P a g e | 1 of 18 Rev. 3-12-14
Jersen Construction Group, LLC.
Subcontract Terms and Agreements
Administrative Requirements
1.
Subcontractor (hereinafter referred to as the “Subcontractor”) may not commence any work hereunder,
without first furnishing the following:
Proof satisfactory to Jersen Construction Group, LLC. (“Jersen”) that Subcontractor has procured
all required insurances.
(ii)
Material safety data sheets, as required by State or Federal Law, for all hazardous substances to
which any person performing the subcontract work may be exposed in the course of such work
and/or which subcontractor reasonably expects to cause to be brought on to the work site.
(iii)
A payment and Performance bond on subcontracts greater than $1,000,000.00. *This requirement
may only be waived by a Jersen corporate officer as evidenced by a signature below.
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(i)
*OFFICER SIGNATURE WAIVING BOND
____________________________________________.
2.
Subcontractor shall not be entitled to any payments unless and until it furnishes, and keeps current, in
forms satisfactory to Jersen, the following:
A fully executed copy of this Subcontract Agreement.
(ii)
Subcontractor payment and performance bonds, if required, for all work to be performed
hereunder.
(iii)
For all subcontracts involving public work a verified statement from the Subcontractor and each of
its first and second tier sub-subcontractors, in compliance with New York State Labor Law 220-a,
attesting that the Subcontractor and each sub-subcontractor has received and reviewed a copy of
the schedule of wages and supplements specified in the Prime Contract Documents (or any
applicable schedule subsequently issued) and agreeing that it will pay the applicable prevailing
wages and supplements specified therein.
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(i)
(iv)
For subcontracts involving public work, weekly certified payrolls.
(v)
If Subcontractor employs or expects to employ union-affiliated labor, an affidavit from every
associated employee benefit trust or fund as requested by Jersen, verifying that payments on
account of persons employed in the subcontract work is current.
(vi)
A list of all sub-subcontractors and vendors to be employed in the Work and of all benefit funds for
any employees who may perform any of the Work.
(vii)
All reports, forms, certifications, lien waivers and other records required by the Owner, the
Contract Documents or by law, with such frequency as is specified or as requested by Jersen.
Initials______ P a g e | 2 of 18 3.
Subcontractor agrees to comply with the EEO/Affirmative Action Policy of Jersen and agrees to comply
therewith in connection with the work of this subcontract. Subcontractor also agrees to comply with all
non-discrimination, equal employment opportunity and affirmative action (including minority and women
utilization) obligations imposed by law or by the subcontract documents (“Subcontract Documents”) as defined
hereinafter.
4.
The parties agree that the prime contract (“Prime Contract”) between Jersen and the Project owner is made
a part of the Subcontract and incorporated herein in its entirety.
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5.
The Subcontractor is responsible for and shall comply with all safety requirements, whether by statute,
regulation or otherwise, including but not limited to any OSHA or labor law requirements. In the event of a breach
of this provision by the Subcontractor or anyone under its control, Subcontractor agrees to defend, indemnify and
hold harmless Jersen against any fine, penalty or other damages resulting therefrom.
6.
ALL PERSONNEL WORKING/VISITING ON SITE ARE REQUIRED TO WEAR HARD-HATS
AND SAFETY GLASSES. FAILURE TO COMPLY WITH THIS REQUIREMENT IS CAUSE FOR
REMOVAL FROM THE SITE.
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7.
This subcontract shall be effective when signed by both Jersen and Subcontractor, or upon Subcontractor
commencing or continuing subcontract work, including submittals, following receipt of a copy of this Agreement
signed by Jersen. The Subcontract may be amended or modified only by a written modification signed by an
executive officer of Jersen and the Subcontractor.
Scope of Work
8.
The Subcontract Documents consist of this entire Subcontract, any amendments thereto, the entire Prime
Contract and the Project Schedule. The Subcontractor shall assume all the obligations and responsibilities which
Jersen assumes toward the Owner, except as otherwise expressly provided in this Subcontract. In the event of any
inconsistency or a conflict within or between parts of the Subcontract Documents, or between this Subcontract
and the Prime Contract, or with applicable standards, codes and ordinances, the Subcontractor shall, regardless of
cost (1) provide the better quality or greater quantity of work, or (2) comply with the more stringent requirement
or obligation in accordance with Jersen’s instructions. . The terms and conditions of this Paragraph shall not,
however, relieve the Subcontractor of any of the obligations set forth in these Subcontract Documents.
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9.
The Subcontractor agrees that it has carefully examined the site, and that from its own investigation has
satisfied itself as to nature, extent, and location of work, general and local condition and all matters which may in
any way affect work of its performance under this Subcontract. It is further understood that the project drawings
and specifications may not be fully developed and that the Subcontractor will include, without additional
compensation, whatever is required to produce a complete and functional installation of its work to the
satisfaction of Jersen, Architect and Owner and in accordance with all applicable codes laws and ordinances.
10.
The Subcontractor warrants that all materials and equipment furnished and incorporated by him in the
Project shall be new and that all work shall be good quality, free from faults and defects and in conformance with
the Subcontract Documents. All incidental work reasonably necessary to complete this Subcontract shall be
done by Subcontractor, without additional compensation, notwithstanding the same may have been omitted from
the plans and specifications.
Initials______ P a g e | 3 of 18 11.
Subcontractor shall perform all work in strict compliance with the Subcontract Documents and applicable
building codes, and to the satisfaction of the Architect, Owner and Jersen. Subcontractor shall be bound to all
determinations of the Architect and Owner concerning the Subcontract work to the same extent as Jersen is so
bound, and shall promptly complete, repair or replace, at its own expense, any work found not to be compliant.
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12.
No substitutions shall be made except in strict compliance with the Subcontract Documents and only after
receipt of all required approvals. Requests for substitutions shall be at Subcontractor's expense and not delay the
progress of the work of any contractor on the Project. Subcontractor shall not be entitled to additional
compensation for the use of any specified product, manufacturer, quality assurance or product grade.
Subcontractor shall promptly furnish such certifications, tests and reports as may be required to demonstrate that
materials comply with contract requirements.
Performance
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13.
TIME IS OF THE ESSENCE. The entire Project must be substantially complete by no later than
___________. The Subcontractor understands that the Project substantial completion date may be different that
the substantial complete date for the Subcontractor’s work. The Subcontractor will coordinate its work so as to
be complete with its activities as detailed in the attached project schedule (“Project Schedule”) dated _______.
Any noted milestone dates are critical to the overall completion of the Project and must be strictly adhered to.
The Project Schedule, as may be amended, shall be the basis for establishing the Subcontractors activities and to
the extent that a specific work item relating to the Subcontractor’s work has not been identified, the Subcontractor
is nevertheless responsible for completing this and all activities to support the overall Project Schedule.
Furthermore, the Subcontractor shall recognize the progress of other subcontractors and make it the
Subcontractor’s responsibility to work in conjunction with other subcontractors to support the overall Project
Schedule.
14.
The Subcontractor shall immediately place all required purchase orders and shall promptly submit shop
drawings (Sepia and 6 additional prints), product data (7 copies), samples (3 copies) and similar submittals as
required by the Subcontract Documents and shall do so in such sequence as not to delay the work of any other
contractor. All approvals of submittals are general only and will not excuse the Subcontractor from the other
requirements of the Subcontract Documents, including those pertaining to substitutions; and those pertaining to
correction of defective, incomplete or non-compliant work.
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15.
The Subcontractor shall, after notice to proceed by Jersen, commence work at such points as Jersen may
designate and continue diligently in the performance of work. Subcontractor shall progress and coordinate all of
its material deliveries, submittals and work with all other project work so as to enable Jersen to obtain the
speediest possible completion of the Project and in accordance with the Project Schedule, which may be amended
from time to time as Jersen deems necessary. Subcontractor shall employ sufficient labor and work sufficient
hours or shifts so as not to hinder or delay the actual progress of Jersen or other subcontractors and in any event,
shall complete the several portions and whole of the subcontract work at such times as will enable Jersen to fully
comply with the terms of the Subcontract Documents.
16.
Should the Subcontractor fall behind the Progress Schedule, as may be amended, and need to work
overtime hours, Saturdays, Sundays, or Holidays, the cost of all labor, standby trades, permits, labor premiums
and Jersen’s supervision shall be borne by the Subcontractor.
17.
The Subcontractor’s activities shall be revised as required, to complete the scheduled activities in
accordance with the overall Project Schedule, or as necessary for proper coordination of the trades.
Subcontractor shall supply regularly updated schedules showing the status of its activities as compared to the
Initials______ P a g e | 4 of 18 overall Project Schedule throughout the project duration and at a minimum with the submission of each monthly
application for payment request.
18.
Daily progress reports are to be maintained by the Subcontractor and submitted daily to Jersen. These
daily reports shall indicate the weather, the name of each worker on the job and what work was actually
performed.
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19.
Subcontractor shall be liable to Jersen for any damages it may sustain, consequential or otherwise as a
result of the Subcontractor’s failure to prosecute its work diligently and in accordance with the Project Schedule
and any milestone dates contained therein.
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20.
If the Subcontractor fails to achieve substantial completion of the its work in accordance with the Project
Schedule, then the Jersen shall be entitled to retain or recover from Subcontractor the sum of
_______________________ ($_________) per calendar day for each day that substantial completion is delayed.
Because it is difficult, if not impossible, to accurately estimate the actual damages suffered by Jersen due to the
Subcontractor’s delay, this sum represent the agreed upon damages (“Liquidated Damages”) which will be
sustained by Jersen as a result of Subcontractor’s failure to achieve substantial completion. The Liquidated
Damages are a good faith and reasonable estimate of Jersen’s actual damages and are not considered to be a
penalty. Jersen may deduct and retain Liquidated Damages described above from any unpaid amounts then or
thereafter due the Subcontractor under this Subcontract.
a. ☐ Liquidated Damages do not apply to this contract.
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21.
Subcontractor shall promptly pay all wages and supplements (at prevailing rates when required) and shall
pay for all labor and materials when due. Subcontractor shall first apply all payments it receives hereunder to
pay for equipment, labor and materials furnished by others in performance of this Subcontract, and to
Sub-subcontractors who have performed any portion of such work, before they are used in any other manner.
Jersen may contact Subcontractor's employees (or their representatives), sub-subcontractors and vendors to insure
that the same are being paid promptly by the Subcontractor. If Jersen has reason to believe that any obligations
incurred in connection with this Subcontract are not being paid when due, Jersen may so notify the Subcontractor
and may take any steps Jersen deems necessary to assure that future payments are utilized to pay such obligations
including, but not limited to, the issuance of joint checks or a direct payment. If upon receipt of such notice the
Subcontractor does not either supply proof satisfactory to Jersen that no such obligations are owed or post
acceptable security indemnifying Owner, Jersen and Jersen's surety against claims for such obligations, then
Jersen may withhold from any current or future payments due Subcontractor an amount sufficient to protect the
Owner, Jersen and Jersen's surety from any and all loss, damage or expense including reasonable attorney’s fees
occasioned by such claims.
22.
In the event that a Notice of Lien is filed in connection with the Subcontractor’s work, Subcontractor shall
discharge such lien within 15 days of demand by Jersen; otherwise Jersen may take such steps as it deems
necessary to discharge such lien, and all Jersen's expenses, direct or indirect including reasonable attorney’s fees,
shall be borne by Subcontractor and back-charged against the Subcontract Sum. All expenses direct and indirect,
including attorney’s fees incurred by Jersen as a consequence of any claim of nonpayment by any person for labor
or materials furnished in connection with the Subcontract work shall be borne by Subcontractor and back-charged
against the subcontract Sum.
23.
The Subcontractor shall verify all field dimensions for all materials and work to be performed hereunder
prior to fabrication, the proper fitting of its work with that of other work to be Subcontractor's sole responsibility.
Initials______ P a g e | 5 of 18 24.
Jersen assumes no liability for any loss or damage to Subcontractor's tools, equipment or labor, whether
incorporated or not incorporated into the work. Subcontractor shall provide at its sole expense all temporary
offices, sheds, tools, telephones, equipment, temporary heat, temporary lights, temporary power, and other
equipment or utility required in the performance of this Subcontract.
25.
The Subcontractor agrees to afford all others employed on the site the opportunity for the storage,
introduction and installation of their work and the Subcontractor shall do nothing which will interfere with the
coordination of its work with work of all others.
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26.
All materials shall be adequately protected from damage during shipment, storage and installation by
protective coverings and in conformance with Contract Documents. If in the opinion of Jersen, job conditions
require accessibility to an area occupied by Subcontractor's materials, equipment or facilities, they shall be moved
at once by Subcontractor at Subcontractor's expense to an area approved by Jersen.
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27.
In carrying out its work, the Subcontractor shall take all necessary precautions to protect properly its own
work and the work of all other trades from damage caused by its operations. In addition, Subcontractor shall
sequence, coordinate and protect its work so as to prevent weather damage and water intrusion (as well as
attendant mold growth) to its own work and materials and the work and materials of others. Subcontractor shall be
responsible for all costs, including testing, remediation and repair, caused by any breach hereunder, and shall
defend and indemnify Jersen against all claims and liabilities arising from any breach.
28.
On a daily basis, the Subcontractor shall at all times keep the building and premises clean of debris arising
out of Subcontractor's work, promptly remove all such debris from the job site and leave all areas of work neat and
clean from rubbish, surplus materials, tools and equipment. Jersen may, at its sole election and without notice,
remedy any failure to perform hereunder and back-charge the cost thereof against the subcontract amount.
29.
The Subcontractor shall comply with all applicable federal, state, and local laws, rules, regulations and
standards including those of the Occupational Safety and Health Act (OSHA) of 1974, as amended, and shall
perform its work safely, consistent with the most recent version of Jersen's Safety Manual and any applicable
site-specific safety program. The Subcontractor shall report within three (3) days to Jersen any injury to any of
the Subcontractors’ employees at the site. Subcontractor shall defend, indemnify and hold Jersen harmless
against any and all claims, damages, or liability arising on account of Subcontractor's inactions or neglect in its
performance under the terms of this subcontract, including but not by way of limitation, OSHA fines and
penalties.
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30.
The Subcontractor shall cooperate with any Testing Agency engaged by Jersen and/or Owner to perform
services in connection with the material furnished and work performed pursuant to the terms of this Subcontract.
The Subcontractor shall provide necessary samples for testing at its sole cost and expense.
31.
The Subcontractor shall secure and pay for all permits, fees and licenses necessary for the execution of the
Work described in this Subcontract. The Subcontractor shall also comply with federal, state and local tax laws,
social security acts, labor laws, unemployment compensation acts and workmen's compensation acts as applicable
to the performance of this Subcontract, and shall defend, indemnify and hold harmless Jersen and Owner from
any costs or damages incurred (including reasonable attorney's fees) as a consequence of Subcontractor's failure
to so comply.
32.
The Subcontractor agrees that in the performance of the work required under this Subcontract, only such
labor will be employed as will not delay or interfere with the speedy and lawful progress of the Project and as will
be acceptable to and work in harmony with all other workers on the construction site or engaged in the Project.
Initials______ P a g e | 6 of 18 33.
Subcontractor shall continue with the prompt and diligent performance of the work hereunder
notwithstanding any allegation by Subcontractor of a breach of this Subcontract by Jersen, including but not
limited to an allegation that the Subcontractor has not been paid or the occurrence of any labor dispute at the site
of construction. Subcontractor will defend, indemnify and hold harmless Jersen from and against any cost,
liability or damage, including reasonable attorney’s fees, occasioned by its failure to comply with the
requirements of this paragraph, and this obligation shall not limit Jersen’s other rights or remedies for breach
under this Agreement.
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34.
Subcontractor further represents, warrants and covenants to Jersen that Subcontractor (i) has complied,
and shall at all times during the term of this Subcontract comply, in all respects with all immigration laws,
statutes, rules, codes, orders and regulations, including, without limitation, the Immigration Reform and Control
Act of 1986, as amended, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as
amended, and any successor statutes thereto, (ii) has properly maintained, and shall at all times during the term of
this Subcontract properly maintain, all records required by United States Citizenship and Immigration Service
(“USCIS”), including, without limitation, the completion and maintenance of the Form I-9 for each of the
Subcontractor’s employees, and (iii) has responded, and shall all times during the term of this Subcontract
respond, in a timely fashion to any inspection requests related to such I-9 forms. During the term of this
Subcontract, Subcontractor shall, and shall cause its directors, officers, managers, agents, and employees, to fully
cooperate in all respects with any audit, inquiry, inspection or investigation that may be conducted by USCIS of
Subcontractor or any of its employees. Subcontractor shall immediately, and in any event within two (2) hours,
notify Jersen in writing and by in-person voice communication (not voice mail) of any scheduled or unscheduled
inspection, raid, investigation, inquiry, visit or audit conducted by USCIS or any other governmental agency or
authority related to environmental, immigration or employee safety issues of Subcontractor, its agents,
employees, or any Sub-subcontractor of any tier. Subcontractor shall, on a bi-annual basis during the term of this
Subcontract, conduct an audit of the I-9 Forms for its employees and shall promptly correct any defects or
deficiencies which are identified as a result of such audit.
35.
If Subcontractor or any Sub-subcontractor of any tier violates or is in breach of any provision of the above
provision or the USCIS determines that the Subcontractor has not complied with any applicable immigration
laws, statutes, rules, codes, orders or regulations of the United States, Jersen may, in its sole discretion,
immediately suspend the Subcontractors work and upon twenty four (24) hours written notice terminate this
subcontract for cause.
Payment
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36.
Jersen shall pay Subcontractor for satisfactory performance of Subcontractor's work the Subcontract
Amount subject to additions and deductions by written change order. Subcontractor agrees such amount is
inclusive of all applicable scaffolding, hoisting, tests, inspections, permits, implements, equipment,
transportation, cartage, bonding, guarantees, insurance, taxes and future wage and price increases unless
otherwise provided in this Subcontract.
37.
Jersen shall pay the Subcontractor progress payments to the extent and with such frequency as Jersen
receives such payments from the Owner. (Payment for materials or equipment suitably stored at the site or
elsewhere shall be made only to the extent allowed and paid by the Owner.) Such payments will be made by
Jersen within 7 days after being paid for the work by Owner and will equal the value of the work done by the
Subcontractor according to Owner's estimate at applicable unit prices or a percentage of total completion,
whichever is applicable, less the sum of previous payments and less ten (10%) percent retainage; provided that if
Subcontractor is indebted to Jersen or anyone else for cash advances, labor, supplies, materials, equipment, rental
or other proper charges and/or back-charges against the work, a reasonable amount for such indebtedness may be
deducted from any payment or payments to be made under this provision; and provided further that Jersen may
Initials______ P a g e | 7 of 18 withhold the release of any progress payment, in whole or in part, to the extent that Subcontractor is in default of
any of the terms and conditions of the Subcontract Documents.
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38.
Estimates and calculations made by Owner, or its representative, as to the amount of work performed by
Subcontractor shall be final and binding on the parties to this agreement and shall conclusively establish the
amount of work done by Subcontractor. All statements for which payment is requested by Subcontractor shall be
in the office of Jersen on or before the last day of the contract pay period for work performed the preceding month.
Jersen shall be obligated to make a progress payment to the Subcontractor only to the extent the Subcontractor has
submitted to Jersen a proper and timely request for payment. The making of a progress payment shall not
constitute acceptance of any work not in accordance with the Subcontract Documents.
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39.
The Subcontractor shall, before the first progress payment, submit to Jersen a schedule of values of the
various parts of the work aggregating the total sum of this Subcontract, made out in such detail as required by the
Owner, Architect or Jersen for approval, and supported by such evidence as to its correctness as the Owner,
Architect or Jersen may direct. This schedule, when approved, shall be used as a basis for payment applications,
unless it is found to be in error or subsequently modified by the Owner, Architect or Jersen. In applying for
payment, the Subcontractor shall submit to Jersen an original Application and Certification for Payment (fax
copies are not acceptable) based upon the schedule of values in the form of AIA G-702 and G-703.
40.
The Subcontractor’s failure to comply with any material provision of the Subcontract shall be a proper
basis for the Jersen to withhold any current or future payment, in whole or in part, that may be due the
Subcontractor. Jersen’s failure to enforce this provision for a given month shall not be deemed a waiver of the
Jersen’s right to thereafter enforce same.
41.
Final payment, constituting retainage and any other unpaid balance of the Subcontract Amount, shall be
made by Jersen to the Subcontractor when the Subcontractor's work is fully performed in accordance with the
requirements of the Subcontract Documents, the Architect has issued a final certificate for payment and Jersen has
received final payment from the Owner. Before the issuance of final payment to Subcontractor, the
Subcontractor shall submit evidence satisfactory to Jersen and/or Owner that all payrolls benefit obligations, bills
for materials and equipment and all known indebtedness connected with the Subcontractor's work have been
satisfied; also that Subcontractor has fulfilled all administrative obligations under the Subcontract Documents
including, but not limited to, delivery of any required warranties, guarantees, insurance certificates, or the like, as
well as any releases, final lien waivers and payment affidavits Jersen may, in its discretion, require.
Indemnification and Insurance
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42.
To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless Jersen
the Owner and the Architect and their officers, agents and employees successors and assigns from and against all
claims, damages, losses and expenses, including but not limited to reasonable attorney’s fees, arising out of or
resulting from the performance of the Work provided that any such claims, damage, loss or expense (1) is
attributable to bodily injury, sickness disease or death or injury to or destruction of tangible property (other than
the Work itself) including the loss of use resulting therefore, or (2) is caused in whole or in part by any negligent
act, error or omission of the Subcontractor or anyone directly or indirectly employed by them or anyone for whose
acts it may be liable for, regardless of whether or not it is caused in part by an indemnified party hereunder. Such
obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity
which would otherwise exist to any party or person described in this paragraph. The obligations of this
paragraph shall survive the termination of this Subcontract Agreement.
43.
Subcontractor shall also defend, indemnify and hold harmless Jersen and Owner and the Architect, their
officers, agents, employees, successors and assigns against all damages, claims and demands including, without
Initials______ P a g e | 8 of 18 limitation, all costs, expenses and reasonable attorneys' fees, incurred by Jersen by reason of the actual or alleged
direct or contributory infringement of any patent, trademark or similar right pertaining to anything supplied or
performed hereunder.
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44.
The Subcontractor shall procure and maintain at its own expense and from insurers acceptable to Jersen,
such insurance policies as will fully protect Subcontractor, Jersen and Owner from all claims for injuries or
damages including reasonable attorneys' fees, by whoever caused, arising out of the performance of the
Subcontract Work, whether before or after its completion. Subcontractor shall also maintain at its own expense
any other insurance required by the Prime Contract, in any event to include at a minimum the following:
a. Workers’ Compensation and Employer’s Liability:
i. Project within New York State – Statutory Coverage
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ii. Project in other states – Employers Liability Limits:
$1,000,000 – Each Accident
$2,000,000 – Disease Policy Limit
$1,000,000 – Disease Each Employee
1. Where applicable, the Maritime Coverage Endorsement shall be attached to the
policy.
2. Where applicable, U.S. Longshore and Harborworkers Compensation Act
Endorsement shall be attached to the policy.
b. Commercial General Liability (CGL) with limits of Insurance not less than $2,000,000 each
occurrence and $2,000,000 Annual Aggregate
i.
Limits:
BI &PD Per Occurrence
$2,000,000
Personal Injury
$2,000,000
General Aggregate
$2,000,000
Products/ Completed Operations Aggregate $2,000,000
ii. If the CGL coverage contains a General Aggregate Limit, such General Aggregate shall
apply separately to each project.
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iii. CGL Coverage shall be written on ISO Occurrence from CGOO 01 1093 or A substitute
form providing equivalent coverage and shall cover liability arising from premises,
operations, independent contractors, products- completed operation, and personal and
advertising injury.
iv. JERSEN Owner and all other parties required of contract shall be included as insured’s on
the CGL, using ISO additional Insured Endorsement CG 20 10 11 85 or an equivalent
coverage to the additional insured’s. This insurance for the additional insured shall be as
broad as the coverage provided for the named insured subcontractor. It shall apply as
Primary Insurance, on a noncontributory basis before any other Insurance or
self-insurance, including any deductible, maintained by or provided to, the additional
insured.
Initials______ P a g e | 9 of 18 v. Subcontractor shall maintain CGL coverage it itself and all additional insured’s for the
duration of the project and maintain Completed Operations coverage for itself and each
additional Insured for at least 2 years after completion of the Work.
vi. No Insurance policies obtained in accordance with this paragraph shall exclude coverage
for liability resulting from application of either Section 240 or Section 241 of the New
York State Labor Law.
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vii. Attach a copy of your additional insured form(s) to the certificate of insurance.
1. Premises Operations Liability – Including coverage for explosion, collapse and
underground hazards.
2. Completed Operations Liability
3. Products Liability
4. Contractor’s Protective Liability
5. Contractual Liability –Covering the liability assumed by the subcontractor under
the indemnification Provisions of this contract.
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c. Comprehensive Automobile Liability: Combined/Single Limit 1,000,000/1,000,000 for personal
injury and property damage.
i. Include owned, Non-Owned, and Hired Liability Coverage.
d. Rigging Floater – In the event the Subcontractor’s Operations include the installation, moving or
transporting of the owner’s property or equipment, the SUBCONTRACTOR shall provide and
maintain coverage equal to the value of such items.
e. Jersen Construction Group, LLC, shall be named as an additional insured on the above General
Liability and Automobile Policies.
f. If necessary, an Umbrella Liability Policy may be used to maintain the above required limits. If
so used, this Policy shall also name JERSEN CONSTRUCTION GROUP, LLC, owner and all
other parties required of the contract as primary non-contributory additional insured insured’s.
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g. The SUBCONTRACTOR shall maintain the above insurance at all times until final completion of
the WORK.
h. Certificates of Insurance evidencing that the SUBCONTRACTOR has fulfilled the requirements
above shall be submitted to JERSEN CONSTRUCTION GROUP, LLC before the subcontract
work shall begin at the site and shall provide for 30 days written notice to JERSEN
CONSTRUCTION GROUP, LLC before any of the coverage is cancelled. This certificate shall
be in the form provided with the purchase order, to include the notice of cancellation provision
therein.
i. Coverage for risk of physical loss to SUBCONTRACTORS WORK; unless by provided by
Owner.
j. Commercial Umbrella
i. Umbrella limits must be at least $5,000,000
Initials______ P a g e | 10 of 18 ii. Umbrella coverage must include as primary non-contributory additional insured’s all
entities that are additional insured’s on the CGL and Automobile policies.
iii. Umbrella coverage for such additional insured’s shall apply before any other insurance or
self-Insurance, including any deductible, maintained by, or provided to, the additional
insured other than the CGL, Auto Liability and Employers Liability coverage maintained
by the Subcontractor.
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45.
Waiver of Subrogation- Subcontractor waives all rights against Jersen, the Owner and Architect and their
agents, officers, directors and employees for recovery of damages to the extent these damage are covered by
commercial general liability, commercial umbrella liability, business auto liability or workers compensation and
employers liability insurance maintained per requirements above.
46.
If Subcontractor subcontracts any portion of its work, those subcontractors must comply with the same
insurance and indemnification requirements that are included in this Subcontract.
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47.
Jersen and Owner shall be named as additional insured on all of these polices, including the coverage for
ongoing and completed operations, except Worker's Compensation. All such policies shall be primary and
non-contributory over any and all collectible insurance, and shall provide that they will not be canceled, allowed
to expire or restrictively modified without thirty (30) days' prior written notice to Jersen. At any time, Jersen
reserves the right to request a certified copy of Subcontractor’s insurance policies for the period of time in which
Subcontractor performed work for Jersen. In the event that Subcontractor fails to obtain or maintain any required
insurance, Jersen may purchase such insurance and back-charge the expenses thereof to the Subcontract Amount,
or may terminate this Subcontract.
48.
The Subcontractor’s insurance coverage shall not contain an exclusion of coverage for any claim or suit
caused by bodily injury to its employees, contractors and employees of contractors.
49.
Subcontractor's indemnification and insurance obligations to Owner and Jersen shall not be limited by any
limitation on the amount or type of damages, compensation or benefits payable by or from the Subcontractor
under worker's compensation acts, disability benefit, acts or other employee benefit acts. Subcontractor waives all
rights against Jersen and Owner, and their officers, directors and employees, for recovery of losses, expenses or
damages to the extent covered by available insurance.
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Changes and Disputes
50.
Should the Subcontractor refuse or neglect to supply sufficiently skilled workers, equipment or materials
or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of its
obligations herein, then Jersen may after two (2) days written notice to the Subcontractor, supplement the
Subcontractor’s obligations by providing any such labor, equipment or materials as Jersen deems necessary and
deduct the cost thereof, from any money that may be due for the current pay period or thereafter to become due to
the Subcontractor. Any work performed, equipment or materials supplied by Jersen shall be subject to cost of the
work, equipment or materials plus an addition sum to cover Jersen’s general conditions of ten percent (10%) and
its overhead of ten percent (10%).
51.
Should the Subcontractor refuse or neglect to supply sufficiently skilled workers, equipment or
materials or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of
any of its obligations herein, then Jersen may after two (2) days written notice to the Subcontractor, terminate this
subcontract without further action. If after two (2) days Subcontractor has not satisfactorily cured the condition
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giving rise to such notice, then Jersen may immediately terminate this Subcontract and take possession of all of
the Subcontractor’s materials, equipment, tools, etc. to finish the work required hereunder. Jersen may
back-charge all consequent costs and damages, including reasonable attorney’s fees, against the Subcontract
Amount. Any work performed, equipment or materials supplied by Jersen shall be subject to cost of the work,
equipment or materials plus an addition sum to cover Jersen’s general conditions of ten percent (10%) and its
overhead of ten percent (10%). If the unpaid balance due to the Subcontractor under this Subcontract shall
exceed the expense of completing the project and all the costs attributable to such completion, including court
costs and reasonable attorney fees, such excess shall be paid to the Subcontractor when the project is complete
and final payment is received from the Owner. If such expense and cost exceeds the unpaid balance,
Subcontractor shall pay the difference to Jersen as the excess is incurred.
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52.
Subcontractor shall be bound by any changes or alterations made by Owner under the Prime Contract, or
to the Subcontract work to the same extent that Jersen is bound. Subject to the conflicts resolution language
herein, Subcontractor is also bound to the terms of the Prime Contract relating to changes, changed conditions,
extra work, Owner-furnished property, contract suspension and termination, claims and disputes and shall give to
Jersen immediate written notice of any such asserted change or claim as required by the Prime Contract, but in no
event any later than three (3) days from the event giving rise to the claim. In addition, Subcontractor shall, within
five (5) days of receiving a direction to perform a change, alteration or extra work, submit to Jersen a written cost
or credit proposal; otherwise Subcontractor shall be bound by such cost increase or credit as Jersen is able to
obtain from Owner. Subcontractor waives any claim against Jersen for compensation or equitable adjustment for
any claims, changes or extra work except to the extent the same is allowed and paid to Jersen by the Owner.
Jersen shall cooperate with Subcontractor in submitting claims to the Owner for changes, changed conditions, and
the like, with respect to Subcontract Work but this shall not be interpreted as an attempt to create any direct
contractual relationship between Subcontractor and Owner. All costs, including reasonable attorney's fees,
incurred by Jersen in any formal or informal claim proceeding for the benefit of Subcontractor shall be born solely
by Subcontractor. No change or extra work ordered by either Owner or Jersen shall invalidate any bond or bonds
to be furnished by Subcontractor.
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53. Notwithstanding anything to the contrary, a time extension, to the extent permitted, shall be the sole
remedy of the Subcontractor for any (1) delay in the commencement, prosecution or completion of the work, (2)
hindrance, impact or obstruction in the performance of the work, (3) loss of productivity, or (4) other similar
claims whether or not such delays are foreseeable. The Subcontractor expressly agrees not to make, and hereby
waives, any claim for damages on account of any delay, obstruction, impact or hindrance for any cause
whatsoever, including, without limitation, consequential damages, lost opportunity costs, actual or alleged loss
of efficiency, home office overhead, extended overhead, impact damages or other similar remuneration.
Jersen’s exercise of any of its rights under the Subcontract Documents (including, without limitation, ordering
changes in the work, or directing suspension, rescheduling, or correction of the work), regardless of the extent or
frequency of Jersen’s exercise of such rights or remedies, shall not be construed as active interference, hindrance,
or obstruction with the Subcontractor’s performance of the Work.
54.
Subcontractor shall diligently proceed with all Subcontract Work, including any changed or disputed
work directed in writing, notwithstanding that an outstanding change order request, claim or protest with respect
to such work is pending or unresolved.
55.
Jersen may terminate this Subcontract for its own convenience and without cause. In the event Jersen
elects to terminate this Subcontract for convenience, the Subcontractor shall:
a.
cease operations as directed by Jersen in the notice;
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take actions necessary, or that Jersen may direct, for the protection and preservation of the Work;
and
c.
except for Work directed to be performed prior to the effective date of termination stated in the
notice, terminate all existing sub-subcontracts and purchase orders and enter into no further
sub-subcontracts and purchase orders.
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56.
In case of such termination for Jersen’s convenience, the Subcontractor shall only be entitled to receive
payment for Work executed and approved by the Owner and Architect, but in no event shall the Subcontractor
receive an amount greater than what Jesen has received from the Owner for the Subcontractor’s work. It is
expressly understood that the Subcontractor shall have no claim for lost profit or overhead for that portion of the
work not performed.
57.
In the event Jersen terminates this Subcontract for cause and it is later determined, whether by a court of
law, an arbitration proceeding or otherwise, that the termination for cause was unjustified or unlawful, the
termination for cause shall be converted to a termination for convenience and the subcontractor shall only be
entitled to damages consistent with the termination for convenience language contained herein.
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58.
Jersen shall be entitled, upon written request, to receive promptly from Subcontractor adequate written
assurance that Subcontractor will duly and timely perform its obligations hereunder. Failure to furnish such
assurance satisfactory to Jersen shall be a material breach of this Subcontract.
59.
All claims, disputes and other matters in question arising out of or relating to this Subcontract or the
breach thereof, shall, at Jersen's sole election, which election may be made at any time prior to the commencement
of a judicial proceeding by Jersen or the last day to answer or respond to a Summons and/or Complaint filed by the
Subcontractor, be submitted to arbitration before the American Arbitration Association in accordance with its
Construction Industry Arbitration Rules. If the Subcontractor files an action in a court of law and Jersen elects
arbitration as provided for herein, it shall be the Subcontractors sole obligation to thereafter commence the
arbitration proceeding.
60.
In the event of such arbitration, Subcontractor agrees that any other person or entity concerned with the
Subcontract Work may be joined as a party to such arbitration proceeding, and further agrees that arbitration
proceedings under this agreement may be consolidated with arbitration proceedings pending between other
parties if those arbitration proceedings arise from the same transaction or relate to the same subject matter.
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61.
Subcontractor further agrees that in the event that Jersen becomes involved in an arbitration proceeding
with any other person which relates to the work, materials, rights or responsibilities of Subcontractor under this
Subcontract, that upon receiving notice of such proceeding and an opportunity to join therein or present evidence
therein, that Subcontractor will be bound by the decision of such proceeding in the same manner as Jersen shall be
bound. In the event the Prime Contract provides for final and conclusive decisions by the Architect and/or
Owner with respect to the Project, Subcontractor agrees to be bound by any such decision which becomes binding
upon Jersen.
62.
Any action or proceeding (including a proceeding to foreclose on a mechanic’s lien) by the Subcontractor
against Jersen (or its surety where applicable) shall be venued in the Supreme Court of the State of New York,
Saratoga County and must be commenced within nine (9) months after the Subcontractor’s last day of work on the
Project site. The Subcontractor’s obligation to perform warrantee work shall not act to extend the statute of
limitations. In the event of a breach of this Subcontract by the Subcontractor, the Subcontractor is liable to
Jersen for its reasonable attorney’s fees and costs incurred as a result of the Subcontractor’s breach.
Initials______ P a g e | 13 of 18 63.
In the event that the Subcontractor obtains a judgment or an arbitration award against Jersen and/or its
surety, said judgment or arbitration award shall only be subject to the inclusion of interest at the rate of 2% per
annum (notwithstanding any statute to the contrary) calculated from the date that it was determined that the
monies were due the Subcontractor.
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64.
Subcontractor shall be liable for all loss, damage or expense, direct and indirect including reasonable
attorneys' fees and enforcement costs, which Jersen may suffer or incur by reason of any non-performance or
breach by Subcontractor of this Subcontract and any loss, damage or expense so suffered or incurred may be
back-charged against the Subcontract Amount.
Safety Enforcement
65.
To assist in our efforts to provide a safe workplace the following violations and penalties shall apply:
Penalty
Failure to use Personal
Protective Equipment (PPE)
No hard hat, safety glasses
No shorts or sleeveless shirts
1st Offense – Verbal warning
2nd Offense – One Hundred Dollars ($100.00) – B/C to
Subcontractor
3rd Offense – Possible discharge
Failure to perform
housekeeping duties
1st Offense – Warning
2nd Offense – One Hundred Dollars ($100.00) – B/C to
Subcontractor
3rd Offense – Five Hundred Dollars ($500.00) – B/C to
Subcontractor
Insubordination towards
Supervisor or Management
enforcing safety policy
1st Offense – Written warning or discharge
2nd Offense – Possible discharge
Failure to report an incident
within 24 hours to Jersen
***Possible discharge***
Improper use and/or
authorization of machines and
tools including removal of
safety devices
1st Offense – Warning
2nd Offense – Possible discharge
Failure to comply with fall
protection requirements
***Possible discharge***
Unsecured compressed gas
cylinders
1st Offense – Written warning
2nd Offense – Possible discharge
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Violation
Miscellaneous
66.
If so provided by the Prime Contract, or by law, this Subcontract is subject to Architect and/or Owner
approval of the Subcontractor, or execution of necessary funding agency certifications, approval of any required
hiring, subcontracting or purchasing plans; but this Subcontract shall be and remain effective in the absence of a
specific written disapproval by such Architect, Owner or funding agency.
Initials______ P a g e | 14 of 18 67.
The Subcontractor shall not assign or subcontract the whole or part of this Subcontract without written
consent of Jersen, and shall not assign any amounts due or to become due under the Subcontract without written
consent of Jersen.
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68.
The Subcontractor shall, upon completion of all the work set forth herein, deliver to Jersen three (3) copies
of maintenance manuals, parts lists, instruction manuals and any other information and/or data required by the
Subcontract Documents, the Architect or Owner. In the event an instruction session and meeting is required or
requested, Subcontractor shall arrange and conduct such session as part of the work herein and at no additional
cost.
69.
The Subcontractor guarantees all workmanship and materials to the extent, and for such period, as is
required of Jersen by the Prime Contract; and if not otherwise specified, for a period of one year from final
completion and acceptance of the entire Project. Subcontractor shall furnish a separate certificate of guaranty or
warranty if requested by Owner or if required by the Prime Contract, and Jersen is hereby authorized to issue such
certificate on Subcontractor's behalf should Subcontractor fail to do so promptly itself.
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70.
Jersen shall have the right to set off against this Subcontract any amounts owed by Subcontractor on
account of any other matter; and to set off amounts Subcontractor owes or may owe hereunder against any
property, payments or credits otherwise owing by Jersen to Subcontractor on account of any other matter.
71.
Notices required hereunder are to be given by serving the same personally upon an officer or project
representative of Jersen or Subcontractor, by mailing the same to the address of the respective party set forth
above, or by FAX transmission or e-mail to the main office of Jersen or Subcontractor. Notice by mail shall be
deemed effective on the second calendar day after mailing.
72.
The laws of the State of New York shall govern as to the interpretation, validity, enforcement, and effect
of this Subcontract. Should any requirement or provision of this Subcontract be declared unlawful, it shall not
affect the validity of the other requirements, provisions, or this entire Subcontract. Subcontractor is an
independent contractor hereunder and nothing herein contained shall be construed to constitute Subcontractor the
agent or representative of Jersen.
73.
Nothing in this Subcontract Agreement shall be construed to create any third-party beneficiary rights in
any person.
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74.
This Subcontract represents the entire integrated agreement between the parties hereto and supersedes any
and all prior negotiations, discussions, representations or agreements either written or oral.
75.
Enumeration of the Subcontract Documents are as follows:
a.
b.
c.
d.
The Jersen Subcontract cover sheet
This Subcontract Terms and Agreements
The Prime Contract Between Jersen and the project Owner which is incorporated herein in its entirety
and made a part of this Subcontract
The Project Schedule dated __________
Initials______ P a g e | 15 of 18 Subcontractor
By: ______________________________
By: _____________________________
Print Name: _______________________
Print Name: ______________________
Dated: ___________________________
Dated: __________________________
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Jersen Construction Group, LLC
Personal Guarantee
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The undersigned agrees to be personally bound by and to assume all of the Subcontractor’s obligations provided
for in this Subcontract. Furthermore, the undersigned agrees to personally indemnify, defend and hold harmless
Jersen from and against any and all damages, loss, expenses, claims, attorney’s fees, actions and judgments that
Jersen may incur as a result of any breach of this Subcontract by the Subcontractor.
By: __________________________________
In his individual capacity
SS#: _____________________
Home address: __________________________________________ End of Agreement -
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