VIEWS: 578 PAGES: 31 CATEGORY: Construction Agreement POSTED ON: 1/12/2011
This is a sample agreement between a trade contractor and a client for services provided in connection with a construction project. Under this agreement, the trade contractor agrees to furnish all work, labor, services, and materials as identified in the document under “Exhibit 2.” Additionally, this document can be customized to include the nature of the project, the fees and expenses, and insurance requirements. This agreement should be used by clients that want a trade contractor to perform specified services on a construction project.
This is a sample agreement between a trade contractor and a client for services provided in connection with a construction project. Under this agreement, the trade contractor agrees to furnish all work, labor, services, and materials as identified in the document under “Exhibit 2.” Additionally, this document can be customized to include the nature of the project, the fees and expenses, and insurance requirements. This agreement should be used by clients that want a trade contractor to perform specified services on a construction project. TRADE CONTRACT (DEMOLITION/ABATEMENT) AGREEMENT made as of _________ ____, 200__, BETWEEN "Client/Owner": [insert Client/Owner name and address] Telephone: Facsimile: and the "Trade Contractor": [insert Trade Contractor name and address] Telephone: Facsimile: The "Project" is: Abatement and Demolition of [insert description and location] THIS TRADE CONTRACT, including the Terms and Conditions attached hereto (collectively, "Agreement"), is between Client/Owner and Trade Contractor, who state and agree as follows. A. Client/Owner; Trade Contractor. Client/Owner selected Trade Contractor through a competitive selection process and now wishes to retain Trade Contractor to provide services to Client/Owner in connection with the Project. Trade Contractor shall perform its services pursuant to this Agreement under the direction and management of and for the benefit of Client/Owner. Trade Contractor is an independent contractor and not an agent, servant or representative of Client/Owner. Trade Contractor will have no authority legally to obligate Client/Owner. Trade Contractor agrees that it shall render and furnish to Client/Owner the services and deliverables to which Client/Owner is entitled under this Agreement, at the times when Client/Owner is entitled to the same. Trade Contractor's authorized representative for the Project is designated in the preamble and is Trade Contractor's primary contact with Client/Owner, and is authorized to bind Trade Contractor for all matters pertaining to the Project and/or this Agreement. No person shall be substituted for such authorized representative without Client/Owner's prior written consent. B. Project. Client/Owner has engaged certain consultants who have done site investigations and preliminary site planning, which has been used to develop the scope of the Project and which information is being provided to Trade Contractor. Client/Owner has also engaged (or will shortly engage) a separate design-build contractor ("Contractor") to perform © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 1 certain other preparatory work both on and off the Property. The essential nature of this Project, assuming it is approved under the environmental review process currently underway (see paragraph N), is to complete the demolition and abatement work needed in order to prepare the Property for the construction of the facility and thereby enable the applicable Contractor to proceed to construction in an expedited manner. The information learned and developed by Trade Contractor during the preconstruction phase of this Project will be important for the Contractor in its’ ongoing design efforts for the Project and in the follow-on design and construction of the Project. Towards this end, Trade Contractor shall work collaboratively with the Contractor in the completion of the Project so that the completed work is designed and constructed in a coherent and efficient way as a unified whole. Trade Contractor shall provide the labor, services, equipment and/or materials to demolish certain existing improvements, remove and dispose of the demolished materials, including any Hazardous Materials, and abate any Hazardous Materials below the surface, at the project site (the "Property") described in Exhibit 1 hereto (the foregoing, collectively, the "Project"). C. Scope of Work. Trade Contractor agrees to furnish all work, labor, services, materials, equipment, transportation, administration and supervision required for the prompt and efficient completion of the scope of work ("Work") as described in the Scope of Work attached as Exhibit 2 (the "Work") as shown and described in, and in strict accordance with, this Agreement and the Contract Documents. The Work shall include, without limitation, all work necessary or incidental for the proper and complete removal, handling, storage, transportation and disposal of all improvements and Hazardous Materials, as described in the Scope of Work. Trade Contractor shall own all demolished materials upon their appropriate removal from the site, to the extent permitted by applicable law, subject to paragraph J below. D. Contract Documents. The "Contract Documents" shall consist of all plans, specifications, exhibits, special provisions, addenda, if any, and other documents included or identified in the Scope of Work, and this Agreement, including the attached Terms and Conditions and Exhibits, and all of the same, by this reference, are made a part of this Agreement. Trade Contractor agrees to be bound by the terms and provisions of the Contract Documents. By executing this Agreement, Trade Contractor acknowledges having received and reviewed the Contract Documents and Trade Contractor shall be responsible for understanding their contents. E. Contract Price. Client/Owner shall pay Trade Contractor, the lump sum amount ("Contract Price" or "Price") set forth in Exhibit 3 hereto, subject to additions and deductions for changes or extra work in accordance with the Terms and Conditions, as full compensation for the satisfactory performance and completion of the Work and of all of the duties, obligations and responsibilities of Trade Contractor under the Contract Documents. In the event of changes in the Work entitling Trade Contractor to payment pursuant to Section 8 of the Terms and Conditions, payment shall be calculated, to the extent applicable, according to the unit prices and labor rates set forth in Exhibit 3. F. Insurance; Bonds. Trade Contractor shall maintain insurance in accordance with the minimum requirements established in Exhibit 4 and the attached Terms and Conditions. Trade Contractor [shall] [shall not] provide Client/Owner with payment and performance bonds [in an amount and in form acceptable to Client/Owner]. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 G. Trade Contractor's Qualifications. Trade Contractor is currently, and at all times during the performance of the Work will be, qualified to carry out and perform the Work by reason of the fact that it and its personnel, including subcontractors and consultants, are in compliance and will continue to comply with all federal, state and local licensing, registration, certification, training, permitting, environmental, and health and safety requirements governing the performance of the Work and all applicable laws, codes, ordinances, rules, regulations and requirements of federal, state, local or other authorities (collectively, "Government(al) Agencies") having jurisdiction over the Work. Trade Contractor shall immediately advise Client/Owner of any changes in license, permit or environmental laws, requirements, regulations or conditions applicable to the Project. Each of the parties acknowledges that Client/Owner, not being skilled in such matters, is relying upon Trade Contractor for the technical and professional adequacy of its services. Neither Client/Owner nor Client/Owner's consultants shall perform any duties of Trade Contractor, or assume any responsibility or liability for the professional or technical adequacy of the any documents or materials prepared by Trade Contractor or its subcontractors. To the extent that Trade Contractor performs professional services hereunder, Trade Contractor perform such professional services in a competent professional manner in accordance with the applicable standards of hazardous materials abatement professionals in metropolitan areas of California experienced in providing services for facilities of this size, type, and complexity. H. Documentation. Trade Contractor shall document the performance of the Work as required by applicable laws, codes, ordinances, rules, regulations and requirements of governmental agencies, including without limitation all such laws, codes, ordinances, rules, regulations and requirements of governmental agencies pertaining to the removal, handling, storage, transportation and disposal of Hazardous Materials (as defined in the Terms and Conditions), including asbestos, lead and/or other wastes, from the Project. Trade Contractor's documentation requirements shall include, without limitation, providing manifests, shipment receipts, laboratory reports, copies of disposal facility permits and other such documentation. I. Handling and Disposing of Hazardous Materials. All Hazardous Materials used in connection with the Work, or arising or removed from the Project as part of the Work, shall be properly handled and promptly characterized, encapsulated, removed, packaged, stored, transported and disposed of or otherwise managed in accordance with all applicable government(al) agencies' laws, codes, ordinances, rules, requirements and regulations and the terms of the Contract Documents. Without in any way limiting the foregoing, Trade Contractor shall not, under any circumstances, cause or permit the spillage, discharge, emission or release of any Hazardous Material in violation of any applicable laws, codes or regulations or cause of permit the exacerbation of existing contamination. Trade Contractor agrees that it will not store any wastes, including Hazardous Materials, for periods in excess of applicable site storage limitations or legal requirements imposed by law or Client/Owner, whichever shall be more restrictive. Trade Contractor shall prepare (with cooperation of Client/Owner) all manifests and documentation which may be required for the storage, transportation and disposal of any Hazardous Materials generated by Trade Contractor, and Trade Contractor shall obtain (with cooperation of Client/Owner) all identification numbers and permits which may be required for the storage, transportation and disposal of such Hazardous Materials. Trade Contractor shall also properly pack and prepare for storage, transportation and disposal such Hazardous Materials. Trade Contractor shall be responsible for the disposal of all Hazardous Materials at a facility which is permitted to accept such wastes. Trade Contractor acknowledges the Work set © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 forth in this section has been factored into, and is a part of, the total Contract Price set forth in this Agreement. J. Disposal Tax/Fees. Trade Contractor shall not be responsible for any Hazardous Materials fee which is imposed under applicable law on Client/Owner as the generator of same, all of which are outside the Contract Price. K. Notifying Government Agencies. Trade Contractor shall be solely responsible for complying with applicable reporting requirements imposed on itself and its personnel in connection with the performance of the Work, including prior notification of the abatement or removal of Hazardous Materials, to the United States Environmental Protection Agency and to any state or local agency requiring similar prior notice. With the exception of providing the notice of work relating to Hazardous Materials to the government(al) agencies referred to in the prior sentence, Trade Contractor shall not directly or indirectly communicate, meet or confer with any government(al) agencies, or any agency, department, bureau or representative thereof, concerning the Project, the Work or any waste, including Hazardous Materials, generated or released hereunder, without first notifying Client/Owner of the intended communication and obtaining Client/Owner's approval. L. Confidentiality. Trade Contractor shall, and shall cause any and all subcontractors to, maintain confidential all work, studies, reports, communications and any other information obtained with respect to the Project, unless otherwise legally obligated to disclose such information. M. State Required Terms and Conditions. The State Required Terms and Conditions attached as Exhibit D (to the extent applicable to the Work) are incorporated by reference. Also, Trade Contractor will need to comply with any Client/Owner requirements governing access to the Property. N. Special CEQA Considerations. The parties acknowledge that the draft environmental impact report ("EIR") for the Property is currently in process pursuant to the California Environmental Quality Act ("CEQA"). This draft EIR analyzes this Property as a potential site for the planned facilities. The parties further acknowledge this Property may not be selected to be developed as the facilities. The initial work to be authorized under this Agreement is for pre-construction planning and engineering work only, as more particularly set forth in the Scope of Work. This work is a continuation of the planning work for the Project and does not constitute a commitment to proceed with any construction work on the Property (whether under this Agreement or any other agreement) in any manner whatsoever. The parties understand and agree that, prior to certification of the final EIR for the Property, all work which Client/Owner may authorize to be done is pre-construction planning and engineering work only and that such work may be required to be adjusted, or modified, to comply with mitigation measures approved for the Project as well as for other non-CEQA related reasons. Further, the parties understand and agree that no physical site work is authorized under this Agreement, and that there will be no physical site work, unless and until the Property is selected © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 for the facilities and the Project approved to move forward after completion of the EIR process and certification of the final EIR. This Project, if approved, will comply with all applicable CEQA mitigation measures. At the time that the Project is approved, if at all, the design and engineering work for the Project will be modified to fully comply with all applicable CEQA mitigation measures and any other modifications desired by Client/Owner. At no time will the commencement of preconstruction planning and engineering be a reason for failure to incorporate mitigation measures into the Project or for failure to comply with mitigation measures. No on-site work will be commenced unless and until the EIR is certified, the Project is approved, and Client/Owner has issued a notice to proceed with such work. Notwithstanding anything to the contrary in this Agreement, the Client/Owner has not limited in any way its discretion, or the discretion of a responsible or trustee agency, department, board or commission with jurisdiction over the Project from exercising its discretion with respect to the Project, including but not limited to the discretion to (i) make such modifications deemed necessary and feasible to mitigate significant environmental impacts, (ii) select other feasible alternatives to avoid or substantially lessen such impacts, (iii) balance the benefits of the Project against its significant unavoidable impacts prior to taking final action if such significant impacts cannot otherwise be substantially lessened or avoided, or (iv) determine not to proceed with the proposed Project. [SIGNATURE PAGE FOLLOWS THIS PAGE] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. By their signature below, each of the following represent that they have authority to execute this Agreement and to bind the party on whose behalf their execution is made. CLIENT/OWNER: TRADE CONTRACTOR: [insert Client/Owner’s name] [insert Trade Contractor's name] By (Signature) By (Signature) Printed Name: Printed Name: Title: Title: Date: Date: Contractors License No. _______________ CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS' STATE LICENSE BOARD WHICH HAS JURISDICTION TO INVESTIGATE COMPLAINTS AGAINST CONTRACTORS IF A COMPLAINT REGARDING A PATENT ACT OR OMISSION IS FILED WITHIN FOUR YEARS OF THE DATE OF THE ALLEGED VIOLATION. A COMPLAINT REGARDING A LATENT ACT OR OMISSION PERTAINING TO STRUCTURAL DEFECTS MUST BE FILED WITHIN 10 YEARS OF THE DATE OF THE ALLEGED VIOLATION. ANY QUESTIONS CONCERNING A OWNER MAY BE REFERRED TO THE REGISTRAR, CONTRACTORS' STATE LICENSE BOARD, P.O. BOX 26000, SACRAMENTO, CA 95826. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 Trade Contract Agreement Terms and Conditions SECTION 1. SCOPE OF TRADE CONTRACTOR'S WORK: storage and for any damage, defect, deficiency or theft of any material or equipment stored on the Property. 1.1 Trade Contractor shall furnish all materials, labor, tools, equipment and supplies necessary to fully perform the Work 2.4 Upon the receipt of a written notice from and shall furnish and pay for all layout, backing, work plans, CLIENT/OWNER, Trade Contractor shall promptly repair and testing, permits, shop and working drawings, scaffolding and make good in accordance with the Contract Documents any planking, and hoisting of workers and materials required for defect that may appear in Trade Contractor's Work, including the Work, including without limitation all work described in the any failure of the Work to meet the requirements or standard applicable portions of the Contract Documents or reasonably set forth in the Contract Documents or applicable law. Trade inferable therefrom or typically performed by Trade Contractor, at its sole expense, shall also repair or replace any Contractor's trade. portion of the Project, including any adjacent work or materials disturbed or damaged during or as a result of such corrective 1.2 Trade Contractor shall clean up and remove from the work. jobsite all debris associated with the Work. Upon completion of the Work, Trade Contractor shall leave the Project in a neat 2.5 Trade Contractor agrees further that if it shall cause any and uncluttered condition. structural damage to portions of the Property intended to remain in place, whether in the vicinity of its work or to other 1.3 If materials are to be furnished but are not required to be portions of the Property, it will immediately remedy the damage installed under this Agreement, such materials are to be so caused to the satisfaction of Client/Owner. delivered F.O.B. jobsite. 2.6 It is agreed that for a jobsite to be safe, it must be clean; 1.4 Trade Contractor shall attend all meetings as requested therefore, at all times during the course of construction, Trade by Client/Owner including job coordination, scheduling and Contractor shall perform the Work so as to continuously safety meetings. maintain the premises in a clean, safe and orderly condition. 1.5 Trade Contractor shall keep a highly qualified English- Client/Owner may direct Trade Contractor to clean its work speaking representative at the Project site during all times area at any time Client/Owner deems it necessary. Upon when Trade Contractor's Work is in progress. The termination or completion of its portion of the Work, or as representative shall be authorized to represent Trade required by applicable laws, Trade Contractor agrees to Contractor as to all phases of the Work. The representative remove from the premises all Hazardous Materials, temporary shall further be authorized to receive written notices pursuant structures, unused materials, equipment, utilities and facilities, to Section 20. Prior to commencement of the Work, Trade and all debris and waste incident to its operation. If Trade Contractor shall designate in writing its representative, and in Contractor fails to perform periodic clean-up, or fails to perform the event of any proposed change, Trade Contractor shall clean-up as directed by Client/Owner, Client/Owner may cause notify Client/Owner in writing who the proposed new those areas to be cleaned, with all costs associated with this representative is and receive Client/Owner’s approval, which clean-up being charged to Trade Contractor. approval shall not be unreasonably withheld or delayed, prior SECTION 3. DRAWINGS, PLANS, SPECIFICATIONS: to such change becoming effective. 3.1 When drawings, plans, specifications, samples or detail SECTION 2. RESPONSIBILITY FOR THE WORK AND MATERIALS: work are required of Trade Contractor with respect to the Work 2.1 Trade Contractor shall effectively secure, protect and ("Submittals"), whether on account of Work required to be assume full responsibility for the Work at all times until done hereunder or on account of changes in Work, Trade completion and final acceptance by Client/Owner. Trade Contractor agrees promptly to supply the same to Contractor shall be liable for any loss or damage to any work Client/Owner. Submittals shall be made so as to (i) afford in place or to any equipment and materials on the job site Client/Owner and/or its hazardous materials consultant at least caused by Trade Contractor or its subcontractors, agents, twenty-one (21) calendar days, or such longer period as is employees or guests, and shall bear the risk of loss until final specified in the Contract Documents, to review and return the completion and acceptance. Trade Contractor shall also Submittal without affecting Client/Owner’s schedule, and (ii) to protect the Work and the workers of Client/Owner, allow Trade Contractor to pursue the Work efficiently, in Client/Owner’s consultants and separate trade contractors accordance with Client/Owner’s schedule and at a speed that from Trade Contractor's operations. In the event of loss or will not cause delay in the progress of Trade Contractor's Work damage, Trade Contractor shall proceed promptly to make or work carried on by other contractors. Any required re- repairs or replacement of the damaged work, property and/or submittals shall be made within fourteen (14) calendar days, or materials at its own expense, as directed by Client/Owner. such shorter period as may be required so as not to delay Trade Contractor waives all rights Trade Contractor might Client/Owner’s schedule or the performance of any other trade have against Client/Owner for loss or damage to Trade contractors or material suppliers. Trade Contractor shall not Contractor's work, property or materials. be entitled to a time extension, and shall be financially responsible, for delays in preparing or receiving approvals of 2.2 Trade Contractor shall store materials and equipment at Submittals (including re-submittals), which, by the exercise of the Project site only in areas designated by Client/Owner and reasonable diligence and judgment, could have been in compliance with all applicable laws. It is agreed that storage anticipated and avoided. and staging areas, from time to time at the direction of Client/owner bear all costs for moving materials and 3.2 In the event Submittals are submitted by Client/Owner to equipment so stored. Client/Owner’s Consultant for approval it is specifically understood that such approval shall relate solely to general 2.3 Materials and equipment delivered and stored at the conformity with the Project design and that such approval shall Project site shall be limited to materials and equipment not be construed as an approval in detail of conformity of such required to be incorporated into or used in the Work, and then Submittals with the Contract Documents. only to the extent the site space restrictions can accommodate such storage. Trade Contractor shall be responsible for proper 3.3 In the event Submittals include variations, deviations or substitutions from the Work as shown or described in the © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 Trade Contract Agreement Terms and Conditions Contract Documents, the Submittal cover sheet shall employees of its subcontractors and suppliers of material and specifically describe the variation and request approval. Trade equipment, including but not limited to the use of equipment, Contractor shall not proceed with variations absent express hoists, elevators, or scaffolds of Client/Owner or others, except approval of the variation from Client/Owner or its hazardous to the extent caused by the sole negligence or willful materials consultant. Absent express approval from misconduct of Client/Owner , or any of their agents, servants Client/Owner or its hazardous materials consultant of the or independent contractors who are directly responsible to variation, whether or not the Submittal is approved by either of them. Client/Owner or Client/Owner's consultant, Trade Contractor shall be solely responsible for the time and cost impact of 4.1.3 Trade Contractor shall report in writing within proceeding with work that deviates from or is inconsistent with twenty-four (24) hours to Client/Owner any injury to any Trade the Work as described in the Contract Documents, and shall Contractor's employee or any subcontractor's employee at the defend, indemnify and hold Client/Owner harmless from and Property and shall send a copy of a written report to Trade against any such claim. Client/Owner may, at its option, Contractor's insurance carrier, and to Client/Owner. withhold from Trade Contractor any payments due or to 4.1.4 Trade Contractor shall require that all of its become due to Trade Contractor an amount sufficient fully to employees, and employees of its subcontractors and suppliers reimburse Client/Owner for any such expense. The provisions of material and equipment, and any person who provides of this paragraph are in addition to and not in lieu of the Project site services on behalf of Trade Contractor, furnish and remedies provided Client/Owner by law, equity or any other wear protective clothing at all times on the Project site. This section of this Agreement. clothing shall include such items as hard-sole shoes, shirts 3.4 Upon final completion of the Work, Trade Contractor and hardhats and/or other appropriate gear as required by law. shall submit to Client/Owner all applicable warranties, Absolutely no personnel will be allowed on the Project site guaranties, and/or record drawings satisfactory to without a hardhat. Client/Owner. SECTION 5. HAZARDOUS M ATERIALS: 3.5 All plans, drawings, specifications, tests, calculations, 5.1 The terms of this Section are in addition to the reports, samples and other submittals (collectively the requirements of any Client/Owner's written safety program and "Documents") prepared and furnished by Trade Contractor or the provisions dealing explicitly with the performance of Work. any of its subcontractors for the Project, together with all The term "Hazardous Materials" means any flammable Contract Documents and any intellectual property rights in the materials, explosives, radioactive materials, hazardous foregoing, shall be the property of Client/Owner whether the wastes, toxic substances, or related materials, including, Project is completed or not, and shall be delivered to without limitation, asbestos, asbestos containing materials, Client/Owner on the earlier of final completion or the date of petroleum or any fractions thereof, petroleum-related products termination of this Agreement. Trade Contractor and its or any fractions thereof, polychlorinated biphenyl ("PCB") or subcontractors shall be deemed to have assigned any PCB containing materials and any substances defined as or intellectual property rights (including copyright) in the included in the definition of "hazardous substances", Documents to Client/Owner. "hazardous wastes", "hazardous materials", or "toxic SECTION 4. SAFETY: substances" under any applicable federal, state or local laws or regulations now or hereinafter in effect. 4.1 Trade Contractor specifically obligates itself in the following respects: 5.2 Before transporting, storing or using at the Project any Hazardous Materials, Trade Contractor shall furnish 4.1.1 Trade Contractor shall comply fully with all Client/Owner with a waste manifest, if required by applicable laws, orders, citations, rules, regulations, standards and law, and a copy of the Materials Safety Data Sheet for such statutes with respect to occupational health and safety, material or substance and Trade Contractor shall file a copy of accident prevention, safety equipment and practices, including such Materials Safety Data Sheet and documentation as may Client/Owner's accident prevention and safety program (if be required by the proper authorities. any). Trade Contractor shall conduct inspections to determine that safe working conditions and equipment exist and accepts 5.3 In the event that Hazardous Materials of a type of which sole responsibility for providing a safe place to work for its an employer is required by law to notify its employees are employees and for employees of its subcontractors and being used or stored on the Project site by Trade Contractor, suppliers of material and equipment, for adequacy of and Trade Contractor's subcontractors or anyone directly or required use of all safety equipment and for full compliance indirectly employed or otherwise retained by any of them, with the aforesaid laws, orders, citations, rules, regulations, Trade Contractor shall immediately provide written notice of standards and statutes. Trade Contractor shall further comply the chemical composition thereof (including, without limitation, with all safety orders given by Client/Owner should job site a copy of the applicable Material Safety Data Sheet) to conditions require special safety requirements. Trade Client/Owner in sufficient time to permit compliance with such Contractor shall be solely responsible for its and any laws by Client/Owner, other trade contractors and other subcontractor's compliance with OSHA and Cal-OSHA employers on the Project site. requirements. 5.4 Trade Contractor shall notify Client/Owner in advance of 4.1.2 Trade Contractor shall defend, indemnify and transporting, storing or using any Hazardous Materials on the save harmless the Indemnified Parties (defined In Exhibit 4) Project site. Trade Contractor shall label all Hazardous from and against any claim, citation, suit, penalty, damage, Materials on the Project site, and shall be solely responsible liability, loss, cost, or expense, including attorneys' fees and for the proper storage, protection, removal and disposal expert witness fees, arising from failure or alleged failure of thereof. Trade Contractor to comply with any law, order, citation, rule, 5.5 Trade Contractor shall immediately notify Client/Owner regulation, standard or statute in any way relating to the in writing if Trade Contractor becomes aware of the presence occupational health and safety of its employees, and of any Hazardous Materials of a type, concentration, or in a © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8 Trade Contract Agreement Terms and Conditions location beyond those disclosed in the Contract Documents, accuracy of the amounts shown on same, correct the value or ("Unexpected Hazardous Materials") in, on, under or about the values where appropriate, and notify Trade Contractor of any Property or of any occurrence or condition on any real property changes or disagreements. Provided that Trade Contractor adjoining or in the vicinity of the Property which could cause delivers a properly completed, documented payment the Project or any portion of it to be classified as "border-zone application to Program Manager, payment of undisputed property" under the provisions of California Health and Safety amounts will be due thirty (30) days from Client/Owner's Code Sections 25220 et seq., or any regulation adopted in receipt of such invoice together with Program Manager's accordance therewith. recommendation as to payment. 5.6 In the event that Trade Contractor encounters on the 6.4 No inspection or partial payment to Trade Contractor Project site material reasonably believed to be Unexpected shall operate as approval or acceptance of any schedule of Hazardous Materials which has not been rendered harmless, values, work done or materials furnished under this Trade Contractor shall immediately report the condition to Agreement. Client/Owner may withhold, or on account of Client/Owner in writing, and if the method for handling or subsequently discovered evidence nullify, the whole or a part removing the Unexpected Hazardous Materials are not of any payment otherwise due under this Agreement to such addressed in the Contract Documents, Trade Contractor shall extent as may reasonably appear necessary to protect stop the work in the area affected. Work in the affected area Client/Owner from loss, including costs and attorneys' fees on shall resume when Client/Owner provides direction how to account of (i) defective work not remedied; (ii) claims or proceed in connection with the Unexpected Hazardous mechanic's liens filed or reasonable evidence indicating Materials. probable filing of claims or mechanic's liens; (iii) failure of Trade Contractor to make payments properly to its lower tier 5.7 In the event Hazardous Materials or contamination subcontractors or for material, labor, equipment or union trust therefrom are used, discharged, released, or brought onto the fund benefits; (iv) a reasonable doubt that this Agreement can Project site, or existing contamination is exacerbated, by Trade be completed for the balance then unpaid; (v) damage to Contractor, any subcontractors, material suppliers or any another trade contractor; or (vi) failure to achieve sufficient person or entity under the direct or indirect control of any of progress with the Work to meet the schedule for such work, or them, Trade Contractor agrees to defend, indemnify, hold the timely completion of the Project. When the above grounds are Indemnified Parties harmless from and against any and all removed, such amounts as are then due and owing shall be claims, liability, fines, penalties, response costs, damages or paid or credited to Trade Contractor. judgments, associated with the presence, discharge, release or escape of such materials or contamination. Upon the 6.5 If Client/Owner reasonably estimates that the cost of the request of Client/Owner, Trade Contractor shall take such Work plus mark-up of all labor, materials, and/or Work not yet steps at its own expense as are reasonably necessary to furnished by Trade Contractor will exceed the Contract Price, remove from the Project site the Hazardous Materials or Client/Owner may reduce the amount of any progress contamination brought onto the Project site by Trade payments, without any reduction in the actual Contract Price. Contractor, any subcontractors, material suppliers or any person or entity under the direct or indirect control of any of 6.6 Any partial payment or payments made by Client/Owner them. to Trade Contractor will be subject to final audit and adjustment and Trade Contractor agrees to reimburse 5.8 For clarity, the costs of all permits required for the Client/Owner in the event there is any overpayment. abatement and disposal of Hazardous Materials are included in the Contract Price. 6.7 Upon complete performance of this Agreement by Trade Contractor and final approval and acceptance thereof by SECTION 6. PAYMENTS: Client/Owner, Client/Owner will make final payment to Trade Contractor of the balance due under this Agreement within 6.1 Client/Owner shall pay Trade Contractor the Contract thirty (30) days after Program Manager receives a complete Price identified in the Agreement, subject to additions and and properly documented application for final payment from deductions as herein provided, as full compensation for the Trade Contractor. The acceptance by Trade Contractor of satisfactory performance and completion of the Work and of all final payment shall constitute a release by Trade Contractor in of the duties, obligations and responsibilities of Trade favor of Client/Owner and its surety of all claims against Contractor under the Contract Documents. Client/Owner and its surety arising under or by virtue of this 6.2 Trade Contractor agrees to accept the Contract Price set Agreement other than those claims excepted with the written forth in the Agreement as full compensation for doing all work consent of Client/Owner. and furnishing all materials contemplated and embraced in this 6.8 If the terms of the Agreement provide for the payment Agreement; for all loss or damage arising out of the nature of for work performed on a unit price basis, Trade Contractor the Work or from the action of the elements or from any agrees to be bound by Client/Owner's measurement of the reasonably foreseeable difficulties or obstructions which may quantity of work. If Client/Owner does not measure for work, arise or be encountered in the prosecution of the Work until its Trade Contractor agrees to provide such documentation as acceptance by Client/Owner; for all risks of every description Client/Owner may reasonably require to substantiate Trade connected with the Work; and for faithfully completing the Contractor's measurement of the quantity of work. Work in the manner and according to the requirements of Client/Owner. 6.9 Client/Owner reserves the right to make payment by joint check or by direct check to Trade Contractor's material 6.3 Partial payments not in dispute will be made to Trade suppliers or lower tier subcontractors or any other person who Contractor in an amount equal to ninety percent (90%) of the has right of action against Client/Owner or Client/Owner's value of work and materials utilized in the Work and calculated surety under any law or any mechanic's lien or stop notice on a percentage completion basis. Trade Contractor shall right. submit applications for payment to Program Manager for review. Within ten (10) calendar days after receipt of each 6.10 Trade Contractor agrees, as a condition precedent to such payment application, Program Manager shall verify the payment hereunder, to furnish Client/Owner with payment © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9 Trade Contract Agreement Terms and Conditions applications accompanied by the applicable statutory form of 8.1 Client/Owner may, at any time by written order, and partial and/or final, conditional or unconditional, releases of without notice to Trade Contractor's surety, make changes in, claims and/or waivers of mechanic's liens. additions to and deletions from the Work to be performed and materials to be furnished under this Agreement, and Trade 6.11 At Client/Owner's request, Trade Contractor shall from Contractor shall immediately proceed with performance of this time to time furnish sworn affidavits in the form provided by Agreement as so changed. Any changes or modifications Client/Owner, which shall state amounts due or to become due shall be subject to all the terms and conditions of this and amounts paid to suppliers and other parties with respect to Agreement. Increases in the Contract Price resulting from labor and materials furnished or to be furnished under this changes in the Work shall be calculated based on one of the Agreement. following, in descending order of preference: (i) lump sum 6.12 Trade Contractor agrees and covenants that money amount agreed upon in writing by both parties; (ii) unit pricing; received for the performance of this Agreement shall be used (iii) time and materials. The amount attributable to Trade first for the benefit of persons and firms supplying labor, Contractor's overhead and profit for any additive change shall materials, supplies, tools, machines, equipment, plant or not exceed ten percent (10%) of the cost of such change, or services exclusively for the Project in connection with this the fee percentage set forth in the Contract Documents, Agreement and having the right to assert liens or other claims whichever is less. against the land, improvements or funds involved in the Project 8.2 Trade Contractor shall submit detailed backup support or against any bond or other security posted by Client/Owner; for any prices quoted. If Trade Contractor disagrees with a that any money paid to Trade Contractor pursuant to this proposed adjustment in the Contract Price or Completion Date Agreement shall immediately become and constitute a trust (defined below) included as part of a change directive, Trade fund for the benefit of those persons and firms, and shall not in Contractor shall submit such disagreement as a claim within any instance be diverted by Trade Contractor to any other ten (10) days from the date such change was ordered or Trade purpose until all obligations arising hereunder have been fully Contractor was directed to perform the Work as within its discharged and all claims arising therefrom have been fully original scope. If Client/Owner and Trade Contractor are paid. unable to agree on the appropriate adjustment to the 6.13 If at any time Client/Owner, at its sole discretion, shall Agreement amount and the adjustment amount is submitted to determine that Trade Contractor's financial condition has a dispute resolution proceeding, the amount attributable to become unstable or unsatisfactory, Trade Contractor shall Trade Contractor's overhead and profit shall not exceed ten furnish additional security satisfactory to Client/Owner within percent (10%) or the fee percentage set forth in the Contract ten (10) days after written demand therefore is mailed or Documents, whichever is less. delivered to Trade Contractor, and in default of furnishing 8.3 Any claim not timely submitted in accordance with the additional security, Client/Owner shall have the option to provisions of this Agreement shall be deemed waived by Trade terminate this Agreement or to initiate such other action as Contractor. Unless otherwise agreed by Client/Owner in Client/Owner may, at its sole discretion, deem necessary for writing, Trade Contractor shall continue to prosecute Trade the protection or preservation of its interests and/or the Contractor's Work and maintain the Project schedule pending prevention of delay in the efficient and orderly progress of resolution of any claim. Any failure of Trade Contractor to Work. In the event of such termination, the rights of continue diligent and timely prosecution of the Work shall be Client/Owner shall be the same as if Trade Contractor had deemed a material breach of the Agreement, entitling willfully refused to further perform the Agreement. Client/Owner to all remedies provided hereunder, as well as 6.14 No change, alteration, or modification in the terms and other remedies, which may exist as a matter of law. conditions of this Agreement or in the terms or manner of 8.4 No increase or decrease in the Contract Price shall be payment shall in any way exonerate or release, in whole or in binding on Client/Owner unless agreed upon in writing. part, any surety on any bond furnished by or on behalf of Trade Contractor. SECTION 9. EXAMINATION OF DOCUMENTS AND SITE: 6.15 Trade Contractor shall, before Trade Contractor's first 9.1 By executing this Agreement, Trade Contractor application for payment, submit to Client/Owner a schedule of represents that it has carefully examined all of the Contract values of the various parts of Trade Contractor's Work, Documents and has fully acquainted itself with all the aggregating the total sum of the Price, prepared in such detail as Client/Owner may reasonably require, and supported by conditions under which Trade Contractor's Work such evidence as to its correctness as Client/Owner may is to be performed, including without limitation, direct. applicable laws, regulations, codes and other 6.16 Prior to withholding payment to any lower tier restrictions, local labor conditions, local weather subcontractor, material supplier or laborer, Trade Contractor shall promptly notify Client/Owner of Trade Contractor's patterns, access restrictions to and from the intention to withhold payment and the reason for any such Project site, prior work performed by others on withholding; Client/Owner may, in turn, withhold that amount the Project, obstructions, subsurface and other from Trade Contractor in order to protect against a possible claim. conditions relevant to the Work, the site of the Work and its surroundings, conditions affecting SECTION 7. RETAINAGE REDUCTION: access, encapsulation, removal, handling, storage, 7.1 Client/Owner may, at its sole discretion, without the consent of Trade Contractor's surety, reduce the retained packing, transportation and disposal of Hazardous percentage withheld from Trade Contractor. Materials, and Trade Contractor assumes the risk SECTION 8. CHANGES AND EXTRA WORK: of any variance between the actual conditions © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 10 Trade Contract Agreement Terms and Conditions discoverable upon such a review and the contractor. Notwithstanding anything to the contrary in this Section 10.1, Trade Contractor shall not commence any Work conditions shown or represented in the Contract at the Property unless and to the extent that Client/Owner Documents; that it has made all investigations issues to Trade Contractor a written notice to proceed with essential to a full understanding of the difficulties such Work. which may be encountered in performing the 10.2 If a progress schedule is furnished by Client/Owner to Trade Contractor, it shall be considered informational and Work; and that anything in this Agreement, or in subject to change as the Project progresses; however, Trade any representations, statements or information Contractor must be ready to perform at the times indicated in made or furnished by Client/Owner the progress schedule. Client/Owner makes no representation that it will be ready for Trade Contractor at the times indicated notwithstanding, Trade Contractor will complete in said schedule regardless of whether delays may be within the Work for the Contract Price, and assume full the control of Client/Owner. Trade Contractor shall under no and complete responsibility for all conditions circumstances be excused from performing the Work as a result of delays encountered on the Project. relating to the Work, the site of the Work or its 10.3 As required by Client/Owner, Trade Contractor shall surroundings, and all risks in connection submit to Client/Owner progress schedules for the Work, or at therewith. Client/Owner's election, cooperate in the preparation of a progress schedule. 9.2 Trade Contractor understands that it may encounter difficult site conditions arising from limited access to work 10.4 Trade Contractor shall furnish such manpower, areas, or from more than one trade contractor working in one materials, facilities, and equipment and shall work such hours, location at one time. Trade Contractor assumes full including overtime operations, weekends, and holidays, as responsibility for its examination, investigation and may be necessary to ensure the prosecution and completion of understanding of the difficulties which may be encountered, the Work in accordance with the approved and currently and has included in the Price the cost of any work associated updated Project schedule. If work on the critical path is with such difficulties. fourteen (14) days or more behind the currently updated and approved Project schedule (including extensions of time where 9.3 The Agreement, including these Terms and Conditions, such are warranted) and it becomes apparent from the current and the Contract Documents are intended to be read as a schedule that the Work will not be completed by the whole. In the event of a conflict between the Agreement or Completion Date, Trade Contractor shall implement whatever these Terms and Conditions and any of the Contract steps it deems necessary to recover all lost time for which a Documents, the provisions of the Agreement and these Terms time extension is not granted. and Conditions shall control, provided, however, that if the Contract Documents impose a stricter requirement on Trade 10.5 If at any time the Work is not progressing in accordance Contractor than the Agreement or these Terms and with the Project schedule or the Work is likely to be delayed for Conditions, such stricter requirement shall control. In the any reason within the reasonable control of Trade Contractor, event of a conflict among the Agreement and these Terms and or if Client/Owner otherwise desires to accelerate the Work for Conditions, the provisions of the Agreement, and Terms and any reason, Client/Owner may give written notice requiring Conditions shall control in that order. Trade Contractor to (i) increase the number of workers and/or the amount or types of machinery, tools, equipment, or 9.4 Trade Contractor shall notify Client/Owner in writing of materials employed by Trade Contractor in or for the discrepancies in the Contract Documents, or between the performance of the Work; and/or (ii) schedule and conduct Contract Documents and any laws, ordinances, rules, additional lawful work shifts. Within 48 hours after such order, regulations or orders of any public authority bearing on Trade Contractor shall undertake all such necessary action in performance of the Work. In the event Trade Contractor order to accelerate the Work, subject to availability of labor commences the Work without notice to Client/Owner of such and materials (unless Client/Owner deems such action discrepancy, Trade Contractor shall be solely responsible for necessary by reason of Trade Contractor’s failure to make bringing Trade Contractor's Work (and the work of others timely arrangements for labor and materials). Trade affected thereby) into conformance with applicable laws, Contractor’s proposed actions to make up time shall be subject ordinances, rules and regulations. to Client/Owner’s reasonable approval. Costs of additional SECTION 10. PROGRESS OF WORK AND ORDER OF labor, machinery, tools, equipment and/or materials, if any, PERFORMANCE: required under this Section 10.5 shall be borne by: 10.1 Time is of the essence of this Agreement. Trade 10.4.1 Trade Contractor at its own expense within the Price if Contractor shall furnish all materials, labor, tools, equipment and to the extent the applicable acceleration of Work was and supplies necessary for performance of the Work in a necessary or appropriate to maintain Trade Contractor’s prompt, efficient and workmanlike manner and so as to compliance with, and progress under, the Project schedule in perform the Work in accordance with and within the time effect immediately prior to the date of such acceleration or if specified in progress schedules from time to time designated the Work was likely to be delayed for any reason within the by Client/Owner, or any revisions thereof, and so as to achieve reasonable control of Trade Contractor; or the date for final completion of the Work (the "Completion Date") set forth in the Scope of Work attached to Exhibit 2. 10.4.2 Client/Owner as extra work computed in accordance Trade Contractor shall prosecute the Work or any part of it, as with Section 8, if the acceleration was for the convenience of it becomes available, or at such other time or times as Client/Owner and not due to any delay within the reasonable Client/Owner may direct, and so as to promote the general control of Trade Contractor. progress of the entire construction, and shall not, by delay or otherwise, interfere with or hinder the work of any other trade © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 11 Trade Contract Agreement Terms and Conditions Whether or not Client/Owner exercises the same, indemnity provisions of this Agreement; nor shall the indemnity Client/Owner’s right to accelerate performance of the Work provisions limit the scope of these insurance requirements. under this Section 10.5 shall not excuse Trade Contractor from the obligation to employ and/or furnish labor, machinery, tools, SECTION 13. CERTAIN OBLIGATIONS OF TRADE CONTRACTOR: equipment, materials, or other Work on an overtime or 13.1 Trade Contractor specifically obligates itself to accelerated basis or otherwise in such extra or additional Client/Owner in the following respects (and this Agreement is lawful amounts as may be necessary to complete the Work made upon such express conditions): when required under the Contract Documents. 13.1.1 To defend and indemnify and hold harmless 10.6 Trade Contractor is aware that Client/Owner may be Indemnified Parties from and against any and all claims, suits, liable to others for delay in the completion of the Project and liability, expense, attorney's fees, damages, awards or that Client/Owner will incur additional costs and expenses as a judgments for any alleged or actual infringement or violation of result of any delay in the completion of the Project. Trade any copyright, patent, trademark or other intellectual property Contractor shall reimburse Client/Owner for any and all rights arising in connection with this Agreement; damages suffered by Client/Owner which are attributable to or caused, in whole or part, by Trade Contractor's failure to 13.1.2 To the fullest extent permitted by law, to furnish materials or to perform the Work, or any portion defend, indemnify and hold harmless Indemnified Parties from thereof, within the time fixed or in the manner provided for and against all liability, fines, penalties, costs, losses, herein. Payment of such damages shall not release Trade damages, expenses, causes of action, claims or judgments, Contractor from its obligation to otherwise fully perform this including attorneys' fees, expert witness fees and other Agreement. defense costs, resulting from bodily injury to or sickness, disease or death sustained by any person (including Trade 10.7 Subject to Section 6.13, upon Client/Owner's written Contractor's employees) or damage to or destruction of request, Trade Contractor shall furnish such evidence as property of any kind, including the loss of use resulting Client/Owner may require relating to Trade Contractor's ability therefrom, which injury, sickness, disease, death, damage or to fully perform this Agreement in the manner and within the destruction arises out of or is in any way connected with the time specified herein. performance of (or failure to perform) work under this Agreement or the failure to obtain appropriate government SECTION 11. DELAYS, EXTENSIONS OF TIME, STOPPAGE OR licenses or permits, including any of the same resulting from SUSPENSION OF WORK: Client/Owner's alleged or actual negligent act or omission 11.1 In the event Trade Contractor's performance is delayed whether active or passive, or its agents, trade contractors or or interfered with by acts of Client/Owner, other trade employees; except that said indemnity shall not be applicable contractors, acts of God, fire or other casualty, or abnormal to injury, sickness, disease, death or damage to or destruction weather conditions as defined in the Contract Documents, it of property to the extent arising from the sole negligence or may request an extension of time for performance to the extent willful misconduct of Client/Owner, its officers, agents, such delay impacts the critical path to the Completion Date, as servants, or independent contractors (other than Trade hereinafter provided, but Trade Contractor shall not be entitled Contractor) who are directly responsible to Client/Owner. This to any increase in the Price or to damages or additional indemnification agreement shall extend to claims asserted compensation as a consequence of such delays. Extensions after termination, for whatever reason, of this Agreement; of time are not due if a delay is within the reasonable control of 13.1.3 To defend, indemnify and hold harmless Trade Contractor. Indemnified Parties from and against: (i) any and all claims, 11.2 No allowance of an extension of time, for any cause liability, loss, damage, costs or expenses, including expert whatever, shall be granted to Trade Contractor unless Trade witness fees, attorneys' fees, awards and judgments, arising Contractor shall have made written request upon Client/Owner by reason of any claims, liens, stop notices or bond claims for for such extension within five (5) days after the work, labor, services, material or equipment used or furnished commencement of the delay and unless Client/Owner and to be used on the Project, or union trust fund payments, arising Trade Contractor have agreed in writing upon the allowance of from or relating to Trade Contractor's work on the Project, and additional time to be made. Failure to make such request (ii) all incidental or consequential damages resulting to the within the above time frame shall be conclusively deemed a Indemnified Parties from such claims, liens, stop notices or waiver by Trade Contractor of any need for an extension of bond claims. time as a result of such delay. 13.1.4 Within ten (10) days after written demand by SECTION 12. INSURANCE: Client/Owner, to cause the effect of any suit, stop notice or lien to be removed from the Project, Work and/or Property. If 12.1 Trade Contractor, at its expense, shall procure, carry Trade Contractor fails to do so, Client/Owner is authorized to and maintain insurance as provided in the Contract use whatever means in its discretion it may deem appropriate Documents and Exhibit 4 hereto. to cause the lien, stop notice or suit to be removed or dismissed and the cost thereof, together with actual attorneys' 12.2 Trade Contractor waives, and shall require all its lower fees, shall be immediately due and payable to Client/Owner by tier subcontractors to waive, all rights of recovery against Trade Contractor. Trade Contractor may litigate any such lien Client/Owner and the Indemnified Parties (and such other or suit provided Trade Contractor first causes its effect to be persons or entities as required by the Contract Documents), removed from the Project, Work and/or Property. for losses within the scope of Trade Contractor's or lower tier subcontractor's insurance. 13.1.5 To pay for all materials, equipment, including repairs thereof and parts, fuel and labor, including sales taxes 12.3 The coverage of any insurance policy required and other taxes, ordered for or used in the Project by Trade hereunder or actually carried by Trade Contractor shall not Contractor and shall present to Client/Owner, on demand, limit the extent of Trade Contractor's liability under the satisfactory evidence of all such payments; © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 12 Trade Contract Agreement Terms and Conditions 13.1.6 To warrant and guaranty that the Work and that work and materials nor of its obligation to make good, at materials covered by this Agreement strictly comply with the its own expense, any defect in materials and execution which requirements of the Contract Documents, are of good quality may exist or subsequently be discovered. However, Trade and are free from defects. Trade Contractor warrants that all Contractor shall not be responsible for the maintenance of materials and equipment furnished shall be new unless such portion of the Work as may be used or occupied by otherwise agreed to in writing by Client/Owner, or otherwise Client/Owner, nor for any damage thereto to the extent same specified in the Contract Documents. For a period of one year is due to or caused by the negligence of Client/Owner during following final completion of the Work, Trade Contractor shall, such period of use. at Client/Owner's option, repair or replace at its expense, any defect in materials or execution, including the restoration of SECTION 15. WORK OF OTHERS: work of other trade contractors that has been affected thereby. 15.1 The Work provided for in this Agreement constitutes only Trade Contractor further agrees that (i) Trade Contractor will a part of the work being performed for Client/Owner by other furnish and pay for all written guarantees and/or maintenance contractors. Trade Contractor, therefore, agrees to perform bonds required by Client/Owner in connection with Trade the Work called for in this Agreement in such a manner that it Contractor's work, and, (ii) unless and until Client/Owner is will not injure or damage any other work performed by any released from responsibility by a claimant, Client/Owner may other contractor, and further agrees to pay Client/Owner for withhold payment from Trade Contractor such sums as any damage that may be caused to such other work by Trade Client/Owner in its sole discretion deems necessary to protect Contractor or by its agents or employees. and indemnify Client/Owner for any loss that may be caused by breach of said warranty or guaranty. The warranty provided 15.2 If the performance of any item of work by Trade in this Section shall be in addition to and not in lieu or limitation Contractor is related to or dependent upon any other item of of any other warranty or remedy provided by law or by the work performed or materials furnished by others, Trade Contract Documents; Contractor warrants, by undertaking to perform its Work, that such other items are satisfactory and acceptable, and waives 13.1.7 To obtain and pay, as part of the Contract all claims against Client/Owner for additional compensation or Price, for all permits, licenses and official inspections made for damages resulting from any defects therein; and further, necessary by the Work and to comply with all laws, ordinances Trade Contractor agrees to defend, indemnify and hold and regulations bearing on the Work and the conduct thereof Client/Owner harmless against any costs for any repair or including, without limitation, all permits, licenses, inspections corrective work required as a result of Trade Contractor made necessary by the transport, storage, use or disposal of proceeding with its Work where Trade Contractor knows or Hazardous Materials; and reasonably should know that precedent work is unsatisfactory. 13.1.8 To be fully and exclusively responsible for, and SECTION 16. LABOR LAWS: to pay when due, any and all applicable contributions, allowances or other payments, deductions or benefits, 16.1 The Project is a public work for purposes of Chapter 1 however termed, required by labor agreements or law now or (commencing with Section 1720) of Part 7 of Division 2 of the hereafter in force. Labor Code. Accordingly, Trade Contractors and the Subcontractors shall comply with Chapter 1 of Part 7 of 13.2 Trade Contractor shall defend and indemnify the Division 2 of the Labor Code, including the obligation to pay Indemnified Parties against, and hold each harmless from, any prevailing wages and certify payrolls. and all loss, damage, fines, penalties, costs, liability, claim, demand, suit, cause of action, expenses, expert witness fees 16.2 Trade Contractor agrees to be bound by, and agrees to and attorneys' fees suffered or incurred on account of any bind any lower tier subcontractor to, and comply with, all breach of the aforesaid obligations and covenants, or any applicable labor laws, regulations and standards issued or other provision or covenant of this Agreement. promulgated by a Federal, State or other governmental authority having jurisdiction. Trade Contractor further agrees 13.3 At any time before final settlement or adjudication of any to be bound by and comply with all applicable Fair loss, damage, liability, claim, demand, suit or cause of action Employment Practices and Equal Opportunity Provisions and for which Trade Contractor has obligation to defend and Regulations of Federal, State or other governmental authority indemnify any of the Indemnified Parties, Client/Owner may having jurisdiction. Trade Contractor acknowledges that it has withhold from any payments due or to become due under this read the applicable laws, regulations, standards and provisions Agreement such sums as Client/Owner, in its sole discretion, and is familiar with the terms thereof. deems necessary to protect and indemnify any of the Indemnified Parties for any loss that may result. 16.3 Trade Contractor agrees to defend, indemnify and hold Client/Owner harmless from and against all claims, liability, 13.4 Trade Contractor shall not settle any third-party claim for loss, damage, cost, expense, including attorneys' fees and which Trade Contractor is obligated to indemnify Client/Owner expert witness fees, fines, judgments or penalties associated or another Indemnified Party, without Client/Owner’s prior with any claim that Trade Contractor failed to comply with any written consent (unless the effect of such settlement shall be to labor laws, prevailing wage laws, ordinances or requirements. release every Indemnified Party against whom liability has been asserted from all liability whatsoever with respect to such SECTION 17. INDEPENDENT CONTRACTOR: claim, without cost or contribution from any Indemnified Party). 17.1 Trade Contractor represents that it is an independent SECTION 14. USE OR OCCUPANCY BY CLIENT/OWNER: contractor and an employing unit subject, as an employer, to all Federal and State statutes including Workers' 14.1 Whenever it may be useful or necessary for Compensation and statutes relating to payroll retention and Client/Owner to do so, Client/Owner may occupy and use any contributions so as to relieve Client/Owner of any responsibility portion of the Work which has been either partially or fully or liability for treating Trade Contractor's employees as completed by Trade Contractor before final inspection and employees of Client/Owner for any purpose. acceptance thereof by Client/Owner, but such use or occupancy shall not relieve Trade Contractor of its guaranty of © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 13 Trade Contract Agreement Terms and Conditions 17.2 Trade Contractor agrees to defend, indemnify and hold assigns, including, without limitation, rights of set-off, to retain Client/Owner harmless and reimburse it for any expense or moneys, to amend or modify this Agreement, and to assert all liability incurred under applicable laws in connection with other defenses and claims whether or not arising under this employees of Trade Contractor, including, without limitation, a Agreement. sum equal to benefits paid to those who were Trade Contractor's employees. 19.3 The making of any assignment by Trade Contractor or any consent thereto by Client/Owner shall not relieve Trade 17.3 Trade Contractor shall furnish to Client/Owner, at Contractor, or its sureties, of their obligations, duties, Client/Owner's request, such evidence of Trade Contractor's responsibilities or liabilities under this Agreement. compliance with this Section as Client/Owner may reasonably require. 19.4 Any subletting hereunder shall be on the express condition that the sub-subcontract shall be subject to the terms 17.4 Trade Contractor further agrees as regards (i) the and conditions of this Agreement and Trade Contractor shall production, purchase and sale, furnishing and delivering, incorporate all terms and conditions of this Agreement in any pricing and use or consumption of materials, supplies and such sub-subcontract. equipment, (ii) the hire, tenure or conditions of employment of employees and their hours of work and rates of and the 19.5 Trade Contractor shall not engage subcontractors or payment of their wages, and (iii) the keeping of records, material suppliers, nor employ any person on the Project to making of reports, and the payment, collection, and deduction which Client/Owner has a reasonable objection, and Trade of Federal, State and local taxes and contributions, that Trade Contractor shall promptly remove from the Project site any Contractor will keep and have available, for a minimum of ten person or entity to which Client/Owner so objects. Prior to (10) years after completion of the Project or as reasonably commencing Work, Trade Contractor shall submit a list for required by Client/Owner, all necessary records and make all Client/Owner's review and approval of subcontractors and payments, reports, collections and deductions, and otherwise material suppliers to be used in the Work, and shall update the do any and all things so as to fully comply with all Federal, list as changes occur. State and local laws, ordinances and regulations in regard to 19.6 Client/Owner may assign this Agreement to (i) the State any and all said matters insofar as they affect or involve Trade of California, (ii) an affiliated entity, as that term is defined in Contractor's performance of the Work. California Corporations Code section 150, or (iii) to any SECTION 18. OPEN SHOP AND DUAL GATE SYSTEMS: general contractor or design-builder performing work for Client/Owner at the Property, at any time and without Trade 18.1 Trade Contractor hereby acknowledges that both union Contractor's consent. Client/Owner will promptly provide and non-union trades may be present and working on the notice to Trade Contractor of any such assignment. Upon Project and hereby agrees to fully cooperate in any "open transfer, all of Client/Owner's rights and obligations under this shop" arrangement and to abide by all laws and regulations Agreement shall be transferred to and will flow directly to the applicable to open shop, merit shop and dual gate systems. A assignee. In the event Client/Owner assigns to a general dual gate system may be used and Trade Contractor hereby contractor, Client/Owner shall be an intended third party agrees to use the proper gate for entering and leaving the job beneficiary of this Agreement. After an assignment of this premises, as assigned and directed by Client/Owner, and shall Agreement, Client/Owner shall have no further direct obligation require and enforce that its agents, employees, suppliers, to Trade Contractor. visitors and lower tier subcontractors use the proper gate. If Client/Owner establishes a reserved gate for Trade SECTION 20. NOTICES: Contractor's purposes, it shall be the obligation of Trade 20.1 Written notice, where required by the terms of this Contractor to continue the proper performance of Trade Agreement, may be accomplished by personal delivery, by Contractor's work without interruption or delay. transmitting a copy by facsimile machine, by use of the United 18.2 Failure of Trade Contractor to use the gate assigned by States mail, by use of overnight delivery service, by any Client/Owner to perform work shall result in a default, entitling standard form of telegraphic communications, or, upon mutual Client/Owner to the remedies provided in Section 21 or other agreement of the parties, by electronic mail ("e-mail"). The applicable provisions, or by applicable law. Labor slowdowns written notice shall become effective when the notice is hand- and stoppages will not be permitted by Trade Contractor delivered to the recipient or its representative at the Project or and/or its lower tier suppliers or subcontractors, if any, at the office address of the recipient appearing in this because of labor discussions, disputes or disturbances that Agreement, upon transmission by facsimile machine as may occur. If delays or slowdowns do take place, the delay evidenced by a facsimile confirmation (if transmitted before and any associated expense will be the responsibility of Trade 5:00 p.m. at the place of delivery on a business day, otherwise Contractor, and may, at Client/Owner's discretion, be cause for on the next business day), two days after mailing by U.S. Mail, termination of this Agreement. or upon the receipt of the notice as evidenced by a delivery receipt. If notice is accomplished by e-mail, the notice shall SECTION 19. ASSIGNMENT AND SUBLETTING: become effective when the e-mail enters an information processing system that the recipient has designated or uses 19.1 Trade Contractor shall not assign, transfer, sublet or for the purpose of receiving e-mail, and from which the delegate, by operation of law or otherwise, in whole or in part, recipient is able to retrieve the e-mail. any portion of the Work or any right to payment without the prior written consent of Client/Owner in its sole discretion. Any 20.2 Upon mutual agreement of the parties, e-mail may be attempted assignment made without Client/Owner's approval used as a method of Project correspondence. The parties shall be void. understand that e-mail correspondence is a "writing" under California evidence law, and as such, shall be interpreted with 19.2 Any assignment by Trade Contractor hereunder shall be the same force of law as a conventional mailed letter or other subject to, and Client/Owner reserves, all rights and remedies forms of conventional written communication. possessed by or available to Client/Owner by law or under this Agreement as against Trade Contractor, its sureties and © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 14 Trade Contract Agreement Terms and Conditions 20.3 Client/Owner and Client/Owner's consultants shall be be removed within ten (10) days of receiving written notice afforded prompt access to Trade Contractor's records, books, from Client/Owner to do so; correspondence, instructions, drawings, Submittals, receipts, subcontracts, purchase orders, vouchers, memoranda and 21.1.10 Failure of Trade Contractor to comply with the other data (whether in printed or electronic form) relating to the insurance requirements specified herein and/or in the other Project. Trade Contractor shall preserve these Project records Contract Documents; or for a period of four (4) years after final completion of the Work, 21.1.11 Trade Contractor's material breach of, or or for such longer period as may be required by law. noncompliance with, any other provision of this Agreement or SECTION 21. DEFAULT; TERMINATION OF AGREEMENT: the Contract Documents. 21.1 Default. Trade Contractor shall be in default under this 21.2 Notice; Cure. Upon written notice from Client/Owner of Agreement upon the occurrence of any of the following: Trade Contractor's default, Trade Contractor shall promptly take all action necessary to cure any such default and to fully 21.1.1 Failure of Trade Contractor to commence the comply with the terms of the Agreement and the requirements Work on the date specified by Client/Owner, or failure of Trade of the Contract Documents within seven (7) calendar days, Contractor to perform the Work or any portion thereof in provided, however, that if such default cannot be cured within accordance with the provisions of this Agreement as to such 7 days, Trade Contractor shall give within 48 hours character and time of performance; written notice to Client/Owner acknowledging that Trade Contractor intends to take all actions necessary to remedy the 21.1.2 Failure of Trade Contractor to perform the Work matter involved with due diligence and promptly commences to or any portion thereof in accordance with the Contract cure and correct the matter involved within a reasonable time, Documents or refusal to or failure of Trade Contractor to taking into account the relevant circumstances. Trade supply enough properly skilled workers or proper materials to Contractor shall have 48 hours' opportunity to commence to complete the Work; cure any such default after written notification of default from 21.1.3 Failure of Trade Contractor to abide by and Client/Owner. Should Trade Contractor fail to do so, then in comply with the terms and provisions contained in the Contract any such case Client/Owner, without further notice to Trade Documents; Contractor and without having to give any further notice to any surety on any bond, may at its option employ any remedies 21.1.4 Failure of Trade Contractor to correct defective provided for in this Agreement or otherwise available at law or or nonconforming Work after receipt of notice to do so; in equity. If Client/Owner, in its sole discretion, so determines, due to the fact that Trade Contractor has abandoned 21.1.5 Assignment in violation of Section 19, either performance, suffered an Insolvency Event or notified voluntarily or involuntarily or by operation of law; Client/Owner that it does not intend to proceed in conformance 21.1.6 Any of the following occurs to Trade Contractor with prior direction issued by Client/Owner, then the (each, an "Insolvency Event"): requirement for notice and an opportunity to cure shall be waived and Client/Owner may immediately pursue its other (a) a receiver is appointed for all or a material remedies. part of Trade Contractor’s property or income; 21.3 Termination. In the event Trade Contractor fails to cure (b) Trade Contractor admits in writing it’s the default, or without further notice if the default is temporarily inability to pay Trade Contractor’s debts as they mature; corrected but Trade Contractor thereafter is in default in the same manner as provided in the original notice, then (c) Trade Contractor makes a general Client/Owner may, without prejudice to any other right or assignment for the benefit of creditors; remedy, either (i) terminate Trade Contractor's right to proceed with the Work and take over and complete the performance of (d) a petition under the Bankruptcy Act is filed this Agreement at the expense of Trade Contractor, or by or against Trade Contractor and same is not set (ii) without terminating, furnish the necessary materials and aside or terminated within 30 days; may employ any other person or persons, including another trade contractor, to finish the Work or any portion at Trade (e) is adjudicated an insolvent; or Contractor's expense. In either event, Client/Owner shall have the right to enter upon the Property and take possession, for (f) an attachment is levied or a judgment is the purpose of completing the Work, of all materials, tools and executed against all or any material part of Trade appliances thereon all without liability on the part of Contractor’s property or income and the same is not Client/Owner for any damage, wear and tear, depreciation, discharged within thirty (30) days. theft, loss, action of the elements, acts of God, fire, flood, vandalism, or other injury or damage to said materials, tools, 21.1.7 Dissolution or termination of doing business of and appliances. Trade Contractor; 21.4 If Client/Owner either terminates or causes to be 21.1.8 Failure of Trade Contractor to make timely performed a portion of the Work, Trade Contractor shall not be payments for any labor, materials or equipment, transportation entitled to receive any further payment under the Agreement or shipping costs, tax fees, payments to labor unions and until the Work shall be wholly finished. Thereafter, if the union trust funds or payments to any employee benefit unpaid balance of the amount to be paid under the Agreement program or trust; for completed Work exceeds the expenses incurred by Client/Owner in finishing the Work, such excess shall be paid 21.1.9 Failure to cause the effect of any mechanic's by Client/Owner to Trade Contractor; but if such expense shall lien, statutory or judgment lien, or stop notice against the exceed such unpaid balance, then Trade Contractor shall pay Project, Work, Property, or any applicable construction fund, to to Client/Owner the difference to the extent such expense exceeds the Contract Price. As used in this Section the word © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 15 Trade Contract Agreement Terms and Conditions "expense" shall be defined to mean actual cost to 22.2 Informal Resolution. If a Claim cannot be resolved Client/Owner, plus an amount equal to fifteen percent (15%) of through informal discussion, then Client/Owner or Trade such cost for overhead. The expense incurred by Contractor may call a special meeting for the resolution of the Client/Owner as herein provided, either for furnishing materials Claim(s), which shall be held within a reasonable time not to or for finishing the Work, and any damages incurred as a result exceed fourteen (14) days of a written request for the meeting, of such default, shall be chargeable to and paid by Trade which request shall specify the nature of the Claim to be Contractor and Client/Owner shall have a lien upon all resolved. The special meeting shall be attended by non- materials, tools and appliances at the Project to secure the attorney Project representatives of Client/Owner and Trade payment thereof. Contractor, who shall attempt in good faith to resolve the Claim and have authority sufficient to do so. 21.5 In the event of termination for Trade Contractor's default, no rights or remedies of Client/Owner shall thereby be waived, 22.2.1 If the Project representatives are unable to nor shall any breach by Trade Contractor of the covenants in resolve the Claim, a senior management representative from this Agreement which has occurred and is continuing at the Client/Owner and Trade Contractor each shall review the time of such termination be waived, whether or not default has Claim in detail and then meet face-to-face to discuss and been declared, but rather, any such termination shall be resolve the matter. This meeting shall occur no later than without prejudice to all rights and remedies of Client/Owner fifteen (15) days after the meeting of the Project which would otherwise be available. representatives, unless the parties agree upon a longer period of time. The parties shall promptly designate a senior 21.6 Termination for Convenience. Client/Owner reserves representative for purposes of this Section. Any party may the absolute right to terminate this Agreement for convenience, designate a different senior representative at any time during without cause, either before Trade Contractor commences the course of the Project. This meeting shall be for the Work, or at any time thereafter, regardless of the percentage express purposes of: (i) exchanging and reviewing all of Work performed by Trade Contractor. Should Client/Owner pertinent non-privileged documents and information relating to elect to terminate for convenience, Client/Owner shall provide the matters and issues in dispute, (ii) freely and candidly seven (7) days' written notice to Trade Contractor. discussing each party's position, and (iii) reaching agreement 21.6.1 Upon such termination for convenience, Trade upon a reasonable, compromised resolution of the Claim. Contractor shall be entitled to payment only as follows: (i) the 22.3 Non-binding Mediation. If any Claim remains unresolved direct, actual cost of Trade Contractor's Work completed in after the meeting of the senior management representatives, conformity with the Agreement; plus (ii) such other costs the parties agree to promptly submit the matter to mediation by actually incurred by Trade Contractor as are permitted by the an experienced, mutually acceptable mediator. No later than Contract Documents and approved by Client/Owner; plus thirty (30) days prior to the mediation date, the parties shall (iii) an amount not to exceed ten percent (10%) for Trade exchange in a cooperative and forthright manner all Contractor's overhead and profit which directly relates to Trade documents, data and information relating to the claim, Contractor's Work, provided that the total of (i) through (iii) may excepting only those items protected by the attorney/client or not exceed the Contract Price. There shall be deducted from other applicable privilege. The parties to the dispute shall such sums the amount of any payments made to Trade attend and meaningfully participate in the mediation. The cost Contractor prior to the date of the termination of this of the mediation shall be borne equally by the parties to the Agreement. Trade Contractor shall not be entitled to any claim dispute. Each party's representative at the mediation shall or claim of lien against Client/Owner for any additional have full authority to settle the dispute. The mediation shall be compensation or damages in the event of such termination
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