent described in Paragraph 1.1.Subcontractor hereby acknowledges that it has carefullyreviewed and examined the Subcontract, and that any and allambiguities and discrepancies have previously been clarifiedand/or corrected. Subcontractor agrees that it will not makeany claim or demand upon Contractor based upon or arisingout of any misunderstanding or misconception onSubcontractor’s part of the provisions and requirements ofthe Subcontract if Subcontractor knew or should have knownof the ambiguity or discrepancy.1.3In case Subcontractor discovers any ambiguity ordiscrepancy in the Subcontract relating to the SubcontractWork (as defined in Article II hereof), Subcontractor shallpromptly notify Contractor of the same in writing.Subcontractor shall, at its sole expense, make any change inits planned, fabricated or installed work, and shall beresponsible for the expense of changing the subsequentwork of others, necessitated by failure to disclose saidambiguity or discrepancy which Subcontractor discovered orshould have discovered.1.4All of the provisions which comprise the Subcontractshall be interpreted together and in harmony with oneanother. However, in case of conflict, the more expensive orstringent requirement shall control.1.5Subcontractor binds itself to Contractor and isobligated to Contractor in the same manner and to the sameextent that Contractor is bound and obligated to Ownerunder the Prime Contract with respect to the SubcontractWork. All rights which Owner may exercise and enforceagainst Contractor may be exercised and enforced byContractor against Subcontractor, including any claim forSubcontract Terms and Conditionsliquidated damages payable to the Owner. Subcontractorshall be required to do all things and be bound by alldecisions, directives, interpretations, and rulings of Owner,Architect, Engineer, or others authorized to act on behalf ofOwner, including all decisions as to the scope of theSubcontract Work, to the same extent that Contractor isbound thereby. In no event shall Subcontractor be entitled togreater rights, higher entitlements or more relief againstContractor than Contractor actually obtains from Owner onSubcontractor’s behalf or with respect to the SubcontractWork. To the extent the Prime Contract or the law require theinclusion of any provision, clause or other requirement in theSubcontract, or in the Prime Contract that relates to theSubcontract Work, those provisions, clauses andrequirements are incorporated by reference in and made apart of the Subcontract as though fully set forth in theSubcontract.ARTICLE 2SCOPE OF SUBCONTRACT WORK2.1The “Subcontract Work” includes the work set forthin Section I of the Agreement, all incidental work usuallyperformed under customary trade practices by the trades tobe furnished by Subcontractor, and all changes in theSubcontract Work as described in Article XI hereof. TheSubcontract Work shall be performed in accordance with theSubcontract and in a skillful and workmanlike manner, withmaterial and equipment being of the kind and gradenecessary for the purpose intended. Subcontractor shall beresponsible for any loss or damage to Contractor or others byreason of Subcontractor’s failure to perform its work inaccordance with the terms of the Subcontract.2.2Subcontractor has fully examined the Project siteand analyzed all existing surveys, test reports and schedulesthat could affect its performance, and acknowledges that noconditions exist which would adversely affect the progress,schedule, performance, or price of the Subcontract or thequality of the Subcontract Work.2.3Except as otherwise agreed by Contractor andSubcontractor in writing, Subcontractor shall provide, at itsown expense, all temporary and permanent tools, equipment(including safety equipment), scaffolding, implements, shopand working drawings, samples, models, guarantees, licenses,unloading facilities and services, and all other items necessaryfor the proper performance and acceptance of theSubcontract Work. Subcontractor shall provide, at its ownexpense, inspections, tests and permits necessary for theproper performance and acceptance of the Subcontract Workunless the Subcontract specifies otherwise.(1/2007 ed.)Page 1 of 16
2.4Subcontractor shall, at its own expense, pay allinspection and testing costs, royalties, and license feesrequired for the Subcontract Work, and the costs ofinspections which disclose, or are necessitated by, incorrector faulty materials or workmanship. Subcontractor shall makeall necessary arrangements and agreements, at its ownexpense, so as not to infringe any patents, trademarks, orcopyrights in the performance of the Subcontract Work.ARTICLE3VERIFYING FIELD CONDITIONS3.1Subcontractor is responsible for the proper layoutand location of the Subcontract Work. Before proceedingwith any portion of the Subcontract Work, Subcontractorshall thoroughly and accurately: (a) observe and verify allprevious and surrounding work performed by others anddetermine the location, condition, and correctness of same tothe extent necessary to assure that the Subcontract Work canbe performed as intended; and (b) measure all fieldconditions relating to the Subcontract Work.3.2Subcontractor shall give Contractor written notice ofany condition it discovers which may or will adversely impactupon Subcontractor’s performance of the Subcontract Work,such notice to be provided within forty-eight (48) hours afterdiscovery and prior to any disturbance of the condition.Subcontractor shall, at its own expense, make any change inits planned, fabricated or installed work, and shall beresponsible for the costs to change the subsequent work ofothers, necessitated by Subcontractor’s failure to give suchnotice to Contractor.ARTICLE 4COMPLIANCE WITH SCHEDULES; COOPERATIONWITH OTHERS4.1Subcontractor shall proceed with each portion of theSubcontract Work in a prompt and diligent manner and instrict compliance with all performance schedules andsequencing, as directed by Contractor. Subcontractor shall,within the time specified by Contractor and in no event morethan fourteen (14) days after the date of the Agreement,furnish to Contractor all information and data requested byContractor for the preparation of performance schedules,including progress schedules for the Subcontract Work, andsubmit the same to Contractor for review and approval.Subcontractor shall from time to time revise its progressschedules to conform to the progress of the SubcontractWork and changes in the performance schedules, andSubcontractor shall submit such progress schedules toContractor for review and approval.Subcontractoracknowledges that Contractor may, from time to time,modify the performance schedules as it determines necessaryor desirable in its sole discretion. In the event Contractormodifies the performance schedules, Subcontractor mustnotify Contractor within seven (7) days of any cost impactrelating to such modification, or Subcontractor shall bedeemed to have waived any claim for such extra costs.Page 2 of 164.2Any duration of time specified in the Subcontract orin any agreed performance schedule for the completion ofany of Subcontractor’s work activities is of the essence and amaterial provision of the Subcontract.4.3Subcontractor shall furnish sufficient forces to assureproper performance of the Subcontract Work in strictcompliance with all performance schedules and as requiredin this Article IV. Subcontractor shall, if requested byContractor, furnish adequate evidence to substantiate itsability to meet the performance schedules and plannedprogress of the Subcontract Work, including periodicprogress reports setting forth the status of material,equipment, manpower and submittals.4.4Upon request by Contractor, Subcontractor shallpromptly increase its work force, accelerate its performance,work overtime, and work Saturdays, Sundays and holidays, orperform “odd-shift” work (i.e., work performed at off hourswhen the nature of the work is such that it would bedisruptive to other trades or occupants), all withoutadditional compensation, if, as reasonably determined byContractor, such work is necessary as a result ofSubcontractor being behind the current Project performanceschedule due to Subcontractor’s own defective or deficientwork, dilatory performance or nonperformance.4.5Subcontractor shall conform to Contractor’s hours ofwork, which shall be generally consistent with the standardconstruction practice in the area where the Project is locatedor as may be otherwise provided in the Project-SpecificSupplemental Terms. No premium time will beacknowledged or paid unless pursuant to a prior writtenauthorization by Contractor.4.6Subcontractor shall fully cooperate and coordinateits work with that of Contractor and any other subcontractoror supplier for the Project, and shall not interfere withContractor’s relationship with other subcontractors andsuppliers. Subcontractor shall commence, continue andcomplete the Subcontract Work so as not to delaycompletion of the Project or any portions thereof, includingportions to be performed by others.4.7The responsibility of Subcontractor for prompt andtimely performance shall not be deemed waived by anyassent or acquiescence by Contractor to Subcontractor’s lateperformance of a portion thereof.4.8In the event of Subcontractor’s failure to complywith this Article IV, then in addition to the other remediesprovided herein or available at law or in equity,Subcontractor shall be liable for all actual damages sufferedby Contractor as a result of Subcontractor’s failure to comply,including that portion of any liquidated damages payable byContractor to Owner pursuant to the Prime Contract andreasonably attributable to Subcontractor’s failure to comply.In the event that Subcontractor is delaying the performanceof Contractor’s Work and such is concurrent with other delaysto the performance of Contractor’s Work (whether the otherdelays are attributable to others of Contractor’ssubcontractors or delay attributable to Contractor’s own(1/2007 ed.)Subcontract Terms and Conditions
forces), then the actual damages, including liquidateddamages payable by the Contractor, shall be apportionedequally among those contributing to the concurrent delay.4.9All communication between Subcontractor andOwner, Architect or Engineer shall be conducted throughContractor.4.10Notwithstanding any provision in the Subcontract tothe contrary, in the event that Subcontractor remains behindschedule 48 hours after receiving notice from Contractorthereof, Contractor may, to the extent it deems necessary inits sole judgment, supplement the Subcontractor’s workforces with its own forces or those of another contractor untilsuch time as Contractor is satisfied that the Subcontractor hasrecovered and shall maintain its compliance with allperformance schedules under this Article IV. Any costsincurred by Contractor in supplementing Subcontractor’swork forces under this paragraph, plus fifteen percent (15%)for Contractor’s overhead and fee, shall be deducted from theSubcontract Price.ARTICLE 5INSPECTION, STORAGE AND APPROVAL OFSUBCONTRACT WORK5.1Subcontractor shall be solely responsible forthorough inspections of the Subcontract Work forconformance with the requirements of the Subcontract.5.2Subcontractor shall provide, and shall ensure that itssub-subcontractors and suppliers provide, sufficient, safe andproper facilities for such inspection and/or observation of theSubcontract Work by Contractor, Owner, Architect orEngineer as may be requested. Subcontractor shall, uponrequest, demonstrate and confirm the quantities andqualities of the materials and equipment being supplied tothe Project.5.3Subcontractor shall store its equipment, material andtools only in the areas designated by Contractor.5.4Subcontractor shall be responsible for the receipt,delivery, unloading, storage, warehousing, protection,insurance, and all risk of loss relating to any materials orequipment it is to furnish, install, provide, or have provided toit for performance of the Subcontract Work. Regardless of anypayment, the risk of loss of such materials and equipmentshall remain upon Subcontractor until final acceptance of theProject by Owner.5.5If Contractor furnishes material or equipment toSubcontractor to be incorporated into the Subcontract Work,Subcontractor shall, immediately upon receipt, make athorough inspection as to the physical condition andsuitability of the material or equipment, and shallimmediately notify Contractor, in writing, of any defect ornonconformity in the material or equipment. If Subcontractorfails to provide such notice, Subcontractor shall be liable forall damages, and shall defend and indemnify Contractoragainst any claims, arising or alleged to arise out of suchSubcontract Terms and Conditionsdefect or nonconformity, whethernonconformities are patent or latent.suchdefectsor5.6Subcontractor agrees that any tools, material orequipment of Owner or Contractor which are not to beincorporated into the Subcontract Work will be available toSubcontractor only with Contractor’s express writtenpermission and in accordance with Contractor’s terms andconditions for such use. If Contractor allows Subcontractor touse any such equipment, Subcontractor agrees that anyoperator provided by Owner, Contractor or Subcontractorshall be the agent and servant of Subcontractor, andSubcontractor shall be solely responsible and liable for theacts of the operator during the time of Subcontractor’sequipment use notwithstanding any negligence or allegednegligence of the Contractor. Subcontractor shall,immediately upon receipt, make a thorough inspection as tothe physical condition and suitability of any such tools,material or equipment and the competency of the operator,and shall immediately notify Contractor, in writing, of anydefect or nonconformity in the tools, material or equipmentor any incompetence; of the operator. If Subcontractor fails toprovide such notice, Subcontractor shall be liable for anydamages, and shall defend and indemnify Contractor againstany claims, arising or alleged to arise out of such defect ornonconformity in the tools, material or equipment andincompetence of the operator, notwithstanding anynegligence or alleged negligence of the Contractor.5.7Within seventy-two (72) hours after notice fromContractor, or immediately after notice in emergency orcritical path situations, Subcontractor shall commence, andthereafter proceed diligently, to take down and remove anydesignated portion of its work which is condemned or isdisapproved as not being in compliance or conformity withthe requirements of the Subcontract. Subcontractor shallpromptly, at its own expense, correct the same. If Contractordetermines that it will accept nonconforming work,Contractor shall be entitled to an equitable credit for thenonconformity.5.8Subcontractor shall promptly perform at its ownexpense any and all punch list work or corrective worksubmitted to it by Contractor. If such work is not performedwithin a reasonable time prescribed by Contractor, then inaddition to its other remedies provided herein or available atlaw or in equity, Contractor may complete or correct theSubcontractor’s Work and deduct the cost thereof from theSubcontract Price. In addition to amounts that may bewithheld by Contractor under Article IX, Contractor maywithhold the greater of (i) two times the reasonable cost tocomplete the punch list and corrective work or (ii) 10,000, assecurity for the performance of the punch list and correctivework until such work is completed.5.9No substitution shall be permitted in theSubcontract Work or materials specified to be provided bySubcontractor unless permitted by the Subcontract, andSubcontractor shall first obtain written approval fromContractor for any such substitution. Subcontractor shalldefend and indemnify Contractor against all claims and(1/2007 ed.)Page 3 of 16
expenses incurred by Contractor as a result of anyunapproved substitution.ARTICLE 6SAFETY AND CLEAN-UP/JOB SITE MEETINGS6.1Subcontractor shall be solely responsible for thesafety of its employees, sub-subcontractors, suppliers, andany other person present at the site at Subcontractor’sinvitation or to proved labor, services, materials or equipmentto Subcontractor (collectively, the “SubcontractorPersonnel”), and shall maintain its work area so as to at alltimes provide a safe working environment, including erectionand maintenance of suitable warning notices, fences, barriers,and barricades when required for the safe performance of theSubcontract Work. Subcontractor shall ensure that allSubcontractor Personnel comply with (i) all safety policiesand requirements set forth in Contractor’s current safetypolicies, including but not limited to those set out inContractor’s “SHARP” Manual available for inspection at thejobsite, (ii) such additional safety requirements as may be setforth in the Project-Specific Supplemental Terms, and (iii) allsafety requirements of any applicable governmentalauthority, including OSHA. In the event that there is anyconflict in the standards or requirements of applicable safetypolicies, rules, regulations or guidelines, Subcontractor shallbe bound by the strictest standard or requirement. Inaddition to and without limiting the generality of theforegoing, Subcontractor shall replace any warning notices,fences, barricades and/or barriers which Subcontractorremoves or damages in the performance of the SubcontractWork and shall be responsible for maintaining a safe workingenvironment while such fences, barriers and barricades aredamaged or removed. Subcontractor shall provide at its ownexpense all items of safety-related equipment, protectivegear or clothing for Subcontractor Personnel necessary tocomply with all requirements of this Article VI.6.2Subcontractor, its sub-subcontractors, suppliers, andany other person or entity for whom Subcontractor isresponsible, shall not generate, introduce, transport, store ordispose of any hazardous substance as defined in CERCLA orRCRA, at, near or on the Project without the prior writtenconsent of Contractor. Subcontractor shall notify Contractorin writing if Subcontractor discovers at, near or on the Projectany actual or potential hazardous substance, such notice tobe provided within forty-eight (48) hours of obtainingknowledge thereof. Such written notice must also be given toothers at the Project site and to governmental authoritiesprior to exposure to such substance or chemical of anypersons at the Project site and, in any event, in sufficient timeto permit others at the Project site to comply with allgovernmental laws, rules, and regulations. All such writtennotices shall include a description of the chemicalcomposition of the substance or chemical in sufficient detailto permit compliance with all governmental laws, rules, andregulations, and Subcontractor shall furnish copies of all su
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