VIEWS: 542 PAGES: 8 CATEGORY: How to Write a Proposal POSTED ON: 3/10/2012
This is an agreement between a contractor and a sub-contractor requiring the sub-contractor to provide all of the materials, supplies and equipment for a construction project. The agreement includes a flow down provision, which means that the terms of the general contract between the owner and the contractor flow down into this sub-contractor agreement, therefore the sub-contractor is essentially responsible for the contractor’s responsibilities to the owner. This agreement can be used by small businesses that offer contracting services and want to engage a sub-contractor to provide supplies for a construction project.
This is an agreement between a contractor and a sub-contractor requiring the sub- contractor to provide all of the materials, supplies and equipment for a construction project. The agreement includes a flow down provision, which means that the terms of the general contract between the owner and the contractor flow down into this sub- contractor agreement, therefore the sub-contractor is essentially responsible for the contractor’s responsibilities to the owner. This agreement can be used by small businesses that offer contracting services and want to engage a sub-contractor to provide supplies for a construction project. SUPPLY AGREEMENT THIS SUPPLY AGREEMENT (the “Agreement”) made as of ___________ [Instruction: Insert Date], by and between ___________ [Instruction: Insert Name of Contractor], ___________ [Instruction: Insert Address] (“Contractor”), and ___________ [Instruction: Insert Name of Sub-contractor], ___________ [Instruction: Insert Address] (“Sub-contractor”). WHEREAS, Contractor entered into a written contract with ___________ [Instruction: Insert Owner Name] (the “Owner”), dated as of ___________ [Instruction: Insert Date of General Contract]) (hereinafter called the “General Contract”), with respect to the construction of ___________ [Instruction: Insert Description of Project] (the “Project”) at ___________ [Instruction: Insert Address] (the “Site”). WHEREAS, Contractor desires to engage the services of Sub-contractor for the purposes of furnishing and supplying and materials, supplies and equipment necessary to complete the Project; WHEREAS, subject to the terms and conditions contained herein, Sub-contractor desires to accept said engagement. NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: 1. Sub-contractor Services. A. Sub-contractor agrees to furnish and supply all materials, supplies and equipment necessary to complete the construction of the Project at the Site for the Owner, in accordance with the terms and conditions of this Agreement, and, to the extent that the terms and conditions of the Contract Documents apply to the work of sub-contractors, the Contract Documents. For purposes hereof, the “Contract Documents” shall include, the General Contract, any amendments, addendums, or change orders made thereto, any Drawings and Specifications and any Addenda prepared by ___________ [Instruction: Insert Name of Architect] (the “Architect”) and any other documents forming or by reference made a part of the General Contract. B. With respect to Sub-contractor’s work hereunder, Contractor shall assume toward Subcontractor all obligations and responsibilities that the Owner assumes toward Contractor pursuant to the Contract Documents; and Sub-contractor shall assume toward Contractor all obligations and responsibilities that Contractor assumes toward the Owner and the Architect, respectively, pursuant to the Contract Documents. Insofar as may be applicable to this Agreement, Contractor shall have the benefit of all rights, remedies and redress against the Sub- contractor that the Owner has against Contractor pursuant to the Contract Documents; and Sub- contractor shall have the benefit of all rights, remedies and redress against Contractor that Contractor has against the Owner, pursuant to the Contract Documents. Where a provision of such documents is inconsistent with a provision of this Agreement, this Agreement shall govern. C. Sub-contractor acknowledges that Sub-contractor is thoroughly familiar with the requirements of the Contract Documents and this Agreement and that Sub-contractor has investigated and satisfied himself as to Project, job requirements, availability of materials, and all other conditions and requirements which could affect the performance of this Agreement. Sub- contractor agrees that Sub-contractor will not be relieved from Sub-contractor’s responsibility for fully and faithfully performing this Agreement due to any failure by Sub-contractor to be fully acquainted with the available information. Sub-contractor acknowledges that Sub- contractor’s acceptance of this Agreement is based solely on Sub-contractor’s knowledge and judgment and not on any representation by Contractor not expressly included herein. D. Sub-contractor acknowledges that the non-technical provisions of this Agreement and of the Contract Documents govern with the same importance and authority as the technical provisions of this Agreement and of the Contract Documents. Sub-contractor agrees that Sub- Contractor will perform this Agreement so as not to violate any provisions of the Contract Documents. E. The Contract Documents are available at all reasonable times at the office of Contractor for inspection by Sub-contractor upon request. F. Sub-contractor agrees to furnish and supply the materials, supplies and equipment in strict compliance with the requirements of the Contract Documents. All such materials, supplies and equipment stored at the Project site shall be at the risk of Sub-contractor and stored only where and when directed by Contractor. Contractor assumes no responsibility or liability for materials, supplies and/or equipment received or stored by Contractor on behalf of and in accommodation to Sub-contractor. G. Sub-contractor expressly covenants and agrees to keep himself thoroughly informed as to the progress of the job; to commence the work within five (5) days after notification by Contractor; to prosecute the work diligently, continuously and uninterruptedly with all possible speed; and to complete the work and the several parts thereof at such time or times as directed by Contractor and so as to not interfere with or delay performance of the General Contract or the work of any other Sub-contractor or contractor. In the event Sub-contractor fails to carry on the work at such rates of progress as directed by Contractor, Contractor may at its option require Sub-contractor at Sub-contractor’s expense to increase the number of workmen and/or hours of work and/or the amount of materials, supplies or equipment employed in the performance of the work to bring Sub-contractor’s progress up to the prescribed schedule. 2. Fee. Contractor agrees to pay Sub-contractor for the full, faithful and complete performance of this Agreement, subject to the terms and conditions hereof, including additions and deductions as hereinafter provided, the total sum of ___________ Dollars ($________) [Instruction: Insert Amount]. A. Contractor agrees to make progress payments to Sub-contractor in an amount equal to ninety percent (90%) of the value of the Work performed and completed through the last day of the payment period, as such value is determined by Owner or its authorized representative, within ten (10) days after Contractor is paid therefor by Owner in at least the same amount. B. Contractor agrees to make final payment to Sub-contractor in an amount equal to the balance of the Fee due Sub-contractor within thirty (30) days after completion of the entire work of the Project, written acceptance thereof by Owner and Contractor is paid therefor by Owner in full; provided, however, Sub-contractor shall, as a condition precedent to final payment, execute and deliver to Contractor (and Owner, if required) a full and valid release and complete discharge of and from any and all claims and demands whatsoever for all matters growing out of or in any manner connected with or founded upon, this Agreement or the work contemplated thereby. C. Sub-contractor expressly covenants and agrees that Contractor shall be under no obligation to pay Sub-contractor for any work on this Project until Contractor has been paid therefor by Owner, and all payments hereunder are subject to the condition precedent that Contractor shall first receive from Owner progress and/or final payments in at least the amounts payable to Sub-contractor on account of the work by Sub-contractor on this Project; otherwise the time when such payments shall be due Sub-contractor shall be postponed until Contractor has received same from Owner. 3. Liens, Waivers and Affidavits. A. Sub-contractor shall furnish Contractor with such partial releases and waivers of lien from Sub-contractor, as Contractor may require from time to time on labor and/or material and/or other claims, and final releases and waivers of lien at the time of final payment under this Agreement. B. Sub-contractor agrees to furnish such sworn affidavits as may be required by Contractor attesting to Sub-contractor’s financial condition relating to this Agreement and indicating amounts paid and owing for labor, materials, supplies, equipment and other expenses. Sub- contractor agrees that Contractor may take such steps as Contractor may deem necessary to protect Contractor and Owner against any claims filed or reasonable evidence indicating probable filing of claims. C. Sub-contractor agrees that such releases, waivers and affidavits shall be prerequisite for partial and final payments. 4. Permits, Licenses, Fees and Tests. Sub-contractor shall secure and pay for all permits, licenses, fees and tests necessary for the execution and completion of the work. Sub-contractor warrants to Contractor that Sub-Contractor is duly qualified to do business in the state where the Project is located and that Sub-contractor is properly licensed to perform the work. 5. Compliance. Sub-contractor shall, at the time and in the manner prescribed, abide by and conduct the work and perform this Agreement in full compliance with any and all applicable federal, state, local and municipal laws, ordinances and orders and any and all rules and regulations of governmental boards and bureaus having jurisdiction and shall defend, hold and save harmless Contractor and Owner from any and all liability with respect thereto. 6. Reports. Sub-contractor agrees to submit promptly and accurately, in the prescribed form, manner and time, all payroll reports, certificates, guarantees, opening instruction, progress schedules, or other documents required by the Contract Documents. Sub-contractor agrees to reimburse Contractor for any expenses, interest and/or penalties occasioned Contractor by the delay, inaccuracy, omissions or negligence on the part of Sub-contractor in connection with the submission of the aforementioned documents. 7. Insurance. Sub-contractor shall carry and pay for and maintain in force continuously during the life of this Agreement, the insurance specified in the Contract Documents, or if not so specified, such insurance as Contractor and/or Owner consider necessary for the proper protection of the parties hereto and Owner, and in forms approved by Contractor and/or Owner. 8. Termination by Owner. Should Owner terminate the General Contract or abandon the Project for any reason, Sub-contractor shall be entitled to receive only such compensation as provided under the termination clause of the Contract Documents, or in the absence or inapplicability of such clause, Sub-contractor shall receive only Sub-contractor’s pro rata share of any termination payments or salvage received by Contractor. In any event, Contractor’s obligation or liability to Sub-contractor is limited to the amount determined by Owner or the pro rata share of any profits from the sale, disposal or salvage of the Project. 9. Indemnity. To the fullest extent permitted by law, Sub-contractor shall indemnify and hold harmless Owner, Architect and Contractor, and all of their agents and employees, from and against all claims, damages, losses and expenses, including but not restricted to, attorney’s fees arising out of or resulting from the performance of Sub-contractor’s work under this Agreement, to the extent such claim is caused in whole or in part by any negligent act or omission of Sub- contractor or anyone directly or indirectly employed by Sub-contractor or anyone for whose acts Sub-contractor may be liable, regardless of whether it is caused in part by a party indemnified hereunder. 10. Default By Sub-contractor. A. Sub-contractor shall be liable to Contractor for any loss or damage (including but not restricted to, any liquidated or other damages which may become due Owner under the Contract Documents) and extra expenses paid or incurred by Contractor, together with interest thereon at the maximum legal rate or interest per annum until paid, which are due to Sub-contractor’s failure to carry out the work in accordance with this Agreement or to properly or timely perform any term, covenant or condition contained in this Agreement. B. If Sub-contractor fails or neglects to carry out the work in accordance with this Agreement or to properly or timely perform any term, covenant or condition contained in this Agreement and fails within ___________ (___) [Instruction: Insert Amount] days after receipt of written notice from the Contractor to commence and continue correction of such failure or neglect with diligence and promptness, Contractor may, without further notice to Sub-contractor, and without prejudice to or waiver of any other right or remedy Contractor may have, make good such deficiencies by whatever method or means Contractor may deem expedient. C. If Sub-contractor persistently or repeatedly fails or neglects to carry out the work in accordance with this Agreement or otherwise to perform in accordance with this Agreement and fails within ___________ (___) [Instruction: Insert Amount] days after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness, Contractor may, without prejudice to or waiver of any other right or remedy Contractor may have, terminate this Agreement and finish the work by whatever method or means Contractor may deem expedient. If Contractor elects to terminate this Agreement, Contractor shall have the right to take possession of the work and shall have a lien on and may take over all of Sub-contractor’s equipment, tools, appliances, supplies and materials on the Project or in storage elsewhere for the Project. D. If Contractor pursues any of the foregoing remedies, all monies expended and all of the losses, damages and extra expenses (including, but not restricted to any liquidated damages which may become due to Owner under the Contract Documents) shall be deducted from the Fee and if such expenditures, together with said losses, damages and extra expenses exceed the amount otherwise due to Sub-contractor hereunder, Sub-contractor shall be liable to and shall pay to Contractor on demand the full amount of such excess together with interest thereon at the maximum legal rate of interest per annum until paid. E. All rights and remedies of Contractor enumerated in this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed at law or in equity. 11. Miscellaneous. A. It is understood and agreed between the parties hereto that time is of the essence of all of the terms and provisions of this Agreement. B. This Agreement constitutes the entire agreement between the parties hereto with respect to the specific subject matter hereof and supersedes all prior agreements or understandings of any kind with respect to the specific subject matter hereof. C. In the event that any provision or part of this Agreement shall be deemed void or invalid by a court of competent jurisdiction, the remaining provisions or parts shall be and remain in full force and effect. D. Any modification to this Agreement must be in writing and signed by the parties or it shall have no effect and shall be void. E. This Agreement is binding upon and shall inure to the benefit of the respective successors, licensees and/or assigns of the parties hereto. Notwithstanding the foregoing, neither party may assign or transfer its rights or delegate its obligations under this Agreement without the other party's prior written consent, which will not be unreasonably withheld. F. The waiver by either party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any subsequent or other breach or violation. G. This Agreement shall be governed in accordance with the laws of the State of _____________ [Instruction: Insert State], applicable to agreements to be wholly performed therein. H. In the event of any dispute between the parties arising out of this Agreement, the dispute shall be resolved by arbitration under the rules of the American Arbitration Association by an arbitrator agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the two party representatives shall, between themselves, chose an arbitrator. I. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its attorney fees and costs. IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date first written above. CONTRACTOR: ________________________________ [Instruction: sign] By: ___________________________ [Instruction: Insert Name of Signatory] Title: ___________________________ [Instruction: Insert Title of Signatory] SUB-CONTRACTOR: ________________________________ [Instruction: sign] By: ___________________________ [Instruction: Insert Name of Signatory] Title: ___________________________ [Instruction: Insert Title of Signatory]
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