EXHIBIT 10.253
SUBCONTRACT AGREEMENT
Project No. 2303 Subcontract No.0000-0000-0
Prime Contract: DACW09-03-B-0005
PROJECT: UPPER BLUE DIAMOND DIVERSION CHANNEL
OWNER: UNITED STATES GOVERNMENT
PROJECT LOCATION: LAS VEGAS, NEVADA.
CONTRACT DOCUMENTS consist of this Subcontract, the Project Plans and
Specifications as set forth in the Special Provisions, including all amendments,
addendum and subsequent modifications issued thereto.
THIS AGREEMENT (hereinafter "the Subcontract") is entered into in consideration
of the mutual promises made this 23rd day of September, 2003 between Wiser
Construction, Limited-Liability Company, (hereinafter called the Contractor"),
and Meadow Valley Contractors, Inc.(hereinafter called the "Subcontractor"), who
is:
MEADOW VALLEY CONTRACTORS
ATTN: XXXXXX XXXXXX
0000 XXXXXXX XXXXXX, XXXXX X
XXXXX XXX XXXXX, XXXXXX 00000
OFFICE PHONE: (000) 000-0000
OFFICE FAX: (000) 000-0000
MOBILE PHONE: (000) 000-0000_
XXXXX XXXX (P.M): (000) 000-0000; XXXXX XXXX (SUPT.) (000)000-0000
CONTRACTOR AND SUBCONTRACTOR AGREE AS FOLLOWS:
1. CONTRACT DOCUMENTS
1.1 The Contract Documents of this Subcontract consist of this
Agreement, including all exhibits and other documents attached hereto
or made a part thereof by reference, and the Prime Contract between the
Owner and Contractor (hereinafter "the Prime Contract"), including all
exhibits and other documents attached thereto or made a part thereof by
reference. (All Contract Documents identified herein shall be
hereinafter collectively referred to as "the Contract Documents").
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1.2 The Contract Documents are available in the Contractor's
office. Subcontractor acknowledges that it has carefully
examined the Contract Documents and fully understands them.
Printed copies of any of the Contract Documents will be
provided to Subcontractor, upon request, for a nominal fee. A
CD with the full contract specifications, drawings, and
addenda will be provided to the subcontractor at no charge.
The Contract Documents are also available for download on the
internet at XXX.xxx.xxxxx.xxxx.xxx/.
1.3 Subcontractor is bound to the Contractor to the same extent
and duration that Contractor is bound to the Owner. In case of
conflicts or inconsistencies between this Subcontract and the
Contract Documents, the Subcontract shall control unless any
other Contract Document expressly provides otherwise.
Subcontractor shall bind lower tier subcontractors and
suppliers to full compliance with all Contract Documents,
including all performance obligations and responsibilities
which Subcontractor assumes toward Contractor.
2. SCOPE of WORK
2.1 Subcontractor agrees to furnish all labor, materials,
equipment and work required to fully complete all of the
following items of work ("the Subcontract work"):As per the
attachment 'A' bid line items from the contract documents
listed above. (as per attachment "B" of Subcontractor's quote)
2.2 Subcontractor agrees to perform the Subcontract work, under
the direction of Contractor, in a good and workmanlike manner
to the satisfaction of the Contractor and the Owner.
Subcontractor agrees to provide and pay for all labor,
materials, tools, supplies and equipment, and all other
things, except as otherwise provided herein, to perform the
Subcontract work in strict conformance with the Contract
Documents.
2.3 All work will be complete and include incidental items for
each feature of work as written in the contract plans and
specifications. Any additional testing required above and
beyond specifications will be responsibility of subcontractor.
2.4 Placement of work will be accurately done by subcontractor
from survey stakes provided by Wiser Construction. Additional
survey work to replace markers will be at the subcontractors
cost. Subcontractor is responsible for survey stakes once the
areas have been staked.
3. CONTRACT PRICE and PAYMENTS
3.1 In reference to attachment 'A' bid item numbers;
14,15,16,17,18,19,21,24,25,26,27,28,29,30,31,32,33,34,35,36,3
741,42,43,44,45,46,47,48,56,58,86,90,91,92,93,94,95,96,97,98,
99100,102,104,105,107,111,112,114,118,119,120,121,122, and in
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consideration of the complete and timely performance of all
Subcontract work, Contractor agrees to pay Subcontractor the
sum of $9,492,800.00 (Nine Million Four Hundred Ninety-Two
Thousand Eight Hundred Dollars) subject to quantity
adjustments as per the contract specifications. (as per
attachment "B" of Subcontractor's quote)
3.2 At this time the Government has not awarded the project. Until
such time as the Government awards the project, the
Subcontractor is not to execute any such work until the
Government and Wiser Construction, LLC issue an official
Notice to Proceed. If the Government never exercises its
option upon the project, then Wiser Construction, LLC. has no
obligation to Subcontractor for these items in any way.
3.3 By the FOURTEENTH day of each month, Subcontractor shall
submit to Contractor a monthly billing showing the estimated
percentage of Subcontract work that has been satisfactorily
completed, in each bid line item, in the preceding month
together with the original executed Conditional Release
verifying payment of all lower tier subcontractors, laborers
and material suppliers. Subcontractor further agrees to
provide all EEO reports, certified payroll, and/or other
reports as may be required by the Contract Documents.
3.4 Paid When Paid - Progress payments will be made by Contractor
to Subcontractor within 15 working days after Contractor
actually receives payment for Subcontractor's work from Owner.
The progress payment to Subcontractor shall be the value of
Subcontract work during the preceding month as determined by
Owner. The progress payment shall be conditional upon receipt
of a Conditional Release executed by Subcontractor, in a form
satisfactory to Contractor, and in favor of Contractor,
covering payment to be made by Contractor. Retainage will not
be withheld unless withheld or directed to be withheld by
Owner.
3.5 Contractor shall have the right at all times to contact
Subcontractor's subcontractors and suppliers to verify that
they are being paid by Subcontractor for labor or materials
furnished for use in the Subcontract work, If it appears that
labor, material or other costs incurred in the performance of
the Subcontract Work are not being paid when due, Contractor
may take whatever steps it deems necessary to insure that the
progress payments will be utilized to pay such costs,
including, but not limited to, the issuance of joint checks
payable to the claimant and Subcontractor, or additionally,
making payment directly to claimant after notice to
Subcontractor. If such payment by Contractor exceeds the
balance of payments due or to become due to Subcontractor from
Contractor, then Subcontractor shall be liable to Contractor
for the difference, plus a not to exceed fee of 7%.
3.6 Subcontractor shall furnish to Contractor a verified and
itemized statement showing the names and addresses of all
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entities who have furnished or may furnish labor, materials,
and/or equipment for the Subcontract work together with the
amount due or to become due for such work.
3.7 The withheld retention, if withheld by Owner, or directed to
be withheld by Owner, shall be payable to Subcontractor upon,
and only upon, the occurrence of all of the following events,
each of which is a condition precedent to Subcontractor's
right to receive final payment hereunder and payment of such
retention: (a) Completion of the entire project described in
the Contract Documents; (b) The approval and final acceptance
of the project work by Owner; (c) Receipt of final payment by
Contractor from Owner; (d) Delivery to Contractor of a Release
and Waiver of Claims from all of Subcontractor's laborers,
material and equipment suppliers, and subcontractors providing
labor, materials or services to the Project; and (e)
Acceptance of final payment shall constitute a waiver of all
claims by Subcontractor relating to the Subcontract work
except as may be otherwise provided in the Final Release.
3.8 Subcontractor agrees that Contractor shall have no obligation
to pay Subcontractor for any changed or extra work performed
by Subcontractor until or unless the Owner has actually paid
Contractor for such work, or unless extra work is directed by
Contractor in writing.
3.9 Progress payments and Final Payment shall not be considered or
construed as evidence of acceptance of any part of
Subcontractor's work until final acceptance of the Project by
the Owner.
3.10 Required warranty, guarantee, as built drawings, governing
body inspection records and such close out documentation shall
be promptly provided to Wiser Construction,LLC. for submission
and approval of owner prior to final payment releases.
4. PROSECUTION of WORK
4.1 TIME IS OF THE ESSENCE OF THIS SUBCONTRACT:
(a) The required number of copies of all Subcontractor submittals per
the specifications shall be received by Contractor within
______30_______ days of the date from Award letter to Contractor from
Owner, unless otherwise agreed to in writing by the Contractor.
Subcontractor agrees to provide plan sized sheets for all submittals of
minimum size 8 1/2" by 11". Product specifications shall be provided in
standard 8 1/2" by 11" paper, three hole punched for insertion into
three ring binders. This is a Metric project. All data must be
expressed in Metric units of measure. All submittals are to reference
the specification number per the submittal log included in the
specs.Submittals are to be originals, not photocopied, and must be
submitted per the specs.
(b) Any delays in the submittal process caused in whole or in
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part by the Subcontractor may be grounds for immediate termination of
this Subcontract Agreement and subject Subcontractor to damages as
provided in Sections 8 and 9 below.
Subcontractor agrees to commence the Subcontract work within 5 calendar
days after receiving notification to proceed, and to proceed at such
points as Contractor may designate, and to continue diligently in its
performance in accordance with the Contractor's agreed upon project
schedule and at a pace that will cause no delay in the progress of the
Contractor's or any other Subcontractor's work. Subcontractor agrees to
perform the work in accordance with the Contractor's schedule, in order
to cause no delay or disruption to the Contractor or other
Subcontractors.
4.2 Upon request, Subcontractor shall promptly provide Contractor
with scheduling information or any other information relating
to the order or nature of the Subcontract work. Subcontractor
agrees that Contractor may revise the project schedule as work
progresses. Contractor may require Subcontractor to prosecute
segments of the Subcontract work in phases as Contractor may
specify. Subcontractor shall comply with instructions given by
Contractor, including any instructions to suspend, condense,
delay or accelerate the Subcontract work. Subcontractor shall
not be entitled to any extra compensation from Contractor for
any suspension, condensation, delay or acceleration unless
specifically agreed to in writing by Contractor and Owner and
paid for by Owner. The Owner's payment to Contractor of extra
compensation for any such suspension, delay, or acceleration
shall be a condition precedent to Subcontractor's right, if
any, to receive such extra compensation from Contractor.
4.3 Subcontractor shall keep the building and Project Site
reasonably clean of debris resulting from the performance of
its work and shall remove from the Project Site all debris
generated by the execution of the Subcontract work.
4.4 Subcontractor, in undertaking to complete the Subcontract work
within the time specified, avows that it has considered
ordinary delays incident to such work; including, but not
limited to, delays in securing material, equipment or workmen
and minor changes, omissions or alterations. Should
Subcontractor be substantially delayed by changes, omissions
or additions, by unavoidable casualty, severe weather
conditions, or by strikes or lockouts not caused by the acts
of Subcontractor, Subcontractor shall notify Contractor in
writing within forty-eight (48) hours after such occurrence,
and Subcontractor shall be allowed such time extension as
Owner and/or Contractor shall award. No time extension will be
allowed for delays or suspensions or work caused or
contributed to by Subcontractor, and no time extension will be
granted Subcontractor that will render Contractor liable for
liquidated damages or other loss under the Prime Contract.
4.5 In addition to other damages and remedies provided in this
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Subcontract, Subcontractor agrees to pay any liquidated
damages that may be assessed against Contractor by the Owner,
as provided in the Prime Contract, for any project delays
caused by Subcontractor. Such damages shall be paid for each
working day the Subcontract work remains incomplete beyond the
time specified for subcontract completion plus any extension
thereof agreed to in writing by the Contractor.
4.6 Contractor shall not be liable to Subcontractor for delay
caused by reason of fire or other casualty, or on account of
riots, strikes, labor trouble, acts of God, flood, cataclysmic
event, or by reason of any other event or cause beyond
Contractor's control, or contributed to by Subcontractor.
Subcontractor will be added to flood insurance (builders
risk). Cost of premium and deductible, if applicable, will be
split between Contractor and Subcontractor.
4.7 All Subcontract work done and all Subcontract materials
delivered to the project site shall become Contractor's
property, and said material shall not be removed by
Subcontractor or any other party from the project site without
Contractor's consent. After completion and final acceptance of
the Subcontract work and final payment, Subcontractor shall
promptly remove all remaining materials, equipment and debris
of Subcontractor.
5. CHANGES and CLAIMS
5.1 Contractor may order or direct changes, additions, deletions
or other revisions in the Subcontract work without
invalidating the Subcontract. No changes, additions, deletions
or other revisions to the Subcontract shall be valid unless
made in writing.
5.2 Subcontractor, prior to the commencement of such changed or
revised work, shall submit promptly to Contractor written
copies of the cost or credit proposal for changes, additions,
deletions or other revisions in a manner consistent with the
Contract Documents. Contractor shall not be liable to
Subcontractor for a greater sum than Contractor obtains from
Owner for such additional work, less reasonable overhead and
profit due to Contractor, and also less professional and
attorney's fees, costs, and other expenses incurred by
Contractor in the collection of any such sum. Payment to
Subcontractor for such work shall be conditioned upon
Contractor's actual receipt of payment from the Owner and such
payment by Owner to Contractor is a condition precedent to
Contractor's obligation, if any to make payment to
Subcontractor.
5.3 In any dispute between Contractor and Owner as to amount,
classification, price, time or value of Subcontract Work, or
any Subcontract material or supplies, or any delay in the
prosecution of the Subcontract work caused by Owner, or any
other matter whatsoever pertaining to the Subcontract work,
Subcontractor agrees to promptly and adequately provide
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Contractor with whatever documentation or support as
Contractor may deem necessary to negotiate with Owner.
5.4 Contractor may dispute, appeal, resist, litigate or arbitrate
any decision of Owner, without being deemed to have admitted
any obligation or liability to Subcontractor, and if the
decision shall be against Contractor, then Subcontractor shall
be bound thereby. Subcontractor may, at is own expense,
participate with Contractor in arbitration or legal
proceedings. Subcontractor shall bear part of all costs,
including attorneys' fees and legal expenses, incurred by
Contractor in any such proceedings involving a claim, which if
allowed, would result in one or more payments to
Subcontractor. Subcontractor's costs shall be in the same
proportion that the amount claimed by Subcontractor shall bear
to the total amount sought in the proceeding. Prosecution of
any such claim or proceeding shall be at the sole risk of
Subcontractor, and Contractor shall have no liability for or
in relation to the outcome.
6. ASSIGNMENTS
6.1 Subcontractor shall not assign or sublet the Subcontract or
any part of the Subcontract work, or any payments due
hereunder, without prior written consent of Contractor. Any
such assignment made by Subcontractor without Contractor's
prior written consent is void. Proper use of an approved fund
control provider shall not constitute an assignment.
7. TAXES
7.1 All applicable taxes, contributions, interest and/or penalties
due under any federal, state or municipal statute or
regulation arising from Subcontractor's Work are included in
the price to be paid to Subcontractor under the Subcontract,
Subcontractor shall indemnify, defend, and save Contractor and
Owner harmless from all liability, loss, and expense resulting
from Subcontractor's failure to satisfy such obligations.
Subcontractor shall, on demand, provide proof that all taxes
and other charges are being pronerly paid.
7.2 If Contractor directly pays, or is assessed or charged for any
Subcontractor taxes, contributions, interest or penalties,
Contractor shall have the right to withhold such amounts from
funds due or to become due under the Subcontract.
8. DEFAULT and TERMINATION
8.1 If, in the opinion of Contractor, Subcontractor fails, at any
time, to supply a sufficient number of properly skilled
workmen or sufficient materials and equipment of the proper
quality; or fails to adequately or timely perform the
Subcontract work to the satisfaction of Contractor or Owner;
or becomes insolvent or makes any filing under the Acts of
Congress relating to bankruptcy; or fails, neglects and/or
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refuses to comply with the project plans and specifications;
or fails to perform the Subcontract work in a good and
workmanlike manner; or causes any stoppage of the work of the
other trades upon the project; or fails to correct defective
work; or fails to comply in any other respect with the terms
and conditions of the Subcontract, Contractor may declare a
default by Subcontractor as herein provided.
8.2 Contractor shall provide prompt written notice of default to
Subcontractor, by certified mail or as may otherwise be considered to
reasonably provide notice to Subcontractor at Subcontractor's place of
business described above. Such notice shall be complete upon deposit at
a regular receptacle of the U.S. Postal Service or upon actual hand
delivery as provided herein. In the event of default by Subcontractor
as provided above, Contractor may, at his option, demand Subcontractor
cure or otherwise correct the default and breach within five calendar
days after receipt of written notice by Contractor. If, after five
days, Subcontractor has failed to cure and correct the default,
Contractor may, at his sole option, provide any such labor, materials
or equipment as may be necessary to complete the Work covered by this
Subcontract Agreement and thereafter deduct the cost thereof from any
money then due or thereafter to become due to Subcontractor under this
Agreement. Alternatively, Contractor may terminate Subcontractor's
right to proceed with the Work and thereafter enter upon the premises
and take control of all materials, tools, equipment, and appliances of
Subcontractor, and may employ any other person, persons, or
organizations to finish the Work and provide the labor, materials and
equipment to accomplish that purpose. Following completion of the Work
by the Contractor or other persons or organizations, all unused
materials, tools, equipment, and/or appliances shall be returned to
Subcontractor. Subcontractor shall not be entitled to rent or payment
of any kind for the use of Subcontractor owned equipment or materials,
nor shall Contractor be liable for any damages arising from said use
unless resulting from gross negligence, or willful destruction by
Contractor.
In the event Subcontractor has provided a payment or performance bond
to Contractor, in accordance with Section 10 of this Agreement, and
following expiration of the five days cure period, Contractor will make
notice and demand by registered mail upon Subcontractor's surety to
complete the Work covered by this Subcontract Agreement. In the event
Subcontractor's surety fails to notify Contractor within 10 days after
receipt of notice and demand by Contractor of surety's election to
complete the Work on behalf of Subcontractor, such failure shall be
deemed a waiver by surety to exercise its rights to complete the Work.
Thereafter, Contractor may at his sole option, complete the Work as
otherwise provided by this section.
8.2 Future Payments: In case of any such termination of
Subcontractor's right to proceed with the Work, Subcontractor
shall not be entitled to receive any further payment under
this Subcontract Agreement until the Work undertaken by
Contractor in his Prime Contract is completely finished. At
that time, if the unpaid balance of the amount to be paid
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under this Agreement exceeds the expense incurred by
Contractor in finishing Subcontractor's Work, such excess
shall be paid by Contractor to Subcontractor; but, if such
expense shall exceed the unpaid balance, then Subcontractor
shall promptly pay to Contractor the amount by which such
expense exceeds the unpaid balance.
"Expense" as referred to in this Section shall include all direct and
indirect costs incurred by Contractor for furnishing labor, materials,
and equipment, to complete the Work covered by this Subcontract
Agreement. "Expense" shall further include, but shall not be limited
to, Replacement Subcontractor costs, liquidated damages incurred by
Contractor, extended field office overhead, Contractor's attorneys fees
and costs, and any and all other damages sustained by Contractor by
reason of Subcontractor's default.
8.4 Contractor Rates to Complete the Work: In the event Contractor
elects to use its own labor forces to complete Subcontractor's Work,
Subcontractor and Subcontractor's surety agree to pay Contractor for
such Work at the following rates: a) Labor -- At Contractor's then
prevailing labor rates, plus labor burden, including, but not limited
to, employment taxes, liability insurance, workmen compensation
insurance, and health insurance; b) Contractor Owned Equipment -- At
the then prevailing Equipment Rental Rates as established by the Blue
Book for Construction Equipment as published by DataQuest; All rental
costs shall be determined by dividing the monthly rental rate by
twenty-two days per month to determine a daily rental rate. Hourly
rental rates shall be determined by dividing the daily rate by eight;
c) Materials and Rental Equipment -- Direct Invoice Costs, including
transportation, if any; d) Other Direct Costs -- Any and all other
costs sustained by Contractor; e) Field and home office overhead; f)
Ten per cent profit on all expenses indicated in are above.
In lieu of computing overhead, as provided for above, Contractor may,
at his sole option, elect to assess a charge, on items a, b, and c
above, of 5% for General Overhead expense. In addition, Contractor may
assess a charge on items a, b, and c above of 10% for profit.
Contractor shall also be entitled to an additional markup of 5% for
General Overhead and 10% for Profit on all expenses and costs incurred
pursuant to items d and e above.
8.5 If the cost to complete the Subcontract Work is more than the
unpaid balance of the Subcontract then Subcontractor shall be
liable to Contractor for the deficiency, and Contractor may
hold, sell or otherwise dispose of any of Subcontractor's
materials or equipment, or take other steps to collect the
deficiency, including making a claim against Subcontractor's
surety.
8.6 Whether Contractor exercises one or more of the above options
or rights, nothing contained herein shall release
Subcontractor from liability for damages for delay in not
satisfactorily completing the Subcontract Work within the
specified time. Subcontractor agrees in the event of default
that it will immediately assign and turn over to
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Contractor all sub- subcontracts, material contracts, or
orders, bills of lading for material en route, and any other
necessary data or information that would minimize the cost of
completion of the Subcontract Work.
9. TERMINATION for CAUSE
9.1 The Contractor may order the Subcontractor in writing to suspend,
delay or interrupt all or any part of the Subcontractor's Work for such
period of time as may be determined to be appropriate for the cause of
the Contractor or Owner. Neither the contract price nor the contract
time shall be adjusted under this article for any suspension, delay or
interruption to the extent that performance would have been so
suspended, delayed or interrupted by the fault or negligence of the
Subcontractor. In the event the Prime Contract is terminated prior to
its completion, Subcontractor shall be entitled only to payment for the
Work actually completed by it at the pro rata price herein set forth
unless Contractor itself receives additional compensation or damages on
account of such termination; in which event, Subcontractor shall be
entitled to such proportion of the additional compensation or damages
actually received as is equitable under all of the circumstances.
Nothing herein shall require Contractor to make any claim against Owner
for such additional compensation or damages in the event of termination
before completion, and it is specifically agreed that the failure of
Contractor to prosecute any such claim against Owner shall not entitle
Subcontractor to any claim for additional compensation or damages
against Contractor.
In the event this Agreement is terminated for cause, Subcontractor
shall not be entitled to receive any further payment except as provided
in Section 8 above.
10. BONDS
Performance and payment bond is required of the subcontractor for any
portion of the subcontractors work, (bond price included by
subcontractor)
11. INDEMNITY and INSURANCE
11.1 INSURANCE REQUIREMENTS: Subcontractor agrees to procure and
maintain, at his sole cost and expense, the following insurance
coverages:
1. Workers Compensation: Coverage A. Statutory policy form;
Coverage B. Employer's liability; Bodily injury by accident -
$1,000,000 each accident; Bodily injury by disease -
$1,000,000 policy limit; Bodily injury by disease - $1,000,000
each employee.
2. Commercial Auto Coverage: Auto liability limits of not less
than $1,000,000 each accident combined bodily injury and
property damage liability insurance including, but not limited
to, owned autos, hired or non-owned autos.
3. Comprehensive General Liability or Commercial General
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Liability: The limits of liability shall nor be less than: a)
Comprehensive General Liability: $1,000,000 combined single
limit bodily/property damage per occurrence or, b) Commercial
General Liability: The limits of liability shall not be less
than: Each Occurrence Limit - $1,000,000; Personal Advertising
Injury Limit $1,000,000; Products Completed Operations
Aggregate Limit - $1,000,000 General Aggregate Limit -
$1,000,000 (other than products-completed operations).
Both policy forms must include: a) Premises and operations
with no X, C or U exclusions; b) Products and completed
operations coverage (Subcontractor agrees to maintain this
coverage for a minimum of 1 year following completion of his
work); c) Full blanket contractual coverage; d) Broad form
property damage including completed operations or its
equivalent; e) An endorsement naming Wiser Construction,
Limited-Liability Company and any other required interests as
additional insured (s); f) An endorsement stating: "Such
coverage as is afforded by this policy for the benefit of the
additional insured (s) is primary and any other coverage
maintained by such additional insured (s) shall be
noncontributing with the coverage provided under this policy.
"
4. Other Requirements:
a) All policies must contain an endorsement affording an
unqualified thirty (30) days notice of cancellation
to the additional insured (s) in the event of
cancellation or reduction in coverage. b) All
policies must be written by insurance companies whose
rating in the most recent Best's rating guide, is not
less than A:V. c) Certificates of insurance with the
required endorsements evidencing the coverage must be
delivered to Wiser Construction prior to commencement
of any work under this contract. d) If the
Subcontractor fails to secure and maintain the
required insurance, Wiser Construction,
Limited-Liability Company shall have the right
(without any obligation to do so, however) to secure
same in the name and for the account of the
Subcontractor in which event the Subcontractor shall
pay the costs thereof and furnish upon demand all
information that may be required in connection
therewith.
b) The Contract Documents contain specific requirements
for listing additional insured parties. These
requirements must be met prior to executing any work
on the project site. Section 1200, P. 17.
11.2 INDEMNIFICATION:
1. General Indemnity: The insurance maintained by
Subcontractor in accordance with Section 11.1 shall insure the
performance of Subcontractor's indemnification obligations as
set forth herein. All work covered by this agreement that is
performed at the project sire, or performed
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in preparing or delivering materials or equipment to the
project site -- or in providing services for the project --
shall be at the sole risk of the Subcontractor. Subcontractor
shall, to the fullest extent permitted by law, with respect to
all such work which is covered by or incidental to this
agreement defend all claims through legal counsel acceptable
to Wiser Construction, Limited-Liability Company, and
indemnify and hold Wiser Construction, Limited-Liability
Company, Wiser Construction, Limited-Liability Company's
insurance company, Owner and any other interested party
designated by Wiser Construction, Limited-Liability Company,
or their agents, employees or representatives (collectively
referred to as "Indemnities") harmless from and against any
claim, liability, loss, damage, cost, expense, including
attorney's fees, award, fines or judgments arising by reason
of the death or bodily injury to persons, injury or damage to
tangible property (other than the Work itself), including the
loss of use therefrom, construction whether or not it is
caused in part by an Indemnity; provided, however, that the
Subcontractor shall not be obligated under this agreement to
indemnify the Indemnities with respect to damages which are
ultimately determined to be due to the sole negligence or
willful misconduct of the Indemnities.
2. Indemnity Not Limited: In any and all claims against the
Indemnities by any employee of the Subcontractor, or
Sub-subcontractor, anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be
liable, the indemnification obligation under this Paragraph
shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable
under any workers' or workmen compensation acts, disability
benefit acts or other employee benefit acts. Said indemnity is
intended to apply during the period of this Agreement and
shall survive the expiration or termination of the Agreement
until such time as action on account of any matter covered by
such indemnity is barred by the applicable Statute of
Limitations.
11.3 INSURANCE CERTIFICATES: Prior to commencement of the Subcontract
work, Subcontractor shall furnish Contractor with a copy of a
certificate from its insurance carrier indicating coverage in force
with the applicable limits, including Workers Compensation, and all
such certificates must provide that Contractor will be given at least
thirty (30) days advance notice by mail in the event of any material
change in or cancellation of the Subcontractor insurance policies or
coverage.
12. WARRANTIES and GUARANTEE
12.1 Subcontractor warrants and guarantees that all material and
equipment furnished and incorporated by it in the project
shall be new unless otherwise specified, and that the material
and work under the Subcontract as completed and in place shall
be of good quality, free from faults and defects, and in
conformance with the Contract Documents.
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12.2 Subcontractor agrees to promptly repair, rebuild, replace or
make good, without cost to Contractor or Owner, any defects
due to faulty workmanship and/or materials which may appear
within the guarantee or warranty period established in the
Contract Documents. Subcontractor's guarantee shall be for a
period of one year from date of final acceptance of the
project by Owner, as stated in the specifications.
Subcontractor shall require similar guarantees from all
vendors and lower tier Subcontractors.
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12.2 Subcontractor shall pay for all changes to the work resulting
from defects in workmanship or materials and all expenses
necessary to fully and satisfactorily replace or repair any
other work, including that damaged or disturbed by making
replacements or repairs. This guarantee is in addition to all
other guarantees, warranties and rights contained in the
Contract Documents.
13. PATENTS
13.1 Subcontractor agrees to pay all applicable patent royalties
and license fees and to defend all suits or claims made for
infringement of any patent rights involved in the Subcontract
Work.
14. COMPLIANCE with REGULATIONS, APPLICABLE LAW and SAFETY
14.1 All work, labor, services and materials to be furnished by
Subcontractor must strictly comply with all applicable
federal, state, and local laws, rules, regulations, statutes,
ordinances, building codes, and directives now in force or
hereafter in effect as may be required by the Prime Contract.
Subcontractor shall satisfy and comply with the foregoing a
part of the Subcontract without any additional compensation.
14.2 Subcontractor agrees that the prevention of accidents to
workmen engaged in the work under the Subcontract is solely
its responsibility. If requested, Subcontractor shall submit a
safety plan for review by Contractor. Contractor's review of
any safety plan shall not be deemed to release Subcontractor,
or in any way diminish its indemnity, or other liability as
assumed under the Subcontract. Nor shall it constitute an
assumption of liability by Contractor,
14.3 When so ordered, Subcontractor shall stop any part of the
work, which Contractor deems unsafe until corrective safety
measures satisfactory to Contractor have been taken. Should
Subcontractor neglect to adopt such corrective measures,
Contractor may do so and deduct the cost from payments due or
to become due to Subcontractor. Subcontractor shall timely
submit copies of all accident or injury reports to Contractor.
14.4 Subcontractor is specifically noticed to those Federal
and State Equal Opportunity Employment Regulations as set
forth in the provisions or the Special Provisions to the Prime
Contract, and will comply with all Prime Contract
Requirements.
15. DAMAGE to WORK
15.1 All loss or damage to Subcontractor's work resulting from any
cause whatsoever, unless Subcontractor provides proof that
damage was caused by other jobsite Subcontractor or
Contractor, shall be borne and sustained by Subcontractor and
shall be solely at its risk until final acceptance by
Contractor, Owner or Owner's Representative. Subcontractor
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shall at all times and at is sole expense fully secure and
protect against any damage, injury, destruction, theft or
loss, all work and all labor, materials, supplies, tools and
equipment furnished by Subcontractor or its
sub-subcontractors, laborers and material men. Subcontractor
shall at its sole expense promptly repair or replace damage to
the work of others, or to any part of the project, resulting
from its activities. Subcontractor shall not travel outside
the TCE's or will incur the cost for additional soil
stabilization, planting, or seeding.
16. INSPECTION and APPROVALS
16.1 Contractor and Owner at all times shall have the right to
inspect Subcontractor's materials, workmanship and equipment.
Subcontractor shall provide facilities necessary to effect
such inspection, whether at the place of manufacture, the
project site, or any intermediate point. This right of
inspection may be exercised at any time during performance of
the Subcontract Work.
16.2 Any Subcontract Work or material furnished that fails to meet
the requirements or specifications of the Contract Documents
or the Subcontract shall be promptly removed and replaced by
Subcontractor at its own cost and expense. If, in the opinion
of Contractor or Owner, it would not be economical or
expedient to correct or remedy all or any part of the rejected
Subcontract Work or materials, then Contractor at is option
may deduct from payments due or to become due to Subcontractor
either: (a) such amount as in Contractor's sole judgment
represents the difference between the fair value of the
Subcontract Work and materials rejected and the value if same
had been performed in full compliance with the Contract
Documents; or (b) such reductions in price as are provided for
or determined for this purpose under the Contract Documents.
16.3 The Subcontractor shall keep and maintain and require its
Subcontractors and suppliers to keep and maintain all books,
papers, records, files, accounts, reports, bid documents with
backup data, and all other material relating to the Contract
Documents and project according to the Standard
Specifications.
16.4 All of the material set forth in paragraph 16.3 shall be made
available both to the Owner and to Contractor for auditing
inspection and copying and shall be produced, upon request, at
either the Owner's offices located at Jobsite or such other
place as Contractor may specify. Said request for information
shall be limited to instances when specifically required to
comply with a request for information by the Owner, and should
not be construed as a general right by Contractor to request
proprietary or privileged information of Subcontractor.
17. ARBITRATION
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17.1 When arbitration is available by the Prime Contract,
Contractor shall have the option, and Subcontractor shall be
required, to resolve all claims, disputes and matters in
question arising out of, or relating to the Subcontract, or
breach thereof, except for claims which have been waived by
the making or acceptance of final payment, by submission to
arbitration in the time periods and in accordance with the
sections, of the Standard Specifications.
17.2 In accordance with paragraph 17.1, Subcontractor hereby waives
its right to otherwise litigate any and all such disputes,
claims and matters in question in any court or governmental
tribunal in any jurisdiction. If Subcontractor submits any
matter to arbitration hereunder, at its sole option Contractor
may refuse to arbitrate any such disputes, claims, and matters
in question. In that event, and in only that event,
Subcontractor may litigate the matters subject to its demand
for arbitration.
17.3 All arbitration and other legal proceedings instituted
pursuant to this Section shall be conducted pursuant to the
Prime Contract, or at such other venue, as Contractor and
Subcontractor shall agree to in writing.
17.4 The award rendered by the arbitrator(s) shall be final and
judgment may be entered upon it in accordance with applicable
law in any court having jurisdiction.
17.5 Unless otherwise agreed to in writing, the Subcontractor shall
carry on the Subcontract Work and maintain the schedule of
Work pending arbitration or litigation, and the Contractor
shall continue to make payments in accordance with the
Subcontract.
17.6 To the extent not prohibited by their contracts with others,
the claims and disputes of Owner, Contractor, Subcontractor
and other Subcontractors involving a common question of fact
or law shall be heard by the same arbitrator(s) in a single
proceeding.
17.7 This agreement to arbitrate shall not apply to any claim of
contrition or indemnity asserted by one party to the
Subcontract against the other party and arising out of any
action brought in a state or federal court or in arbitration
by a person who is under no obligation to arbitrate the
subject matter of such action with either of the parties
hereto; or does not consent to such arbitration.
17.8 In any dispute arising over the application of paragraph 17.7,
all questions regarding the arbitration requirements of this
section shall be decided by the appropriate court and not by
arbitration.
18. MISCELLANEOUS
18.1 Contractor's waiver of any of the provisions of the
Subcontract, or Contractor's failure to exercise any options
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Page 24 of 24
BID SCHEDULE
M1-CH087 H503703C
ITEM NO. ITEM DESCRIPTION UNIT QUANTITY UNIT PRICE EXTENDED AMOUNT
-------- ---------------- ---- -------- ---------- ---------------
MONK DRAW BRIDGE SB STA 117+20 (WIDENING) - STR #292
9130011 M RAIL BANK PROTECTION, TYPE 1 L.FT. 50 115.00 5,750.00
9140153 M RETAINING WALL (MONK DRAW SB) SQ.FT. 776 35.00 27,160.00
9240060 M MISCELLANEOUS WORK (BACKFILL MONK DRAW L.SUM 1 5,000.00 5,000.00
SCOUR PROTECTION)
BID TOTAL: 7,142,373.85
