Home pageAddendum to Standard Form of Agreement Between Contractor and Subcontractor
The undersigned Subcontractor accepts the terms of the proposed Agreement attached subject to the Contractors agreement to the modifications set forth in this Addendum, as well as those changes incorporated within the Agreement by interlineation or deletion. Anything to the contrary notwithstanding, this Addendum shall take precedence over any inconsistent provisions of the Agreement or other contract documents, Contractor's acceptance shall be evidenced by Contractor's signature or by first permitting Subcontractor to commence work on the project,
Agreement
1. The scope of Work shall
include only the work set forth in the attached Subcontractor's proposal
or description of work, which proposal or description is expressly incorporated
and made a part of the Subcontract Documents between the Contractor and
the Subcontractor.
Scope of Work
2. No terms and conditions
or other document included by reference in the Agreement shall be binding
on the Subcontractor unless a copy of any such terms and conditions or
document has been furnished to the Subcontractor prior to execution of
the Agreement unless expressly accepted in a writing signed by the Subcontractor.
Rejection of Work
3. In lieu of paragraphs
3.2 and 3.22.2, Subcontractor's work shall be executed in substantial compliance
with the Contract Documents in a good and workmanlike manner as reflected
in MNL-116/117 and free of defect not inherent in the type of work. Contractor
may reject Subcontract Work only for demonstrated noncompliance with the
Subcontract Documents and only if the Architect/Engineer concurs in writing
that the Subcontract Work is unacceptable.
Completeness of Plans
4. Subcontractor is entitled
to rely on the accuracy and completeness of the plans and specifications
provided to the Subcontractor.
Design Responsibility
5. Any precast design services
provided by the Subcontractor will be reviewed by the Architect/Engineer
responsible for the overall project whose responsibility it is to assure
that the design will be acceptable when integrated with the entire work.
Contractor, Owner and Architect are entitled to rely on the accuracy and
completeness of the precast design only if all design criteria are furnished
to the Subcontractor by the Contractor, Owner and Architect.
Temporary Site Facilities
6. In lieu of paragraph
3.9, Contractor shall provide all temporary site facilities and utilities
without cost to Subcontractor unless otherwise specifically agreed in writing
signed by Subcontractor.
Backcharge Claims
7. No backcharge or claim
of the Contractor shall be valid unless Subcontractor has been given written
advance notice, has been allowed reasonable time to correct any deficiency,
and has failed to do so. , Even then, no backcharge shall be valid unless
billing is rendered no later than the 15th day of the month following the
month in which the charge was incurred. Furthermore, any payments withheld
under a claim of Subcontractor default shall be reasonably calculated to
cover the anticipated liability only and all remaining payment amounts
not in dispute shall be promptly paid.
Safety Barriers
8. Subcontractor shall
not be liable for erecting Project safety barriers unless expressly and
specifically agreed to be part of the Subcontractor's Work.
Safety
9. Each party to the Agreement
shall be liable for any safety violation fines or penalties imposed upon
it by governing authorities, regardless of the cause of the fine or penalty.
Warranties
10. Notwithstanding 3.21,
Subcontractor's warranty shall commence on the date of Substantial Completion
of Subcontract Work or a designated portion thereof.
Owner's Ability to Pay
11. Subcontractor
shall be provided, upon written request, with the legal description of
the property, the name, address and representative of the Owner, and evidence
of adequate owner project financing. The Contractor shall promptly notify
Subcontractor in writing of material changes in the Owner's identity or
financial arrangements. Subcontractor shall not be obligated to commence
or continue Subcontract Work unless adequate assurance of payment is received.
Delays
12. Subcontractor
shall be entitled to an extension in subcontract time and/or an equitable
adjustment in the price of the work, including but not limited to any increased
costs of labor, including overtime, or materials, resulting from any change
of schedule, acceleration, out of sequence work, or delay caused by others
for whom Subcontractor is not responsible. Subcontractor shall not
be liable for any delays beyond its reasonable control nor be required
to commence or continue work unless sufficient areas are ready to ensure
continuous work,
Subcontractor Claims
13. Subcontractor's
entitlement to adjustments in the subcontract time or price for changes
in the work shall not be contingent upon or limited to the amount that
the Contractor receives from the Owner. Under no circumstances does the
Subcontractor waive its right to payment for extra work performed by the
Subcontractor pursuant to instructions from the Contractor.
Consequential Damages
14. Under no circumstances
shall Subcontractor be liable for any consequential damages.
Pricing of Adjustments
15. The percentage for overhead
and profit shall represent a fixed percentage and not a maximum percentage.
Payment
16. No provision of this
agreement shall serve to deny Subcontractor's entitlement to full payment
each calendar month for properly performed work or suitably stored materials.
Payments shall be due (7) days after payment is received or should have
been received by Contractor from Owner. Final payment, including release
of retainage, shall be due within 30 days after substantial completion
of Subcontractor's Work, less the reasonable value of uncompleted Subcontract
Work, Interest shall become due and payable on any Subcontractor billing
that remainder paid after the payment due date. The rate of interest shall
be three percentage points above the prevailing prime interest rate at
the largest national bank in the state where the project is located.
Requirements for Final
Payment
17. Contractor will not
require any contract closeout procedures or any forms that have not been
provided to and specifically accepted by the Subcontractor before signature
of the Agreement.
Payment Use Restriction
18. Payments received by
the Contractor for Subcontractor Work shall be held in trust and used solely
for the benefit of Subcontractor, its sub-subcontractors and suppliers.
Payment Use Verification
19. Contractor's right to
contact Subcontractor's sub-subcontractors and suppliers concerning payment
status shall apply only if Subcontractor fails to furnish reasonable evidence,
upon written request that payments made by Contractor to Subcontractor
for the Work of sub-subcontractors and suppliers have been properly paid
to such sub-subcontractors and suppliers.
Partial Lien Waivers
20. Any form or contract
language wherein the Subcontractor purports to release the Contractor,
Owner or Design Profession is hereby qualified by the following language
whether or not the Subcontractor specifically adds the language: “This
release shall apply only to work for which payment has been received in
full by Subcontractor; shall not apply to retention; shall not apply to
unbilled changes, to claims which have been asserted in writing or which
have not yet become known to Subcontractor, and shall be conditional upon
receipt of funds to Subcontractor's account.”
Indemnity
21. Any indemnification
or hold harmless obligation of the Subcontractor shall extend only to claims
relating to bodily injury and property damage and then only to that part
or proportion of any claim, damage, loss or defect that results from the
negligence or intentional act of the indemnitor or someone for whom it
is responsible. Subcontractor shall not have a duty to defend.
Insurance
22. Notwithstanding any
provision to the contrary, Subcontractor shall provide the types and limitations
on insurance shown on the attached certificate of insurance. Contractor
shall pay additional policy premium required for insurance policy limits
or additional coverage that are in excess of those shown on the attached
certificate of insurance. Subcontractor shall not be required
to include Contractor, Owner, Design Professionals as additional insured
or named insured.
Builder's Risk Insurance
23. If Owner and Contractor
fail to provide Builder's Risk insurance for the full value of Subcontractor's
Work, including stored material and material in transit, Subcontractor
shall be entitled to reimbursement of any insurance premium paid by Subcontractor
for Builder's Risk insurance on the Subcontractor's Work.
Suspension of Work
24. In the event of a suspension
of work by the Owner or the Contractor, Contractor's liability to the Subcontractor
is for payment in full for all Work performed (including, but not limited
to, shop drawings, forms, and manufacturing expenses) to date of suspension
and any additional costs incurred as a result of the suspension, including
demobilization and remobilization, plus reasonable overhead and profit.
Termination by Owner
25. In the event of any
termination by the Owner or by the Contractor which is not justified by
a default of the Subcontractor, Subcontractor shall be entitled to payment
from the Contractor for all costs incurred by the Subcontractor for which
the Subcontractor has not received payment, including, but not limited
to, reasonable overhead, profit, expenses (including, but not limited to,
shop drawings, forms, and manufacturing expenses) and damages, including
attorneys' fees and interest, including profit on unperformed work.
Dispute Resolution
26. In lieu of the provision
of Article 11, all claims, disputes, and matters arising out of or relating
to this Agreement or breach thereof shall first be submitted to mediation
through the American Arbitration Association and if not resolved by mediation
shall be decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association then in effect,
unless the parties mutually agree otherwise at the time. The mediation
and/or arbitration shall not be stayed pending resolution of any disputes
between the Contractor and the Owner or other third parties.
Governing Law
27, Any dispute shall be
governed by the law of the state where the project is located. The federal
or state courts in the state where the project is located shall have exclusive
jurisdiction and venue, and any arbitration shall be conducted within the
state where the project is located.
Lien Rights
28. Notwithstanding any
provision to the contrary, Subcontractor may take all steps reasonably
necessary to preserve and enforce its lien and bond rights.
Liquidated Damages
29. If the Agreement
specifically includes a liquidated damage provision, Contractor shall make
no demand for liquidated or actual damages for delay in excess of the amount
assessed against Contractor for unexcused delays to the extent actually
caused by Subcontractor.
Other
30. Other (if applicable)
insert below--
Subcontractor
Contractor
By__________________
By____________________
Title_________________
Title __________________
Date_________________
Date___________________
Addendum ACC 650/655 Reference
1.
Article 1
2.
Paragraph 2,3 Article 13
3.
Paragraph 3,2 and 3.22.2
4.
Paragraph 3.3
5.
Paragraph 3,7 and 3.8
6.
Paragraph 3,9
7.
Paragraph 3.13.2, 3,15, and 8.2.7
8.
Paragraph 3.14.3
9.
Paragraph 3.14,9 (Delete the last sentence of 3,14.9)
10.
Paragraph 3.21
11.
Paragraph 4,3.1 and 4.5
12.
Article 5
13.
Paragraph 5.3 and 7,3
14.
Paragraph 5.4.1 and 5,4.2
15.
Paragraph 7.6
16.
Article 8
17.
Paragraph, 8,3,2 and 3.12
18.
Paragraph 8.6
19.
Paragraph 8.7
20.
Paragraph 8.8
21.
Paragraph 9.1.1 and 9.1.2
22.
Paragraph 9.2
23.
Paragraph 9.2.7.2 and 9.2.7,3
24.
Paragraph 10.3 and 10.6
25.
Paragraph 10.4
26.
Article 11
27.
None
28.
None
29.
None
30.
None