THIS SUBCONTRACT is entered into this date between ROBINSON PAVING COMPANY, 5425 Schatulga Road, Post Office Box 12266, Columbus, Georgia 31917-2266, herein called Contractor, and ________, herein called Subcontractor for the performance by Subcontractor of certain work hereinafter specified, as called for under the terms of a certain Original Contract between Contractor and the Department of Transportation, State of Georgia herein called Owner, Relating to the project identified as:
CONTRACT ID:
RPC Job:
PROJECT#:
THE PARTIES AGREE AND BIND THEMSELVES, their heirs, successors and assigns as follows:
1. PERFORMANCE:
Subcontractor agrees to perform the work specified and to furnish all necessary labor, materials, equipment, supplies and other items therefore and to promptly pay for all of such, for which Contractor may be held liable and to complete the work in strict compliance with the terms of the Original Contract and to the satisfaction of and in compliance with the directions of the Owner or Owner's Engineers.
2. ORIGINAL CONTRACT:
The terms, conditions, specifications, drawings, schedules and contract documents forming a part of the Original Contract between Contractor and the Owner are hereby made a part of this subcontract by reference as fully as if set out in detail.
Subcontractor shall be bound to the same extent that Contractor is bound by each and every covenant, obligation and provision of said Original Contract insofar as the same is applicable to the work of Subcontractor.
3. WORK:
Subcontractor shall perform all of the work necessary and incidentally required to complete the following items of the Original Contract and none other:
Subcontractor shall perform said items for the Unit Prices set opposite each item and said prices shall constitute the sole consideration for all work performed hereunder.Any increase or decrease in quantities shall be adjusted on the same basis.
4. PROGRESS AND COMPLETION:
Unless herein otherwise specially provided, Subcontractor shall commence work promptly or upon notice from Contractor.Subcontractor shall, in any event, prosecute the work diligently and so as to avoid delaying the progress of Contractor or other subcontractors on other portions of the project work.Subcontractor shall keep and maintain on the project a sufficient number of properly qualified workmen and a sufficient quantity of
materials, equipment and supplies to efficiently perform the work as required without delay.Should Subcontractor cause delay in the progress or completion of the project, the damages resulting there from, including liquidated damages assessed by Owner and attributable thereto, shall be the obligation of Subcontractor.
Contractor shall not be liable to Subcontractor for any delay resulting from the act, neglect or default of the Owner or from causes beyond Contractor's control or, in any case, beyond the granting of justifiable time extensions on written applications therefore made within 48 hours from the beginning of the claimed delay.
5. PAYMENT:
Subject to other provisions hereof, Contractor agrees to pay Subcontractor the stated consideration for said work on the
basis of the quantities allowed and paid for by Owner, and to make payment with ten (10) days from the time that Contractor is paid
by Owner, less the same percentage retained by the Owner, which
percentage may be retained until completion of the Original Contract and final payment by the Owner, except that the payment
of retainage upon satisfactory completion of the work hereunder shall not depend upon the receipt of final payment by the owner in
cases where there is undue delay which is occasioned by complaints
or circumstances totally unrelated to the work covered hereunder or to the manner of performing this subcontract.
6. ADVANCES:
Contractor may, but shall not be required to, advance sums to Subcontractor for the purpose of financing the work and may offset such against any subcontract earnings, including final retainage, without the consent of and free of any claim of unauthorized prepayment by any Surety and such shall not release the Surety in whole or in part.Contractor may, but shall not be required to, supply Subcontractor with labor, materials, equipment and supplies and other items acceptable to Subcontractor in the
Performance of the work and recover the value or price therefore against Subcontractor and the Subcontractor's surety, if any, without being required to offset the same or any part thereof against the earnings of Subcontractor.
INSURANCE:
Before commencing the subcontract work, and as a condition precedent for payment, the Subcontractor shall purchase and maintain insurance, in conformance with the provisions contained in this Exhibit.This insurance will provide a defense and indemnify the Contractor against any and all claims of any
nature whatsoever, arising out of either the Contractor’s or Subcontractor’s operations under this Agreement.This insurance shall apply regardless of whether the operations, actions, derelictions or failures to act, from which the claim arises, are attributable to the Contractor, or any of its consultants, officers, agents or employees or attributable to the Subcontractor, any of its consultants, officers, agents,
subcontractors, employees, or anyone directly or indirectly employed by any of them, including anyone for whose acts any of the aforementioned may be liable by operation of statute, government regulation, or applicable case law.
Proof of this insurance shall be provided to the Contractor before the work commences, as set forth below.To the extent that the Subcontractor subcontracts with any other entity or individual to perform all or part of the Subcontractor’s work, the Subcontractor shall require the other Sub-Subcontractors to furnish evidence of equivalent insurance, coverage, in all respects, terms and conditions as set forth herein, prior to the commencement of work by the Sub-Subcontractor.In no event shall the failure to provide this proof, prior to the commencement of the work, be deemed a waiver by the Contractor of Subcontractor’s or the Sub-Subcontractor’s insurance obligations set forth herein.
In the event that the insurance company (ies) issuing the policy (ies) required by this exhibit deny coverage to the Contractor, the Subcontractor will defend and indemnify the Contractor at the Subcontractor’s expense.
MINIMUM LIMITS OF LIABILITY
The Subcontractor must maintain the required insurance with a carrier rated A-or better by A.M. Best.The Subcontractor shall maintain at least the limits of liability as set forth below:
Commercial General Liability Insurance
$1,000,000 Each Occurrence Limit (Bodily Injury and PropertyDamage)
$2,000,000 General Aggregate
$2,000,000 Ongoing & /Completed Operations Aggregate
$1,000,000 Personal and Advertising Injury Limit
Business or Commercial Automobile Liability Insurance
$1,000,000 per accident for Bodily Injury and Property Damage
Workers’ Compensation and Employers’ Liability Insurance
$100,000 Each Accident
$100,000 Each Employee for Injury by Disease
$500,000 Aggregate for Injury by Disease
Additional Insured Status and Certificate of Insurance
The Contractor and Owner, along with their respective officers, agents and employees, shall be named as additional insureds for Operations and Products/Completed Operations on the Subcontractor’s and any Sub-Subcontractor’s Commercial General Liability Policy, which must be primary and noncontributory with respect to the additional insureds.This insurance shall remain in effect as set forth below, in the “Continuation of Coverage”
provision. It is expressly understood by the parties to this Contract that it is the intent of the parties that any insurance
obtained by the Contractor is deemed excess, non-contributory and
not co-primary in relation to the coverage(s) procured by the Subcontractor, any of its consultants, officers, agents, subcontractors, employees or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of the aforementioned may be liable by operation of statute, government regulation or applicable case law.
A Waiver of Subrogation Clause shall be added to the General Liability, Automobile and Workers Compensation policies in favor of Contractor and Owner, and this clause shall apply to the Contractor’s and Owner’s officers, agents and employees, with respect to all projects during the policy term.
Prior to commencement of work, Subcontractor shall submit a Certificate of Insurance in favor of Contractor and an Additional Insured Endorsement (in a form acceptable to the Contractor) as
required hereunder.The Certificate shall provide for 30 days’ notice to Contractor for cancellation or any change in coverage.
NO LIMITATION ON LIABILITY
With regard to any and all claims against the additional insured by any employee of the Subcontractor, anyone directly or indirectly employed by the Subcontractor or anyone for whose acts the Subcontractor may be liable, the indemnification obligation shall not be limited by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor under workers’ compensation acts, disability benefit
acts or other employee benefit acts.
CANCELLATION, RENEWAL AND MODIFICATION
The Subcontractor shall maintain in effect all insurance coverages required under this Agreement at the Subcontractor’s sole expense and with insurance companies acceptable to the Contractor. The policies shall contain a provision that coverage will not be cancelled or non-renewed until at least thirty(30) days prior written notice has been given to the Contractor.Certificates of insurance showing required coverage to be in force
Pursuant to Subparagraph 9.2.2 must be delivered to the Contractor prior to commencement of the Subcontract Work.In the event the Subcontractor fails to obtain or maintain any insurance coverage required under this Agreement, this shall be considered a material breach of the contract, entitling the Contractor, at its sole discretion, to purchase such equivalent coverage as desired for the Contractor’s benefit and charge the expense to the Subcontractor, or, in the alternative, exercise all remedies
otherwise provided in the contract, or as permitted by law or equity.
CONTINUATION OF COVERAGE
The Subcontractor shall continue to carry Completed Operations Liability Insurance for at least three years after either ninety (90) days following Substantial Completion of the Work or final payment to the Contractor, whichever is later. The
Subcontractor shall furnish the Contractor evidence of such
insurance at final payment and in each successive year during which the insurance coverage must remain in effect.
ACKNOWLEDGEMENT OF REFERRAL OF THIS PROVISION TO
SUBCONTRACTOR’S INSURANCE AGENT OR BROKER
The Subcontractor represents that he has provided a copy of the “Insurance Provisions” to his insurance agent and/or broker, and that the Subcontractor has instructed the agent/broker to provide insurance in full compliance with the terms and conditions herein.
The Contractor and Subcontractor hereby acknowledge that this Exhibit is considered a material term of their contract.
___________________________ ______________________________
On Behalf of the ContractorOn Behalf of the Subcontractor
8. PROTECTION OF WORK AND INDEMNITY AGAINST NEGLIGENCE:
Subcontractor agrees to adequately and properly protect the work called for hereunder and to so perform the subcontract and subcontract work as to avoid injury or damages to persons or
property for which Contractor may be held liable in damages and as to avoid any negligence in the performance of or omission to perform the contract and work for which Contractor may be held liable and to fully indemnify and same harmless Contractor from all such claims for damages and from all expenses and attorneys' fees incident thereto, arising out of or in anywise connected with the subcontract work.
9. FAILURE TO PAY CLAIMS:
Subcontractor warrants that he has sufficient funds and credit to pay currently all bills incurred in the performance of the work hereunder without the necessity of resorting to earnings for work performed and agrees that failure to pay such bills shall be a breach of this subcontract for which Contractor may, but shall not be required to, withhold all sums otherwise payable
hereunder for past and future earnings until Subcontractor
presents satisfactory evidence of payment, and in case any such
bill or claim is disputed by Subcontractor, Contractor may, for
the purposes of this Section, consider the same to be valid until
discharged and released or until satisfactory security is given for Contractor's indemnification. At Contractor's option,
Contractor may, but shall not be required to pay any such bill or claim and recover the same from Subcontractor or any Surety or deduct the same from any payments (progress or retainage) otherwise due hereunder.Any and all payments made on good faith in the belief that Contractor is liable, whether liable or not,
shall be conclusive of Contractor's right to reimbursement and a sworn itemized statement thereof or the checks or other evidence of payment shall be prima facie evidence of the fact and extent of Subcontractor's liability.
10.DEFAULT;
Subject to paragraph ll, below, should subcontractor at any time fail to perform any one or more of the agreements herein contained, or fail to avoid Bankruptcy, Receivership or Attachment or abandon the work, any such failure or abandonment shall amount to a default hereunder and Contractor may, at Contractor's option, after 48 hours notice to Subcontractor, provide the labor, materials, equipment and supplies and other items necessary to perform the work and discharge the other obligations assumed by Subcontractor and recover the cost thereof from Subcontractor, and may deduct such cost from any money then due or thereafter to become due to Subcontractor under this subcontract or otherwise, or Contractor, at Contractor's option, may terminate Subcontractor
And take over the work and complete the same or re-let the subcontract, deducting in any case the cost thereof (including a reasonable allowance to Contractor for use of Contractor's equipment based on A.E.D. rental rates and a reasonable allowance for overhead expense) from the payments that would otherwise be due hereunder.Should such cost of completing or re-letting the work exceed that remaining unpaid hereunder, then such excess
shall be the liability of Subcontractor, payable on demand.In case of any default hereunder, Contractor may take exclusive possession of any materials and equipment on the project belonging to Subcontractor and use the same in the completion of the work, free of all claims for the value of said materials and for the rental or use of said equipment, and free of all claims for depreciation and ordinary wear and tear. Determination of default made by Contractor on good faith under the belief that a default exists under the terms hereof shall be conclusive of the fact of such default and on the Contractor's right to proceed as herein provided.The liability of Subcontractor hereunder shall extend to and include the full amount of any and all sums paid and obligations assumed by Contractor on good faith under the belief
that such payments orassumptions were necessary or required, whether actually necessary or required or not (1) in completing the work and providing labor, materials, equipment, supplies and other items therefore or re-letting the subcontract, and (2) in settlement, discharge or compromise of any claims, demands, suits and judgments pertaining to or arising out of the subcontract work.A sworn itemized statement thereof or the checks or other evidence of payment shall be prima facie evidence of the fact and extent of Subcontractor's liability.
11.NOTICE TO AND RIGHTS OF SURETY:
It is further provided, however, that if a Surety Bond has been furnished, Contractor shall not invoke paragraph 10, above, until such time as the Surety has been given or afforded notice of such default and a reasonable time (not to exceed 30 days) within which to relieve such default and proceed with the completion of the work under the provisions of the Subcontract.
12.INDEMNITY:
In full exoneration of Contractor, Subcontractor shall faithfully complete the work hereunder to the satisfaction of the
Owner and shall promptly pay all claims for labor, materials,
Equipment, supplies and other items, including but not limited to premiums incurred for surety bonds and insurance and all taxes, licenses and assessments, with damages, penalties and interest thereon, pertaining to or arising out of the subcontract work for which Contractor may be held liable on the Prime Contract bond or otherwise.Subcontractor shall also pay all of the expense and cost and attorney's fees incurred by Contractor in the enforcement
of the conditions and obligations of this subcontract and of any bond furnished in connection herewith or incurred in the investigation or defense of any action arising out of this subcontract or out of the non-payment of any claim of any third party, whether such claim is valid or not, or out of the performance or non-performance of the work hereunder.Subcontractor shall also pay all of the expense, cost, and attorneys' fees for which Contractor may be liable on the Original Contract bond or otherwise to persons furnishing labor, materials, equipment, supplies and other items therefore.Subcontractor agrees to place Contractor in funds to discharge any claims, demands, costs and attorneys' fees as aforesaid and to hold and save Contractor harmless from all liability and loss in reference thereto.
13.ASSIGNMENT OF SUBCONTRACT:
Subcontractor shall not assign all or any part of this subcontract or sub-let all or any part of the work provided for hereunder without the prior written consent of Contractor, but in any event, and without regard to whether such consent is given or not, Subcontractor agrees to indemnify and save Contractor
harmless, as hereinabove set forth, although claims are based upon items supplied to an assignee or subcontractor of the undersigned
Subcontractor or to any other party (no matter how remote or disconnected) performing or having any connection whatever with
the performance of the subcontract work for which Contractor may be liable on the Prime Contract bond or otherwise.No assignment or sub-letting, with or without consent, shall relieve the under-signed Subcontractor from any obligation herein assumed.
14.LICENSES, TAXES AND PERMITS:
Subcontractor agrees to comply with all public laws, codes, regulations and ordinances in effect where the work under this subcontract is to be performed, and to pay all fees, licenses, permits and expenses required by such compliance, and also, to the extent that Contractor is or may be held liable therefore, to pay all taxes and contributions imposed or required
by any law to the extent that Contractor is or may be held liable therefore, to pay all taxes and contributions imposed or required by any law relating to the employees of Subcontractor and to the performance of said work and completion of this subcontract.
15.WORKMEN:
Neither Subcontractor nor any of Subcontractor's assigns shall employ or keep any workman whose employment on the work covered by the subcontract is objected to by the Owner or by Contractor.
16.LABOR PROVISIONS:
Without limitation upon the obligations herein generally assumed for compliance with prime-contract provisions, but for purposes of complying with the labor requirements as set forth in the prime contract, it is further provided that:All of the provisions, if any, of the prime contract relating to the hiring, handling, selection, use and payment of employees on the project involved and to the imposition of penalties, sanctions or liabilities for non-compliance with such labor provisions shall be
in all respects applicable to and binding upon Subcontractor to the same extent that same are or would be applicable to and binding upon Contractor, and said provisions are incorporated by reference as a part hereof as if set out at length herein.(Every reference therein to "Contractor" shall be considered as referring also to "Subcontractor".)Subcontractor agrees to comply with such directions as may be given by Contractor (as may be required by the Contracting Agency) as a means of enforcing such labor provisions and to be bound by such penalties, sanctions and
liabilities for non-compliance with such provisions and directions
as may be lawfully imposed and in all such respects to indemnify and save harmless the Contractor from any and all penalties, forfeitures, sanctions, liabilities, loss, cost, expense and attorneys' fees imposed upon or incurred by Contractor because of
or arising out of any failure of Subcontractor to comply with such provisions or directions or to discharge any of same as may be
imposed.Should Subcontractor sublet the work in whole or in
part, with or without the consent of Contractor, any such Subcontract shall include the same obligations as set forth in this paragraph.
17.DEFECTIVE WORKMANSHIP OR MATERIALS:
No payment made under this subcontract shall be construed as an acceptance of any defective work or improper
Materials, and Subcontractor agrees to guarantee and does hereby guarantee the work under this subcontract against all defects of workmanship or materials to the same extent as liability may be imposed upon Contractor under the terms of the Original Contract.
18.BOND:
Prior to commencing operations hereunder Subcontractor shall furnish Contractor with a surety bond, with a satisfactory corporate Surety, in an amount equal to 100% of the total amount of this subcontract.The liability of the Surety on said bond shall be joint and several and shall include all of the performance and payment and other obligations, liabilities, covenants and conditions, as herein assumed by Subcontractor, whether expressly referred to in said bond or not, and whether arising before or after any default, and any provision of such bond to the contrary or by which liability is sought or claimed to be limited or restricted shall be of no force or effect.
19.NOTICE:
Any notice provided for herein may be given in writing by United States mail, and shall be considered as given when
addressed to the last known Post Office address of the party to receive the same and deposited in the United States mail, and shall be effective for all purposes, as of the time of such deposit, whether actually received by the addressee or not.Notice by any other means shall be effective when communicated to or received by the party involved.
20.NON-WAIVER:
The failure of either party to invoke any provision hereof or assert any right given hereunder on any one occasion or on any series of occasions shall not amount to or be interpreted as a waiver of release of any such provision or right.
21.SPECIAL OR ADDITIONAL PROVISIONS:
WITNESS OUR SIGNATURES, on this the 20th Day of January, 2012
WITNESSES AS TO CONTRACTOR:
_________________________ROBINSON PAVING COMPANY
_________________________ _____________________
WITNESSES AS TO SUBCONTRACTOR: Patrick L. Pugh
_________________________
_________________________ _____________________
