DPR Construction, Inc.
DPR Job No.: 00-00000-00
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
BONDS REQUIRED:
YES X
NO
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STANDARD SUBCONTRACT
This Agreement is made at Henrico Co., VA this 13th day of January,
1997, between:
CONTRACTOR: DPR CONSTRUCTION, INC.
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0000 Xxxx Xxxxx Xxxx
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Xxxxxxxx, XX 00000
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and
SUBCONTRACTOR: Xxxxxx X. Xxxxxx Co.
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X.X. Xxx 00000
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Xxxxxxxx, XX 00000
------------------
On or about the 9th day of September, 1996 Contractor entered into a prime
contract with:
OWNER: White Oak Semiconductor
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0000 Xxxx Xxxxx Xxxx
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Xxxxxxxx, XX 00000
------------------
to perform the following work:
Construction Management services to construct the White Oak
Semiconductor Initial Phase.
Said work is to be performed in accordance with the prime contract by and
between White Oak Semiconductor and DPR Construction, Inc., copy available
upon request, and the plans and specifications. Said plans and
specifications have been prepared by:
ARCHITECT: Industrial Design Corporation
-----------------------------
0000 XX Xxxxxx Xxxxxx
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XXXXXXXX, XX 00000
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DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 1. ENTIRE CONTRACT
---------------
The phrase "Contract Documents" is defined to mean and include:
See Attachment I dated, for a list of Contract Documents which is
attached hereto and made a part hereof.
Subcontractor certifies that it is fully familiar with all of the terms
of the Contract Documents, the location of the job site, and the
conditions under which the work is to be performed and that it enters
into this Agreement based upon its investigation of all such matters
and is not relying on any opinions or representations of Contractor.
This Agreement represents the entire agreement. The Contract Documents
are incorporated in this Agreement by reference, and Subcontractor and
its subcontractors will be and are bound by the Contract Documents
insofar as they relate in any way, directly or indirectly, to the work
covered by this Agreement. Subcontractor agrees to be bound to
Contractor in the same manner and to the same extent as Contractor is
bound to Owner under the Contract Documents, to the extent of the work
provided for in this Agreement, and that where, in the Contract
Documents reference is made to Contractor, and the work or
specifications therein pertains to Subcontractor's trade, craft, or
type of work, then such work or specification shall be interpreted to
apply to Subcontractor instead of Contractor.
SECTION 2. SCOPE
-----
Except as otherwise expressly provided herein. Subcontractor shall
supply all labor, supervision, tools, equipment, installed and
consumable materials, services, testing devices and warehousing and
each and every item of expense necessary for the supply, fabrication,
handling, hauling, unloading and receiving, installation, construction,
assembly, testing (excluding soils and concrete testing), evaluation,
and quality assurance including as-built drawings of the Underground
Mechanical Utilities as identified in the Drawings, Specifications and
Amendment A.
In the event of any dispute between Contractor and Subcontractor over
the scope of Subcontractors work under the Contract Documents,
Subcontractor will not stop work but will prosecute the work diligently
to completion, the dispute to be submitted for resolution in accordance
with Section 17 below.
SECTION 3. CONTRACT PRICE
--------------
Contractor agrees to pay Subcontractor for the strict performance of
its work, the TOTAL LUMP SUM of: ONE MILLION SEVEN HUNDRED NINETY-EIGHT
THOUSAND DOLLARS AND NO CENTS ($ 1,798,000.00) which includes the dual
obligee: payment and performance bond, subject to additions and
deductions for changes in the work as may be directed in writing by
Contractor, and to make payment in accordance with the Payment
Schedule, Section 4.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
See SECTION 26 for continuation of CONTRACT PRICE.
SECTION 4. PAYMENT SCHEDULE
----------------
Contractor agrees to pay to Subcontractor, in monthly progress
payments, Ninety Percent of all engineering and detailing completed
during the period and, materials fabricated and delivered to the
construction site; and, Ninety Percent of all labor expended for
materials which have been placed in position or erected, with funds
received by Contractor from Owner for work performed by Subcontractor
as reflected in Contractor's applications for payment. The balance of
any payments due shall he considered retention. Retention shall be the
ten percent of all payment applications processed. Monthly progress
payments shall be made ten (10) days after receipt of payment from the
Owner by Contractor. Final payment to Subcontractor shall be made ten
(10) days after the entire work required by the Subcontract has been
fully completed in conformity with the Contract Documents and has been
delivered to and accepted by Owner, Architect, and Contractor, with
funds received by Contractor from Owner in final payment for work under
the prime contract. Neither monthly progress payments not final
payment shall be due and payable to the subcontractor until and unless
the corresponding funds are received by Contractor from the Owner. The
Owner's payment to the Contractor is a condition precedent to the
Contractor's duty to make corresponding payments to Subcontractor.
Subcontractor agrees to furnish, if and when required by Contractor,
payroll affidavits, receipts, vouchers, releases of claims for
material, and from its subcontractors performing work or finishing
materials under this Agreement, all in a form satisfactory to
Contractor, and it is agreed that no payment hereunder shall be made,
except at Contractor's option, until and unless such documents have
been furnished. Contractor, at its option, may make any payment due
hereunder by check made payable jointly to Subcontractor and any of its
subcontractors, suppliers and materialmen who have performed work or
furnished materials under this Agreement. Any payment made hereunder
prior to completion and acceptance of the work, as referred to above,
shall not be construed as evidence of acceptance or acknowledgment of
completion of any part of any Subcontractor's work.
See SECTION 26 for continuation of PAYMENT SCHEDULE.
SECTION 5. TIME
----
Time is of the essence of this Agreement. Subcontractor shall provide
Contractor with scheduling information and a proposed schedule for
performance of its work in a form acceptable to Contractor.
Subcontractor shall conform to Contractor's progress schedule and all
revisions or changes made thereto. Subcontractor shall prosecute its
work in a prompt and diligent manner in accordance with Contractor's
progress schedule, without delaying or hindering Contractor's work or
the work of other contractors or subcontractors. Subcontractor shall
coordinate the work covered by this Agreement with that of all other
contractors, subcontractors, and of the Contractor, in a manner that
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
will facilitate the efficient completion of the entire work. In the
event Subcontractor fails to maintain its part of the Contractor's
schedule, it shall, without additional compensation, accelerate the
work as Contractor may direct until Subcontractor's work is in
accordance with such schedule. Contractor shall have complete control
of the premises on which the work is to be performed and shall have the
right to decide the time and order in which various portions of the
work shall be installed and the relative priority of the work of
Subcontractor and other subcontractors, and, in general, all other
matters pertaining to the timely and orderly conduct of the work of
Subcontractor on the premises. Should Subcontractor be delayed in the
prosecution or completion of the work by the act, neglect or default of
Owner, Architect or Contractor; or should Subcontractor be delayed
waiting for materials, if required by this Contract to be furnished by
Owner or Contractor; or by damage caused by fire or other casualty for
which Subcontractor is not responsible; or by the combined action of
the workmen, in no way caused by or resulting from fault or collusion
on the part of Subcontractor; or in the event of a lock-out by
Contractor; then the time herein fixed for the completion of the work
shall be extended by the number of days that Subcontractor has thus
been delayed. But no allowance or extension shall be made unless a
claim therefor is presented in writing to Contractor within 48 hours of
the commencement of such delay, and under no circumstances shall the
time of completion be extended to a date which will prevent Contractor
from completing the entire project within the time allowed Contractor
by Owner for such completion.
No claims for additional compensation or damages for delays, whether
caused in whole or in part by any conduct on the part of Contractor,
including, but not limited to, conduct amounting to a breach of this
Agreement, or delays by other subcontractors or Owner shall be
recoverable from Contractor, and the above-mentioned extension of time
for completion shall be the sole remedy of Subcontractor; provided,
however that in the event Contractor obtains additional compensation
from Owner on account of such delays, and in the event Subcontractor
shall have satisfied all subcontract and contract requirements with
respect to timely notification and assertion of claims and with respect
to cooperation with Contractor in the prosecution therewith,
Subcontractor shall be entitled to such portion of the additional
compensation so received by Contractor from Owner as is deemed by the
Contractor to be equitable under all of the existing and applicable
circumstances. In no event shall compensation to Subcontractor for
delay damages exceed that which Contractor receives from Owner on
Subcontractor's behalf. In the event that Contractor prosecutes a
claim against Owner for additional compensation for any delay,
Subcontractor shall cooperate fully with Contractor in the prosecution
thereof and shall pay costs and expenses incurred in connection
therewith, including actual attorneys' fees, to the extent that said
claim is made by Contractor at the request of Subcontractor.
Subcontractor shall prepare and obtain approval as required by the
Contract Documents for all shop drawings details, samples, and do all
other things necessary and incidental to the prosecution of its work in
conformance with Contractor's progress schedule.
See SECTION 26 for additional TIME provisions.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 6. CHANGES IN THE WORK
-------------------
Subcontractor shall make any and all changes in the work described in
the Contract Documents and this Agreement as directed by Contractor in
writing. Such change or written direction shall not invalidate this
Agreement.
If necessary, the contract price stated in Section 3 and the time for
Subcontractor's performance shall be adjusted by appropriate additions
or deductions mutually agreed upon before Subcontractor performs the
changed work. Subcontractor shall supply Contractor with all
documentation necessary to substantiate the amount of the addition to
or deduction from the price or time. If Contractor and Subcontractor
cannot agree on the amount of the addition or deletion. Subcontractor
shall nonetheless timely perform the work as changed by Contractor's
written direction. Once Subcontractor receives Contractor's written
direction, Subcontractor is solely responsible for timely performance
of the work as changed by the written direction. In any event,
Subcontractor's compensation for changes in the work shall be limited
to that which Contractor receives from Owner on Subcontractor's behalf.
Payment for changed work shall be made in accordance with Section 4.
Subcontractor shall not make any changes in the work described in
Section 2 or in any way cause or allow that work to deviate from the
Contract Documents without written direction from Contractor. If
Subcontractor makes any changes in the work described in Section 2
without written direction from Contractor, such change constitutes an
agreement by Subcontractor that it will not be paid for that changed
work, even if it received verbal direction from Contractor or any form
of direction, written or otherwise, from Owner or any other person or
entity. In addition, Subcontractor shall be liable for any and all
losses, costs, expenses, damages, and liability of any nature
whatsoever associated with or in any way arising out of any such change
it makes without written direction from Contractor.
If a dispute arises between Contractor and Subcontractor about whether
particular work is a change in the work described in Section 2,
Subcontractor shall timely perform the disputed work and may give
written notice of a claim for additional compensation for that work.
Such written notice of claim must be given within ten (10) days after
such work is performed. Subcontractor's failure to give written notice
within the ten (10) days constitutes an agreement by it that it will
not be paid for the disputed work.
No change, alteration, or modification to or deviation from this
Agreement, the Contract Documents, prime contract, plans, or
specifications, whether made in the manner provided in this provision
or not, shall release or exonerate, in whole or in part, any bond or
any surety on any bond given in connection with this Agreement, and no
notice is required to be given to such surety of any such change,
alteration, modification, or deviation.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 7. DAMAGES CAUSED BY DELAYS OF SUBCONTRACTOR
-----------------------------------------
If Subcontractor should default in performance of the work described in
Section 2 or should otherwise commit any act which causes delay to the
prime contract work, Subcontractor shall be liable for all losses,
costs, expenses, liabilities and damages, including consequential
damages and liquidated damages, sustained by Contractor, or for which
Contractor may be liable to Owner or any other party because of
Subcontractor's default.
SECTION 8. BONDING OF SUBCONTRACTOR
------------------------
Concurrently with the execution of this Agreement, Subcontractor shall,
if required by Contractor, execute a labor and material bond and
performance bond, in an amount equal to one hundred percent (100%) of
the Contract Price. Said bonds shall be executed by a corporate surety
acceptable to Contractor and shall be in a form satisfactory to
Contractor. Contractor shall pay the premium on said bonds unless
otherwise provided herein or in the Contract Documents.
SECTION 9. LIENS
-----
In case suit is brought on any claim or liens for labor performed or
material used on or furnished to the project, Subcontractor shall pay
and satisfy any such lien or judgment as may be established by the
decision of the court in said suit Subcontractor agrees within ten (10)
days after written demand to cause the effect of any such suit or lien
to be removed from the premises, and in the event Subcontractor shall
fail so to do. Contractor is authorized to use whatever means in its
discretion it may deem appropriate to cause said lien or suit to be
removed or dismissed and the cost thereof, together with actual
attorneys' fees, shall be immediately due and payable to Contractor by
Subcontractor. Subcontractor may litigate any such lien or suit
provided it causes the effect thereof to be removed, promptly in
advance, from the premises, and shall further do such things as may be
necessary to cause Owner not to withhold any monies due to Contractor
from Owner by reason of such liens or suits.
It is understood and agreed that the full and faithful performance of
this Agreement on the part of Subcontractor including the payment of
any obligations due from Subcontractor to Contractor, and any amounts
due to labor or materialmen finishing labor or material for said work)
is a condition precedent to Subcontractor's right to receive payment
for the work performed, and any monies paid by Contractor to
Subcontractor under the terms of this Agreement shall be impressed with
a trust in favor of labor and materialmen furnishing labor and material
to Subcontractor on the work herein subcontracted.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 10. PROVISIONS FOR INSPECTION
-------------------------
Subcontractor shall at all times furnish to Contractor and its
representatives safe and ample facilities for inspecting materials at
the site of construction, shops, factories or any place of business of
Subcontractor and its subcontractors and materialman where materials
under this Agreement may be in course of preparation, process,
manufacture or treatment. Subcontractor shall furnish to Contractor as
often as required by Contractor, full reports of the progress of the
work at any place where materials under this Agreement may be in the
course of preparation or manufacture. Such reports shall show the
progress of such preparation and manufacture in such details as may be
required by Contractor, including, but not limited to, any plans,
drawings or diagrams in the course of preparation.
SECTION 11. MATERIALS AND WORK FURNISHED BY OTHERS
---------------------------------------
In the event the scope of work includes installation of materials or
equipment furnished by others or work to be performed in areas to be
constructed or prepared by others, it shall be the responsibility of
Subcontractor to examine and accept, at the time of delivery or first
access, the items so provided and thereupon handle, store and install
the items with such skill and care as to insure a satisfactory
completion of the work. Use of such items or commencement of work by
Subcontractor in such areas shall be deemed to constitute acceptance
thereof by Subcontractor. Loss or damage due to acts of Subcontractor
shall be charged to the account of Subcontractor and deducted from
monies otherwise due under this Agreement.
SECTION 12. PROTECTION OF WORK
------------------
Subcontractor shall effectually secure and protect the work done
hereunder and assume all responsibility for the condition thereof until
full acceptance by Architect, Owner and Contractor. Subcontractor
further agrees to provide such protection as is necessary to protect
the work and the workmen of Contractor, Owner and other subcontractors
from its operations.
Subcontractor shall be liable for any loss or damage to any work in
place or to any equipment and materials on the job site caused by it or
its agents, employees or guests.
SECTION 13. LABOR RELATIONS
13.1 Subcontractor shall keep a representative at the job site during all
times when Subcontractor's work is in progress, and such representative
shall be authorized to represent Subcontractor as to all phases of the
work. Prior to commencement of the work, Subcontractor shall notify
Contractor who Subcontractor's representative is to be, and in the
event of any change of representative Subcontractor shall notify
Contractor who the new representative is to be prior to such change
becoming effective.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
Should there be picketing on Contractor's job site, and Contractor
establishes a reserved gate for Subcontractor's purpose, it shall be
the obligation of Subcontractor to continue the proper performance of
its work without interruption or delay.
13.2 Subcontractor shall comply with all equal employment opportunity and
affirmative action requirements promulgated by any "governmental
authority", including, without limitation, the requirements of the
Civil Rights Act of 1964.
13.3 Subcontractor shall comply with and agrees to be bound by all
applicable Federal, State and local laws and regulations covering the
work. Upon request, Subcontractor agrees to submit certified payroll
reports to Contractor no later than three (3) working days after labor
has been paid.
SECTION 14. RECOURSE BY CONTRACTOR
----------------------
14.1 Failure of Performance
14.1.1 Notice to Cure. If Subcontractor at any time refuses or neglects to
supply enough properly skilled workers and proper materials, or fails
to properly and diligently prosecute the work covered by this
Agreement, or fails to make prompt payment to its workers, sub-
subcontractors or suppliers, or becomes delinquent with respect to
contributions or payments required to be made to any health and
welfare, pension, vacation, apprenticeship or other employee benefit
program or trust, or is otherwise guilty of a material breach of a
provision of this Agreement, and fails within forty-eight (48) hours
after receipt of written notice to commence and continue satisfactory
correction of such default with diligence and promptness, then
Contractor, without prejudice to any debts or remedies, shall have the
right to any or all of the following remedies:
(a) supply such number of workers and quantity of materials,
equipment and other facilities as Contractor deems necessary for
the completion of Subcontractor's work, or any part thereof which
Subcontractor has failed to complete or perform, and charge the
cost thereof to Subcontractor, who shall be liable for the
payment of same including reasonable overhead, profit and actual
attorneys' fees incurred as a result of Subcontractor's failure
of performance;
(b) contract with one or more additional contractors to perform such
part of Subcontractor's work as Contractor shall determine will
provide the most expeditious completion of the total work and
charge the cost thereof to Subcontractor; and
(c) withhold payment of any monies due Subcontractor pending
corrective action to the extent required by and to the
satisfaction of Contractor.
In the event of an emergency affecting the safety of persons or
property. Contractor may proceed as above without notice.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
14.1.2 Termination for Default. If Subcontractor fails to commence and
satisfactorily continue correction of a default within forty-eight
(48) hours after receipt by Subcontractor of the notice issued under
Section 14.1.1., then Contractor may terminate Subcontractor's right
to perform under this Agreement and use any materials, implements,
equipment, appliances or tools furnished by or belonging to
Subcontractor to complete Subcontractor's work without any further
compensation to Subcontractor for such use. Contractor also may
furnish those materials and equipment, and/or employ such workers or
subcontractors as Contractor deems necessary to maintain the orderly
progress of the work.
In such case. Subcontractor shall be entitled to no further payment
until the balance of Subcontractor's work has been completed. At that
time, all of the costs incurred by Contractor in performing
Subcontractor's work, including a markup of fifteen percent (15%) for
overhead and profit on such expenses, plus actual attorneys' fees as
provided above, shall be deducted from any monies due or to become due
Subcontractor. Subcontractor shall be liable for the payment of any
amount by which such expenses may exceed the unpaid balance of the
Contract Price.
14.1.3 Termination for Convenience. Contractor may at any time and for any
reason terminate Subcontractor's services and work at Contractor's
convenience. Cancellation shall be by service of written notice to
Subcontractor's place of business.
Upon receipt of such notice, Subcontractor shall, unless the notice
directs otherwise, immediately discontinue the work and placing of
orders for materials, facilities and supplies in connection with the
performance of this Agreement, and shall, if requested, make every
reasonable effort to procure cancellation of all existing orders or
contracts upon terms satisfactory to Contractor or at the option of
Contractor, give Contractor the right to assume those obligations
directly, including all benefits to be derived therefrom.
Subcontractor shall thereafter do only such work as may be necessary
to preserve and protect the work already in progress and to protect
material and equipment on the job site or in transit thereto.
Upon such termination, Subcontractor shall be compensated only as
follows, subject to deduction for previous payments: (1) for the
actual cost of the work completed in conformity with this Agreement
and having been approved by Contractor as having been made or incurred
in performing under this subcontract; and, (2) such other costs
actually included by Subcontractor as are permitted by the prime
contract and approved by Owner in settling or discharging outstanding
commitments entered into by Subcontractor in performing under this
Subcontract; and (3) profit, insofar as a profit is actually realized
hereunder, and in an amount equal to the profit on the entire
Subcontract estimated, based on actual cost performance, at the time
of termination, multiplied by the percentage of completion of the
work. In no event, however, will the compensation to Subcontractor
exceed the total Subcontract price less payments previously made and
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
less the contract price of work not terminated. Subcontractor shall
not be entitled to any claim or claim of lien against Contractor or
Owner for any additional compensation or damages in the event of such
termination and payment.
14.1.4 Grounds for Withholding Payment. Contractor may withhold, or on
account of subsequently discovered evidence, nullify the whole or part
of any payment to the extent necessary to protect Contractor from
loss, including costs and attorneys' fees, on account of (1) defective
work not remedied; (2) claims filed or reasonable evidence indicating
probable filing of claim; (3) failure of Subcontractor to make
payments properly to its subcontractors or for material, labor or
fringe benefits; (4) a reasonable doubt that this Agreement can be
completed for the balance then unpaid; (5) damage to another
subcontractor; (6) penalties assessed against Contractor or
Subcontractor for failure of Subcontractor to comply with State,
Federal or local laws and regulations; or (7) any other ground for
withholding payment allowed by State or Federal law, or as otherwise
provided in this Agreement. When the above matters are rectified,
such amounts as then due and owing shall be paid or credited to
Subcontractor.
14.2 Bankruptcy
14.2.1 Termination Absent Cure. Upon the appointment of a receiver for
Subcontractor or upon Subcontractor making an assignment for the
benefit of creditors or if Subcontractor seeks protection under the
Bankruptcy Code or commits any other act of insolvency, Contractor may
terminate this Agreement upon giving forty-eight (48) hours written
notice, by certified mail, to Subcontractor and its surety, if any.
If an order for relief is entered under the Bankruptcy Code with
respect to Subcontractor, Contractor may terminate this Agreement by
giving forty-eight (48) hours written notice, by certified mail, to
Subcontractor, its trustee, and its surety, if any, unless
Subcontractor, the surety, or the trustee:
(a) promptly cures all defaults;
(b) provides adequate assurance of future performance;
(c) compensates Contractor for actual pecuniary loss resulting from
such defaults; and
(d) assumes the obligations of Subcontractor within the statutory
time limits.
14.2.2 Interim Remedies. If Subcontractor is not performing in accordance
with the schedule of work at the time of entering an order for relief,
or at any subsequent time, Contractor, while awaiting the decision of
Subcontractor or its trustee to reject or to accept this Agreement and
provide adequate assurance of its ability to perform hereunder, may
avail itself of such remedies under this Section as are reasonably
necessary to maintain the schedule of work.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
Contractor may offset against any sums due or to become due
Subcontractor all costs incurred in pursuing any of the remedies
provided hereunder including, but not limited to, reasonable overhead,
profit and actual attorneys' fees incurred as a result of
Subcontractor's non-performance;
Subcontractor shall be liable for the payment of any amount by which
such expense may exceed the unpaid balance of the Contract Price.
SECTION 15. INDEMNIFICATION
---------------
15.1.1 Subcontractor's Performance. With the exception that this Section 15
shall in no event be construed to require indemnification by
Subcontractor to a greater extent than permitted under the public
policy of the Commonwealth of Virginia, Subcontractor shall indemnify
and save harmless Owner and Contractor including their officers,
agents, employees, affiliates, parents and subsidiaries, and each of
them, of and from any and all claims, demands, causes of action,
damages, costs, expenses, actual attorneys' fees, losses or liability,
in law or in equity, of every kind and nature whatsoever ("Claims")
arising out of or in connection with Subcontractor's operations to be
performed under this Agreement for, but not limited to:
(a) Personal injury, including, but not limited to, bodily injury,
emotional injury, sickness or disease, or death to persons,
including, but not limited to, any employees or agents of
Subcontractor, Owner, Contractor or any other subcontractor
and/or damage to property of anyone (including loss of use
thereof), caused or alleged to be caused in whole or in part by
any negligent act or omission of Subcontractor or anyone directly
or indirectly employed by Subcontractor or anyone for whose acts
Subcontractor may be liable regardless of whether such personal
injury or damage is caused by a party indemnified hereunder.
(b) Penalties imposed on account of the violation of any law, order,
citation, rule, regulation, standard, ordinance or statute,
caused by the action or inaction of Subcontractor.
(c) Infringement of any patent rights which may be brought against
the Contractor or Owner arising out of Subcontractor's Work.
(d) Claims and liens (see Section 9) for labor performed or materials
used or furnished to be used on the job, including all incidental
or consequential damages resulting to Contractor or Owner from
such claims or liens.
(e) Subcontractor's failure to fulfill the covenants set forth in
each subpart of Section 13, Labor Relations.
(f) Failure of Subcontractor to comply with the provisions of Section
16.1, Casualty Insurance.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
(g) Any violation or infraction by Subcontractor of any law, order,
citation, rule, regulation, standard, ordinance or statute in any
way relating to the occupational health or safety of employees,
including, but not limited to, the use of Contractor's or other's
equipment, hoist, elevators, or scaffolds (See Sections 16 and
20).
The indemnification provisions of (a) through (g) above shall extend
to Claims occurring after this Agreement is terminated as well as
while it is in force. Such indemnity provisions apply regardless of
any active and/or passive negligent act or omission of Owner or
Contractor or their agents or employees. Subcontractor, however,
shall not be obligated under this Agreement to indemnify Owner or
Contractor for Claims arising from the sole negligence or willful
misconduct of Owner or Contractor or their agents, employees or
independent contractors who are directly responsible to Owner or
Contractor, or for defects in design finished by such persons.
15.1.2 Subcontractor shall:
(a) At Subcontractor's own cost, expense and risk, defend all Claims
as defined in Section 15.1.1 that may be brought or instituted by
third persons, including, but not limited to, governmental
agencies or employees of Subcontractor, against Contractor or
Owner or their agents or employees or any of them;
(b) Pay and satisfy any judgment or decree that may be rendered
against Contractor or Owner or their agents or employees, or any
of them, arising out of any such Claim; and/or
(c) Reimburse Contractor or Owner or their agents or employees for
any and all legal expense incurred by any of them in connection
herewith or in enforcing the indemnity granted in this Section
15.
15.2 Risk of Loss
All work covered by this Agreement done at the site or in preparing or
delivering materials or equipment, or any or all of them, to the site
shall be at the risk of Subcontractor exclusively until the completed
work is accepted by Contractor.
15.3 No Limitation of Liability
The indemnities set forth in this Section 15 shall not be limited by
the insurance requirements set forth in Section 16.
SECTION 16. INSURANCE
---------
16.1 SEE ATTACHMENT 3 for PROJECT INSURANCE REQUIREMENTS.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
16.2 Property Insurance
Contractor and Subcontractor waive all rights against each other and
against all other subcontractors and Owner for loss or damage to the
extent reimbursed by Builder's Risk or any other property or equipment
insurance applicable to the work, except such rights as they may have
to the proceeds of such insurance. If the policies of insurance
refereed to in this Section require an endorsement or consent of the
insurance company to provide for continued coverage where there is a
waiver of subrogation, the owners of such policies will cause them to
be so endorsed or obtain such consent.
Upon written request of Subcontractor, Contractor shall provide
Subcontractor with a copy of the Builders Risk policy of insurance or
any other property or equipment insurance in force for the project and
procured by Contractor. Subcontractor shall satisfy himself as to the
existence and extent of such insurance prior to commencement of
Subcontractors work.
If Builders Risk insurance purchased by Owner or Contractor provides
coverage for Subcontractor for loss or damage to Subcontractor's work,
Subcontractor shall be responsible for the insurance policy deductible
amount ($10,000) applicable to damage to Subcontractor's work and/or
damage to other work caused by Subcontractor.
If not covered under the Builder's Risk policy of insurance or any
other property or equipment insurance required by the Contract
Documents, Subcontractor shall procure and maintain at its own expense
property and equipment insurance for portions of Subcontractor's work
stored off the site or in transit.
SECTION 17. CLAIMS RESOLUTION PROCEDURE
---------------------------
17.1 Agreement to Arbitrate
All claims, disputes and matters in question arising out of, or
relating to this Agreement or the breach thereof, except for claims
which have been waived by the making or acceptance of final payment,
shall be decided by the claims procedure, including any arbitration
clause, specified in the prime contract between Contractor and Owner.
In the absence of an agreement to arbitrate in the prime contract, no
claims or disputes shall be arbitrated unless in this Agreement or
mutually agreed upon in writing by Contractor, Subcontractor and
Owner.
17.2 Arbitration Procedures (if applicable)
In the event the prime contract contains an arbitration provision or
if arbitration is provided for in this Agreement, the following shall
apply:
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
17.2.1 Notice of Demand. Notice of the demand for arbitration shall be filed
in writing with the other party to this Agreement and shall conform to
the requirements of the arbitration provision set forth in the prime
contract. The demand for arbitration shall be made within a
reasonable time after written notice of the claim, dispute or other
matter in question has been given, and in no event shall it be made
after the date when institution of legal or equitable proceedings
based on such claim dispute or other matter in question would be
barred by the applicable statute of limitations.
17.2.2 Award. 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.
17.2.3 Work Continuation and Payment. Unless otherwise agreed in writing,
Subcontractor shall carry on the work and maintain the schedule of
work pending arbitration, and, if so, Contractor shall continue to
make payments in accordance with this Agreement.
17.2.4 Consolidated Arbitration Proceedings. 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. In this event, it shall be the responsibility of
Subcontractor to prepare and present Contractor's case, to the extent
the proceedings are related to this Agreement. Should Contractor
enter into arbitration with the Owner or others regarding matters
relating to this Agreement, Subcontractor shall be bound by the result
of the arbitration to the same degree as the Contractor.
17.2.5 No Limitation of Rights or Remedies. This Section shall not be deemed
a limitation of any rights or remedies which Subcontractor may have
under any Federal or State mechanics' lien laws or under any
applicable labor and material payment bonds unless such rights or
remedies are expressly waived by it.
SECTION 18. SAFETY PRACTICES
----------------
Subcontractor shall comply fully with all laws, orders, citations,
rules, regulations, standards and statutes with respect to
occupational health and safety, the handling and storage of hazardous
materials, accident prevention, safety equipment and practices
including the accident prevention and safety program of Owner and
Contractor. Subcontractor shall conduct inspections to determine that
safe working conditions and equipment exist and accepts sole
responsibility for providing a safe place to work for its employees
and for employees of its subcontractors and suppliers of material and
equipment, for adequacy of and required use of all safety equipment
and for full compliance with the aforesaid laws, orders, citations,
rules, regulations, standards and statutes.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
Immediately upon execution of the Subcontract, in accordance with GISO
5194, Subcontractor is required to submit Material Safety Data Sheets
(MSDS) to DPR Construction, Inc. for all materials to be utilized in
the execution of, or incorporated into this scope of work.
SECTION 19. WARRANTY
--------
Subcontractor warrants to Owner, Architect and Contractor that all
materials and equipment furnished shall be new unless otherwise
specified and that all work under this Agreement shall be of good
quality, free from faults and defects and in conformance with the
Contract Documents. All work not conforming to these requirements,
including substitutions not properly approved and authorized, may be
considered defective. The warranty provided in this Section 19 shall
be in addition to and not in limitation of any other warranty or
remedy required by law or by the Contract Documents.
SECTION 20. USE OF CONTRACTOR'S EQUIPMENT
-----------------------------
In the event Subcontractor shall use Contractor's equipment,
materials, labor, supplies or facilities, Subcontractor shall
reimburse Contractor at a predetermined rate, except as provided in
Section 14.1.2 or as otherwise stated herein. Further, Subcontractor
assumes all responsibility for physical damage to such equipment,
materials, labor, supplies, or facilities used by Subcontractor or its
agents, employees, or permittees. In the event that Contractor's
employees are used by Subcontractor, Subcontractor shall have full
responsibility for all acts or omissions of Contractor's employees
with regard to Subcontractor's use or employment of them.
Subcontractor accepts any and all of Contractor's equipment,
materials, labor, supplies or facilities as furnished.
SECTION 21. ASSIGNMENT OF CONTRACT
----------------------
Subcontractor shall not, without written consent of Contractor,
assign, transfer, or sublet any portion or part of the work required
by this Agreement, nor assign any payment hereunder to others.
SECTION 22. INDEPENDENT CONTRACTOR
----------------------
Subcontractor is an independent contractor and shall, at its sole cost
and expense, and without increase in the Contract Price, comply with
all laws, rules, ordinances and regulations of all governing bodies
having jurisdiction over the work; obtain all necessary permits and
licenses therefor, pay all manufacturers' taxes, sales taxes, use
taxes, processing taxes, and all federal and state taxes, insurance
and contributions for social security and unemployment which are
measured by wages, salaries, or other remuneration paid to
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
Subcontractor's employees, whether levied under existing or
subsequently enacted laws, rules or regulations. Subcontractor upon
request, shall furnish evidence satisfactory to Contractor that any or
all of the foregoing obligations have been fulfilled.
SECTION 23. CLEAN-UP
--------
At all times during the course of construction. Subcontractor shall
perform its work so as to maintain the site in a clean, safe and
orderly condition. Upon completion of the work under this Agreement.
Subcontractor shall remove from the site all hazardous materials,
temporary structures, debris and waste incident to its operation and
clean all surfaces, fixtures, equipment, etc., relative to the
performance of this Agreement. Subcontractor acknowledges that it is
aware that this project is a "Build Clean" site and, that it will
comply with all requirements of the Project Protocol for staging of
cleanliness throughout its work on the site.
SECTION 24. ATTORNEYS' FEES
---------------
In the event the parties become involved in litigation or arbitration
with each other arising out of this Agreement or other performance
thereof in which the services of an attorney or other expert are
reasonably required, the prevailing party shall be fully compensated
for the cost of its participation in such proceedings, including the
cost incurred for attorneys' fees and experts' fees. Unless judgment
goes by default, the attorneys' fee award shall not be computed in
accordance with any court schedule, but shall be such as to fully
reimburse all attorneys' fees actually incurred in good faith,
regardless of the size of a judgment, it being the intention of the
parties to fully compensate for all attorneys' fees and experts' fees
paid or incurred in good faith, at hearing, trial, or on appeal.
SECTION 25. LABOR AGREEMENTS
----------------
Presently, DPR Construction has no labor agreements in the
Commonwealth of Virginia.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 26. SPECIAL PROVISIONS (Including unit pricing, if applicable)
------------------
SECTION 3: CONTRACT PRICE, continued:
--------------
Cost Codes for the Underground Mechanical Utilities
BLDG WBS UNIQUE
CODE CODE ALPHA TITLE $ VALUE
---- ---- ----- ----- -------
S 014020 A Water-utility $ 222,787.00
S 014520 B Fire Protection $ 425,944.00
S 015520 A Sanitary Sewer $ 729,093.00
S 017540 B Irrigation Sleeving $ 65,682.00
S * Manholes $ 91,250.00
S * Other $ 263.244.00
--------------
TOTAL $ 1,798,000.00
==============
* Cost codes for these items will be sent under separate cover
within two weeks
The Subcontract price shall include all taxes, (including applicable
Commonwealth of Virginia sales and use, and other applicable state and
local taxes), fees and similar charges.
SECTION 4: PAYMENT SCHEDULE continued:
----------------
Attachment 4, Subcontractor Billing Package, attached hereto is made a
part of this Subcontract. Additionally, DPR's billing procedures are
amended as follows: DPR Construction, Inc.'s standard Billing
Procedures will be used by Subcontractors for all payment
applications. ADDITIONALLY, the Subcontractor is notified that all
Payment Applications submitted must be accompanied by the
Subcontractor's Certified Payroll and a schedule of values for the pay
period covered by the payment application. The Certified Payroll must
be attested to by a principal of the firm, the Subcontractor's
accountant or other authorized representative. The Subcontractor is
made aware that all certified payrolls are subject to audit at such
frequency as may be determined by DPR. Further, the Subcontractor
will be required to configure and code all schedules of values,
payment requests and invoices as may be directed by DPR prior to their
submittal for payment. Payment for all materials stored offsite is
solely at the discretion of DPR and, if allowed, requires the
execution by the Subcontractor of DPR's "Agreement for the Payment of
Stored Materials/Xxxx of Sale & Agreement to Protect", without
exception.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 5: TIME, continued:
----
THE SUBCONTRACT COMPLETION DATE IS: MAY 9, 1997
SECTION 6: CHANGES IN THE WORK, continued:
-------------------
In the event of changes (additions or deletion) to the Scope of Work,
the following Unit Prices shall apply. The Unit Prices below are
inclusive of all costs required for the supply and installation of
complete units of the specified components of the Work.
Unit Rates
----------
Description Unit Rates
----------- ---- -----
Trench Excavation CY* TO 5' DEEP 8.00
Trench Excavation to Embankment (Fill) CY 2.00
Unsuitable Material to Stockpile CY 2.00
Offhaul Unsuitable Material (Offsite From Stockpile CY 10.00
Off-Site Borrow (SP, SM, GP, GM OR GC) CY 12.00
Non-woven Geotextile (VDOT Sec 245-Drainage Fabric SF .17
Inlet/Culvert Protection EA 100.00
Rock Excavation in Trenches W/Hoe-Ram CY 200.00
Rock Excavation in Trenches - Blasting CY 70.00
Backfill Trenches W/Select on-site Material & Compact CY 2.50
Backfill Trenches W/Off-Site Borrow & Compact CY 12.00
Backfill Trenches W/Stone ( ) & Compact TON 10.00
Backfill Trenches W/Stone (#57) Compaction not Req'd. TON 12.00
Subcontractor shall submit change order pricing in the form and format
required by Contractor, and using labor, tools and equipment rates
detailed in Subcontractor's Underground Mechanical utilities Proposal.
Further, Subcontractor's xxxx ups on direct costs in change order
proposals shall be limited to the following:
Description Overhead Profit
----------- -------- ------
Labor Costs 10% 5%
Material Costs 10% 5%
Purchased Equipment Costs 10% 5%
Sub-Subcontractor Costs 10% 5%
Overhead shall include all detailing, engineering, purchasing, shop
burden, tools, equipment, trucks, trucking costs, nonproductive labor.
Project Management costs (onsite and offsite) and any other indirect
costs. No multipliers for any soft costs shall be allowed in
calculation of the direct costs of the work.
DPR Construction, Inc.
DPR Job No.: 09-9600140
Subcontract No. 09-96001-00-048-S
Cost Code: See Section 26
SECTION 16: INSURANCE, continued:
---------
If applicable, participation in the Owner Controlled Insurance Program
by all Subcontractors will be mandatory. The OCIP Insurance Manual
(Attachment 3) dated January 16, 1997, is hereby made part of this
subcontract.
26.1 NOTICE TO CONTRACTOR OF LABOR DISPUTES. Whenever Subcontractor has
any knowledge that any actual or potential labor dispute is delaying
or threatens to delay the timely performance of this contract,
Subcontractor shall immediately notice thereof including all relevant
information with respect thereto, to Contractor.
Subcontractor shall insert this clause 26.1, in its entirety, in any
subcontract hereunder as to which a labor dispute may delay the timely
performance of this contract, except that each subcontract shall
provide that in the event its timely performance is delayed or
threatened by delay by any actual or potential labor dispute, the
subcontractor shall immediately notify Subcontractor of all relevant
information with respect to such dispute.
SUBCONTRACTORS AND SUB-SUBCONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED WITH
THE STATE CORPORATION COMMISSION TO DO BUSINESS IN THE COMMONWEALTH OF
VIRGINIA, AND SHALL BE LICENSED CONTRACTORS BY THE COMMONWEALTH OF VIRGINIA
BOARD OF CONTRACTORS. ANY QUESTIONS CONCERNING CONTRACTORS LICENSING SHALL
BE DIRECTED TO:
Board of Contractors
Department of Professional and Occupational Regulation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
(804) 367-8500
Dated: 3/6/97 Dated: 2/25/97
---------------------------- -----------------------------
CONTRACTOR DPR Construction, Inc. SUBCONTRACTOR
By s/Xxxxx X. Xxxxxx Bys/Xxxxxxx X. Xxxxxx, President
-------------------------------- --------------------------------
(Name) (Name)
Xxxxx X. Xxxxxx Area Manager Xxxxxxx X. Xxxxxx, President
----------------------------------- -----------------------------------
0000 X. Xxxx Xxxx.
0000 Xxxx Xxxxx Xxxx P.O. Box 24205
----------------------------------- -----------------------------------
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
----------------------------------- -----------------------------------
(Address) (Address)
2705-035043A 2701-008430A
----------------------------------- -----------------------------------
(Contractor's License No.) (Contractors License No.)
