2024A-07476-NPC-ROC Notice of Hearing & Packet MAILED 2024-07476.pdf
2024A-07476-NPC-ROC · Registrar of Contractors · 2024-10-04
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Northstar Communications Inc., Case No. 2024-07476
COMPLAINANT, Docket No. 2024A-07476-NPC-ROC
v. NOTICE OF HEARING ON CONTESTED CASE Ansco & Associates LLC License No. ROC 341287,
RESPONDENT. This Notice of Hearing is issued under A.R.S. § 41-1092.05(D).
HEARING INFORMATION The hearing is set for:
November 15, 2024 9:00 AM Tammy Eigenheer Google Meet. A link will be provided directly from The Office of Administrative Hearings. Go to www.azoah.com to request to appear in-person.
If you have requested to appear in-person at the hearing, the hearing will be held at 1740 W Adams Street, Phoenix, AZ 85007.
You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be
prepared to present evidence, including witness testimony and documents, in support of your case.
STATEMENT OF LEGAL AUTHORITY AND JURISDICTION
The State of Arizona has determined that the licensing and regulation of construction contractors is a proper state function, and has vested authority in the Registrar of Contractors to administer Title 32, Chapter 10 of the Arizona Revised Statutes. A.R.S. §§ 32-1101 et seq. All hearings for alleged violations of Title 32, Chapter 10 are conducted under Title 41,
Chapter 6, Article 10. A.R.S. § 32-1156.
The statutes and rules governing the hearing can be found at: Arizona Revised
Statutes §§ 41-1092 to -1092.12, and Arizona Administrative Code R2-19-101 to -122.
PARTICULAR ARIZONA STATUTES AND RULES INVOLVED
The statutes and rules the Respondent is alleged to have violated are cited in the
complaint and citation, which were served on the Respondent on September 5, 2024. SHORT AND PLAIN STATEMENT OF THE MATTERS ASSERTED
The complaint and citation allege that the Respondent committed the following act(s): Charge: 1 A.R.S. § 32-1154(A)(10)
THE PARTIES TO THE ADMINISTRATIVE HEARING Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will
be a party to the hearing.
Respondent and Complainant, as the parties to the hearing, will present evidence and
argument to the administrative law judge.
RIGHT TO BE REPRESENTED The parties to the administrative hearing may choose to be represented by an attorney. A.R.S. § 41-1092.07(B). If one of the parties is a company, the company may be represented
by an officer or employee if that person satisfies the conditions set forth in A.R.S. § 32-
1156(B).
CHANGE OF ADDRESS Each party must inform the Registrar and the Office of Administrative Hearings of any change of address within five (5) days of the change. A.R.S. § 41-1092.04.
HEARING PROCEDURES AND RULES
The administrative hearing will be conducted in accordance with A.R.S. §§ 41-1092 to -1092.12, and A.A.C. R2-19-101 to -122. The parties should review the statutes, rules, and
processes governing the administrative hearing. Copies of the statutes, rules, and articles regarding the administrative hearing process can be found at https://www.azoah.com/.
REGISTRAR’S APPEARANCE BY VIDEO CONFERENCE OR TELEPHONE
The Registrar’s investigators, employees, and attorneys will appear at the hearing via
video conference or telephone unless requested by a party to appear in-person. Requests for the Registrar’s investigators, employees, or attorneys to appear in-person must be filed with the Registrar and the Office of Administrative Hearings no later than seven (7) calendar days prior to the hearing date.
HEARING PACKET
In the interests of administrative efficiency, the Registrar compiles and discloses
certain documents to the parties and the Office of Administrative Hearings. These documents
are attached to this Notice of Hearing as the “Hearing Packet.” If any party wishes to submit additional evidence, they must do so during the hearing after completing a disclosure statement. See “Disclosure Statement” section below.
SUBPOENAS FOR TESTIMONY FROM A WITNESS OR DOCUMENTS
The parties to the hearing must be prepared to present evidence in support of their
case. If a party wants to obtain testimony from a witness or documents not in the party’s
possession, the party must prepare and file a written subpoena for the Administrative Law
Judge to review and sign, if approved. A.R.S. § 41-1092.07(C). Forms for requesting a subpoena can be found on the Office of Administrative Hearings’ website at www.azoah.com.
The party seeking a subpoena must serve notice on all the parties to the hearing, and on the Registrar. A.R.S. § 41-1092.04.
DISCLOSURE STATEMENT
At least seven calendar days before the hearing, each party must prepare and serve a
disclosure statement on all other parties, and file it with the Office of Administrative Hearings. A.A.C. R4-9-118; A.A.C. R2-19-108. The disclosure statement must include any exhibit the party will use at the hearing. A party’s failure to timely disclose any witness or exhibit, without good cause, may result in the administrative law judge excluding those witnesses or exhibits from being used at the hearing. A.A.C. R4-9-118(C). A sample disclosure form is available on the Registrar’s website at https://roc.az.gov/forms/RC-L-800A%20- %20Prehearing%20Disclosure%20Statement%2020191007v4.pdf
CHANGING THE HEARING DATE
The date of the hearing may only be advanced or delayed on the agreement of the
parties or on a showing of good cause. A.R.S. § 41-1092.05(C). The date of the hearing may
be changed by filing a written agreement of the parties to change the date of the hearing. The
written agreement must be filed with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmitted to the Registrar and all other parties. The assigned Administrative Law Judge may be found on the Office of Administrative Hearings’ web portal at www.azoah.com
If a party would like to move the date of the hearing without agreement of all parties, the party must file a written motion with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmit a copy to the Registrar and all other parties. The motion must state in detail good cause for why the date of the hearing should be advanced or delayed, and the position of all other parties regarding the advancement or delay. A party may also file a motion asserting a right to an expedited hearing upon a showing of
extraordinary circumstances or the possibility of irreparable harm. A.R.S. § 41-1092.05(E).
RESOLUTION SHORT OF ADJUDICATION In any case which is resolved or settled by the parties, or which is withdrawn by the Complainant without objection from Respondent after the Notice of Hearing is issued, the parties must notify the Office of Administrative Hearings of the resolution or settlement. Any such cases will be listed on the Registrar’s website and its records under the category: “Closed
Complaints – Resolved/Settled/Withdrawn.”
Dated October 4, 2024.
By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors
Copy mailed via USPS First Class mail October 4, 2024 to:
Respondent(s) Ansco & Associates LLC 5250 Triangle Parkway Ste. 175 Norcross, GA 30092 Complainant(s) Northstar Communications Inc. 6939 S Harl Ave Tempe, AZ 85283
Copy sent electronically this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2024-07476 /
Hearing Packet FAQ What is the The Hearing Packet is a packet of certain documents collected or Hearing Packet? issued by the Registrar over the course of its investigation. Who gets the The Hearing Packet is assembled and distributed to all parties and Hearing Packet? to the Office of Administrative Hearings (“OAH”) prior to an administrative hearing. What types of The Registrar prepares a Hearing Packet for Complainant-Handled cases does the Cases and No-Pay Cases. Note: If the Docket Number on the Registrar prepare a Notice of Hearing contains a “CHC” or “NPC”, your case is a Hearing Packet for? Complainant-Handled Case or a No-Pay Case. What is in the The Hearing Packet contains essential case-specific documents and Hearing Packet? at a minimum will include the following documents: ● Original complaint; ● Citation; and ● Answer. The Hearing Packet will also contain the following documents (if applicable): ● Jobsite inspection notices, notes, and photos; ● Written directives; and ● Compliance inspection notices, notes, and photos. What if there are If there is any evidence you submitted to the Registrar that are not documents missing included in the Hearing Packet it is your responsibility to introduce from the Hearing that evidence at the administrative hearing. Note: The Packet? administrative law judge assigned to your case does not have access to the entire Registrar record.
If there is additional evidence you submitted to the Registrar during the investigation that you also want to introduce as evidence during your hearing, it is your responsibility to: ● Properly disclose that evidence to the other party; and ● Introduce the evidence during your hearing.
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ
How do I disclose You must properly disclose any and all documents and witnesses evidence I intend to you intend to use at your hearing according to the Registrar’s use at a Hearing? Prehearing Disclosure Rules. See Arizona Administrative Code Section R4-9-118. A sample prehearing disclosure form and instructions are provided to the parties by the Registrar. How do I obtain If you previously submitted documents to the Registrar and need a documents I copy of these documents, please contact the Registrar’s Legal previously submitted Department or submit a public records request at to the Registrar? https://roc.force.com/AZRoc/s/roc-public-request.
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ
July 9, 2024
Via U.S. Mail and Email
Complainant Northstar Communications Inc. 6939 S HARL AVE Tempe, AZ 85283
Via U.S. Mail and Email
Respondent Ansco & Associates LLC 5250 Triangle Parkway Ste 175 Norcross, GA 30092
Re: Complaint No. 2024-07476
Dear Complainant and Respondent:
The Registrar received a complaint filed against Ansco & Associates LLC for non- payment of materials or services rendered. This complaint is complete and will be substantively reviewed by the Registrar.
Respondent is free to raise any issue or affirmative defense to this complaint by filing a response with the Registrar by July 16, 2024. Please reference the complaint number listed above if you file a response. Respondent may file a response by:
Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Email: [email redacted]
The Registrar will not issue a citation before July 16, 2024 and will review Respondent’s response, if one is submitted.
Please be advised that a response to the complaint is not the same as a written answer. If the Registrar issues a citation Respondent must file a written answer to that citation in accordance with A.R.S. § 32-1155.
Sincerely,
/s/ Shaquira Adebule Shaquira Adebule
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Legal Assistant II Legal Department Arizona Registrar of Contractors 602-542-1525
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Non-Payment Complaint Form Departmental Use Only Complaint Number: Mail to: Registrar of Contractors P.O. Box 18243 Phoenix, AZ 85005-8243
Person Filing Complaint (Payee) Business Name Full Name (First Middle Last) ROC License Number(s) (if any) Cody JOHN Nelson Street Address City State Zip Code 6939 S HARL AVE STE 1 Tempe Arizona 85283 Phone Number Email Address [number redacted] [email redacted] I consent to receive communications electronically in connection with this case
Name of Attorney (if any)
Attorney’s Street Address City State Zip Code
Attorney’s Phone Number Attorney’s Email Address
Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Ansco & Associates LLC ROC 341287 Street Address City State Zip Code
Phone Number Email Address
Name of Person(s) Representing License Dubi Kazula Complaint Information Principal Amount Due (excluding interest and fees) Contract Date (if applicable) $144,942.70 September 28, 2023 Have you filed a civil complaint? No List all specific invoices which have not been paid. Attach additional pages if necessary. 880059-03 - was short paid by $7k. They claim this was a back charge for restoration, however we were never contacted to cure per contract section 3.26 and 3.57. We had to press them for the release of retention, and were only notified of the backcharge when we received our remittance showing a negative $7k. When we asked, and referenced the contract, we received no response.
Certification I certify, upon information and belief, that the above-named licensee has failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor. I further certify, upon information and belief, that the above-named licensee has the capacity to pay, or has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. A.R.S. § 32-1154(A)(10). Printed Name Signature Date Cody JOHN Nelson Declaration & Signature I am the Complainant in this Complaint Form or Complainant’s duly authorized representative. I declare under penalty of perjury that the information contained in this Form is true and correct to the best of my knowledge. I further certify that any documents submitted in support of this complaint are true and correct copies of the originals and are accurate to the best of my knowledge. I will assist in the investigation or in the prosecution of the contractor or other parties, and will, if necessary, attend hearings and testify to facts. Printed Name Signature Date Cody JOHN Nelson DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
SUBCONTRACT AGREEMENT
This Subcontract Agreement ("Agreement") is made on this ___ June 27th day of __________, 23 by 20___, and between _________________________ ("Contractor") and _________________________ Ansco & Associates, LLC Northstar Communications Inc ("Subcontractor") for the purpose of performing certain subcontract work under Contractor’s primary contract (the "Primary Contract") with _______________________________ Gigapower, LLC ("Owner"). The subcontract work includes, but is not limited to, the following services: _____________________ Underground boring and fiber placement (the "Work"). In
consideration of the foregoing and the mutual promises and obligations set forth herein, Contractor and Subcontractor agree and bind themselves as follows:
Section 1. Contract Documents:
(a) The Contract Documents include this Agreement and the Primary Contract; any amendments or modifications thereto; any exhibits, annexes, or attachments to this Agreement or the Primary Contract, including all the conditions, covenants, drawings, specifications, and other documents forming or made a part of this Agreement or the Primary Contract; and any subsequent addenda, amendments, or modifications to the Primary Contract issued prior to the execution of this Agreement (collectively, the "Contract Documents").
(b) Subcontractor is bound to Contractor by all of the terms and conditions in the Contract Documents that apply to the Work in the same manner that Contractor is bound to Owner under the Contract Documents, including any government contractor requirements that are imposed on Contractor or Owner, if applicable. Contractor shall have the benefit of all rights, remedies and redress against Subcontractor that Owner has against Contractor under the Primary Contract. In the event of any conflict between this Agreement and the other Contract Documents, the provisions in this Agreement shall govern and prevail unless specifically provided for otherwise in another Contract Document.
(c) All of the Contract Documents are available for inspection by Subcontractor at Contractor’s address identified herein. Copies of the Contract Documents applicable to the Work shall be made available to Subcontractor upon request. Certain information within the Contract Documents may be considered confidential and proprietary by Owner or by Contractor and, if so, such information may be redacted from the Contract Documents before being made available for Subcontractor. Subcontractor acknowledges that it has had a sufficient and reasonable opportunity to review and consider the Contract Documents.
(d) Subcontractor understands that the laws, requirements, and provisions from the Primary Contract and any Government Contracts (as defined by Section 4(t) herein) flow down and are applicable to Subcontractor, the Work, Subcontractor’s employees, Subcontractor’s subcontractors, and their work. Subcontractor understands and agrees that such laws, requirements, and provisions cannot be amended or modified by Contractor or Subcontractor, unless agreed to in writing and unless such modification does not conflict with the laws, requirements, and provisions applicable to the Primary Contract.
(e) It is Subcontractor’s responsibility and obligation to read, understand, and follow the Contract Documents to achieve the intended purpose of a timely, efficient, and successful completion of the Work.
(f) Commencement of the Work by Subcontractor constitutes acceptance by Subcontractor of this Agreement.
For Multistate Use DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Section 2. Knowledge of Laws Applying to the Work.
Subcontractor represents and understands that it is not relying on Contractor regarding what federal, state, county, municipal, and local laws, ordinances, rules, regulations, codes, and any other orders of governmental or public authorities (collectively, “laws”) apply to the Work. Subcontractor represents that it has had an opportunity to seek advice of counsel regarding which laws apply to the Work and how to comply with them. Subcontractor also represents that it knows and understands that the laws may be amended and/or change from time to time, and that it is Subcontractor’s responsibility and obligation to maintain knowledge about and compliance with the laws in order to promote the timely, cost effective, and efficient completion of the Work according to the Contract Documents. Subcontractor acknowledges and agrees that, where the terms contained herein conflict with or are insufficient to comply with the applicable laws of the state where the Work is being performed, the terms and conditions set forth in Exhibit E, which is attached and incorporated herein, will supersede or supplement, respectively, such conflicting or insufficient terms.
Section 3. Site Conditions.
Subcontractor represents and agrees that, prior to making a bid or entering into this Agreement, it carefully investigated the nature, locality, type, quality, and site of the Work and the conditions and difficulties under which the Work is to be performed, including aerial, above ground, underground, or subsurface conditions (“Site Conditions”), and that it enters this Agreement on the basis of its own examination, investigation, and evaluation of the Site Conditions and not in reliance upon any opinions or representations of the Contractor or Owner, or any of their respective officers, agents, representatives, or employees, unless stated specifically in writing and signed by a representative of Contractor or Owner with authority to make such a written statement.
Section 4. Performance Obligations of Subcontractor; Compliance with Laws.
In the event that Subcontractor fails to satisfy any of its obligations under this Agreement, such occurrence is a material breach of this Agreement, and Contractor may terminate this Agreement without any liability to Subcontractor, except for Work already furnished and accepted by Contractor and Owner. In addition to its obligations under Section 9, Subcontractor agrees to reimburse, indemnify, defend, and hold harmless Contractor for any costs, expenses, damages, penalties, fines, charges, liabilities, and attorneys’ fees incurred by Contractor related to Subcontractor’s failure to satisfy its obligations under this Agreement.
To the extent permitted by applicable state law, Subcontractor shall:
(a) maintain the applicable state contractor’s license(s) and any other licenses, permits or approvals necessary to perform the Work and shall perform the Work within the time established by Contractor and in strict conformity with the Contract Documents;
(b) supervise and direct the performance of the Work by its employees, contractors, and vendors in strict conformity with means and methods for the timely, safe, efficient, and successful performance of the Work at its location at the time of year prevailing and otherwise to avoid conflict, delay, or interference with the work of others;
(c) maintain a competent foreman or superintendent, satisfactory to Contractor, on the site of the Work at all times during the progress of the Work with authority to act for the Subcontractor.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Subcontractor shall notify Contractor in writing, prior to commencement of Work at the job site, of the name(s) of the foreman or superintendent who will be in charge of office work. Notification in writing shall be given to the Contractor prior to the Subcontractor making any changes in said individuals, and no changes in the foreman or superintendent shall be made without Contractor’s prior written consent;
(d) have a sufficient number of skilled, qualified, and licensed personnel who comply with any written certification policy required by Contractor or Owner and who are supervised at all times to effectively prosecute the Work in a timely and diligent manner so as not to delay the Work, keep supervisory personnel on the project until completion of the Work, and remove unsatisfactory or unsafe personnel at the request of Contractor;
(e) timely and fully pay and compensate all persons or parties who have furnished labor or material for use in and about the Work so as not to delay or otherwise affect the successful, timely completion of the Work;
(f) attend any meeting called by Contractor or Owner, and Subcontractor shall be represented at these meetings by someone authorized to make decisions during these meetings for Subcontractor;
(g) maintain the highest ethical standards and ensure that its employees, agents, and representatives do not engage in actions that may detrimentally affect Contractor’s or Owner’s reputation, and prohibit them from carrying weapons or ammunition onto Contractor’s or Owner’s premises or using or carrying weapons while performing the Work;
(h) prohibit its employees, agents, and representatives from engaging in the manufacture, distribution, dispensation, possession, or use of alcohol or other drugs, except possession of medically prescribed use of prescription medication, from working on or be present at the job site under impaired judgment or physical abilities due to the use of alcohol or other drugs, including impairment from prescription drugs, and from any other illegal activity;
(i) make all submissions required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay to the Work or to the work of others;
(j) unless provided for by Contractor or Owner, furnish good quality and new vehicles, materials, equipment, and tools necessary to perform the Work, and pay promptly for all materials, equipment, and labor furnished or to be furnished to the location of the Work and furnish written evidence thereof to Contractor. If materials are provided by Contractor or Owner, Subcontractor shall only use such materials in connection with the Work. Subcontractor shall be responsible for delivery, unloading, storage, moving, and protection of all materials and/or equipment supplied or used in connection with the Work. Subcontractor is responsible for the materials until the Work is completed and is accepted by Contractor and Owner. Any unused materials provided by Contractor shall be returned to Contractor (unless Contractor specifies another location) at the conclusion of the Work in the same condition as when provided. Subcontractor will be responsible for any damaged or missing materials;
(k) investigate and assess fully and promptly any claim, allegation, citation, charge, demand, lien, encumbrance, or liability (collectively, “Claim”), or notice of a possible Claim, related to any alleged physical injury, injury to real property, injury to personal property, harm, cost, expense, damage, or other monetary damages of any kind related to or arising out of, in whole or in part, Subcontractor’s, its agents’, or its subcontractors’ performance of the Work or any obligation under this Agreement. Subcontractor expressly understands, consents, and agrees that any time, resource, liability, cost, or expense Contractor expends or incurs on account of or related to a Claim or notice of a possible Claim constitutes
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
delay and inefficiency caused by Subcontractor and damages and a loss to Contractor for which Contractor is entitled to recover from Subcontractor and which Subcontractor must and shall reimburse, indemnify, defend, and hold harmless Contractor;
(l) report, notify, and submit promptly to Subcontractor’s insurer any such Claim or notice of possible Claim and provide Contractor written confirmation that Subcontractor has provided the required information to the Subcontractor’s insurer;
(m) report to Contractor in writing within five (5) calendar days of the occurrence any event, fact, or circumstance that could give rise to a Claim, lien, damages, suit, or delay involving the Work; Subcontractor’s failure to give timely notice constitutes Subcontractor’s waiver of and surrender of any claims, suits, liens, liability, or damages of any kind it may have against Contractor for or related to the occurrence;
(n) turn all Work over to Contractor free and clear of any and all Claims or notices of possible Claims. Subcontractor agrees it shall promptly notify Contractor of and, without limiting and in addition to the indemnity in Section 9, thereafter defend, indemnify, and hold harmless Contractor, Contractor’s sureties, and Owner from all Claims and notices of possible Claims filed, submitted, or maintained by any of Subcontractor’s sub-subcontractors or suppliers and by any other person or entity making such a Claim or giving notice of a possible Claim that is related to or arising out of, in whole or in part, Subcontractor’s, its agents’, or its subcontractors’ performance of the Work or any obligation under this Agreement. Without limiting the foregoing, Subcontractor, upon notice by Contractor, shall cause any such Claim or notice of possible Claim to be discharged or satisfied. If Subcontractor fails to have any such Claim or notice of possible Claim discharged or satisfied, or otherwise fails to correct, resolve, or remedy any Claim or notice of possible Claim, Contractor shall have the right, but not the obligation, to satisfy, resolve, or remedy any Claim or notice of possible Claim, whether it is valid or not, and Contractor must and shall be indemnified, reimbursed, and made whole by Subcontractor for and from all losses, expenses, liabilities, damages, and costs, including attorneys’ fees, incurred as a result of Contractor’s actions taken on account of such Claim or notice of possible Claim;
(o) take reasonable and prudent precautions to protect the Work and the work of others from damage or adulteration, and repair or pay the cost of repairing any damage caused by Subcontractor or any of its agents or subcontractors;
(p) coordinate the performance of the Work with and cooperate with Contractor and others working in the same vicinity;
(q) comply with all applicable federal, state, county and local laws, standards, ordinances, statutes, rules, regulations, codes and orders of governmental and public authorities bearing on or related to the performance of the Work (collectively, "laws"), as each may be amended from time to time. Subcontractor shall also give notices and procure required permits or certificates necessary to perform its obligations under this Agreement, including but not limited to zoning requirements, zoning variances, special zoning permits, demolition permits, building permits, and street and curb permits;
(r) if applicable, comply with the requirements of 41 CFR § 60-1.4(b);
(s) warrant that it has registered and is currently using, or will register and begin to use prior to performing the Work, the Federal E-Verify program, and further warrants that it is now, and will continue to be for the duration of this Agreement, in compliance with all applicable federal and state immigration laws, including without limitation and as amended from time to time, the Immigration and Nationality Act of 1952 (“INA”), the Immigration Reform and Control Act of 1986 ("IRCA"), the Illegal
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), and have written documentation proving its employees and personnel working on its behalf are eligible to work in the United States. Subcontractor agrees that it is responsible for completing IRCA verification of the identity and employment eligibility of all employees and employees of its subcontractors performing services for Contractor, that Subcontractor assumes any and all liability arising out of its failure to fully comply with INA, IRCA, IIRAIRA, and/or other employment-related immigration laws and that Subcontractor will fully indemnify and hold Contractor harmless for any and all IRCA, IRCA, IIRAIRA, or other immigration- related civil money or criminal penalties assessed against Contractor for services rendered by Subcontractor’s employees or its subcontractor’s employees, and reasonable attorneys’ fees and costs incurred by Contractor. It is the responsibility of Subcontractor to establish the means to communicate effectively with Contractor and Owner. In the absence of English-speaking workers, Subcontractor must provide cards with the contact name and numbers of the supervisor responsible for that crew or provide some other effective communication tool;
(t) in the event that the Primary Contract at any time involves providing goods or services to a governmental entity or entity receiving funding from state or federal government, include in its contracts with its subcontractors obligations that are consistent with the obligations imposed on Contractor in its agreements with federal, state or local governments or agreements with entities receiving funding from federal, state or local governments or resulting from any legislation, rule, decree or governmental or executive order (collectively, “Government Contracts”). If Subcontractor performs Work for the Contractor under any Government Contract, the terms set forth in Exhibit D attached hereto and any other state or local laws or provisions are applicable to such Work. The terms identified in Exhibit D attached hereto and any other state or local laws or provisions applicable to such Work shall apply to the Work whether or not the Contractor has included notification of such in the Work documents if (1) the Work has previously been designated by the Contractor or in the Work documents as being performed pursuant to a Government Contract, (2) the Work documents issued to the Subcontractor in connection with the Work otherwise indicate that the Work is pursuant to a Government Contract by, for example and not by way of limitation, the customer’s name or address, or (3) the context of the Work is such that the Subcontractor knew or should have known that the Work is pursuant to a Government Contract. In addition, Work Orders executed hereunder containing a notation that the Work is intended for use under federal, state or local Government Contracts shall be subject to such other Government provisions as are included in the Work documents;
(u) perform all tests, reviews, and inspections called for in the Contract Documents;
(v) be exclusively responsible for the occupational safety and health of its employees and agents while engaged in the performance of the Work, protect against property damage and personal injury at all locations, and take all reasonable safety precautions with respect to its performance of this Agreement and take all necessary precautions while performing its work to ensure the safety of its employees and the employees of other subcontractors or entities on the job site. Subcontractor must report to Contractor immediately, but in any event within three (3) calendar days, any injuries to employees or agents of Subcontractor that occur at the project site. Subcontractor shall follow all requirements of Contractor’s and Owner’s safety policies and ensure compliance with the Occupational Safety and Health Act of 1970 ("OSHA") and all regulations issued thereunder; all applicable state occupational safety and health acts and any applicable regulations promulgated thereunder; and any other lawful orders of any public authorities bearing on the safety of persons or property or their protection from damage, injury or loss. Contractor, at is discretion, may fine Subcontractor for non-compliance with any safety procedure up to $500.00 for each occurrence, depending upon the frequency and severity of the violation. Contractor shall have the right to stop the Work and/or correct such practices, equipment, or devices at Subcontractor’s expense. Subcontractor shall employ competent persons capable of identifying unsafe hazards and whose duty shall be to ensure that
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
all laws are followed and that all reasonable steps necessary to avoid, prevent, or abate any hazards associated with the Work are taken;
(w) timely pay and be fully responsible and liable for all withholding, social security, disability, unemployment, excise, sales, use, or other taxes or insurance as required under federal, state, and local law or regulation, except such sales and use taxes applicable to material and other items furnished by Contractor or Owner. In addition, Subcontractor shall timely pay all fees and any labor supply licenses if required in connection with the Work and/or as required by law. Subcontractor shall provide all employees with a remittance advice (paystub) with each paycheck reflecting the calculation of wages paid. Subcontractor shall maintain all records on all of its employees as required by laws;
(x) at all times keep the worksite and surrounding area free from accumulation of trash, debris, waste materials, or rubbish caused by performance of the Work;
(y) provide to Contractor a completed Form W-9 as required by the United States Internal Revenue Service upon Subcontractor’s execution of this Agreement;
(z) give written notice to Contractor, prior to harmful exposure of any personnel on the site to such substance, of the chemical composition of any hazardous or toxic substance in sufficient details and time to permit compliance with applicable laws;
(aa) immediately stop work, if Subcontractor encounters materials reasonably believed to be asbestos, polychlorinated biphenyl (PCB), or other hazardous or toxic substance, which have not been rendered harmless in the area affected, and report in writing the condition to Contractor. Subcontractor’s work in the affected area shall resume in the absence of asbestos, PCB, or another hazardous or toxic substance, or when it has been rendered harmless by Owner, by written agreement of Contractor and Subcontractor, or in accordance with final determination by Owner;
(bb) certify to Contractor that it, by and through licensed vendors, has conducted a background check (collectively referred to as “background checking”) on each of its employees performing Work under this Agreement. For purposes of this Section 4(bb) and its related subsections below, “employee” shall include Subcontractor’s employees and any of Subcontractor’s contract personnel; and “assign” shall include training for Work to be provided to Contractor, unless otherwise agreed to by Contractor. Where permitted by law and to the extent required by Owner, Subcontractor shall conduct one or more of the following: (i) a Federal and state check for felony and misdemeanor criminal convictions in all locations where the assigned employee has resided, has been employed, or has attended school in the immediately preceding seven (7) years, (ii) a check of U.S. Government Specially Designated National (OFAC) and export denial lists, (iii) a check of the employee against the National/State Sex Offender Registry, (iv) drug testing consisting of an eleven-panel urine analysis drug screen, (v) verification of the highest college diploma, degree or certificate earned, (vi) verification of employment history, (vii) verification of the name to which the employee’s Social Security Number is attributed and (viii) verification of the employee’s legal right to work:
i. Subcontractor shall comply with all applicable laws in conducting the background check, including, but not limited to, securing from each employee who performs Work for Contractor such employee’s written consent to perform the background checking and to disclose the results thereof to Contractor upon Contractor’s request;
ii. Without prior written consent of Contractor, Subcontractor shall not assign any employee to perform Work if such employee (a) has been convicted of a felony within the last seven (7) years or a misdemeanor within the last three (3) years, which Subcontractor concludes
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
the circumstances of which are job-related to the assignment at the Work and therefore makes the employee unsuitable for that assignment, or is on the national or any state Sex Offender Registry, or for whom a warrant is outstanding, or for whom a felony or misdemeanor charge is currently pending, or is on a U.S. Government Specially Designated National or export denial list, or (b) has a confirmed positive test result from the drug screening above, or (c) does not have the legal right to work in the jurisdiction in which the employee will be performing Work; and
iii. Subcontractor understands and agrees that, to the extent that the Contract Documents provide for any background check procedures which are more restrictive than the background check procedures set forth above, such more restrictive background check procedures shall govern Subcontractor’s obligations with respect thereto;
(cc) comply with all laws regarding the location of underground cable and utilities, timely notify all utility companies and others who may have underground facilities in the vicinity of the Work if the Work involves excavation or construction, obtain appropriate information on the location of buried cable and utilities prior to performing any Work, and shall locate, expose, and protect from damage all existing underground facilities, including electrical, telephone, cable, water, gas, sewer, or other utilities. Subcontractor has assumed the risk of damage to underground facilities in the Contract Amount and shall not be entitled to any extra or additional compensation with respect thereto. Subcontractor is responsible for maintaining locate tickets until the Work is complete. Subcontractor must notify Contractor and the owner of any damage to underground cable or utilities as soon as possible after damage occurs;
(dd) absolutely waive and release any and all liens, claims, or right to file a lien on all Contractor or Owner properties, real and personal, including, but not limited to, equipment, buildings, lines, and poles, upon which Subcontractor or its employees, agents or subcontractors have performed labor or supplied material, under laws of the state where the Work was performed relating to mechanic’s liens;
(ee) execute and comply with Contractor’s Supplier Code of Conduct, attached hereto as Appendix A and available at https://anscollc.com/subcontractors/, and comply with any other supplier policies which Contractor may make publicly available on its website. Contractor’s supplier policies may be updated from time to time and Subcontractor is expected to regularly check Contractor’s website for updates;
(ff) if required under the Primary Contract, furnish to Contractor, within ten (10) days of executing this Agreement, performance and payment bonds issued by a surety company satisfactory to Contractor, and inform satisfactory to Contractor, guaranteeing the due and prompt performance of the Work to be performed by Subcontractor in accordance with all of the terms of the Contract Documents, and the prompt payment of all amounts to be paid by the Subcontractor for labor and materials. The performance and payment bonds shall name Contractor as obligee (together with other obligees if so designated by Contractor) and shall include language expressly acknowledging that the bonds shall remain in force and effect notwithstanding any assignment, conversion or novation of this Agreement; and
(gg) not sub-subcontract any portion of the Work without Contractor’s express written approval. Subcontractor’s request for such approval shall include (i) the identity of and a complete description of the activities to be performed by such sub-subcontractor and (ii) proof that such sub- subcontractor’s insurance is the same or substantially similar to the insurance required in Exhibit C. Subcontractor will remain responsible and liable for any Work performed by a sub-subcontractor as if Subcontractor had provided the Work itself. Subcontractor shall bind any sub-subcontractors to terms and conditions consistent with the terms of this Agreement and ensure that the principles of Contractor’s Supplier Code of Conduct, and any other applicable supplier policies which Contractor may make publicly available on its website, are communicated to any sub-subcontractors.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Section 5. Warranty. Subcontractor warrants to Contractor and Owner the following:
(a) The Work will be new, of good quality, free from defects, and in strict conformity with the Contract Documents. Subcontractor further warrants that all materials and equipment furnished and incorporated into the Work shall be new and of good quality unless otherwise specified. The failure of Contractor or Owner to inspect, to test, or to discover defective workmanship, materials, or equipment shall not relieve Subcontractor of its obligation to perform the Work in strict accordance with the Contract Documents. Costs of correcting defective Work, whether discovered before or after final payment, and any damage to other Work or other property caused or made necessary thereby, including additional testing and inspections, the cost of uncovering and replacement, and compensation for professional services and expenses made necessary thereby, shall be at Subcontractor’s expense.
(b) If within one (1) year after completion of the Work, or as provided by applicable law as to latent defects, any of the Work is found to be defective or not in accordance with the Contract Documents, Subcontractor shall correct it promptly upon notice from Contractor. This obligation shall survive final payment by Contractor and termination of this Agreement.
Section 6. Time is of the Essence:
(a) Subcontractor acknowledges and agrees that its obligations under this Agreement and the timely performance and successful completion of the Work are of the essence. Contractor may, from time to time, establish and change scheduling requirements for the completion of a part or all of the Work. Subcontractor shall comply with Contractor’s requirements as to timely performance and, if necessary, employ additional crews and work overtime without additional compensation. Subcontractor shall procure and store the materials needed to perform the Work so as not to delay the Work.
(b) Subcontractor expressly understands, consents, and agrees that any time, resource, liability, cost, attorneys’ fee, or expense Contractor expends or incurs on account of or related to a Claim or notice of a possible Claim is (i) costly and inefficient, (ii) delays the Work, and (iii) constitutes damages and a loss to Contractor for which Subcontractor must and shall indemnify, reimburse, and hold harmless Contractor.
(c) If Subcontractor is delayed in the performance of the Work by conditions that could not be foreseen by Subcontractor and that are beyond the reasonable control of Subcontractor, then Contractor will grant Subcontractor a reasonable extension of time, provided that Subcontractor applies in writing for such an extension of time within five (5) calendar days after the commencement of the delay; if Subcontractor fails to apply in writing for such an extension, Subcontractor waives the right to an extension of the contract time. Contractor and Subcontractor agree, and Subcontractor acknowledges, that the Contract Amount is based upon the fact that Contractor shall not be liable to Subcontractor for any damages, costs, or expenses incurred by Subcontractor due to delays, acceleration, non-performance, interference with performance, suspensions, or changes in the performance or sequence of performance of the Work. Subcontractor is not and will not be entitled to any damages or other monetary compensation for delay even if such delay is caused, or partly caused, by Contractor or Owner. Instead, Subcontractor’s sole remedy for any delay shall be an extension of time as provided for in this Section 6(c).
Section 7. Change Orders. Owner or Contractor may from time to time, by written directive to Subcontractor, require Subcontractor to make changes in the Work (both additions and deletions), and the changed work shall be part of the Work. Subcontractor shall not proceed with changed Work unless it first receives a written Change Order signed by both parties.
Section 8. Independent Contractor:
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(a) Subcontractor is at all times an independent contractor and not an employee, partner, or agent of Contractor, or engaged in a joint venture with Contractor. Contractor has engaged Subcontractor solely to deliver a result, and Contractor has no power, control, or authority over the method, manner, or means by which Subcontractor performs the Work. The Contract Documents shall not be construed as creating any contractual relationship between Subcontractor and Owner (except to the extent Owner is an express third-party beneficiary of some of the provisions of this Agreement) or between Subcontractor and any consulting engineer or other professional engaged by Owner or Contractor.
(b) Subcontractor is responsible and accountable for the performance and actions of its employees, for supervising and directing the work of its employees and for others acting at Subcontractor’s direction and/or on Subcontractor’s behalf, and for ensuring that all of Subcontractor’s employees and such other persons comply with the terms and conditions of this Agreement. Subcontractor shall be responsible for Subcontractor’s own labor relations with any labor organization, and Subcontractor shall not and may not bind Contractor or any customer of Contractor or any affiliate of either to any labor union. Subcontractor shall maintain labor peace and harmony for the duration of the Work.
(c) Persons furnished by Subcontractor under this Agreement shall not be entitled to any benefits that Contractor provides to its own employees.
Section 9. Indemnity/Duty to Defend (See Exhibit E, if applicable):
(a) To the fullest extent permitted by law, Subcontractor must and shall defend, indemnify, and hold harmless Contractor, Owner, Owner’s lender(s), and their respective parents, subsidiaries, affiliates, officers, directors, agents, servants and/or employees (each an "Indemnified Party" and, collectively, the "Indemnified Parties") from and against all liability, damages, citations, Claims, charges, fines, penalties, or injuries (collectively, “Liability”), or threat of Liability, of any kind or nature whatsoever to all persons and to all property including all settlement sums, losses and expenses, and attorneys’ fees, suffered by any Indemnified Party, which are caused by, result from or arise out of Subcontractor’s (i) performance or nonperformance of this Agreement or the Work, (ii) breach of this Agreement, and/or (iii) violation of any law, and, regardless whether the Liability is based upon an Indemnified Party’s alleged active or passive negligence or participation or upon any alleged breach of any statutory duty or obligation on the part of an Indemnified Party, Subcontractor agrees to this indemnification. In addition, Subcontractor expressly agrees to defend, indemnify, and hold harmless the Indemnified Parties from and against any and all Liability that may be asserted against any Indemnified Party by an employee or former employee of Subcontractor for which Subcontractor’s liability to such employee or former employee would otherwise be limited to payments under state workers’ compensation or similar laws. Subcontractor also expressly and specifically agrees that its obligations to defend, indemnify, and hold harmless the Indemnified Parties shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability under state workers’ compensation laws.
(b) Subcontractor’s duty to defend the Indemnified Parties shall apply whether such claim or legal proceeding is brought only against any or all of the Indemnified Parties, either separately or jointly with Subcontractor. Subcontractor shall reimburse each Indemnified Party for any legal expenses and attorneys’ fees incurred in enforcing Subcontractor’s obligations and/or the indemnity granted to them under this Agreement.
(c) One percent (1%) of the Contract Amount represents specific consideration to the Subcontractor for the indemnification provisions set forth in this Agreement and the other Contract Documents and said consideration is deemed paid out of the earliest payments made under this Agreement.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Section 10. Extra Work. Claims for extra work and changes in the Work made by Subcontractor will only be allowed when written authorization has been given by Contractor prior to execution of the work; Subcontractor waives all claims for any extra work or changes not so authorized. When such authority for extra work or changes in the Work is given without an agreed upon price, the fully documented claim must be submitted promptly upon completion of the extra work. Contractor may order in writing changes in the Work without notice to Subcontractor or its sureties consisting of additions, deletions, or modifications. Where work is required to be done and the parties cannot agree as to whether such work is extra work or cannot agree as to the valuation of the addition, deletion, or modification, Subcontractor shall not delay performance of the Work, and Subcontractor shall proceed with the Work upon the written order of Contractor. If the Contractor orders a change in the Work or requests the Subcontractor to review a proposal for a change in the Work, the Subcontractor agrees to review the change, or proposal for change, and within two-thirds (2/3) of the time required by the Primary Contract or five (5) calendar days, whichever is the shorter period of time, Subcontractor shall submit to Contractor a written proposal for the Work amply detailed and supported and conforming to the requirements of the Primary Contract and this Agreement. Subcontractor agrees that it waives all its rights to both price and time adjustments if it fails to submit its written proposal within the required time.
Section 11. Contract Amount. Contractor shall pay Subcontractor the prices and costs for work, materials, and supplies only as set forth in Exhibit A, as consideration for Subcontractor’s compliance with this Agreement and performance of the Work in accordance with the Contract Documents. Subcontractor shall not be entitled to any increase in the contract amount unless a Change Order has been accepted by the parties in writing. Subcontractor shall not be entitled to any increase in the contract amount due to price escalation of materials and/or labor costs.
Section 12. Conditions Precedent to Payment. As conditions precedent to Subcontractor’s right to receive payment and to the extent permitted by applicable state law:
(a) Subcontractor agrees, consents, and acknowledges that its request for payment constitutes its representation that its work performed up to the date of the request for payment complies with the Contract Documents and satisfies fully its obligations under the Contract Documents. Subcontractor further agrees, consents, and acknowledges that its request for payment constitutes Subcontractor’s waiver of and surrender of any claims, suits, liens, or damages of any kind against Contractor for or related to Subcontractor’s work performed up to the date of the request for payment and for which Subcontractor seeks payment.
(b) Owner must first accept the Work performed by Subcontractor and pay Contractor for the Work before Contractor has the ability, obligation, or duty to pay Subcontractor;
(c) Subcontractor shall furnish Contractor with signed waivers of lien from all of its subcontractors and laborers complying with the requirements of all applicable mechanic’s lien laws and such other evidence as may be reasonably required by Contractor or Owner to substantiate payment;
(d) Subcontractor shall keep full and detailed records to confirm compliance with the Agreement in form satisfactory to Contractor. Contractor and any state government or federal government auditor shall be afforded access to, and shall have access to and be permitted to audit and copy, Subcontractor’s records, books, correspondence, instructions, drawings, receipts, employment records, subcontracts, purchase orders, vouchers, memoranda, and other data relating to this Agreement or the Work. Subcontractor shall preserve such documents and records referred to herein for a period of three (3) years after final payment, or for such longer period as may be required by law. Subcontractor shall not impose any charges for access to its books and records regarding its performance under this Agreement, and shall fully cooperate with authorized representatives in the examination or audit of books and records;
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(e) All paperwork required by Contractor from Subcontractor has been completed, submitted to, and approved by Contractor; and,
(f) Payments to Subcontractor may be withheld at Contractor’s sole discretion to insure the timely progress and completion of the Work and adherence to the Contract Documents.
Section 13. Payment Procedure. Subcontractor agrees that the following payment procedure shall govern all payments made hereunder:
(a) Invoicing. No later than Monday of each week, Subcontractor is to submit an invoice or daily billing sheet for the portion of the Work completed through the preceding Saturday. The invoice or daily billing sheet shall be prepared in duplicate and submitted to Contractor’s supervisor for review and approval. After approval, Contractor shall pay Subcontractor within thirty (30) days for the invoice generated or presented, less the amount set forth in Exhibit B (the "Retainage"). As a material part of the consideration under this Agreement, Subcontractor agrees to satisfy any Deficiencies in Retainage out of or from any Retainage held or owed to Contractor as a result of Work performed hereunder or being performed by Subcontractor under a separate agreement. This provision will survive the termination of this Agreement for one (1) year. Acceptance of final payment by Subcontractor shall act as a release of all claims of Subcontractor or any person claiming under or through Subcontractor against Owner, Contractor, Contractor’s surety, if any, in any way related to the Work. As used herein, "Deficiencies in Retainage" shall mean an insufficient amount of Retainage withheld under this Agreement to satisfy any and all claims that result from the performance or non-performance of the Work, regardless of whether such deficiencies become known to Contractor or Owner after final acceptance of the Work.
(b) Payments Held in Trust. Subcontractor shall hold all payments made to it by Contractor in a trust account to be applied first to the payment of its employees, subcontractors, laborers, and suppliers of materials or services used for or in connection with the Work, including, without limitation, any amount payable in taxes on account of the Work or labor supplied and to any applicable employee benefit plan. Subcontractor shall apply all payments from Contractor in the preceding manner before using any part thereof for any other purpose.
(c) Joint Checks. Contractor shall have the right, at its sole discretion, to make any payments to be made hereunder in the form of checks payable jointly to Subcontractor and any unpaid sub- subcontractor, suppliers or materialmen. If Subcontractor shall fail to pay when due any payments for labor, supplies, materials or services furnished in connection with the performance of the Work, Contractor may, after five (5) days written notice to Subcontractor, directly pay the amount of such liabilities and recover the amount thereof from Subcontractor, directly or by the deduction of such sum from any amounts then or thereafter due to Subcontractor hereunder. If the remaining contract amount is insufficient to cover such costs, Subcontractor shall reimburse such costs to Contractor immediately upon written demand therefor.
(d) Right to Withhold Payment for Defective Work or other Failure to Satisfy Obligations. In addition to Retainage, Contractor shall have the right to withhold payment for failure of Subcontractor to meet its obligations under the Agreement, for defective Work not remedied, for failure of the Work to conform to the Contract Documents, to satisfy any and all Claims or notices of possible Claims, or for other failure of Subcontractor to comply with the terms and conditions of the Contract Documents. Contractor shall be entitled to withhold such amount as may be necessary, from Retainage or otherwise, in Contractor’s good faith opinion, to protect Contractor from loss due to such defects, non-performance, or failure to comply with the Contract Documents. If such deficiencies are not promptly corrected after Contractor provides written notice to Subcontractor, Contractor may correct such deficiencies at Subcontractor’s expense and deduct all costs incurred from payment due to Subcontractor. The withholding by Contractor of any amounts otherwise due to Subcontractor shall not enable Subcontractor to stop the Work
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
or terminate this Agreement.
(e) Right to Deduct Payment for Contribution to Pollution Liability Insurance Program beginning 2024. Contractor maintains a pollution liability insurance program that provides insurance coverage for pollution liability exposures on its projects that may include the interests of its subcontractors. For each calendar year or any part thereof that this Agreement remains in effect, Contractor shall deduct from amounts due to Subcontractor hereunder a payment for Subcontractor’s contribution (the “Insurance Contribution”) to the pollution liability insurance program in such amount as Contractor deems necessary in its sole discretion. Such deduction is generally expected to be made once per calendar year, but the frequency thereof is subject to change without notice to Subcontractor. Each date on which such deduction is made is referred to as a “Deduction Date”. To the extent that there are no amounts due and payable to Subcontractor on any Deduction Date, Contractor shall invoice Subcontractor for Subcontractor’s Insurance Contribution and Subcontractor shall remit payment for such Insurance Contribution to Contractor within thirty (30) days of the date of such invoice. Contractor reserves the right, if deemed necessary by Contractor in its sole discretion, to deduct Subcontractor’s Insurance Contribution from any Retainage held or owed to Contractor as a result of Work performed hereunder or being performed by Subcontractor under a separate agreement.
(f) Right to Offset Payment. In addition to other rights and remedies Contractor may have, Contractor may offset any payment obligations to Subcontractor that Contractor may incur under this Agreement against any amounts claimed by Contractor to be owed by Subcontractor to Contractor under this Agreement or any other agreement between Subcontractor and Contractor. Contractor also may withhold and offset against its payment obligations under this Agreement or require Subcontractor to pay Contractor within thirty (30) business days of receipt of any invoice, any amounts Contractor may have overpaid to Subcontractor in prior periods.
Section 14. Insurance; Waiver of Subrogation. Before Contractor makes any payment to Subcontractor under this Agreement and before Subcontractor performs any Work, Subcontractor shall deliver to Contractor certificates of insurance in accordance with the policies, coverages, and limits of liability set forth on Exhibit C. Subcontractor waives all rights against Contractor and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by commercial general liability, commercial umbrella liability, business auto liability, workers’ compensation and employers’ liability, and errors and omissions or professional liability insurance maintained per the requirements stated in Exhibit C.
Section 15. Subcontractor Submittals. Contractor may, at any time in its sole discretion, require from Subcontractor and Subcontractor shall submit to Contractor any of the following submittals (collectively, "Submittals") in a form satisfactory to Contractor:
(a) Certificates from providers evidencing that all bonds and insurance required by the Contract Documents are in full force and effect;
(b) Satisfactory evidence that Subcontractor is in compliance with all government, administrative, reporting or accounting requirements of the Contract Documents;
(c) Satisfactory evidence that neither Subcontractor nor any person or entity claiming under or through Subcontractor has placed or has the right to maintain a lien or other claim against Owner, Contractor, Contractor’s surety, if any, or the Work, including a sworn certification of payment and releases of liens filed by suppliers or persons working under or on behalf of Subcontractor on forms specified by Contractor; DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(d) Satisfactory evidence that all individuals performing Work have completed a background check and drug test in accordance with the terms herein and the Contract Documents;
(e) Affidavit stating that all persons working for Subcontractor have been paid in full for any labor, materials, supplies or services provided in connection with the Work, including, without limitation, any taxes, benefits or government charges with respect thereto; and,
(f) Contractor may withhold payment of any invoice then due or that may become due until Subcontractor provides a requested Submittal.
Section 16. Assignment. Contractor may assign this Agreement. Subcontractor shall not assign this Agreement nor subcontract the whole or any part of the Work or this Agreement without the written consent of Contractor. Subcontractor shall not assign any amounts due or that may become due under this Agreement without the written consent of Contractor. Any such assignment without the consent of Contractor shall be void, and Contractor, at its option, may terminate this Agreement. Contractor shall have the right to approve and/or remove any and all subcontractors of Subcontractor.
Section 17. Termination: If Subcontractor (i) is adjudged bankrupt, (ii) makes a general assignment for the benefit of its creditors, (iii) allows a receiver to be appointed on account of its insolvency, (iv) fails to carry forward and complete its Work as rapidly as the Contractor may judge that the progress of the Work will permit, (v) becomes insolvent or fails to make prompt payment to its subcontractors, materialmen, or laborers, (vi) fails to comply with instructions of the Architect or Engineer, (vii) fails to timely correct defective Work, (viii) fails to purchase and maintain the insurance required under Exhibit C to this Agreement, (ix) otherwise breaches this Agreement or violates any provision of the Contract Documents, or (x) violates any applicable laws, then the Contractor may, after giving Subcontractor written notice and without prejudice to any of its rights, exercise its rights under this Agreement or otherwise pursue any right or remedy it may have in law or equity.
(a) Termination for Cause. Subcontractor shall satisfy its obligations under this Agreement and perform the Work in accordance with this Agreement and the Contract Documents so that the result contracted for is reasonably satisfactory to Contractor and Owner. If Subcontractor fails within seven (7) calendar days following written notice by Contractor to fulfill Subcontractor’s obligations under this Agreement, Contractor, in addition to any lawful remedies, may terminate this Agreement or Contractor may complete the Work or correct any deficiencies by alternate means. If the expenses, attorneys’ fees, or costs borne or incurred by Contractor to complete the Work or correct any deficiencies exceed any amount due Subcontractor from Contractor, Contractor has the right to offset the amount due and seek any balance from Subcontractor. Upon receipt of a written notice of termination, Subcontractor shall (i) suspend all operations at the site, (ii) take such action as is necessary to protect and preserve the Work, and (iii) to the extent possible without committing an act of breach, terminate all existing sub-subcontracts and purchase orders and refrain from entering into additional sub-subcontracts and purchase orders.
(b) Termination for Convenience. Contractor may terminate this Agreement if (i) Owner terminates the Primary Contract, (ii) in good faith or otherwise based on reasonable information, Contractor believes Subcontractor may default on its obligations under the Agreement, or (iii) for Contractor's convenience.
(c) Contractor may elect at any time to convert a termination for convenience into a termination for cause.
(d) Subcontractor's exclusive and only remedy under Section 17, if any, and subject specifically to Sections 12 and 13, is to receive payment for Work performed by Subcontractor up to the
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
effective date of the termination that has been accepted by the Contractor and Owner and otherwise fully satisfies the Contract Documents. Subcontractor shall not be entitled to receive payment, profit, overhead, or other compensation for any work not performed.
Section 18. Limitation on Remedy.
In the event of a breach of this Agreement by Contractor, Subcontractor agrees that its sole and exclusive remedy shall be the recovery of actual and direct damages only. In no event shall Contractor be responsible for or liable to Subcontractor for consequential, multiple, indirect, liquidated, incidental, exemplary, or punitive damages, or for any special statutory remedies, penalties, or attorney’s fees. For any delay or suspension of the Work caused by Contractor, Subcontractor’s only remedy is a time extension, but only if, as a condition precedent, Subcontractor provided written notice to Contractor within five (5) calendar days of the event allegedly causing the delay. In no event shall Contractor be liable to Subcontractor for delay to Subcontractor’s Work caused by the act, neglect, or default of the Owner, the Architect/Engineer, design professionals, consultants, experts or by reason of fire or other casualty, or on account of civil unrest, government action, riots, or strikes, or other combined action of workmen or others, or on account of any other cause.
Section 19. Non-Competition and Non-Solicitation.
Except where prohibited by applicable state law:
(a) For so long as Subcontractor is performing the Work and for a period of two (2) years after Subcontractor ceases performing the Work, for any reason whatsoever, Subcontractor shall not, either directly or indirectly, on Subcontractor's own behalf, or, on behalf of others, (i) engage in, own any interest in, manage, operate, gain control of, consult with, finance or otherwise participate in, (ii) solicit to or on behalf of any Competing Business (as hereinafter defined), or (iii) attempt to solicit, divert, or appropriate to or on behalf of any Competing Business, any business of Contractor from any customer of Contractor with whom Subcontractor has had material contact in furtherance of Contractor’s business during the last two (2) years within which Subcontractor was performing the Work.
(b) The territory covered by this Section is the state or states in which Contractor, or its affiliates or subsidiaries, as applicable, conduct business.
(c) For the purposes of this Section: (i) "customer" shall mean a customer who has obtained products or services from Contractor within the last two (2) years and has not advised Contractor of a decision to no longer obtain products or services from Contractor, (ii) "material contact" shall mean contact between Subcontractor and the customer that was intended to further the business relationship between Contractor and the customer, and (iii) "Competing Business" means any business organization of whatever form engaged, in whole or in relevant part, in any business or enterprise which is the same as, or substantially the same as, the business of Contractor, or any of Contractor’s affiliates or subsidiaries, as applicable.
(d) For so long as Subcontractor is performing the Work and for one (1) year thereafter (the “Non-Solicit Period”), Subcontractor will not solicit for employment or for use as an independent contractor (or advise, suggest or recommend that any other person or entity employ or offer employment to or solicit for use as an independent contractor) (i) any current employee of Contractor or (ii) any former Contractor employee within six (6) months of that employee’s departure from Contractor, nor shall Subcontractor solicit or encourage any current employee of Contractor to terminate his or her employment with
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Contractor for any reason during the Non-Solicit Period. Newspaper advertisements, job postings and other public advertisements of positions, by themselves, do not constitute solicitation.
Section 20. Confidential Information and Trade Secrets:
(a) Subcontractor will hold all Confidential Information (as hereinafter defined) in trust and strictest confidence, and will not use, reproduce, distribute, disclose, or otherwise disseminate Confidential Information, or any physical embodiments thereof, and may in no event take any action causing or fail to take action necessary in order to prevent any Confidential Information disclosed to or developed by Contractor to lose its character or cease to qualify as Confidential Information. This obligation commences when Subcontractor first comes into possession of Confidential Information and continues for a period of four (4) years after Subcontractor ceases performing the Work for which such Confidential Information was provided to or developed by Subcontractor or Contractor under this Agreement.
(b) During the term of this Agreement and following termination of it (until such time as they are no longer Trade Secrets under applicable state laws), Subcontractor will hold all Trade Secrets (as hereinafter defined) in trust and strictest confidence, and will not use, reproduce, distribute, disclose or otherwise disseminate the Trade Secrets, or any physical embodiments thereof, and may in no event take any action causing or fail to take action necessary in order to prevent any Trade Secrets disclosed to or developed by Subcontractor to lose its character or cease to qualify as Trade Secrets.
(c) "Confidential Information" means information related to the operation and business of Contractor, which derives economic value, actual or potential, from not being generally known to or readily ascertainable by others, and which is not a Trade Secret. Assuming the foregoing criteria are met, Confidential Information includes, but is not limited to, the following: compilations of information concerning pending or potential transactions within the business of Contractor that if pursued by Contractor would or could result in a fee or income to Contractor; compilations of information concerning Contractor’s customers and prospective or potential customers; compilations of service manuals; Contractor’s pricing information; compilation of information related to Contractor’s vendors and suppliers, including the identity of Contractor’s vendors and suppliers; compilation of Contractor’s vendor and supplier pricing; Contractor’s financial, marketing and sale information; proposals submitted to customers or potential customers of Contractor, including the services requested or preferred by Contractor’s customers; Contractor’s methods and procedures of operation; the composition, description, schematic or design of software or other products, future products or equipment of Contractor; communication systems, audio systems, system designs and related documentation; systems, processes and methodologies used by Contractor to conduct the business of Contractor; and the amounts paid by Contractor’s customers for services rendered by Contractor. Confidential Information shall also include information which has been disclosed to Contractor by any third party, and, as to which, Contractor has an obligation to the third party to treat as confidential.
(d) "Trade Secrets" means all information that constitutes trade secrets as defined by the Uniform Trade Secrets Act and other applicable laws of the state where the Work is conducted.
Section 21. Notices. All notices, requests, claims, demands, and other communications under this Agreement shall be in writing and shall be given by delivery in person, facsimile, or registered or certified mail to the respective parties at the following addresses. In addition, Subcontractor agrees and consents that service of process is accomplished and perfected by written notice to the address below:
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
If to Contractor: If to Subcontractor:
Ansco & Associates, LLC ________________________________ Northstar Communications Inc ________________________________ 1220 Old Alpharetta Road ________________________________ 6939 S Harl Ave ________________________________ Suite 380 ________________________________ Tempe, AZ 85283 ________________________________ Alpharetta, GA 30005 ________________________________ ________________________________
Attention: George Summers ______________________ Attention: Cody J Nelson ______________________ Office: 404-508-5737 ______________________ Office: (480)217-1962 ______________________ Fax: N/A ______________________ Fax: N/A ______________________
Section 22. Amendment. This Agreement may be amended only by a written instrument signed by Contractor and Subcontractor.
Section 23. Waiver of Breach. The waiver by either party of a breach of any provision in this Agreement shall not operate or be construed as a waiver by such party of any subsequent breach.
Section 24. Headings. The descriptive headings in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement.
Section 26. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes any and all prior and contemporaneous agreements, either oral or written, between the parties relating to the subject matter of this Agreement. There are no courses of dealing, courses of performance, or usages of trade that constitute a portion of this Agreement. As a jointly drafted Agreement, no provision of this Agreement shall be construed more harshly or disfavorably against either Contractor or Subcontractor regardless of which party drafted the provision or for whose benefit such provision was included.
Section 27. Governing Law. The interpretation, construction and enforcement of this Agreement shall be governed by the laws of the jurisdiction where the Work is to be performed under this Agreement.
Section 28. Dispute Resolution.
(a) In the event of a dispute, claim, or other matter in question of any kind whatsoever between the parties arising out of or related to the provisions and/or subject matter of this Agreement, or the breach, interpretation, or performance thereof, it is agreed that the parties will attempt to resolve such dispute, claim, or other matter in question amicably by informal discussions and negotiations within a seven (7) day period. All such disputes, claims, or other matters in question that involve claimed damages of less than $50,000.00 which cannot be settled by negotiation among the parties within such time shall be resolved through arbitration and without litigation. All such disputes, claims, or other matters in question that
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
involve claimed damages equal to or greater than $50,000.00 which cannot be settled by negotiation among the parties within such time shall, upon the demand of, and at the exclusive election of, Contractor (but not otherwise), be submitted by the parties to arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association. The parties hereby agree and recognize that $100 of the contract price has been paid to Subcontractor as separate and sufficient consideration for Contractor’s right to elect arbitration of any dispute or claim under, arising out of, or in any way related to this Agreement. The arbitration panel shall have the power to rule on its own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement. The location of the arbitration hearing shall be in a location mutually agreeable to the parties. This provision to arbitrate shall be specifically enforceable in any court of competent jurisdiction. The award rendered by the arbitration panel shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.
(b) Subcontractor agrees that any arbitration instituted under this Section, shall, at Contractor’s election and sole discretion, be consolidated with any other litigation or arbitration proceeding involving a common question of fact or law between the Contractor, the Owner, the Architect/Engineer, and/or any other subcontractor(s) of any tier performing work in connection with the Work or Project. Subcontractor shall carry on the Work pending final resolution of any dispute, claim, or other matter in question, unless Contractor has exercised a remedy that has terminated Subcontractor’s Work and/or presence on the Project. The exercise by Contractor of its remedies shall not be conditioned upon resolution, by arbitration or otherwise, of the dispute, claim, or other matter in question upon which Contractor bases its decision to exercise any such remedy or remedies. It is hereby agreed that during any arbitration proceedings discovery shall be available and shall be conducted as directed by the arbitrator(s).
(c) In the event Contractor is required by the terms of the Primary Contract to arbitrate any controversy with Owner or with any other prime contractor, subcontractor, or supplier, and such controversy involves, in whole or in part, the Work or materials of Subcontractor, then Subcontractor agrees, upon demand of Contractor, to participate in the prosecution or defense of such controversy in said arbitration and to be bound by the result thereof. Subcontractor shall not commence or maintain any action or proceeding against Contractor for any damages resulting from any default, breach, or interference by the Owner or for extra work ordered by Owner or by virtue of any deduction or refusal to pay by the Owner, except to the extent of the sum ultimately obtained from the Owner on account thereof by Contractor.
(d) In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party the attorney’s fees reasonably incurred by the prevailing party in connection with the arbitration. The prevailing party shall be the party that prevails on at least 51% of its asserted claims or counterclaims as determined by the arbitrator(s). Each party shall bear its own administrative costs of arbitration and shall be responsible for an equal percentage of the compensation and expenses paid to the arbitrator(s).
(e) As a condition precedent to any arbitration proceeding or litigation, the parties agree to submit to a non-binding mediation proceeding with the associated costs shared equally.
(f) In the event Contractor does not elect arbitration as the binding dispute resolution method of a dispute, claim, or other matter in question that involves claimed damages equal to or greater than $50,000.00, , or if the arbitration clause is declared unconscionable or otherwise invalid, then (i) the parties hereby waive any right to a trial by jury on any dispute not resolved by arbitration or otherwise, and (ii) any legal proceeding of any nature brought in court by any party, its surety or both of them against the other party, its surety or both of them, relating to or seeking to enforce any obligation under this Agreement arising out of any matter pertaining to this Agreement or the Work to be performed hereunder, shall be filed in a court of competent jurisdiction in a location mutually agreeable to the parties sitting without a jury, and
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
the parties hereby consent to the jurisdiction of such Court as the exclusive forum for any such legal proceedings not subject to arbitration.
Section 29. Facsimile Signature. Any party transmitting its signature by facsimile or portable document format (".pdf") shall be deemed to have accepted and adopted such facsimile or .pdf signature as such party’s original signature and that same is sufficient to bind such party to this Agreement as if such party’s original handwritten signature is attached hereto. It is the intention of the parties, however, that a facsimile or .pdf signature is binding from the time it is telecopied or transmitted for attachment to this Agreement and that any person may rely on the authority thereof for implementing the provisions of this Agreement.
Section 30. Remedies. Duties and obligations imposed by this Agreement and the Contract Documents upon Subcontractor, and the rights and remedies available to Contractor thereunder, shall be in addition to, and not a limitation of, duties, obligations, rights and remedies otherwise imposed or available by law. Contractor’s remedies shall be cumulative and Contractor’s failure to exercise a particular remedy shall not constitute a waiver of a right or duty afforded Contractor herein or pursuant to applicable law. Subcontractor agrees that the covenants contained in this Agreement are reasonable and necessary to protect and preserve the interests and properties of Contractor and the business of Contractor; and that irreparable loss and damage will be suffered by Contractor should Subcontractor breach any of its obligations. Therefore, Subcontractor agrees and consents that, in addition to all the remedies provided at law or in equity, Contractor shall be entitled in a court of law to a temporary restraining order and temporary and permanent injunctions to prevent a breach or threatened breach of any of its obligations. Subcontractor waives and will not (i) assert any defense that Contractor has an adequate remedy at law with respect to the breach, (ii) require that Contractor submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require Contractor to post a bond or any other security. Further, Contractor and Subcontractor acknowledge and agree that any claims by Subcontractor against Contractor hereunder or otherwise shall not constitute a defense to injunctive relief as to the enforcement of this Agreement. In the event that either party is forced to bring suit to enforce the provisions of this Agreement, the enforcing party shall be entitled to recover from from the other party its attorneys’ fees, expenses, and costs of litigation in addition to all other remedies available at law or in equity.
Section 31. Survival. Unless otherwise stated, and to the extent permitted by applicable law, all rights of Contractor hereunder and all obligations and duties of Subcontractor hereunder shall survive termination or completion of this Agreement.
Section 32. Severability. Contractor and Subcontractor agree that each of the provisions included in this Agreement is separate, distinct, and severable from the other and remaining provisions of this Agreement, and that the invalidity or unenforceability of any Agreement provision shall not affect the validity or enforceability of any other provision or provisions of this Agreement. If any provision of this Agreement is found by any court with jurisdiction to be less than fully enforceable, then each such provision shall be deemed amended or modified to the fullest extent permitted under applicable law. Any such amendment or modification does not alter or amend any other provision of the Agreement, which otherwise remains in full force and effect. The existence of any claim, demand, action, or cause of action of Subcontractor against Contractor shall not constitute a defense to the enforcement by Contractor of any of the covenants or obligations of Subcontractor set forth in this Agreement.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
The parties have executed this Agreement as of the date indicated above.
CONTRACTOR: SUBCONTRACTOR:
Ansco & Associates, LLC Northstar Communications Inc ___________________________________
By: _____________________________ By: _____________________________ Craig Clark Name: _____________________________ Cody J Nelson Name: _____________________________ Title: Vice President Title: COO _____________________________
Subcontractor’s Taxpayer Identification Number: __________________
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Exhibit A
Pricing
See Attached Pricing.
Ex. A-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Exhibit B
Retainage
(a) In accordance with Section 13, Contractor shall pay Subcontractor for each invoice presented, less ___% (the "Retainage") to be capped at $100,000. Payment of Retainage (less any amounts previously withheld or deducted) shall be made one hundred eighty (180) after all the following conditions precedent are satisfied:
(i) Full completion of and acceptance of the Work in accordance with this Agreement, as determined in the sole discretion of both Contractor and Owner; and
(ii) Final payment made to Contractor by Owner of all sums owed to Contractor under the Primary Contract and any amendments thereto.
(b) Subcontractor agrees that Contractor may use all or any portion of the Retainage to satisfy any and all Claims or notices of possible Claims.
Ex. B-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Exhibit C
Subcontractor Insurance Requirements
(a) Subcontractor shall procure and maintain at its expense during the term of this Agreement the following policies, coverages and limits of liability in all states where Work is to be performed from an insurer (or insurers) licensed to do business in such state(s), with AM Best Rating "A-VIII" or better and otherwise acceptable to the Contractor. The Contractor specifically reserves the right to reject coverage provided by certain insurance companies not acceptable to the Contractor. If the Primary Contract requires additional coverage or limits higher than those stated below, then the insurance requirements of the Primary Contract will apply.
(i) Workers' Compensation and Employers Liability Insurance with the following minimum limits of liability and coverage endorsements:
Workers Compensation – Coverage A: Statutory Coverage (Statutory coverage is required in all working states, regardless of any reciprocity or extraterritoriality statutes)
Employer’s Liability – Coverage B:
• $1,000,000 each accident • $1,000,000 each employee by disease • $1,000,000 policy limit by disease
The policy shall be endorsed to contain the following coverage endorsements:
• United States Longshore and Harbor Workers Compensation Act (USL&H) coverage endorsement, if applicable • waiver of subrogation in favor of Contractor and Owner, their agents, officers, directors and employees where permitted by law • alternate employer endorsement, if applicable
If a Professional Employer Organization (PEO) arrangement is in place, a full copy of the PEO Workers’ Compensation policy must be provided for review, including all policy forms, endorsements, and class codes.
(ii) Commercial General Liability utilizing ISO’s CG 00 01 or equivalent including coverage for: broad form property damage coverage; settlement/subsidence/earth movement; collapse, explosion, and underground hazards; bodily injury and property damage; personal/advertising injury; contractual liability; and products-completed operations, with the following minimum limits of liability and coverage endorsements:
• $1,000,000 each occurrence • $2,000,000 general aggregate (must apply on a Per Project basis, not to be capped at an amount less than $5,000,000 Policy Total) • $2,000,000 product-/completed operations aggregate (must be dedicated aggregate limit; “included” is not acceptable) • $1,000,000 personal injury and advertising injury liability (must be dedicated aggregate limit; “included” is not acceptable)
Ex. C-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
The policy shall include the following conditions:
• Contractor, its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, agents, and Owner shall be included as Additional Insureds via CG 20 10 or equivalent and CG 20 37 or equivalent. ISO’s blanket forms CG 20 38 and CG 40 shall be considered equivalent to the CG 20 10 and CG 20 37, respectively. • waiver of subrogation in favor of Contractor, its direct and indirect parents, and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability policy, attaching CG 24 04 or an equivalent form • severability of interests (separation of insureds), whether in the conditions of the policy or by endorsement (Note: this is included by default in the unendorsed CG 00 01)
The policy shall not contain the following exclusions/endorsements or their equivalents, whether the exclusions are attached to the policy as separate endorsements or built into the insuring agreements. Please note that this is not an all-inclusive list; additional exclusions may be deemed unacceptable at Contractor’s sole discretion:
● Absolute/Amended Employer’s Liability Exclusion/”Action-Over” Exclusion ● Assault and Battery Exclusion ● Breach of Contract Exclusion (if applicable to bodily injury or property damage) ● Classification Limitation/Limitation of Coverage to Business Description ● Conditional Exclusion/Limitation of Subcontractor or Independent Contractor Claims ● Continuous or Progressive Injury And Damage Exclusion / “Pre-Existing Damage” Exclusion ● Contractors and Subcontractors Exclusion ● Contractual Liability Limitation (CG 21 39 or equivalent) ● Cross Suits Exclusion (if applicable to Additional Insureds) ● Damage to Work Performed by Subcontractors on Your Behalf Exclusion (CG 22 94 or equivalent) ● Earth Movement or Subsidence Exclusion ● Explosion, Collapse, Underground Hazards (XCU) Exclusion ● Failure to Supply Exclusion ● Fire or Fire-Related Injury or Damage Exclusion ● Highway or Bridge Work Exclusion ● Injury to Independent Contractors and Subcontractors Exclusion ● Injury to Temporary Worker, Volunteer Worker, or Casual Worker Exclusion ● Limitation of Coverage to Designated Premises, Project, or Operation (CG 21 44 or equivalent) ● Prior Work Exclusion ● Residential Construction Exclusion ● Traffic Control Exclusion ● Underground Utility Location Condition ● Wildfire Injury Exclusion
Ex. C-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
All General Liability policy Class Codes are subject to review and approval (e.g., GL policies classified for Pedestal/Pole-To-Home Cable Installation, Technology Consulting, or TV and Radio Set Installation and Repair will not be accepted for contractors who perform higher-risk operations such as Aerial Cable Construction, Conduit Construction or Horizontal Directional Drilling).
(iii) Commercial Automobile Liability, including coverage for contractual liability, with the following minimum limits of liability:
• $1,000,000 Combined Single Limit (each accident)
The policy shall contain the following provisions and endorsements:
• [Contractor], its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, agents, and Project Owner shall be included as Additional/Designated Insureds on a Primary and Noncontributory basis
• coverage must be included for owned, hired and non-owned vehicles (an "any auto" policy; Symbol 1 or Symbols 2, 8 and 9) • waiver of subrogation in favor of Contractor, its direct and indirect parents and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial automobile liability policy ● severability of interests (separation of insureds) to be included in the definition of "Insured" (Note: this is included by default in the unendorsed CA 00 01)
(iv) Commercial Umbrella or Excess Liability, if required by the Primary Contract between Contractor and Owner (which will vary from Owner to Owner), or if primary policy limits are less than those limits specified in this Exhibit C. The policy shall include the following conditions: • Contractor, its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, agents, and Owner shall be included as Additional Insureds via CG 20 10 or equivalent and CG 20 37 or equivalent. ISO’s blanket forms CG 20 38 and CG 40 shall be considered equivalent to the CG 20 10 and CG 20 37, respectively.
(v) For Subcontractors performing engineering, stamping, drafting, surveying, or other professional services, Errors & Omissions or Professional Liability with the following minimum limits of liability: • $1,000,000 Each Claim
The policy shall contain the following provisions and endorsements: • retroactive date prior to the date of this Agreement and extended claims reporting of not less than two years after termination of this Agreement
Ex. C-3 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
• waiver of subrogation in favor of Contractor, its direct and indirect parents and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the errors and omissions or professional liability policy • severability of interests (separation of insureds)
(b) The insurance limits set forth in this Exhibit C may be satisfied by a combination of Primary and Umbrella or Excess Liability Policies. All policies (except the Workers’ Compensation and Employers’ Liability Policy and the Errors & Omissions Policy) shall name as Additional Insureds (i) Contractor, its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, and agents, and (ii) Owner. Subcontractor shall continuously maintain products/ completed operations coverage, including coverage for the Additional Insureds for a period of three (3) years immediately following completion of work. The policies shall be endorsed to provide coverage to these Additional Insureds on a primary and non-contributory basis without seeking contribution from any other insurance or self-insurance available to the Additional Insured, regardless of whether or not the Additional Insured is a Named Insured under such insurance. If any Umbrella or Excess Liability Policies are used to satisfy the insurance requirements, they shall be specifically endorsed to state that their coverage is primary and non-contributory to any insurance carried by the Additional Insured. This requirement must be stated on the certificate of insurance as required by (d) below. Any Umbrella or Excess Liability Policies shall contain a schedule specifying the carriers, limits, policy numbers, and policy periods of underlying Policies.
(c) If any Work is to be conducted within fifty (50) feet of a railroad or railroad right of way, any exclusions relating to railroads must be deleted from both the exclusions section and the definition of an insured contract. Evidence that the exclusions have been deleted by attaching form CG 24 17 or an equivalent form to the policy.
(d) Prior to commencement of any Work, Subcontractor shall furnish to Contractor insurance certificates in a form acceptable to Contractor evidencing compliance with the foregoing requirements and stating that the insurers will provide thirty (30) day written notice of cancellation or material alteration in any of the required policies of insurance. Copies of the General Liability Additional Insured endorsements shall be attached to the certificate of insurance. A copy of the insurance carrier’s Schedule of Named Insureds for each policy must be provided upon request. A copy of the schedule of forms from the General Liability policy must be attached to the certificate of insurance. Contractor reserves the right to reject any insurance coverage that contains forms, conditions, limitations, or exclusions that are not acceptable to Contractor. All policies shall be written on an Occurrence basis (except Errors & Omissions or Professional Liability Policy, which shall be written on a Claims-Made basis). If requested by Contractor, Subcontractor will provide Contractor with certified copies of the policies. The provision of the foregoing insurance requirements shall be a condition precedent to any obligation of Contractor to make payment to Subcontractor.
(e) Failure of Contractor to demand such certificate or other evidence of full compliance with these insurance requirements or failure of Contractor to identify a deficiency from evidence that is provided shall not be construed as a waiver of Subcontractor’s obligation to maintain such insurance.
(f) Contractor shall have the right, but not the obligation, to prohibit Subcontractor or any subcontractor from entering the Project site until such certificates or other evidence that insurance has been placed in complete compliance with these requirements is received and approved by Contractor.
(g) If any of the policies required by this Exhibit C contain deductibles or self-insured retentions, the deductibles or self-insured retentions shall be the sole responsibility of Subcontractor and coverage will
Ex. C-4 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
apply to Contractor, Owner and all Additional Insureds, as required above, as though the policies were written on a "first dollar" basis. In no event shall Subcontractor’s bankruptcy cause Contractor to be responsible for any deductible or self-insured retention.
(h) If any Work is to be performed in a jurisdiction where Subcontractor is insured for workers compensation through an "assigned risk pool", the certificate provided to Contractor shall indicate that the coverage is provided through the "assigned risk pool".
(i) Contractor reserves the right to adjust insurance coverage requirement limits to comply with specific limits established from time to time by Owner, or as otherwise determined appropriate at Contractor’s sole discretion.
(j) In the event Subcontractor subcontracts any of the Work to another subcontractor (Contractor’s prior approval required), Subcontractor shall cause each subcontractor employed by Subcontractor to purchase and maintain insurance of the types specified in this Exhibit C. When requested by Contractor, Subcontractor shall furnish to Contractor copies of certificates of insurance evidencing coverage for such subcontractor.
(k) By requiring the insurance as set out in this Exhibit C Contractor does not represent that coverage and limits will necessarily be adequate to protect Subcontractor, and such coverage and limits shall not be deemed as a limitation on Subcontractor’s liability under the indemnities provided to Contractor in this Agreement, or any other provision of the Contract Documents.
(l) Failure to maintain the insurance required in this Exhibit C shall constitute a cause for termination pursuant to Section 17 of this Agreement and shall allow Contractor to terminate this Agreement at Contractor’s option. If Subcontractor fails to maintain the insurance as set forth herein, Contractor shall have the right, but not the obligation, to purchase said insurance at Subcontractor’s expense.
(m) The insurance requirements set out in this Exhibit C are independent from all other obligations of Subcontractor under this Agreement and apply whether or not required by any other provision of this Agreement.
Ex. C-5 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
EXHIBIT D
GOVERNMENT CONTRACT REQUIREMENTS
Pursuant to Section 2(l) of the Agreement, and in addition to any other requirements set out in the Primary Contract, if the Subcontractor performs Work for the Contractor under Government Contracts, the following terms, which may be expanded or modified at any time, are applicable to the Work being performed by the Subcontractor: (i) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509). (ii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)). (iii) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities. (iv) 52.222-17, Nondisplacement of Qualified Workers (May 2014) (E.O. 13495). Flow down required in accordance with paragraph (1) of FAR clause 52.222-17. (v) 52.222-21, Prohibition of Segregated Facilities (Apr 2015). (vi) 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246). (vii) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212). (viii) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793). (ix) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212). (x) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40. (xi) 52.222-41, Service Contract Labor Standards (May 2014), (41 U.S.C. chapter 67). (xii) (A) 52.222-50, Combating Trafficking in Persons (Mar 2015) (22 U.S.C. chapter 78 and E.O. 13627). (B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 E.O. 13627). (xiii) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment--Requirements (May 2014) (41 U.S.C. chapter 67.) (xiv) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-- Requirements (May 2014) (41 U.S.C. chapter 67) (xv) 52.222-54, Employment Eligibility Verification (Oct 2015) (E. O. 12989). (xvi) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015).
Ex. D-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(xvii) 52.222-62, Paid sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706). (xviii) (A) 52.224-3, Privacy Training (Jan 2017) (5 U.S.C. 552a). (B) Alternate I (Jan 2017) of 52.224-3. Subcontractor acknowledges and agrees that the above laws, orders and regulations may be amended or modified from time to time and that Subcontractor will be responsible for complying with all such items, as amended or modified, including any newly enacted or additional laws, order or regulations that may be or become applicable to the Work.
Ex. D-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
EXHIBIT E
STATE-SPECIFIC PROVISIONS
Subcontractor agrees to be bound by any of the following state-specific provisions that apply to the jurisdiction in which the Work under this Agreement is to be performed. The applicable provisions, if any, contained in this Exhibit E, or any superseding provisions of applicable law, shall govern and take precedence over any corresponding provisions in the Agreement itself.
ALABAMA
Risk of Non-Payment by Owner. Subcontractor expressly agrees that receipt of payment by Contractor from Owner is an absolute condition precedent to the right of Subcontractor to receive any payment from Contractor for Work performed under this Agreement. Subcontractor expressly assumes the risk of non- payment by Owner.
ALASKA
Payment Procedure. On all public construction projects, Contractor will pay Subcontractor: (a) for satisfactory performance under this Agreement within eight (8) workdays after receiving payment from which Subcontractor is to be paid;
(b) all Retainage due under this Agreement within eight (8) workdays after final payment is received from the state or political subdivision or after the notice period under AS 36.25.020 (b) expires, whichever is later;
(c) interest on an amount that is not paid in accordance with subsection (a) above for the period beginning on the day after the required payment date and ending on the day on which payment of the amount due is made, computed at an interest rate that is equal to the amount set out in AS 45.45.010 (a);
(d) interest on Retainage withheld from Subcontractor at an interest rate that is equal to the amount set out in AS 45.45.010 (a).
CALIFORNIA
Performance Obligations of Subcontractor; Compliance with Laws.
(a) Subcontractor shall turn all Work over to Contractor free and clear of all liens, claims (including any claim related to a construction defect), or encumbrances and shall promptly notify Contractor of all liens, stop notices, bond claims and other claims and encumbrances, claim(s) of lien or suit(s) filed or maintained by any of Subcontractor's sub-subcontractors or suppliers. Subcontractor, upon notice by Contractor, shall immediately cause any such lien, stop notice or bond claim to be discharged, or satisfied by prompt payment, or released by immediately procuring a valid mechanic's lien or stop notice release bond and recording it in the Official Records of the county in which the project is located or served upon the lender, whichever is appropriate. In the event Subcontractor chooses to procure a lien release bond or stop notice release bond, Subcontractor agrees to take all further steps to perfect removal of the lien from the project that may be reasonably required by a title company or in the case of a stop notice, the lender.
Ex. E-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Subcontractor agrees to execute or have executed by any of its sub-subcontractors, suppliers or materialmen, such lien, stop notice or bond waiver forms as required by Contractor or Owner. If Subcontractor fails to have any such lien or encumbrance discharged, satisfied or removed, Contractor shall have the right but not the obligation to satisfy any such lien or encumbrance whether the lien or encumbrance is valid or not.
(b) Subcontractor shall be exclusively responsible for the occupational safety and health of its employees and agents while engaged in the performance of the Work, shall protect against property damage and personal injury at all locations, and shall take all reasonable safety precautions with respect to its performance of this Agreement and represents that it shall take all necessary precautions while performing its work to ensure the safety of its employees, and the employees of other subcontractors or entities on the Work site. Subcontractor shall follow all requirements of Contractor's and Owner's safety policies and ensure compliance with the Occupational Safety and Health Act of 1970 and all regulations issued thereunder; all applicable state occupational safety and health acts and any applicable regulations promulgated thereunder; and any other lawful orders of any public authorities bearing on the safety of persons or property or their protection from damage, injury or loss; as well as any safety or health programs published by Contractor or Owner. Contractor reserves the right to give Subcontractor notice of any unsafe employees from the Work site and Subcontractor shall remove such employees within the time specified by such notice. Contractor shall have the right to stop the Work and/or correct such practices, equipment or devices at Subcontractor's expense. Subcontractor shall employ competent persons on each Work site capable of identifying unsafe hazards and whose duty shall be to ensure that OSHA and the regulations issued under OSHA and all other laws, regulations, customs and practices are followed and that all reasonable steps necessary to avoid or abate any hazards associated with the Work are taken. Such persons shall have the authority to take prompt corrective measure to correct such hazards, to receive notices of unsafe work practices, equipment, devices or employees as provided herein and to carry out the responsibilities of a "competent" or "qualified" person as required by law or regulation.
(c) Subcontractor is responsible for requiring and enforcing the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions. Subcontractor is responsible for being fully compliant with the current Occupational Safety and Health Administration (OSHA), Part 1926 Safety and Health Regulations for Construction requirements as amended from time to time and any companion state regulations, including those of the California Division of Occupational Safety and Health ("CAL/OSHA"). Further, Subcontractor certifies that, to the extent required, it has provided the necessary OSHA and CAL/OSHA job safety and health training to all employees working on the project site and will require the same of sub-subcontractors or materialmen working on the project site. Subcontractor is responsible for meeting the requirements of any additional state regulations to the extent they are applicable. Material Safety Data Sheets ("MSDS") shall be present on the Work site for all hazardous materials used and/or stored on the Work site. A written weekly report of the employee safety meeting held by Subcontractor for his employees shall be turned in at the weekly subcontractors meeting
Indemnity/Duty to Defend.
(a) All operations, presence, activities or Work by Subcontractor or its principals, officers, agents, employees, vendors, suppliers, consultants, sub-subcontractors, invitees, or anyone employed directly or indirectly by any of them at or for the Work shall be at the sole risk of Subcontractor exclusively. As to its Work, Subcontractor shall be primarily and fully responsible for supervising construction and checking the job for proper workmanship in compliance with the Contract Documents.
(b) Subcontractor shall, to the fullest extent permitted by law, immediately defend (at Subcontractor's sole cost and expense and with legal counsel approved by Contractor, which approval shall not be unreasonably withheld), indemnify and hold harmless Contractor, Contractor’s Surety, Owner, Owner's lender(s), and their respective parents (direct or indirect), subsidiaries, affiliates, officers, directors, agents,
Ex. E-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
servants and/or employees and all additional insureds included pursuant to Exhibit C (each an "Indemnified Party" and collectively, the "Indemnified Parties") from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, liens, stop notices, bond claims, infringement of intellectual property rights, losses, judgments, awards, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs, and all other professional, expert or consultants' fees and costs), damage or injury of any kind or nature whatsoever to all persons whether employees of Subcontractor or otherwise, and to all property including all settlement sums, losses and expenses, including attorneys' fees, suffered by any Indemnified Party, which are caused by, result from or arise out of or are in any manner related to or connected with (directly or indirectly) the fault, negligence, or wrongdoing in performance of the Work by Subcontractor, its principals, officers, agents, employees, vendors, suppliers, consultants, sub-subcontractors, or anyone employed directly or indirectly by any of them at the Work relating to: (i) any operations, presence or activities at the Work site (including, without limitation, any work performed, services provided, equipment used, or materials delivered or prepared); (ii) performance or nonperformance of this Agreement and the Work; (iii) breach of this Agreement; or (iv) violation of any applicable law, ordinance, order, code, citation, rule, regulation, or standard with which Subcontractor is obligated to comply in the performance of Work pursuant to this Agreement. The Subcontractor’s obligation shall include indemnification of an Indemnified Party that is partly at fault but shall not extend to: (i) the sole negligence, active negligence, or willful misconduct of an Indemnified Party; (ii) defects in design furnished by an Indemnified Party; or (iii) claims that do not arise out of the Work or scope of work of Subcontractor pursuant to the Agreement. The duty to indemnify hereunder is not contingent upon Subcontractor's negligence, and even if Subcontractor is not negligent, Subcontractor shall indemnify Contractor. The indemnity obligations of the Subcontractor provided by this Section shall be included in all agreements issued by Subcontractor to its own subcontractors and subconsultants.
(c) In furtherance of, but not in limitation of, the indemnity provisions in this Agreement, Subcontractor hereby expressly and specifically agrees that its obligations to defend, indemnify and hold harmless the Indemnified Parties shall not be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability under state workers' compensation laws.
(d) Payment of any claim by any Indemnified Party shall not be a condition precedent to enforcing such party's rights to indemnification.
(e) In any and all claims against the Indemnified Party by any employee of Subcontractor, its principals, officers, agents, employees, vendors, suppliers, consultants, sub-subcontractors, or anyone employed directly or indirectly by any of them or anyone for whose act any of them may be liable, the indemnification obligation hereunder shall not be limited in any limitation on the amount or type of damages, compensation, or benefits payable under any worker's compensation acts, disability benefit acts, or other employee benefit acts.
(f) The contractual right of indemnification provided to Contractor hereunder shall be in addition to, and not in lieu of, all rights of indemnity at law or in equity for a breach by Subcontractor of any statutory or common law duty or obligation or any of the provisions of this Agreement to which Contractor may otherwise be entitled. Subcontractor's indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until such time as it is determined by final judgment that claims against the Indemnified Parties for such matters indemnified hereunder are fully and finally barred as to the Indemnified Parties by the applicable statute of limitations.
(g) Subcontractor shall, at its own expense, defend the Indemnified Parties against any claim, or any legal proceeding which may invoke Subcontractor's obligations under this Agreement. Subcontractor's duty to defend the Indemnified Parties shall apply whether such claim or legal proceeding is brought only against any or all of the Indemnified Parties, either separately or jointly with Subcontractor. Subcontractor shall
Ex. E-3 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
reimburse each Indemnified Party for any legal expenses and attorneys' fees incurred in enforcing Subcontractor's obligations and/or the indemnity granted to them under this Agreement. The duty to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend exists regardless of any ultimate finding of negligence or liability of Subcontractor or Indemnified Party, except to the extent otherwise provided in this Section. Such defense obligation shall arise immediately upon presentation of a claim by an Indemnified Party and written notice of such claim being provided to Subcontractor provided, however, that the cost of such defense shall be reimbursed to Subcontractor upon final resolution of the claim to the extent (but only to the extent) Subcontractor has no obligation to defend or indemnify Contractor for such claims pursuant to this Section. Subcontractor's liability for indemnification hereunder is in addition to any liability Subcontractor may have to the Indemnified Parties for a breach by Subcontractor of any of the provisions of the Agreement. Under no circumstances shall the insurance requirements and limits set forth in the Agreement be construed to limit Subcontractor's indemnification obligation or other liability hereunder.
Payment Requirements. Subcontractor shall provide, and Contractor shall have approved, all documentation reasonably necessary to process payments, including, but not limited to the following:
(a) A Form W-9, an executed copy of this Agreement, and any certificate of insurance required by Contractor.
(b) With each payment request, Subcontractor shall furnish Contractor with signed lien releases in the form prescribed by Civil Code Section 8132 from all of its subcontractors, suppliers and laborers complying with the requirements of all applicable mechanic lien laws and such other evidence as may be reasonably required by Contractor or Owner to substantiate payment. Commencing with the second payment request and continuing with all subsequent requests, Subcontractor shall provide lien releases in the form prescribed by Civil Code Section 8132 for the present pay period and provide Civil Code Section 8134 releases for the prior pay periods from itself and all of its subcontractors, laborers and suppliers.
(c) Subcontractor shall keep full and detailed records to confirm compliance with the obligations of this Agreement in form satisfactory to Contractor. Contractor shall be afforded access to, and shall be permitted to audit and copy, Subcontractor's records, books, correspondence, instructions, drawings, receipts, employment records, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Agreement. Subcontractor shall preserve such documents and records referred to herein for a period of three (3) years after final payment, or for such longer period as may be required by law. Subcontractor agrees that the auditor of the state in which the Work is performed or any authorized representative of the state, and, where applicable, the Comptroller General of the United States or any other representatives of the United States Government, shall have access to and the right to examine, audit, excerpt and transcribe any directly pertinent books, documents, papers and records of Subcontractor relating to orders, invoices, payments or Subcontractor's performance pursuant to this Agreement. Subcontractor shall not impose any charges for access to its books and records regarding its performance under this Agreement and shall fully cooperate with authorized representatives in the examination or audit of books and records.
(d) Subcontractor’s verification that all workers assigned to Contractor's Work site have a valid driver's license, meeting all driving requirements of the issuing state and Department of Transportation ("DOT"), when applicable.
(e) To the fullest extent permitted by law, all payments are conditioned upon satisfactory performance of the work and Contractor's field approval of work performed by Subcontractor. Any payment due to Subcontractor shall be payable upon Contractor’s receipt of payment from the Owner for the applicable Work. No payments shall be made if Subcontractor is in default of any provision of the Contract.
Ex. E-4 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(f) Final payment shall not be payable until Subcontractor has provided lien releases in the form prescribed by Civil Code Section 8138 from all of its subcontractors and suppliers and a lien release in the form prescribed by Civil Code Section 8136 from itself, together with such other project closeout documentation required by Contractor. Subcontractor shall provide a fully executed Civil Code Section 8138 release to Contractor within ten (10) days of receipt of final payment.
Payment Procedure.
(a) No later than Monday of each week, Subcontractor is to submit an invoice or daily billing sheet ("Application for Payment") for the portion of the Work completed and accepted or approved by the Owner through the preceding Saturday. The invoice or daily billing sheet shall be prepared in duplicate and submitted to Contractor's supervisor for review and approval. After approval, Contractor shall pay Subcontractor within thirty (30) days for the invoice generated or presented, less the amount set forth in Exhibit B (the "Retainage"). As a material part of the consideration under this Agreement, Subcontractor agrees to satisfy any Deficiencies in Retainage (as hereinafter defined) out of or from any Retainage held or owed to Contractor as a result of Work performed hereunder or being performed by Subcontractor under a separate agreement. This provision will survive the termination of this Agreement for one (1) year. Acceptance of final payment by Subcontractor shall act as a release of all claims of Subcontractor or any person claiming under or through Subcontractor against Owner, Contractor, Contractor's surety, if any, in any way related to the Work. As used herein, and subject to the requirements of Civil Code Sections 8810-8818, "Deficiencies in Retainage" shall mean an insufficient amount of Retainage withheld under this Agreement to satisfy any and all claims that result from the performance or non-performance of the Work, regardless of whether such deficiencies become known to Contractor or Owner after final acceptance of the Work. AN INCORRECT OR INCOMPLETE APPLICATION FOR PAYMENT WILL BE RETURNED TO SUBCONTRACTOR. A REVISED APPLICATION FOR PAYMENT SHALL BE RESUBMITTED IN CORRECT AND FINAL FORM WITHIN TWENTY-FOUR HOURS OF REJECTION. APPLICATIONS FOR PAYMENT NOT MEETING THIS DEADLINE WILL BE DEFERRED TO THE NEXT SUBSEQUENT INVOICE SUBMITTAL DATE.
(b) Subcontractor shall hold all payments made to it by Contractor in a trust account to be applied first to the payment of its employees, subcontractors, laborers, and suppliers of materials or services used for or in connection with the Work, including, without limitation, any amount payable in taxes on account of the Work or labor supplied and to any applicable employee benefit plan. Subcontractor shall apply all payments from Contractor in the preceding manner before using any part thereof for any other purpose.
(c) Subcontractor Subject to Owner’s Discount. Certain of Contractor’s customers have mandated in their contracts that they be allowed to take early payment discounts if they make payments, normally 10 to 15 days of receipt of invoice, rather than the standard terms which range from 30 to 60 days. These discounts normally range from 2% to 3%. To the extent Owner takes such discounts, Subcontractor agrees the same percentage of discounts shall be deducted from Subcontractor’s invoice, provided that Contractor pays Subcontractor within 10 days after receipt of Owner’s payment. If requested in advance, Subcontractor will be told whether or not Owner tends to take contract discounts and what percentage they take. Also, if requested, Owner shall provide proof that the Customer takes the applicable discount.
(d) Late billings to Contractor cause problems in its financial statements and to the extent the Subcontractors’ invoices are not timely considered in Contractor’s billings to its customers, cause relationship issues and may not be payable pursuant to the Owner’s contract. Invoices for work that was performed more than 60 days prior to receipt of the invoice will not be paid and will be considered as evidence of work that Subcontractor performed but is not charging Contractor for relationship purposes.
Ex. E-5 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(e) Contractor reserves the right to determine its preferred form of payment. Subcontractor agrees to accept payment from Contractor in the form of ACH Bank Electronic Funds Transfers.
(f) Payment of retainage to Subcontractor is not conditioned on final payment made to Contractor by Owner of all sums owed to Contractor under the Primary Contract and any amendment thereto.
Payment Procedure. Contractor’s receipt of payment from Owner shall not be a condition precedent to Subcontractor’s receipt of payment from Contractor. Such payment will be made to Subcontractor within a reasonable period of time of satisfactory completion of the Work.
Assignment. In the event Subcontractor desires to assign its rights to receive payment under this Agreement, it shall first give seven (7) days prior written notice to Contractor of its intent to assign the right to collect money due and/or its account receivable under this Agreement. Contractor reserves the right to charge a processing fee of up to twenty percent (20%) of each monthly invoice in order to cover its administrative expenses in processing the additional payment requests, lien releases and other documentation generated by the assignment. Contractor further reserves the right to make any payments otherwise due to Subcontractor under this Agreement directly to any of Subcontractor's material suppliers, subcontractors, laborers and/or equipment suppliers and to deduct said amounts from the amount due and owing to Subcontractor by Contractor before paying the balance of any payment to any financing or factoring institution.
Governing Law. Subcontractor agrees to participate in, join in, and be bound by any proceeding which directly or indirectly relates to this Agreement or the Work and for which Contractor demands, by written notice, that Subcontractor participate. Any claim or action by Subcontractor must be commenced within one (1) year of the date of the accrual of the cause of action, but in no event after final payment to Subcontractor. If any claim or dispute arises relating to this Agreement, Subcontractor shall immediately make all of its books and records available to Contractor for review and audit.
Hazardous Materials. As used herein, the term "Hazardous Materials" means and includes any flammable explosives, radioactive materials or hazardous, toxic or dangerous wastes, substances or related materials or any other chemicals, materials or substances, exposure to which is prohibited, limited or regulated by any federal, state, county, regional or local authority or which, even if not so regulated, may or could pose a hazard to the health and safety of the occupants of the Work or of property adjacent to the Work, including, but not limited to, asbestos, PCB's, petroleum products and by-products (including, but not limited to, crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), substances defined or listed as "hazardous substances", "hazardous materials", "hazardous wastes" or "toxic substances" or similarly identified in, pursuant to, or for purposes of the California Solid Waste Management, Resource Recovery and Recycling Act, as now or hereafter amended (California Government Code Section 66700 et seq.); the Comprehensive Environmental Response, Compensation, and Liability Act, as now or hereafter amended (42 U.S.C. Section 9601, et seq.); the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Section 1801, et seq.); the Resource Conversation and Recovery Act, as now or hereafter amended (42 U.S.C Section 6901, et seq.); Section 25281, Section 25316 or Section 25501 of the California Health & Safety Code, as now or hereafter amended; any so-called "Superfund" or "Superlien" law; or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material; or any substances or mixture regulated under the Toxic Substance Control Act of 1976, as now or hereafter amended (15 U.S.C. Section 2601 et seq.); and any "toxic pollutant" under the Clean Water Act, as now or hereafter amended (33 U.S.C. Section 1251 et seq.); and any hazardous air pollutant under the Clean Air Act, as now or hereafter amended (42 U.S.C. Section 7901 et seq.), and any "waste" under Section 13050
Ex. E-6 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
of the California Water Code, as now or hereafter amended; those substances, materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or such substances, materials and wastes that are or become regulated under any applicable local, state or federal law.
(a) As used herein, the term "Hazardous Materials Regulations" means and includes any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning the use, handling, storage, disposal or other activities involving Hazardous Materials, including, without limitation, any Hazardous Materials Regulations specifically referenced above.
(b) Prior to commencing the Work, Subcontractor shall identify to Contractor in writing, all Hazardous Materials to be used in performing the Work or to be brought onto the Work by Subcontractor, and shall maintain MSDSs for those substances as per OSHA requirements. All work, labor, services or materials necessary to comply with this Section will be furnished by Subcontractor as part of this Agreement without any additional compensation. Subcontractor shall immediately identify to Contractor in writing all Hazardous Materials discovered during the performance of the Work omitted from any previous notifications(s) and promptly provide the MSDS on those substances to Contractor. Subcontractor shall immediately notify Contractor if Subcontractor or any of its partners, employees, agents, subcontractors, customers, invitees or suppliers, brings a chemical which has been listed on the Governor's list pursuant to Proposition 65 (a "listed chemical") onto the Work and shall, in addition, provide Contractor with copies of all warning labels on products Subcontractor or said persons are using. Subcontractor may be released from its obligation thereunder to post the exposure warning signs required by Proposition 65, and only that obligation, only with the express written permission of Contractor.
(c) Except as provided for in this Agreement, Subcontractor shall not cause or permit any Hazardous Materials to be brought upon, stored, handled or used in or about the Work site without the prior written consent of Contractor, which Contractor shall not unreasonably withhold as long as Subcontractor demonstrates to Contractor's reasonable satisfaction that such Hazardous Materials (i) are necessary or useful to completion of the Work, (ii) are required pursuant to the Contract Documents, and (iii) will be used, stored, handled and disposed of in compliance with all applicable Hazardous Materials Regulations. Any unused or surplus Hazardous Materials, as well as any other Hazardous Materials which have been placed, released or discharged on the Work by Subcontractor or any of its partners, employees, agents, subcontractors, customers, invitees or suppliers, shall be removed from the Work site at the earlier of (i) the completion of the Work requiring the use of such Hazardous Materials; (ii) the completion of the Work as a whole; or (iii) within twenty-four (24) hours following Contractor's demand for such removal. Such removal shall be undertaken by Subcontractor at its sole cost and expense and shall be performed in accordance with all applicable Hazardous Materials Regulations.
(d) Subcontractor shall immediately notify Contractor if it should discover any Hazardous Materials on or under the Work site or within the improvements thereon. Subcontractor shall not take any action which may disturb any Hazardous Materials found on or under the Work site or within the improvements thereon. Contractor shall notify Subcontractor what, if any, measures shall be taken by Subcontractor with respect to any Hazardous Materials found and Subcontractor shall comply with such instructions.
(e) It shall be Subcontractor's duty to maintain and to provide Contractor with copies of any and all records, reports and disclosures required by any Hazardous Materials Regulations, including without limitation, all warning labels and MSDS on products which Subcontractor or any of its partners, employees, agents, subcontractors, customers, invitees or suppliers, will be bringing to the Work site and/or using in connection with the Work. Subcontractor shall be solely responsible for maintaining any such records and
Ex. E-7 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
making any and all reports or disclosures required under any applicable Hazardous Materials Regulations, OSHA, any "Community or Right-to-Know" Laws or Proposition 65. Subcontractor shall immediately notify Contractor of any citations, orders or warnings issued to or received by Subcontractor, or which Subcontractor, otherwise becomes aware, which relate to any Hazardous Materials on the Work.
(f) Neither Subcontractor nor any of its partners, employees, agents, subcontractors, customers, invitees or suppliers shall clean or service any tools, equipment, vehicles, materials or other items in such manner as to cause a violation of any Hazardous Materials Regulations, including without limitation, Proposition 65. Subcontractor shall collect, remove from the Work site and dispose of, all residue and waste materials resulting from any such cleaning action in accordance with all applicable Hazardous Materials Regulations.
(g) If Subcontractor breaches the obligations stated above, or if the presence of Hazardous Materials on or under the Work, caused, released or permitted by Subcontractor, results in contamination of the Work, or if contamination of the Work by Hazardous Materials otherwise occurs for which Subcontractor is liable to Contractor, Subcontractor shall, to the fullest extent permitted by law, indemnify, immediately defend without need for a court order (at Subcontractor's sole cost and expense, and with legal counsel approved by Contractor) and hold harmless Contractor, Contractor’s Surety, Owner, Owner's lender(s) and property management company and all other Indemnified Parties as set forth in Section 9 whether such obligation arises during or after the term of this Agreement as a result of such contamination. This indemnification by Subcontractor includes, without limitation, costs incurred in connection with any investigation of Work conditions, or any clean-up, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Materials present in the soil or ground water on or under the Work, arising out of or relating to, directly or indirectly, Subcontractor's failure to comply with any of the requirements of this Section. Without limiting the foregoing, if the presence of any Hazardous Materials on the Work caused, permitted or released by Subcontractor results in any damage to the Work, or any adjacent property, Subcontractor shall promptly take all actions at its sole cost and expense, and in compliance with all applicable Codes, as are necessary to return the Work, or adjacent property to the condition existing prior to the introduction of any such Hazardous Materials to the Work, provided that Contractor's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Work. The foregoing indemnity is in addition to the provisions of Section 9 of this Agreement and shall survive the expiration or earlier termination of this Agreement.
COLORADO
Risk of Non-Payment by Owner. Subcontractor expressly agrees that receipt of payment by Contractor from Owner is an absolute condition precedent to the right of Subcontractor to receive any payment from Contractor for Work performed under this Agreement. Subcontractor expressly bears the risk of non- payment by Owner.
FLORIDA
Contract Documents. Notwithstanding anything in this Agreement to the contrary, it is expressly acknowledged and agreed by the parties that any and all payment terms between Owner and Contractor set forth in the Contract Documents are not incorporated by reference herein and are expressly excluded from this Agreement.
Ex. E-8 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Time is of the Essence. If Subcontractor is delayed in the performance of the Work by conditions that could not be foreseen by Subcontractor and that are beyond the reasonable control of Subcontractor, then Contractor will grant Subcontractor a reasonable extension of time, provided that Subcontractor applies in writing for such an extension of time within ten (10) days after the commencement of the delay (or such shorter period of time as may be required by the Contract Documents). If Subcontractor fails to apply in writing for such an extension within ten (10) days (or such shorter period of time as may be required by the Contract Documents) after the commencement of the delay, Subcontractor waives the right to an extension of the contract time. Contractor and Subcontractor agree, and Subcontractor acknowledges, that the contract amount is based upon the fact that Contractor shall not be liable to Subcontractor for any damages, costs or expenses incurred by Subcontractor due to delays, acceleration, non-performance, interference with performance, suspensions, or changes in the performance or sequence of performance of the Work. Accordingly, Subcontractor acknowledges and agrees that no such delay, acceleration, non-performance, interruption, interference, inefficiency, suspension or change from any cause whatever, including those for which Contractor, Owner and/or Owner's design professional may be responsible, in whole or in part, shall relieve Subcontractor of its duty to perform or give rise to any right to damages or additional compensation from Contractor or Owner. Subcontractor expressly acknowledges and agrees that it shall receive no damages for delay. Subcontractor's sole remedy, if any, against Contractor or Owner will be the right to seek an extension to the contract time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion. In no event shall Subcontractor be entitled to any extension of time for any delays, disruptions or interferences caused or contributed to in any way by Subcontractor.
Indemnity/Duty to Defend.
(a) Indemnity for Private Projects
(i) To the fullest extent permitted by Florida law, Subcontractor shall defend, indemnify and hold harmless Contractor, Owner, Owner's lender(s), and their respective parents (direct or indirect), subsidiaries, affiliates, officers, directors, agents, servants and/or employees (each an "Indemnified Party" and collectively, the "Indemnified Parties") from and against all liability, damage or injury of any kind or nature whatsoever to all persons, whether employees of Subcontractor or otherwise, and to all property including all settlement sums, losses and expenses, including attorneys' fees, suffered by any Indemnified Party, which are caused by, result from or arise out of Subcontractor's (i) performance or nonperformance of this Agreement and the Work, (ii) breach of this Agreement or (iii) violation of any applicable law; whether or not such claims are based upon an Indemnified Party's alleged active or passive sole negligence or participation or upon any alleged breach of any statutory duty or obligation on the part of an Indemnified Party, Subcontractor agrees to the aforesaid indemnification. In addition, Subcontractor expressly agrees to defend, indemnify and hold harmless the Indemnified Parties from and against any and all liabilities and claims which may be asserted against any Indemnified Party by an employee or former employee of Subcontractor for which Subcontractor's liability to such employee or former employee would otherwise be limited to payments under state workers' compensation or similar laws. In furtherance of, but not in limitation of, the indemnity provisions in this Agreement, Subcontractor hereby expressly and specifically agrees that its obligations to defend, indemnify and hold harmless the Indemnified Parties shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability under state workers' compensation laws. Subcontractor agrees that the indemnification given herein shall be limited to the amount of loss suffered by an Indemnified Party or Ten Million Dollars ($10,000,000) per occurrence, whichever is less, which amount is stipulated by the parties to bear a reasonable commercial relationship to the Agreement.
Ex. E-9 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(ii) Any indemnification provided by Subcontractor shall only apply to damages to persons or property caused in whole or in part by any act, omission, or default of:
(A) Subcontractor;
(B) Any of Subcontractor's sub-subcontractors, materialmen, or agents of any tier or their respective employees; or
(C) The Indemnified Parties or their officers, directors, members, agents, or employees. Provided, however, that such indemnification shall not include:
(1) claims of, or damages resulting from gross negligence, or willful, wanton or intentional misconduct of the Indemnified Parties or their officers, directors, members, agents or employees; or
(2) claims for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the Subcontractor's or any of the Subcontractor's sub-subcontractors, materialmen, or agents of any tier or their respective employees.
(b) Indemnity for Public Projects. In the event the Work to be performed under this Agreement is in connection with a public agency's project, to the fullest extent permitted by Florida law, Subcontractor shall defend, indemnify and hold harmless Contractor, Owner, Owner's lender(s), and their respective parents (direct or indirect), subsidiaries, affiliates, officers, directors, agents, servants and/or employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the Subcontractor and persons employed or utilized by the Subcontractor in the performance of this Agreement.
(c) The duty to defend under this Section is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of Subcontractor or any Indemnified Party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to Subcontractor. Subcontractor's obligation to indemnify and defend under this Section will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the Indemnified Party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations.
(d) If any word, clause or provision of this Section is determined not to be in compliance with Section 725.06, Florida Statutes, including any amendments thereto, it shall be stricken and the remaining words, clauses and provisions shall remain in full force and effect. It is the intent of the parties that this indemnification complies fully with Section 725.06, Florida Statutes, including any amendments thereto, in all respects. Furthermore, this indemnification is in addition to and not in lieu of common law indemnification to which the Indemnified Party is entitled. Subcontractor further agrees that it shall reimburse any Indemnified Party its reasonable attorneys' fees, costs and expenses incurred by such Indemnified Party in enforcing Subcontractor's obligations to defend and indemnify hereunder.
Performance Obligations of Subcontractor; Compliance with Laws.
Ex. E-10 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(a) Subcontractor (to the extent Subcontractor receives payment from Owner and/or Contractor) hereby absolutely waives and releases any and all liens, claims or right to file a lien on all Contractor or Owner properties, real and personal, including, but not limited to, equipment, buildings, lines, and poles, upon which Subcontractor or its employees, agents or subcontractors have performed labor or supplied material (or both), pursuant to statutes of the state where the Work was performed relating to mechanic's liens. At any time, as a condition precedent to any payment to Subcontractor, Contractor may require Subcontractor to execute or have executed by any of its sub-subcontractors, suppliers or materialmen, a conditional lien or conditional bond waiver form in accordance with Chapter 713, Florida Statutes.
(b) In the event that any lien or other encumbrance of any kind is placed on the materials or Work provided by Subcontractor (to the extent Subcontractor receives payment from Owner and/or Contractor) or any person acting at Subcontractor's direction or directly or indirectly on Subcontractor's behalf, such occurrence shall be deemed a breach of this Agreement. In such case, Contractor may terminate this Agreement without any liability to Subcontractor, except for Work already furnished and accepted by Contractor. Subcontractor agrees to reimburse Contractor for any additional costs incurred by Contractor due to such occurrence, in addition to Subcontractor's obligations under Section 4 of this Agreement.
(c) Subcontractor understands that the laws, requirements, and provisions from the Primary Contract (except for the payment provisions contained therein) flow down and are applicable to Subcontractor, the Work, Subcontractor's employees, Subcontractor's subcontractors, and their work. Subcontractor understands and agrees that such laws, requirements, and provisions cannot be amended or modified by Contractor or Subcontractor, unless done in writing and unless such modification does not conflict with the laws, requirements, and provisions applicable to the Primary Contract. Subcontractor further represents that it is not relying on Contractor regarding what federal, state, county, municipal, and local laws, ordinances, rules, regulations, codes, and any other orders of governmental or public authorities apply to the Work. Subcontractor further represents that it has had an opportunity to seek advice of counsel regarding what the laws may be and how to comply with such laws. Subcontractor also represents that it knows and understands that the laws may be amended and/or change from time to time, and that it is Subcontractor's responsibility to maintain compliance with the laws.
Assignment. In the event the Primary Contract is terminated for any reason, Subcontractor acknowledges and agrees that this Agreement may be assigned to Owner, provided Owner accepts the assignment. Subcontractor hereby expressly consents to any such assignment. In such event, Subcontractor acknowledges and agrees that Contractor shall have no further liability to Subcontractor hereunder, and Subcontractor expressly releases Contractor, with respect to any claims arising after the effective date of such assignment.
Non-Competition and Non-Solicitation.
(a) The restrictions in this Section are considered by the parties to be reasonable for the purposes of protecting the legitimate business interests of Contractor, including but not limited to the protection of Confidential Information and Trade Secrets (as defined in Section 20 of this Agreement), substantial relationships with existing customers, and customer goodwill. If any restriction is found by a court of competent jurisdiction to be unenforceable because it extends for too long a period of time, over too broad a range of activities or in too large a geographic area, that restriction shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable. Subcontractor agrees that if Subcontractor violates the restrictive covenants in this Section, such violation shall toll the running of the restrictive periods provided for in this Section from the date of such violation until the date on which such violation ceases.
Ex. E-11 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(b) Subcontractor agrees and understands that Contractor has taken great measures, at a great expense, to protect its Confidential Information and Trade Secrets (as defined in Section 20 of this Agreement) as well as its relationships with its customers. Subcontractor further agrees that but for Subcontractor's acceptance of the restrictive covenants herein, Contractor would not permit Subcontractor to have access to its Confidential Information and Trade Secrets and would not permit Subcontractor to perform the Work.
(c) In addition to Contractor, the promises set forth in this Section shall inure to the benefit of Contractor’s successors, assigns, parents, and related entities, regardless of whether such entity is in existence at the time of execution of this Agreement or formed thereafter, and Subcontractor hereby consents to the enforcement of the restrictions by any successor, assignee, parent, subsidiary, affiliate, joint venture or related entity of Contractor.
Risk of Non-Payment by Owner. Unless the failure to have received payment from Owner shall have been caused solely by the fault of Contractor, receipt of payment by Contractor from Owner is an absolute condition precedent: (a) to the right of Subcontractor to receive any payment from Contractor hereunder; and (b) to the Subcontractor's right to make any claim against Contractor's payment bond, if a payment bond is provided for the project.
LOUISIANA
Independent Contractor. Pursuant to and in accordance with Louisiana Worker's Compensation Act, La. R.S. 23:1021, et seq., including but not limited to La. R.S. 23:1061, Contractor and Subcontractor agree that a statutory employer relationship exists between Contractor and Subcontractor's employees and Owner and Subcontractor's employees. Contractor and Subcontractor agree that all work performed by Subcontractor and its employees is part of Owner's and Contractor's trade, business or occupation and is an integral part of and is essential to the ability of Owner and Contractor to generate the Owner's and Contractor's goods, products and services. Contractor and Subcontractor agree that Owner and Contractor are statutory employers of Subcontractor's employees. The above notwithstanding, Subcontractor shall remain solely and primarily responsible and liable for the payment of Louisiana worker's compensation benefits and insurance premiums to and for its employees and shall not be entitled to any contribution or indemnity for any such payments from Owner or Contractor.
MARYLAND
Risk of Non-Payment by Owner. Subcontractor expressly agrees that receipt of payment by Contractor from Owner is an absolute condition precedent to the right of Subcontractor to receive any payment from Contractor for Work performed under this Agreement. Subcontractor expressly assumes the risk of non- payment by Owner.
NEW YORK
Payment Procedure. Contractor’s receipt of payment from Owner shall not be a condition precedent to Subcontractor’s receipt of payment from Contractor. Such payment will be made to Subcontractor within a reasonable period of time of satisfactory completion of the Work.
Non-Competition and Non-Solicitation. The territory covered by Section 19 of this Agreement is the states of New York, New Jersey and Connecticut.
Ex. E-12 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
TEXAS
Indemnity/Duty to Defend.
(a) GENERAL INDEMNITY. TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CHAPTER 151 OF THE TEXAS INSURANCE CODE, SUBCONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CONTRACTOR, OWNER, OWNER'S LENDER(S), AND THEIR RESPECTIVE PARENTS (DIRECT OR INDIRECT), SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, SERVANTS AND/OR EMPLOYEES (EACH AN "INDEMNIFIED PARTY" AND COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND AGAINST ALL LIABILITY, DAMAGE, INJURY OR DEATH OF ANY KIND OR NATURE WHATSOEVER TO ALL PERSONS, AND TO ALL PROPERTY, INCLUDING LOSS OF USE OF PROPERTY, ALL SETTLEMENT SUMS, LOSSES AND EXPENSES, INCLUDING ATTORNEYS' FEES, SUFFERED BY ANY INDEMNIFIED PARTY, WHICH ARE CAUSED BY, RESULT FROM OR ARISE OUT OF SUBCONTRACTOR'S (I) PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND THE WORK, (II) BREACH OF THIS AGREEMENT OR (III) VIOLATION OF ANY APPLICABLE LAW; WHETHER OR NOT SUCH CLAIMS ARE BASED IN PART UPON AN INDEMNIFIED PARTY'S ALLEGED ACTIVE OR PASSIVE NEGLIGENCE OR PARTICIPATION OR UPON ANY ALLEGED BREACH OF ANY STATUTORY DUTY OR OBLIGATION ON THE PART OF AN INDEMNIFIED PARTY, BUT ONLY TO THE EXTENT CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, STRICT LIABILITY OR FAULT OF SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY SUBCONTRACTOR OR ANYONE FOR WHOSE ACTS SUBCONTRACTOR MAY BE LIABLE. SUBCONTRACTOR AGREES TO THE AFORESAID INDEMNIFICATION.
(b) EMPLOYEE INJURIES. NOTWITHSTANDING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CHAPTER 151 OF THE TEXAS INSURANCE CODE, SUBCONTRACTOR EXPRESSLY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LIABILITIES AND CLAIMS WHICH MAY BE ASSERTED AGAINST ANY INDEMNIFIED PARTY BY AN EMPLOYEE, AGENT, OR REPRESENTATIVE OF SUBCONTRACTOR OR ANY OF ITS SUB-SUBCONTRACTORS, REGARDLESS OF WHETHER SUCH CLAIM, DAMAGE, LOSS OR EXPENSE IS CAUSED, OR IS ALLEGED TO BE CAUSED, IN WHOLE OR IN PART BY THE NEGLIGENCE, STRICT LIABILITY OR FAULT OF ANY INDEMNITEE, IT BEING THE EXPRESSED INTENT OF CONTRACTOR AND SUBCONTRACTOR THAT IN SUCH EVENT THE SUBCONTRACTOR IS TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE INDEMNITEES FROM THE CONSEQUENCES OF THEIR OWN NEGLIGENCE, STRICT LIABILITY OR FAULT WHETHER IT IS OR IS ALLEGED TO BE THE SOLE OR CONCURRING CAUSE OF THE BODILY INJURY, SICKNESS, DISEASE OR DEATH OF SUBCONTRACTOR’S EMPLOYEE OR THE EMPLOYEE OF ANY OF ITS SUBCONTRACTORS, AND FOR WHICH SUBCONTRACTOR'S LIABILITY TO SUCH EMPLOYEE WOULD OTHERWISE BE LIMITED TO PAYMENTS UNDER STATE WORKERS' COMPENSATION OR SIMILAR LAWS. IN FURTHERANCE TO, BUT NOT IN LIMITATION OF, THE INDEMNITY PROVISIONS IN THIS AGREEMENT, SUBCONTRACTOR HEREBY EXPRESSLY AND SPECIFICALLY AGREES THAT ITS OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES SHALL NOT IN ANY WAY BE AFFECTED OR DIMINISHED BY ANY STATUTORY OR CONSTITUTIONAL IMMUNITY IT ENJOYS FROM SUITS BY ITS OWN EMPLOYEES OR FROM LIMITATIONS OF LIABILITY UNDER STATE WORKERS' COMPENSATION LAWS.
(c) SUBCONTRACTOR SHALL, AT ITS OWN EXPENSE, DEFEND THE INDEMNIFIED PARTIES WITH COUNSEL OF THE INDEMNITEE’S CHOICE, AGAINST ANY CLAIM, OR ANY
Ex. E-13 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
LEGAL PROCEEDING WHICH MAY INVOKE SUBCONTRACTOR'S OBLIGATIONS UNDER THIS AGREEMENT. SUBCONTRACTOR'S DUTY TO DEFEND THE INDEMNIFIED PARTIES SHALL APPLY WHETHER SUCH CLAIM OR LEGAL PROCEEDING IS BROUGHT ONLY AGAINST ANY OR ALL OF THE INDEMNIFIED PARTIES, EITHER SEPARATELY OR JOINTLY WITH SUBCONTRACTOR. SUBCONTRACTOR SHALL REIMBURSE EACH INDEMNIFIED PARTY FOR ANY LEGAL EXPENSES AND ATTORNEYS' FEES INCURRED IN ENFORCING SUBCONTRACTOR'S OBLIGATIONS AND/OR THE INDEMNITY GRANTED TO THEM UNDER THIS AGREEMENT.
(d) SUBCONTRACTOR SHALL OBTAIN INSURANCE SUFFICIENT TO COVER ITS INDEMNITY OBLIGATIONS IN THIS PARAGRAPH, BUT THE COVERAGE OF ANY INSURANCE POLICY REQUIRED HEREIN OR ACTUALLY CARRIED BY SUBCONTRACTOR SHALL NOT LIMIT THE EXTENT OF SUBCONTRACTOR'S LIABILITY UNDER THE FOREGOING INDEMNITY. SUBCONTRACTOR'S OBLIGATIONS UNDER THIS SUBCONTRACT, AND SPECIFICALLY THIS PARAGRAPH, SHALL SURVIVE THE TERMINATION OF THE SUBCONTRACTOR OR THE AGREEMENT FOR ANY REASON.
Conditions Precedent to Payment. In the event Owner's nonpayment is due to Contractor's failure to meet its obligations set forth in the Primary Contract, and such failure is not due to Subcontractor's failure to meet its obligations pursuant to the Contract Documents, Contractor accepts the risk of nonpayment by Owner, and Subcontractor will be paid within a reasonable amount of time. In the event Owner's nonpayment is due to any other reason, Subcontractor accepts the risk of nonpayment, and Subcontractor waives all right to commence litigation or arbitration against Contractor for any such non-payment. Subcontractor's sole and exclusive remedy for such non-payment shall be assignment to Subcontractor of Contractor's pass-through claim against Owner. Nothing contained in this provision affects the rights of Contractor to assert any deductions, offsets or back charges under other provisions of this Agreement.
WEST VIRGINIA
Risk of Non-Payment by Owner. Receipt of payment by Contractor from Owner is an absolute condition precedent: (a) to the right of Subcontractor to receive any payment from Contractor hereunder; and (b) to Subcontractor's right to make any claim against Contractor's payment bond, if a payment bond is provided for the project.
Ex. E-14 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
APPENDIX A
Supplier Code of Conduct
Ansco & Associates, LLC
Ansco & Associates, LLC. (collectively, “Ansco”) are committed to conducting business with the highest standards of integrity and ethics, and with abiding respect for corporate citizenship and sustainability. Suppliers are a key part of Ansco’s business, and therefore, we require them to adhere to the principles for promoting this commitment set forth in the following Supplier Code of Conduct (this “Code”). This Code mirrors the standards we set for our own employees and board of directors.
As used in this Code, “Supplier” refers to any person providing products or services to Ansco, its subcontractors, and its agents, including those indirectly providing services to us. Suppliers are expected to ensure that the principles of this Code are communicated to their employees, subcontractors, agents, and representatives doing business with or on behalf of Ansco. Suppliers are responsible for the acts and omissions of their personnel and for ensuring that their employees, subcontractors, agents, and representatives doing business with or on behalf of Ansco comply with the requirements of this Code.
At a minimum, all Suppliers must operate in full compliance with the laws, rules and regulations of the jurisdictions in which they operate or where they provide services to Ansco. Where this Code sets higher standards than what the law provides, Ansco expects Suppliers to adhere to such standards. This Code supplements, but does not supersede, any contracts between Ansco and a Supplier.
Suppliers are expected to ensure compliance with Ansco’s other published policies, including its Quality, Health, Safety & Environmental Policy; Related Party Transaction Policy; Policies and Procedures Governing Insider Trading and Related Matters; Human Rights Policy; and Sustainable Procurement Policy. These policies and this Code may be updated from time to time, and Suppliers are expected to regularly check anscollc.com/subcontractors/ for updates.
I. Ethics and Standards of Conduct
Suppliers must uphold the highest standards of ethics and behavior, including the following:
Business Integrity
Suppliers must carry out their business honestly and ethically and comply with all laws and regulations within the jurisdictions in which they operate. All forms of illegal or inappropriate activity, including, but not limited to, corruption, misrepresentation, extortion, embezzlement, or bribery, are strictly prohibited. Ansco expects its Suppliers to maintain policies and processes to ensure such behavior does not occur.
Competition, Advertising, and Marketing; Social Media
Ansco expects Suppliers to uphold fair business standards in advertising, sales, and competition. Suppliers may not use Ansco’s logos, trademarks, or other intellectual property without Ansco’s express written consent. If Ansco consents to such use, any reference or implication to Ansco in any manner must be truthful and accurate. Suppliers must not use social media in a way that harms the Ansco brand, our workers, systems, or assets.
Alcohol and Drugs
Suppliers must not engage in any work for or on behalf of Ansco, or in any fashion represent, or make any representations on behalf of Ansco, while under the influence of alcohol or other substances that may impair
App. A-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
the ability to work safely. In addition, Suppliers may not possess, use or distribute illegal drugs or controlled substances while on Ansco premises or worksites, while in our vehicles, or while conducting business with or for Ansco. This prohibition does not include use or possession of legally obtained medications as directed by a licensed medical practitioner.
Ansco Property, Funds, and Information; Records
Suppliers must use all Ansco property, including, but not limited to, equipment, funds, documents, electronic and written information and communications systems, with care and adherence to acceptable standards and Ansco’s rules and procedures. Records prepared for Ansco, including records of work time and expenses, must be accurate, truthful, and complete, and must meet applicable standards and requirements.
Suppliers are required to report any suspected or actual misuse, theft, vulnerability, improper exploitation, or sabotage of Ansco property.
International Business; Money Laundering
Suppliers must never engage in money laundering or actions related to terrorism, or do business with persons upon whom sanctions have been imposed by the U.S. Government. “Money laundering” is generally defined as engaging in acts designed to conceal or disguise the true origins of criminally derived proceeds so that the proceeds appear to have derived from legitimate origins or constitute legitimate assets. In addition, to the extent applicable, Supplier must act in full compliance with the U.S. Export Administration Act, the Export Administration Regulations, the Foreign Corrupt Practices Act, and any related applicable international laws. Suppliers must make only proper and permissible payments to persons outside the U.S. and exchange business courtesies only in accordance with this Code and with applicable laws.
Business Courtesies; Conflict of Interest
Suppliers are expected to compete based on the merit of their products and services, not through gifts, entertainment, or other excessive business courtesies. Suppliers must follow these guidelines:
• Suppliers may not provide gifts or entertainment exceeding a nominal value, or with a frequency that creates the appearance of a conflict of interest. • Suppliers must not provide gifts or entertainment that could embarrass Ansco or harm its reputation. • Payments of cash or cash equivalents by Suppliers to Ansco employees, or third parties designated by a Ansco employee, are never allowed. • Any request by Ansco employees to provide gifts or entertainment is not permitted and should be immediately reported in accordance with this Code. • Suppliers must disclose any known family or personal relationships with Ansco employees who have any influence over or involvement in Ansco business dealings or that may otherwise create the appearance of a conflict of interest.
Governmental Entities; Political Interactions
When Suppliers team with Ansco in providing goods and services to government entities within the U.S., or otherwise deal with governmental officials in connection with Ansco matters, gifts or entertainment of any value in connection with any Ansco matter, are not permitted without Ansco’s express written authorization.
App. A-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Suppliers are prohibited from contributing to any political party, official or candidate in connection with any Ansco matter without Ansco’s express written consent. Suppliers must not make representations to public officials on behalf of Ansco without its express written approval.
II. Labor
Ansco expects Suppliers to treat all employees with respect and dignity, and as such, Suppliers are expected to adhere to the following labor standards:
No Child Labor; No Forced Labor
Suppliers must not use child labor. The term “child” refers to any person under the age of 14, or under the applicable minimum age for completion of compulsory education, or under the minimum legal age for employment in the relevant jurisdiction, whichever is the highest. In addition, Suppliers must not use forced labor of any type, including bonded, indentured, or involuntary prison labor.
Freedom of Association and Collective Bargaining
Suppliers must comply with applicable laws and regulations governing the legal rights of their employees to join or not join worker organizations, including trade unions, and the right to collectively bargain, if they choose to be represented. Suppliers should use good employee communication to promote positive employee relations.
Non-Discrimination; Diversity
Ansco embraces diversity and equal opportunity as fundamental principles and key components of its corporate strategy. Suppliers should work toward having a diverse workforce. Suppliers must not engage in discrimination on any basis prohibited by applicable laws. Suppliers must provide equal employment opportunities to all potential workers, applicants, and employees and must maintain a workplace free from abuse, illegal discrimination, harassment, and retaliation. Suppliers must not discriminate in their hiring and employment practices based on race, color, age, sex, gender, gender identity, sexual orientation, citizenship, national origin, religion, disability, pregnancy, or other legally protected status.
Working Hours and Wages
Suppliers must comply with all applicable wage laws, including those relating to minimum wages, overtime hours, and legally mandated benefits. Employees should have the ability to earn fair wages, as determined by applicable laws.
III. Health and Safety
Ansco expects Suppliers to apply robust health and safety policies and practices in their operations. Suppliers must provide a safe and healthy work environment in accordance with applicable standards, laws, rules, and regulations and must maintain a work environment that is free from violence and threatening, hostile, or abusive behavior. Suppliers should provide appropriate health and safety information and training to their employees. Ansco expects Suppliers to minimize the impact of emergency events by proactively implementing business continuity plans and response procedures.
Suppliers working on Ansco’s behalf must have procedures and systems to promptly prevent, manage, track, and report all occupational injuries and illnesses and any hazardous or unsafe working conditions.
IV. Environment; Sustainable Business Practices
App. A-3 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Ansco is committed to reducing negative environmental impacts across our supply chain. Suppliers should use reasonable efforts to minimize their impact on the environment and source responsibly. Supplier also must comply with all applicable environmental laws and regulations.
V. Confidentiality and Privacy; Information Security
Ansco values and protects confidential information, including information about its customers, employees, operations, finances, and business plans. Suppliers may be granted access to confidential information of or relating to Ansco or one or more Ansco customers. Ansco may execute a nondisclosure agreement or enter into an agreement with confidentiality provisions with Suppliers before providing access to confidential information. Ansco may also include a confidential/proprietary legend on confidential information. Suppliers must protect Ansco’s or its customer’s confidential information in compliance with those agreements and confidential/proprietary legends. Any unauthorized disclosure of Ansco’s or its customer’s confidential information is prohibited. This includes inadvertent disclosures, which means that Suppliers must not discuss Ansco’s or its customer’s confidential information in public areas where discussions could be easily intercepted or overheard.
Suppliers that store, process, or access Ansco’s or its customer’s information must implement and maintain appropriate physical, technical, and organizational measures to ensure the security, confidentiality, and integrity of their systems and processes and must securely maintain any such information. Suppliers are expected to notify Ansco within 24 hours after the discovery of any known or suspected unauthorized access, use, misuse, disclosure, theft, loss, transfer, or destruction of Ansco’s or its customer’s information. Ansco will follow similar measures to protect Suppliers’ confidential information.
VI. Property Rights
Ansco respects the property rights of others, and its policy is to honor and respect others’ intellectual property rights, including patents, trademarks, and copyrights. Suppliers should not engage in any improper use of the intellectual property rights of others, including the unlawful or unauthorized copying, revealing, or use of anyone’s intellectual property. Improper use by a Supplier of others’ intellectual property may expose Ansco and such Supplier to criminal and civil fines and penalties.
VII. Insider Trading
Suppliers may not buy or sell securities of Ansco when in possession of material, non-public information and must not share such information with others for any improper purpose.
VIII. Grievance Procedures
Suppliers are expected to enable employees to communicate openly with management regarding working conditions without fear of reprisals, intimidation, or harassment. Suppliers should also have grievance mechanisms in place to allow complaints from other stakeholders to be heard, assessed, and, if necessary, remedied as expeditiously as possible.
IX. Reporting of Suspected Violations
Suppliers and their personnel are encouraged to report potential or actual violations of this Code or other legal or ethical concerns. Such a violation or concern may be reported by:
A. Calling the Company’s Supplier Hotline at (888) 818-1480; or B. Emailing at [email redacted].
App. A-4 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
X. Compliance Management Process
Suppliers must manifest their commitment to implementation of the principles of this Code with an appropriate compliance management process. As part of this process, Suppliers should create and maintain appropriate documentation and records to track and ensure compliance with this Code. The compliance management process should also include appropriate training programs for Supplier personnel.
XI. Acknowledgement
I acknowledge that I have reviewed and understand the principles set forth in this Code and that, as a Supplier, I am responsible for complying with such principles.
Signature: __________________________________ Cody J Nelson Name: _____________________________________ 7/6/2023 | 11:47 AM PDT Date: ______________________________________
App. A-5 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Deborah Tzuberi Contact Person:___________________________ [email redacted] Email:______________________________ 404.508.5764 Phone:______________________________
Subcontractor Instructions: Immigration Compliance Packet
Step 1. Sign the Amendment Agreement and return it to the Company.
Step 2. Complete the Attachment 1: Compliance Certification and return it to the Company.
Step 3. No later than 2 weeks after completing Steps 1 and 2 above, complete the Immigration Compliance Plan and send a completed copy to the Company (retain one copy for your records).
Step 4. Within 30 days of completing Steps 1 and 2 above, complete the Auditor Upload Transmission Cover Sheet and submit it and the following additional items to the Contact Person above for submission to the Auditor for certification (this allows time to meet the 45 day deadline):
1. All workers (employees and 1099 workers) must complete the Consent for Disclosure of Information.
NOTE: Worker participation in this audit program is entirely voluntary. If a worker employed or engaged by you chooses not to participate in this program, then that worker will not be permitted to work on Company projects. This does not mean that you cannot continue to employ or engage the worker for other non-Company projects. We make no opinion or statement regarding your continued employment or engagement of any worker who refuses to submit documents for audit or who fails the audit.
2. For employees, submit a completed Form I‐9 and color copies (front and back) of supporting documents from List A or Lists B and C. If needed, refer to the Paper I‐9 Helpful Hints.
3. For non‐employee workers (ex: 1099 worker), submit color copies (front and back) of documents establishing identity and employment authorization using the Non‐ Employee Identity and Employment Authorization List.
4. For All workers, submit a color photo of the worker using the corresponding Badge Photograph Requirements.
Step 5. If notified that an employee or nonemployee has failed the audit, either remove worker from Project or provide alternate documentation for Auditor re‐review.
Step 6. Once certification of all existing workers is complete, repeat Step 4 for each and every new worker assigned to the Project within 72 hours of such assignment. DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (this “Amendment”) is dated as of _____________________ June ____, 27th 20____ (the “Amendment Effective Date”), between _________________________ Ansco & Associates, LLC (“Contractor”) and ___________________ Northstar Communications Inc (“Subcontractor”)
(each, a “Party,” and together, the “Parties”).
WHEREAS, Contractor and Subcontractor previously entered into that certain Subcontract Agreement, dated as of _____________________ June ____, 27th 20____ (the “Agreement”), for the purpose of performing certain subcontract work; and
WHEREAS, the Parties desire to amend the Agreement according to the terms and conditions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1. All capitalized terms used, but not otherwise defined or referenced, in this Amendment shall have the meanings ascribed to them in the Agreement. On and after the Amendment Effective Date, each reference in the Agreement and in this Amendment to “the Agreement,” “hereunder,” “hereof” or words of like or similar import referring to the Agreement shall mean and be a reference to the Agreement, as amended by this Amendment.
2. A new Exhibit ICP—Immigration Compliance Program is hereby added to the Agreement in the form set forth in Annex A hereto.
3. Except as amended by this Amendment, the Agreement is, and shall continue to be, in full force and effect and is hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided in this Amendment, operate as a waiver of any right, power or remedy of any Party under the Agreement. The Parties acknowledge and re-affirm all other provisions of the Agreement.
4. The interpretation, construction and enforcement of this Amendment shall be governed by the laws of the jurisdiction where the Work is to be performed under the Agreement.
5. This Amendment may be executed in one or more counterparts, and by the respective Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
* * *
[Signature page follows] DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first written above by their respective duly authorized officers.
CONTRACTOR: SUBCONTRACTOR:
Ansco & Associates, LLC ________________________________________ Northstar Communications Inc ______________________________________
By: __________________________________ By: ________________________________ Craig Clark Name: _________________________________ Cody J Nelson Name: _______________________________ Vice President Title: _________________________________ COO Title: _______________________________
Subcontractor’s Taxpayer Identification Number: __________________
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
ANNEX A
Exhibit ICP: Immigration Compliance Program
Contractor requires its subcontractors to comply with all applicable laws. Immigration to and eligibility for residence and work in the United States (“U.S.”) by non-citizens are governed by Federal immigration laws (“Immigration Law”). Federal law requires all employers to keep a Form I-9, together with any copies employers may choose to make of the supporting documentation used to establish identity, on file for all employees. Accordingly Subcontractor shall comply with all of the requirements set forth in this Exhibit ICP and execute the Compliance Certification set forth as Attachment 1 to this Exhibit ICP.
A. Basic Requirements
1. Subcontractor represents and warrants that it is in compliance with all applicable immigration laws, statutes, rules, codes, orders and regulations, including without limitation, the Immigration Reform and Control Act of 1986, as amended, the Immigration and Nationality Act, as amended, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, and any successor statues, laws, rules and regulations thereto (collectively, the "Immigration Laws").
2. Subcontractor shall implement a verification program through which Subcontractor shall ensure that it, as well as its subcontractors and subcontractors of subcontractors (such subcontractors and the subcontractors thereof being referred to collectively herein as “subcontractors”), are in compliance with the Immigration Law in accordance with the requirements set forth in Section B – “Compliance Plan” below with respect to their respective employees working on the Project (the “Compliance Plan”). For clarity, “the Project” as used herein shall include all project(s) where Subcontractor is providing work under the Agreement.
3. Subcontractor is encouraged to enroll in the federal E-Verify program (“E-Verify”), sign the Memorandum of Understanding as required by E-Verify, and ensure that each and every employee working for Subcontractor on the Project has passed E-Verify and been authorized to work. Subcontractor further agrees, as is required when enrolling in E-Verify, to retain copies of employee’s supporting documentation and, when accepting List B and C documents to verify employment eligibility and identity of its employees, to accept only List B documents that contain a photograph.
4. Subcontractor may complete its Form I-9s electronically using the electronic system developed by Form I-9 Compliance, LLC, or other electronic Form I-9 vendor proposed by Subcontractor and approved in advance by Contractor, in its sole discretion.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
B. Compliance Plan
1. Prior to performing any work and in any event no later than two (2) weeks after the effective date of the Agreement (or the Amendment (as defined below), as applicable), Subcontractor shall create and implement a Compliance Plan which shall contain a reasonably detailed description of Subcontractor’s plan for complying with applicable Immigration Law. Subcontractor shall keep the Compliance Plan and, upon Contractor’s request, Subcontractor shall provide Contractor with a copy thereof.
2. Without limiting the generality of the foregoing, the Compliance Plan must address, among other things, the following:
a. Subcontractor’s processes and procedures that are in place relating to immigration compliance, including, without limitation, Subcontractor’s verification program implemented pursuant to Paragraph (1) of Part A above;
b. The re-verification of the Form I-9s for Subcontractor’s employees as required by law;
c. The updating of any expired eligibility documents for Subcontractor’s workers performing work on the Project;
d. The provision of internal training (which may be by a third party immigration attorney or consultant who is experienced and trained in the field of immigration compliance) regarding how to complete I-9's and regarding the Subcontractor’s policies and procedures on how to maintain and stay in compliance with the Immigration Laws;
e. Subcontractor’s agreement to allow U.S. Immigration and Customs Enforcement (“ICE”) to present educational programs and training for its employees and staff;
f. A certification by Subcontractor that Subcontractor has not been the subject of enforcement or other action by ICE within the two-year period prior to the date of the Amendment, which shall also be included within the certification provided by Subcontractor to Contractor. If Subcontractor cannot provide this certification, Subcontractor must provide details regarding each event of enforcement or action by ICE during such 2-year period. Contractor reserves the right to terminate this Agreement immediately, in its sole discretion, depending upon the information provided by Subcontractor pursuant to this subparagraph;
g. Subcontractor’s willingness and agreement to conduct the verification program and provide the certifications required above, and to participate in, and to comply with the requirements for, audits required by Contractor, all of which shall also be
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
included within the Compliance Certification provided by Subcontractor to Contractor; and
h. Any other procedures or processes in place designed to ensure that Subcontractor’s subcontractors are in compliance with the Immigration Laws and that their employees working on the Project are authorized to work in the United States.
3. Subcontractor shall comply with such compliance plan during the term of the Agreement. Subcontractor shall require and cause its subcontractors to either develop a compliance plan meeting the requirements of this Section B or to comply with Subcontractor’s Compliance Plan.
C. Audit Requirements
1. Subcontractor shall engage an independent third party immigration consultant, who is experienced and trained in the field of immigration compliance to conduct the audits and make the certifications required by this Exhibit ICP. Such consultant shall be approved, in advance, by Contractor, in its sole discretion, and is referred to herein as the “Auditor.” As of the date hereof, Contractor approves Subcontractor’s retention of Form I-9 Compliance, LLC as its Auditor.
2. Subcontractor shall obtain written consent from each employee and other worker of Subcontractor consenting to Subcontractor’s disclosure of the Form I-9 and/or documents establishing employment eligibility and identity, and, if applicable, any background check report to and among Contractor and the Auditor (see Attachment 2: “Consent Form”).
3. For each employee of Subcontractor and those of its subcontractors who will work on the Project, Subcontractor shall have the Auditor review: (i) the Consent Form, (ii) the Form I-9s for compliance with the requirements set forth in the Form I-9 Lists of Acceptable Documents, and (ii) copies of employment eligibility and identity documentation.
4. For each other worker of Subcontractor and those of its subcontractors who will work on the Project, Subcontractor shall have the Auditor review copies of employment eligibility and identity documentation.
5. Within 45 days of the execution of the Amendment adding this Exhibit ICP to the Agreement (the “Amendment”), Subcontractor shall have the Auditor certify that Subcontractor and each subcontractor has verified the employment eligibility and identity of its respective workers working on the Project pursuant to Form I-9 requirements, and, if applicable, has accepted the proper combination of documents
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
set forth in the Form I-9 Lists of Acceptable Documents with respect to such employees (the “Compliance Certification”).
6. Each additional worker of Subcontractor and any of its subcontractors performing any work on the Project (not otherwise covered by the certification in Section 3 above) must be certified by the Auditor in writing in the manner described above no later than seventy-two (72) hours after such worker has started work on the Project.
7. If the Auditor has not certified an individual within that 72-hour period, Subcontractor shall remove such individual from the Project. Any such individual may not resume work on the Project until the individual has been certified by Subcontractor’s Auditor in accordance with the provisions above, without the benefit of the 72-hour verification period.
8. If Contractor becomes aware of evidence, which in Contractor’s sole discretion appears to be reasonably credible, that an undocumented worker employed by Subcontractor or a subcontractor has performed work on, or been associated with the work performed by Subcontractor or any subcontractor at any Contractor construction site, then upon Contractor’s request, Subcontractor shall, at its expense, require Auditor to conduct an audit of the Form I-9s for compliance, and review any copies of employment eligibility and identity documentation which is maintained as required by law or otherwise maintained in accordance with Subcontractor’s or its subcontractors’ business practices and policies, for each worker of Subcontractor and those of its subcontractors working on the Project. Such audit shall be completed within thirty business days after Contractor’s request therefore, provided that such audit will be completed within 5 days after Contractor’s request where the audit is limited to the workers at a single location.
9. Upon Contractor’s request, Subcontractor shall require Auditor to disclose to Contractor whether Subcontractor and each of its subcontractors passed or failed any such audit. Subcontractor or any subcontractor, as applicable, shall be deemed to have “Passed” the audit if (A) Subcontractor or such subcontractor has verified the employment eligibility and identity of its workers working on the Project, and, if applicable, has accepted the proper combination of documents set forth in the Form I-9 Lists of Acceptable Documents for its and their employees, or (B) in the course of such audit, violations are discovered and are of a nature that, in the Auditor’s judgment, are eligible for cure, and Subcontractor or such subcontractor corrects such violations within the period of time allotted for conducting the audit so that Subcontractor or such subcontractor has verified the employment eligibility and identity of its workers working on the Project pursuant, and, if applicable, has accepted the proper combination of documents set forth in the Form I-9 Lists of Acceptable Documents for its and their employees. In all other instances, Subcontractor shall be deemed to have failed the audit. Contractor may, in its
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
discretion and at Subcontractor’s expense, suspend the performance of work on the Project while an audit is being conducted.
10. In the alternative to the independent audit set forth in Paragraphs (2) and (3), Contractor may, in its sole discretion, conduct its own audit of Subcontractor’s records. Subcontractor agrees to provide Contractor or its representative the same access to its records as it would to the Auditor. If Contractor exercises its option to conduct its own audit, Subcontractor agrees that Contractor or its representative shall make the determination as to whether Subcontractor or a subcontractor passed or failed the audit under the criteria set forth in Paragraph (3) of this Section C.
11. When performing Services, all Subcontractor personnel must at all times possess on their persons an identification card issued by Contractor, with the individual’s photograph and name, at a minimum. Subcontractor’s personnel will present the identification card when required or requested. Subcontractor agrees to immediately remove from the Project any worker or subcontractor worker who does not have an identification card or whose identification card is determined to be invalid.
12. Subcontractor acknowledges and agrees that, as part of Contractor’s compliance plan, from time to time one or more of Contractor’s then-current construction sites could be selected at random to be further audited for purposes of immigration compliance. In the event that a site is randomly selected for such an audit, Contractor shall have the right to obtain from Subcontractor or subcontractor (whichever is applicable to the site at issue) a list of all workers working at the site. Contractor shall, at its sole discretion, conduct its own audit or directly notify Auditor to commence such an audit of the Form I-9s for compliance, and review copies of employment eligibility and identity documentation maintained to the extent required pursuant law and otherwise maintained in accordance with Subcontractor’s or subcontractors’ policies, for the employees and workers of Subcontractor and each of its subcontractors working on the Project. Any such audit shall be completed within five (5) days after such notice by Contractor.
13. In the event that (a) Subcontractor or any of its subcontractors fails any audit described herein, (b) Subcontractor or any of its subcontractors fails to participate in or cooperate with any review or audit, or (c) Subcontractor fails to provide to Contractor the Compliance Certification as required, fails (or fails to cause the Auditor) to verify or certify any individual or to conduct any review or audit, or fails to retain any certification or the results of any audit, then, in each case, and in addition to any other rights that Contractor may have pursuant to this Agreement, at law, or in equity, Contractor shall have the immediate right to (i) suspend all or any portion of the Work, (ii) terminate this Agreement in whole or in part, and (iii) require Subcontractor to remove or terminate, or to cause any subcontractor to remove or terminate, the relevant subcontractor, and (iv) not pay for any services performed by undocumented or otherwise unlawfully employed workers (while in an unlawful
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
status) and request and receive a refund for any payments already made for such services. For clarity, services performed by lawful employees on the same Project or crew with unlawful workers shall not be subject to (iv).
14. Subcontractor shall require all subcontractors to make the representations, warranties and covenants set forth above. Without limiting the generality of the foregoing, Subcontractor shall (a) cooperate with the Auditor or Contractor and provide the Auditor or Contractor with access to such documentation and personnel as may be necessary to complete any certification, review or audit pursuant to this Exhibit ICP, and (b) require and cause its subcontractors to cooperate with Subcontractor, Auditor, and Contractor and to provide Subcontractor, Auditor and Contractor with access to such documentation and personnel as may be necessary to complete any such certification, review or audit pursuant to this Exhibit ICP, and comply with any and all certifications, reviews and audits conducted pursuant to this Exhibit ICP. Subcontractor shall, and shall cause its subcontractors to, immediately resolve any issues, problems or other circumstances of non-compliance revealed in any such review or audit; provided that, in no event shall Contractor’s rights and remedies, including its right to terminate this Agreement immediately, be limited hereunder as a result of the resolution of any such issue, problem or circumstance of non-compliance.
D. Contractor Termination Right
In addition to and without limitation of any other rights that Contractor may have under this Agreement (including the right to terminate for default or convenience), at law or equity, Contractor may, in its reasonable discretion, terminate this Agreement immediately if, at any time during the term, (1) Subcontractor violates or is in breach of any provision of this Exhibit or (2) fails to comply with applicable laws, including, without limitation, any determination by Department of Homeland Security or any other governmental agency or authority that Subcontractor has not complied with any of the Immigration Laws.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
EXHIBIT ICP— Immigration Compliance Program ATTACHMENT 1: COMPLIANCE CERTIFICATION
This Certification is provided to Subcontractor pursuant to Exhibit ICP—Immigration Law Compliance Program (“Exhibit ICP”) to that certain Subcontract Agreement, dated as of __________________ June ____, 27th 20____ (the “Agreement”), between ________________________ Ansco & Associates, LLC (“Contractor”) and the undersigned subcontractor __________________________ Northstar Communications Inc (“Subcontractor”). All capitalized terms used and not defined herein shall have the meaning ascribed to them in the Agreement.
The undersigned Subcontractor hereby certifies to Contractor that Subcontractor is complying, and shall continue to comply, with all of the terms and conditions set forth in Exhibit ICP. Without limiting the generality of the foregoing, Subcontractor hereby represents, warrants, covenants and certifies to the following (check the applicable boxes):
1. Subcontractor has complied with the verification and certification Yes ☐ ✔ requirements set forth in Exhibit ICP for those workers of No ☐ Subcontractor and its subcontractors and sub-subcontractors who have begun work on the Project, and shall continue to comply with the terms of that Exhibit for such workers of Subcontractor and its subcontractors and sub-subcontractors who will work on the Project in the future. 2. Subcontractor agrees to allow U.S. Immigration and Customs Yes ☐ ✔ Enforcement ("ICE") to present educational programs and training No ☐ for its employees and staff. 3. Subcontractor has not been the subject of enforcement or other Yes ☐ ✔ action by ICE within the two year period preceding the date of this No ☐ Certification. 4. Subcontractor is willing and agrees to participate in, and comply Yes ☐ ✔ with the requirements for, the audits required pursuant to Exhibit No ☐ ICP. 5. Subcontractor has provided to its subcontractors the minimum Yes ☐ ✔ requirements for all audits conducted pursuant to Parts A and C of No ☐ Exhibit ICP. 6. Subcontractor has created, implemented and enforced, and shall Yes ☐ ✔ continue to implement and enforce, a compliance plan, and is No ☐ requiring and causing its subcontractors to develop or comply with a compliance plan, in each case in accordance with the requirements of Exhibit ICP. 7. Subcontractor is, and shall continue to, maintain photocopies of all Yes ☐ ✔ supporting employment eligibility and identity documentation for No ☐ all workers who are retained by Subcontractor after work under the Agreement has been awarded to Subcontractor.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Subcontractor is requiring its subcontractors and sub- subcontractors to comply with this requirement for all workers retained by them after they have been awarded work on the Project. 8. Subcontractor is in compliance with all applicable immigration Yes ☐ ✔ laws, statutes, rules, codes, orders and regulations, including No ☐ without limitation, the Immigration Reform and Control Act of 1986, as amended, the Immigration and Nationality Act, as amended, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, and any successor statues, laws, rules and regulations thereto (collectively, the "Immigration Laws").
The undersigned Subcontractor hereby makes the certifications set forth herein to as of the ____ 27th June 23 day of ___________________, 20____. Subcontractor: _________________________ Northstar Communications Inc
By:_________________________________
Print Name: ___________________________ Cody J Nelson
Title: _______________________________ COO
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Northstar Communications Inc Immigration Compliance Plan
I. PURPOSE The Company has a vital interest in verifying the identity and work authorization of its employees, in addition to complying with all applicable state and federal laws and practices surrounding employment verification for all workers.
II. SCOPE All employees of the Company hired after November 6, 1986 (including part-time student workers) are subject to this Policy.
III. IDENTIFICATION OF “RESPONSIBLE EMPLOYEE” Each field office shall be responsible for designating a Company supervisor or manager (the “Responsible Employee”) who will be responsible for ensuring that each employee has a complete, accurate and timely executed Form I-9. At the Company’s corporate headquarters, the Justin Zinkel shall be the Responsible Employee. The Responsible Employee will also be accountable for completing re-verification of work authorization, where required.
IV. TIMING OF COMPLETION Section 1 of the Form I-9 must be completed no later than the first day of the actual rendering of services. Section 2 of the Form I-9 should be completed on the first day of the actual rendering of services; however, an employee is allowed three (3) business days from that day to supply Section 2 documents.
A. Any employee unable to produce his or her choice of Section 2 documents for verification by the third day of the actual rendering of services shall be paid for his services and terminated.
B. In limited circumstances at remote field office locations, so long as an employee has indicated acceptance of an offer, the Company may provide the I-9 to the employee in advance of the start date and/or advise the employee to bring the requisite documentation on the start date. Under no circumstances, however, shall an employee continue employment if the Company has not received a properly completed I-9 with the appropriate documentation by the third day of employment.
V. E-VERIFY PARTICIPATION If, at any time in the future, the Company elects to or is required to participate in the federal government E-Verify program, the Responsible Employee will be responsible for complying with the following items:
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
A. Understanding and complying with the guidelines and requirements set forth in the federal government’s E-Verify User Manual, as well as those requirements set forth in the Memorandum of Understanding signed by the Company.
B. Ensuring that all required postings are displayed in a prominent place that is clearly visible to prospective employees and all employees who are to be verified through the E-Verify system.
C. Requiring that all new hires supply a Social Security Number in connection with the completion of the Form I-9.
D. If an employee presents a "List B" identity document, the Responsible Employee will only accept "List B" documents that contain a photo.
E. Ensuring that all supporting documentation is retained together with the Form I-9 by uploading and attaching legible copies of the supporting documentation to the electronic I-9 record.
VI. THE EMPLOYEE PORTION – SECTION 1 OF THE I-9 The Responsible Employee must ensure that the employee completes Section 1 of the I-9 form no later than the first day of the actual rendering of services. The Responsible Employee shall confirm that the employee completes all of the boxes and signs and dates the certification section.
A. If the Company participates in the federal government E-Verify program, the employee is required to record his or her Social Security Number in Section 1.
B. The employee is required to provide the date on which he or she executed Section 1 next to the box in which he or she signs the certification under penalty of perjury – there is a separate box for the employee’s birth date on the second line of Section 1.
C. If a translator or preparer is used to complete Section 1, the Responsible Employee must ensure that the preparer and/or translator certification is completed.
D. The Responsible Employee must ensure that Section 1 is completed accurately and in full before proceeding to Section 2.
VII. THE EMPLOYER PORTION – SECTION 2 OF THE I-9 Pursuant to Company policy, Section 2 of the I-9 form generally should be completed at the same time that the employee completes Section 1 – on the first day of the actual rendering of services. By law, however, this section must be completed no later than the third day of the actual rendering of services by the employee.
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
A. Prior to completing the Section 2 employer review and verification, the Responsible Employee will have provided the employee with all three pages of the Form I-9, and will have instructed the employee to produce his or her choice of: (1) one List A document; or (2) a combination of one List B and one List C document. (List B documents establish identity and List C documents establish employment eligibility. List A documents establish both.)
B. The Responsible Employee should not instruct the employee to produce a specific Section 2 document. For example, never say: “Please bring in your driver’s license and Social Security card.”
C. Once the Responsible Employee receives the documents from the employee, he or she will complete only List A or List B and List C – and should never “over-document.” In other words, the Responsible Employee should never request or accept more than is required.
D. The Responsible Employee should accept original documents only – no photocopies or faxed copies. (See below regarding acceptance of receipts.)
E. The Responsible Employee should check the identity of the employee against the identity/work authorization documents presented by the employee to make sure that the document(s) reasonably appear to be genuine and relate to the employee and are among the documents identified as either “List A,” or “List B and C” of the most recent version of the I-9 form. The Responsible Employee should inspect the front and back of the documents, taking care to establish that the documents appear to be genuine and relate to the individual. This is to confirm that there have been no alterations.
F. If the documents are acceptable based on the field level Responsible Employee’s subjectively reasonable review, all documentation (including the I-9, and the identity and employment verification documentation, front and back) shall immediately be scanned (in color) and e- mailed, if possible, to the corporate office. On or before the next calendar day, the original I- 9, along with the photocopied documentation shall be sent via overnight mail to the Company’s corporate office; nothing shall be retained in the field. The Responsible Employee will confirm that the uploaded images of the documentation are legible. The Company policy is to retain supporting documentation in the I-9 process.
G. The Responsible Employee must ensure that all boxes on the form are complete, including recording the following regarding each Section 2 document: (1) document title; (2) issuing authority; (3) document number; and (4) expiration date, if any. The Responsible Employee must also include the employee’s hire date in the space provided in Section 2, using the date the employee starts on the payroll. Finally, the Responsible Employee should sign the form, in addition to printing his or her name, title, business name, business address and the date on which he or she verified the employee’s Section 2 documents.
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
H. If the employee’s employment authorization will expire (as indicated in either Section 1 and/or in a Section 2 List A or C document) the Responsible Employee must set up a reminder, or “tickler” alert to request updated documentation before the expiration date and give the employee 120 days’ notice that the reverification deadline is approaching.
VIII. RECEIPTS Receipts can be acceptable for I-9 purposes. If the Responsible Employee accepts a receipt, he or she must reverify within 90 days.
A. A receipt that indicates an application for a replacement List A, B, or C document was submitted because the document was lost, stolen, or damaged is an acceptable type of receipt.
B. Other types of acceptable receipts include a temporary I-551 stamp on the Form I-94 of a new permanent resident, or a refugee admission stamp on a Form I-94.
C. A receipt showing an application for an extension of expiring/expired employment authorization is not acceptable.
D. If a receipt is accepted, reverification must occur in 90 days.
IX. REVERIFICATION AND UPDATING I-9 forms must be reverified or updated in certain circumstances. For those employees whose employment authorization will expire, the Responsible Employee must calendar the date in a tickler system. He or she shall likewise provide the employee with at least 90 days’ notice that reverification is coming and that the employee cannot continue to work once employment authorization has expired unless reverification is completed.
A. If the individual’s employment authorization will expire, new documentation must be provided to ensure continued eligibility to work in the United States no later than the date on which the documentation will expire. Updated documentation must be requested from the employee. To do this, the Responsible Employee may complete Section 3 of the I-9, or, if Section 3 has already been used for a reverification, complete a new I-9 form.
B. If an individual who was formerly employed by the Company is rehired within the I-9 retention period, the Responsible Employee need not complete a new I-9 for that individual if their work authorization, as stated in the original I-9, remains valid.
C. The following documents, even if they expire, never require reverification: A U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), and all List B documents.
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
X. CORRECTIONS From time to time, it may become necessary to make a correction to an individual’s I-9. For example, if the corporate level Responsible Employee notes that the field level Responsible Employee erroneously recorded the business address in Section 2, the corporate level Responsible Employee will need to correct the I-9 form.
A. To correct an I-9 form, line through the erroneous information in a non-destructive manner, ensuring that the original information remains completely legible. Write the new or different information above or in the side margin, and initial and date the change.
B. Under no circumstances should white out or correction fluid of any kind ever touch an I-9 form. Nor should original information be scratched over or blacked out. Corrections should always be made in a non-destructive manner, as described above.
XI. RETENTION REQUIREMENTS Retain each employee’s Form I-9 for three years from the date of hire, or one year from the date of separation, whichever is later.
A. The retention date cannot be determined until the employee no longer works for the Company. To determine the retention date, follow these four steps: (1) Add 3 years to the date of hire; (2) Add 1 year to the separation date; (3) Compare the two; and (4) Determine the later of the two, which becomes the retention date.
B. Illustration: Mr. X was hired by the Company on January 1, 2000 and he retired on January 1, 2007. January 1, 2000 + 3 years = January 1, 2003. January 1, 2007 + 1 year = January 1, 2008. January 1, 2003 < January 1, 2008. The Company must retain Mr. X’s I-9 until January 1, 2008.
XII. STORAGE REQUIREMENTS I-9 forms must be stored separately from other personnel records in a secure and locked environment. At a minimum, forms should be alphabetized, by year, to allow easy access in the event of an audit or reverification. The company’s corporate office is responsible for retaining I-9 forms.
XIII. STATE LAW EXCEPTIONS Certain states may have specific state laws that may have an effect on this policy. These issues are developing and it is imperative that Legal be consulted if any state variation is detected.
XIV. NON-DISCRIMINATION POLICY At all times, it is critical to treat all new hires and employees equally under this Policy. All aspects of the I-9 process performed by the Company must be absolutely uniform with respect to every new hire and employee.
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
A. U.S. Citizens are not entitled to different or more favorable treatment.
B. The Company does not require U.S. Citizenship or Permanent Residency of any applicants, unless pursuant to contract.
C. The Company prohibits employees from assuming anything about anyone based upon “foreign” appearance and/or name.
D. Any Company employee found to have violated any aspect of the Company’s non- discrimination policy in administering the I-9 process will be subject to discipline, up to and including termination.
XV. I-9 COMPLIANCE TRAINING From time to time, the Company will provide appropriate follow-up training to Responsible Employees regarding proper I-9 compliance procedures.
XVI. GOVERNMENT AUDITS In the event that corporate or a field office is notified of a government audit, by U.S. Immigration and Customs Enforcement, the U.S. Department of Labor, or any other government agency, the Company’s President and the Legal Department must be notified immediately. Under no circumstances should any Company employee take steps to respond to an audit request without receiving direction from Legal. Additionally, to the greatest extent possible, government audits shall be confined in scope to the local field office.
XVII. OTHER COMPLIANCE PROVISIONS
A. In addition to the procedures set forth in this Policy, the Company will comply with the audit and verification procedures set forth in its contract(s) with Ansco & Associates, LLC .
B. The Company will allow U.S. Immigration and Customs Enforcement (“ICE”) to present educational programs and training for its employees and staff. The Company will also agree to participate in pilot programs developed by ICE.
C. The Company will certify, as requested by Ansco & Associates, LLC , that the Company has not been the subject of enforcement or other action by ICE within the two year period preceding the effective date of the Contract. In the event Company has been the subject of enforcement or other action by ICE, the Company will supply Ansco & Associates, LLC with an explanation of the circumstances.
XVIII. NOT TO BE CONSTRUED AS A CONTRACT
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Nothing in this policy is intended, or may be construed, as a contract or an offer of a contract or a waiver or limitation of any Company right. This policy is a statement of general policy that may be interpreted, revised, or amended at the sole discretion of the Company at any time, with or without notice. This policy does not change the fact that employment at the Company is at-will, meaning that the employee has the right to terminate his or her employment at any time, with or without cause or notice, and that the Company has that same right.
Rev. 02/12/16 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Exhibit B
QUESTIONNAIRE FOR VENDORS, SUPPLIERS, SUBCONTRACTORS AND LANDLORDS
Instructions:
1. You must complete and return this Questionnaire promptly after you receive it from the applicable subsidiary or subsidiaries of Dycom Industries, Inc. (“Dycom”) and in any case, prior to commencing any formal negotiations with such Dycom subsidiary or subsidiaries.
2. In addition, you must also provide the Dycom subsidiary or subsidiaries which sent you this Questionnaire with an updated Questionnaire on an annual basis, as follows:
(A) If you ARE subject to Dycom’s insurance requirements (for example, if you are a subcontractor), at the time of your annual insurance renewal, you must also send an updated Questionnaire to the Dycom subsidiary or subsidiaries which sent you this Questionnaire.
(B) If you are NOT subject to Dycom’s insurance requirements, you must send an updated Questionnaire on each anniversary of your written agreement with the applicable Dycom subsidiary or subsidiaries until your agreement expires or otherwise terminates (for example, if you are a landlord, your updated Questionnaire is due on each anniversary of your lease agreement with the Dycom subsidiary).
3. In addition to the annual update requirement above, whether or not you are currently a related party, as soon as you become aware of a change in your related party status at any time since the time of your most recently completed Questionnaire (for example, if, after your engagement, one of your company employees marries an employee of the Dycom subsidiary for which your company is performing services and you, therefore, become a related party), you must promptly submit an updated Questionnaire to the Dycom subsidiary advising of such change in status. See definition of “Related Person” in Question 2 below.
NOTE: Identification of yourself or your company as a related party will generally NOT in itself prevent you or your company from doing business with any Dycom subsidiary. However, failure to identify yourself or your company as a related party may subsequently lead to adverse action, up to and including termination of the transaction and/or the relationship with the Dycom subsidiary.
If You Have Questions:
If you have any questions about this Questionnaire, please reach out to your contact person at the Dycom subsidiary or subsidiaries who sent it to you.
Please Answer the Following:
1. Name of vendor, supplier, subcontractor or landlord (insert name of person or company which will be performing services for the Dycom subsidiary or subsidiaries): Northstar Communications, Inc. Vendor/Supplier/Subcontractor/Landlord Name: _______________________________
Ex. B-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Signature: _______________________________ Northstar Communications Inc.- Cody J Nelson (PRINT) Name: _______________________________ 7/6/2023 | 11:47 AM PDT Date: _______________________________
2. Are you a “Related Person” with respect to [insert name(s) of applicable Dycom subsidiary/sister subsidiaries]?
ANSWER: YES NO X
Check “YES” above if you can answer “yes” to any part of paragraphs (1), (2) or (3) below:
(1) You are or any of your immediate family members is: an officer or employee of Dycom; or an officer or employee of any Dycom subsidiary.
OR
(2) You or your company employs an officer or employee of Dycom or any Dycom subsidiary, or any immediate family member of any such officer or employee. FOR EXAMPLE, one of your company employees is the brother of an employee of the Dycom subsidiary for which your company is proposing to perform work;
OR
(3) Any officer or employee of Dycom or any Dycom subsidiary, or any immediate family member of any of such officer or employee is a partner or principal or in a similar position, or owns a 5% or greater beneficial ownership interest in your company. FOR EXAMPLE, an employee of the Dycom subsidiary for which your company is proposing to perform work owns 10% of your company.
What does “immediate family member” mean?
An “immediate family member” is any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of, and any person (other than a tenant or employee) sharing the household of a Dycom or Dycom subsidiary officer or employee.
If your answer above is “YES”, please describe: N/A __________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
Ex. B-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
3. Are you aware of any relationship that you may have with any other Dycom subsidiary? See Annex A for a list of Dycom subsidiaries.
ANSWER: YES NO X
If your answer is “YES”, please describe: N/A __________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
DYCOM SUBSIDIARY REPORTING PERSON CERTIFICATION (for Dycom subsidiary use only)
I certify that I have (1) reviewed this Questionnaire and have had the opportunity to raise and discuss any questions or concerns which my Dycom subsidiary may have with respect to any related party relationship(s) with the proposed vendor, supplier, subcontractor or landlord listed above; and (2) advised such proposed vendor, supplier, subcontractor or landlord of the ongoing reporting requirements listed under the heading “Instructions” above.
Name of Dycom Subsidiary Reporting Person: _______________________________
Title of Dycom Subsidiary Reporting Person: _______________________________
Signature of Dycom Subsidiary Reporting Person: _______________________________
Date: _______________________________
Ex. B-3 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
Annex A to Exhibit B
LIST OF SUBSIDIARIES OF DYCOM INDUSTRIES, INC. Alabama Broadband, LLC Ansco & Associates, LLC Apex Digital, LLC Atlantic Communications Services, LLC Blair Park Services, LLC Broadband Express, LLC Broadband Installation Services, LLC C-2 Utility Contractors, LLC CableCom, LLC Cavo Broadband Communications, LLC CCLC, Inc. CertusView Solutions, LLC CertusView Technologies, LLC Communications Construction Group, LLC Engineering Associates, LLC Ervin Cable Construction, LLC Fiber Technologies Solutions, LLC Globe Communications, LLC Golden State Utility Co. Ivy H. Smith Company, LLC Kanaan Communications, LLC Lambert’s Cable Splicing Company, LLC Locating, Inc. Midtown Express, LLC NCS, LLC NeoCom Solutions, LLC Nichols Construction, LLC Niels Fugal Sons Company, LLC North Sky Communications, LLC North Sky Telecom ULC North Sky Telecom, Inc. OSP Services, LLC Parkside Site & Utility Company Corporation Parkside Utility Construction, LLC Pauley Construction, LLC Point to Point Communications, Inc. Precision Valley Communications of Vermont, LLC Prince Telecom, LLC Professional Teleconcepts, LLC Professional Teleconcepts, LLC RJE Canada, Inc. RJE Canada, ULC RJE Telecom, LLC Sage Telecommunications Corp. of Colorado, LLC Spectrum Wireless Solutions, LLC Star Construction, LLC Stevens Communications, LLC TCS Communications, LLC TelCom Construction, Inc. Tesinc, LLC Texstar Enterprises, Inc. Tjader & Highstrom Utility Services, LLC Trawick Construction Company, LLC Triple-D Communications, LLC Underground Specialties, LLC UtiliQuest, LLC VCI Construction, LLC VCI Utility Services Holdings, LLC VCI Utility Services, LLC White Mountain Cable Construction, LLC
Ex. B-Annex APPLICATION AND CERTIFICATION FOR PAYMENT AIA DOCUMENT G702 PAGE 1 OF 2 PAGES
TO General Contractor: PROJECT: Mesa-SE-BH-1A APPLICATION NO: 03 Distribution to: Ancsco & Associates, LLC INVOICE NO: 880059-03 OWNER 1220 Old Alpharetta Road Suite 380 OWNER: Gigapower, LLC. X ARCHITECT Alpharetta, GA 30005 PERIOD TO: 9/28/2023 CONTRACTOR FROM SUBCONTRACTOR: CONSTRUCTION MGR Northstar Communications, Inc 6939 S Harl Ave. PROJECT NOS: 880059 Tempe, AZ 85283 CONTRACT FOR: Northstar Communications Inc CONTRACT DATE:
CONTRACTOR'S APPLICATION FOR PAYMENT The undersigned Contractor certifies that to the best of the Contractor's knowledge, Application is made for payment, as shown below, in connection with the Contract. information and belief the Work covered by this Application for Payment has been Continuation Sheet, AIA Document G703, is attached. completed in accordance with the Contract Documents, that all amounts have been paid by the Contractor for Work for which previous Certificates for Payment were issued and payments received from the Owner, and that current payment shown herein is now due.
1. ORIGINAL CONTRACT SUM $ 155,409.00 2. Net change by Change Orders $ 0.00 CONTRACTOR: Northstar Communications, Inc 3. CONTRACT SUM TO DATE (Line 1 ± 2) $ $ 155,409.00 4. TOTAL COMPLETED & STORED TO $ 144,942.70 DATE (Column G on G703) By: Date: 9/28/2023 5. RETAINAGE: a. 10 % of Completed Work $ $0.00 State of: County of: (Column D + E on G703) Subscribed and sworn to before me this day of b. 0 % of Stored Material $ Notary Public: (Column F on G703) My Commission expires: Total Retainage (Lines 5a + 5b or Total in Column I of G703) $ 0.00 ARCHITECT'S CERTIFICATE FOR PAYMENT 6. TOTAL EARNED LESS RETAINAGE $ 144,942.70 In accordance with the Contract Documents, based on on-site observations and the data (Line 4 Less Line 5 Total) comprising the application, the Architect certifies to the Owner that to the best of the 7. LESS PREVIOUS CERTIFICATES FOR Architect's knowledge, information and belief the Work has progressed as indicated, PAYMENT (Line 6 from prior Certificate) $ 69872.70 the quality of the Work is in accordance with the Contract Documents, and the Contractor 8. CURRENT PAYMENT DUE $ 75,070.00 is entitled to payment of the AMOUNT CERTIFIED. 9. BALANCE TO FINISH, INCLUDING RETAINAGE $ 10,466.30 (Line 3 less Line 6) AMOUNT CERTIFIED . . . . . . . . . . . $
CHANGE ORDER SUMMARY ADDITIONS DEDUCTIONS (Attach explanation if amount certified differs from the amount applied. Initial all figures on this Total changes approved Application and onthe Continuation Sheet that are changed to conform with the amount certified.) in previous months by Owner ARCHITECT:
Total approved this Month By: Date: TOTALS This Certificate is not negotiable. The AMOUNT CERTIFIED is payable only to the Contractor named herein. Issuance, payment and acceptance of payment are without NET CHANGES by Change Order prejudice to any rights of the Owner or Contractor under this Contract.
AIA DOCUMENT G702 · APPLICATION AND CERTIFICATION FOR PAYMENT · 1992 EDITION · AIA · ©1992 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, DC 20006-5292 Users may obtain validation of this document by requesting a completed AIA Document D401 - Certification of Document's Authenticity from the Licensee. CONTINUATION SHEET AIA DOCUMENT G703 PAGE 2 OF 2 PAGES
AIA Document G702, APPLICATION AND CERTIFICATION FOR PAYMENT, containing APPLICATION NO: 03 Contractor's signed certification is attached. APPLICATION DATE: 9/28/2023 In tabulations below, amounts are stated to the nearest dollar. PERIOD TO: 9/28/2023 Use Column I on Contracts where variable retainage for line items may apply. PROJECT NO: 880059
A B C D E F G H I ITEM DESCRIPTION OF WORK SCHEDULED WORK COMPLETED MATERIALS TOTAL % BALANCE RETAINAGE NO. VALUE FROM PREVIOUS THIS PERIOD PRESENTLY COMPLETED (G ÷ C) TO FINISH (IF VARIABLE APPLICATION STORED AND STORED (C - G) RATE) (D + E) (NOT IN TO DATE 0% D OR E) (D+E+F) PHASE 1 $ - $ - $ - $ - $ - $ - $ - (2500) Conduit Placement (ANY METHOD) & PFP Placement - Feeder Cable $ 41,325.00 $ 41,325.00 $ - $ - $ 41,325.00 100.00% $ - $ - PHASE 2 $ - $ - $ - $ - $ - $ - $ - (2500) Fiber Cable Pull - Feeder Cable $ 3,800.00 $ - $ - $ - $ - $ 3,800.00 $ - PHASE 4 $ - $ - $ - $ - $ - $ - $ - (9122) Underground Feeder Cable $ 25,997.70 $ 25,997.70 $ - $ - $ 25,997.70 100.00% $ - $ - PHASE 5 $ - $ - $ - $ - $ - $ - $ - (300) Furnish and Place Asphalt 2" increments $ 2,550.00 $ 2,550.00 $ - $ - $ 2,550.00 100.00% $ - $ - PHASE 6 $ - $ - $ - $ - $ - $ - $ - (1) Furnish and Place Asphalt 2" increments $ 8.50 $ - $ - $ - $ - $ 8.50 $ - (1) Furnish and Place Concrete 4" Depth $ 17.50 $ - $ - $ - $ - $ 17.50 $ - (1) Furnish and Place Concrete 6" Depth $ 26.00 $ - $ - $ - $ - $ 26.00 $ - (1) Remove Asphalt - Millin/St. Grinding 2' increments $ 8.00 $ - $ - $ - $ - $ 8.00 $ - PHASE 7 $ - $ - $ - $ - $ - $ - $ - (366) Conduit Placement (ANY METHOD) & PFP Placement - Feeder Cable $ 6,049.98 $ - $ - $ - $ - $ 6,049.98 $ - (366) Fiber Cable Pull - Feeder Cable $ 556.32 $ - $ - $ - $ - $ 556.32 $ - Phase 1 $ - $ - $ - $ - $ - $ - $ - (19730)Lump Sum Work Authorization - Out of Scope $ 19,730.00 $ - $ 19,730.00 $ - $ 19,730.00 100.00% $ - $ - (16680)Lump Sum Work Authorization - Out of Scope $ 16,680.00 $ - $ 16,680.00 $ - $ 16,680.00 100.00% $ - $ - (12585)Lump Sum Work Authorization - Out of Scope $ 12,585.00 $ - $ 12,585.00 $ - $ 12,585.00 100.00% $ - $ - (9335)Lump Sum Work Authorization - Out of Scope $ 9,335.00 $ - $ 9,335.00 $ - $ 9,335.00 100.00% $ - $ - (16740)Lump Sum Work Authorization - Out of Scope $ 16,740.00 $ - $ 16,740.00 $ - $ 16,740.00 100.00% $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - SUBTOTALS $ 155,409.00 $ 69,872.70 $ 75,070.00 $ - $ 144,942.70 93.27% $ 10,466.30 $ -
CHANGE ORDERS $ - $ - $ - $ - $ - $ - $ - $ AIA DOCUMENT G703 · CONTINUATION SHEET FOR G702 · 1992 EDITION - · AIA · ©1992 $ - $ - $ - $ - $ - $ - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, D.C. 20006-5232 G703-1992 CONTINUATION SHEET AIA DOCUMENT G703 PAGE 2 OF 2 PAGES
AIA Document G702, APPLICATION AND CERTIFICATION FOR PAYMENT, containing APPLICATION NO: 03 Contractor's signed certification is attached. APPLICATION DATE: 9/28/2023 In tabulations below, amounts are stated to the nearest dollar. PERIOD TO: 9/28/2023 Use Column I on Contracts where variable retainage for line items may apply. PROJECT NO: 880059
A B C D E F G H I ITEM DESCRIPTION OF WORK SCHEDULED WORK COMPLETED MATERIALS TOTAL % BALANCE RETAINAGE NO. VALUE FROM PREVIOUS THIS PERIOD PRESENTLY COMPLETED (G ÷ C) TO FINISH (IF VARIABLE APPLICATION STORED AND STORED (C - G) RATE) (D + E) (NOT IN TO DATE 0% D OR E) (D+E+F) $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - SUBTOTAL CHANGE ORDERS $ - $ - $ - $ - $ - $ - $ - $ 155,409.00 $ 69,872.70 $ 75,070.00 $ - $ 144,942.70 93% $ - $ - GRAND TOTAL
Users may obtain validation of this document by requesting of the license a completed AIA Document D401 - Certification of Document's Authenticity
AIA DOCUMENT G703 · CONTINUATION SHEET FOR G702 · 1992 EDITION · AIA · ©1992 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, D.C. 20006-5232 G703-1992 7/16/24, 1:44 PM State of Arizona Mail - Complaint No 2024-07476 LEGAL RECEIVED 07/15/2024
Legal New Mail - AZROC <[email redacted]>
Complaint No 2024-07476 message
Clark, Craig <[email redacted]> Mon, Jul 15, 2024 at 7:36 AM To: [email redacted]
Re: Complaint No. 2024-07476
Dear Registrar:
Northstar Communication was aware of the outstanding work required and their failure to adhere to the City of Mesa Permit requirements and their signed subcontract agreement with Ansco. Ansco is within their right per the signed contractor agreement to remedy defective workmanship under section 5 Warranty (a) and (b), section 6 Time is of the Essence (a) and (b), and section 13 (d).
Northstar failed to abide by the approved City of Mesa Utility permit UTL23-01461 (attached) pg 2 #4 and pg 4 section I. Northstar failed to adhere to signed subcontract agreement terms
Per the signed City of Mesa Franchise agreement with our customer, restoration work is to be completed within 7 days of construction. Northstar failed to complete restoration work for more than 30 days and then completed it incorrectly 1) leaving concrete debri on private property and on city ROW and 2) using incorrect gravel that did not match the surrounding area and not leveling it sufficiently to match conditions prior to work construction start. Constant communication took place with Northstar Communications during the construction process on proper restoration from City representatives and members of the Ansco quality and supervision team.
Construction started on project 7/20/23 with pipe completion on 8/16/23 City inspectors, Ansco QC, and Ansco supervisor monitored work and provided feedback on restoration requirements. Onsite meeting on 8/20 at 12pm with Ansco (supervisor Dalton Loring and VP Craig Clark), Northstar (Justin Zinkel, Matt Geil, and Ian Collier, and Gigapower (Jim Burke, Dan Eck, and Mike Hargrove). Location: Broadway and Center. Purpose: review pulling of fiber cable. At this meeting the condition of restoration was discussed due to missing gravel, required concrete and asphalt replacement, and overall worksite condition being unsatisfactory. Fiber completion and all construction complete reported on 10/6/23. Ansco representatives onsite during fiber pull completion at Broadway and Center and noted to Northstar employees onsite again the required restoration work required as only the concrete and asphalt work had been completed since 8/30/23. City of Mesa inspector Mike Defranco performed and documented a city inspection on 10/20/23 where he noted softscape restoration issues still pending that he had communicated during the construction cycle to both Ansco and Northstar representatives onsite. (attached) Ansco was onsite with Northstar on 11/27/23 when Northstar returned to work on the required softscape restoration at Broadway and center. At this time Northstar placed gravel that the City of Mesa determined to be incorrect and required it to be replaced with matching material. It was also noted by the Ansco inspector that Northstar left the final rakeout incomplete, noting that they would return the next day which did not occur. On 1/3/24 City of Mesa inspector Jared Berry called Ansco to inform them that he completed a follow up inspection of the area and noted that softscape work at Center and Broadway still had not been raked out properly and the incorrect gravel had not been removed and replaced as instructed. Ansco manager Charles Workman made several attempts to reach Matt Geil and Ian Collier in the days after 1/3/24 via phone with no success. After this Ansco was left with no option but to immediately resolve the City of Mesa permit issues so the permit could be closed and prevent any work stoppages on other work in the city.
Craig Clark Vice President, Ansco & Associates, LLC
252-622-9415 [email redacted] https://mail.google.com/mail/b/AEoRXRQSt4Tjvo3_gbOe2t86VNU7sFeMiiwQ3-RPQeMnhuTZfOUB/u/0/?ik=d3afebeda9&view=pt&search=all&permthi… 1/3 7/16/24, 1:44 PM State of Arizona Mail - Complaint No 2024-07476 LEGAL RECEIVED 07/15/2024 anscollc.com
This email message, and any documents which may accompany it, contain information which is intended for use only by the intended recipient(s), and may contain information that is privileged and/or confidential. If you are not the intended recipient of this message you are hereby notified that any review, disclosure, dissemination, distribution, copy or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender by reply email, delete the email from your computer and destroy all copies of the communication and any attachments.
attachments
Resto 11.27 (2).jpg 3579K
Resto 11.27 (3).jpg 2964K
Resto 11.27 (1).jpg 2566K
Resto 11.27 (4).jpg 2929K
MESA-SE-BH-1B.docx 21K
https://mail.google.com/mail/b/AEoRXRQSt4Tjvo3_gbOe2t86VNU7sFeMiiwQ3-RPQeMnhuTZfOUB/u/0/?ik=d3afebeda9&view=pt&search=all&permthi… 2/3 7/16/24, 1:44 PM State of Arizona Mail - Complaint No 2024-07476 LEGAL RECEIVED 07/15/2024
UTL23-01461 MESA-SE-BH-1B APPROVED PERMIT.pdf 92K
https://mail.google.com/mail/b/AEoRXRQSt4Tjvo3_gbOe2t86VNU7sFeMiiwQ3-RPQeMnhuTZfOUB/u/0/?ik=d3afebeda9&view=pt&search=all&permthi… 3/3 LEGAL RECEIVED 07/15/2024
ENGINEERING CIVIL INSPECTION REPORT
Inspector: Michael DeFranco CEI
Permit Number: UTL23-01461
Location: Mesa-SE-BH-1B
Landscape Restoration South Center, Station 19+85, 44RT --------------------- Restore granite to original condition at drilling machine locations on East Broadway Road locations. Stations 00+87, 52’LT through 24+00, 52’LT, Plan Sheets 22 through 27. ------------------------ Restore granite to original condition on new running line on east side of South Center Street.
Remove Conduit
Remove Abandoned Conduit Station 30+99, Plan Sheet 22. LEGAL RECEIVED 07/15/2024 LEGAL RECEIVED 07/15/2024 LEGAL RECEIVED 07/15/2024 LEGAL RECEIVED 07/15/2024 LEGAL RECEIVED 07/15/2024 LEGAL RECEIVED 07/15/2024
NON-CITY UTILITIES PERMIT NO. UTL23-01461 (Public Utility Providers)
In compliance with City policy, this permit requires trench backfill compaction and pavement replacement per Mesa Standard Detail M-19.4 for the installation of Utility Trenching.
Type of Work: Standard Project City of Mesa CIP No.
Utility Provider Name: GIGAPOWER, LLC
Street Address: 500 N 54th St
City, State, Zip: Chandler, AZ 85226
Business Phone: 24-Hour Emergency Phone:
Project Location: 25 W PEPPER PL, MESA, AZ 85201
Bore Footage: 2848
Trench Footage: 0
Inspection Area: 1
Description of Work: PSA MESA-SE-BH-1B 1. Place (0) 60"x60" TPAD + (0) 36"X60" 864 PFP CABINET 2. Bore and Install (6478') HDPE conduit of varying sizes as shown on prints. All conduit shall be placed at a minimum depth of 36" in alleyways and ROW and minimum depth of 36" on arterial or collector streets and a minimum depth of 48" on East University Drive. 3. Place (##) 8" pedestals,Place (###) 10" pedestals. 4. Place (5) 4'x4'x4' Bore pits 5. All utility crossings shall be potholed. Pavement Cut Application required for (48) POTHOLES 18"x18" ·· Hard Surface (32) 18"x18" ·· Soft Surface (16) 18"x18" 6. 30"x60" Pull Box (0) 7. 30"x48" Pull Box (0) 8. Place 24"x36" Pull Boxes (5) 9. Place 17"x30" Pull Boxes (1) 10. Place 13"x19" HH (0) 11. Place 10"x15" HH (2) TOTAL FOOTAGE 6478'
Special Requirements: Coordination with Transportation & COM CIP Projects required. Future - BROADWAY RD Name: BROADWAY RD From: CENTER ST (C/L) (ABY04B) To: MESA DR Upcoming Treatments FY 22-23: Slurry Seal Future - CENTER ST Name: CENTER ST From: MAIN ST (CD07BA) To: BROADWAY RD Upcoming Treatments LEGAL RECEIVED 07/15/2024
NON-CITY UTILITIES PERMIT NO. UTL23-01461 (Public Utility Providers)
FY 22-23: Slurry Seal CP1018CAP - Center Street Complete Street DCR - McKellips to Broadway 1. Pre-construction meeting is required prior to start of work. • (Area 1 - Downtown Mesa is Utility Inspector Dan Mattingly 480-684-4793). • (Area 2 - North of Main West of Val Vista is Utility Inspector Tyson Goree 602-376-1813). • (Area 3 - South of Main St West of Val Vista is Utility Inspector John Martinez 602-376-1982). • (Area 4 – North of Southern East Of Val Vista Utility Inspector Jaxson Lawrence 480-335-4646). • (Area 5 – South of Southern West of Val Vista is Utility Inspector Jaxson Lawrence 480-335- 4646). Inspectors are available T-Th only for pre-con meeting. Meeting must be scheduled at least 48 hours in advance. 2.Running line shall have a minimum depth of 3 feet (36”) and meet the min utility clearance for all CIP related improvements. 3.The running line shall be white lined, and all utilities must be located and marked prior to pre-construction meeting. 4.It is the responsibility of the private utility company and its contractor(s) to restore the permitted area of construction to pre-work conditions. As such, it is in the best interest of the private utility company and its contractor(s) to document existing conditions prior to starting any work. 5.If private utility company and/or its contractor receive permission from a private property owner to use private property during the course of a project, a copy of the document granting that permission shall be provided to the City for record. 6.If a pavement treatment has taken place at the location referenced in this permit, no work shall begin prior to contacting City of Mesa Pavement Management staff for permission to proceed as well as restoration requirements. 7.If a City gas line is exposed, whether through potholing or open excavation, contractor shall contact City of Mesa for gas line inspection, and if needed, check and wrap at 480-262-0052. 8. This permit allows for boring under the roadway in accordance with City of Mesa Policy Statement for Street Utility Crossings Using Boring Methods document. The contractor shall contact the City of Mesa bore monitor at 480-262-0052 prior to boring. In the event that an attempt to bore is unsuccessful, the City Inspector must be contacted prior to any other method being used. 9.Disturbance to hardscape (i.e. sidewalks, driveways, curb and gutter, etc.) will result in full panel replacement (joint to joint). 10.A running line change must be approved by both the City Inspector and Utility owner prior to installation. 11.Pothole, trench, and pavement restoration to be done per City of Mesa Standard Details M-18.03, 19.04.1 &19.04.2 and Policy Statement for Street Backfilling and Pavement Replacement document. 12.If work is to be performed outside of normal working hours (nights, weekends, etc.), the private utility company or their contractor(s) must contact City Inspector for prior approval and procedural requirements. 13. Several high pressure gas lines in area. Extreme care to be taken at all times.
A permit is herby issued for the purpose contained in the application and with the agreement of the Permittee that every condition listed will be faithfully performed, and said work performed and all materials furnished shall be in accordance and conformity with final approved plans and specifications. In such cases where plans are not required all work performed and all materials furnished shall be in accordance and conformity with current MAG Uniform Standard Specifications & Details as amended by the City of Mesa. Plan approval does not constitute an approval or permit for violation of any provisions of the MAG Uniform Standard Specifications & Details as amended by the City of Mesa. Construction shall begin within one hundred twenty (120) calendar days of issuance, or license approval shall become invalid and must be resubmitted for review and approval. Final plan approval is based on the applicant's design documents included with this permit application. All errors and omissions on the design documents and permit application are the sole responsibility of the Permittee. LEGAL RECEIVED 07/15/2024
NON-CITY UTILITIES PERMIT NO. UTL23-01461 (Public Utility Providers)
APPROVED CITY OF MESA 06/19/2023 10/17/2023 _______________________ _______________________ Date of Original Issuance Date of Expiration LEGAL RECEIVED 07/15/2024
NON-CITY UTILITIES PERMIT NO. UTL23-01461 (Public Utility Providers)
IN CONSIDERATION of the granting of this permit for the purpose set forth herein the Permittee hereby agrees to the following conditions:
The work shall be performed as specified under the following conditions:
A. Buried conduit and/or cable shall be installed at sufficient depth so as to provide at least 12-inch vertical clearance below City of Mesa utilities when crossing, or 24-inch horizontal distance from existing or proposed City of Mesa utilities, pursuant to Mesa Detail M-60, Typical Utility Crossing.
B. Permittee shall notify City of Mesa Engineering Construction by using the DIMES EMS electronic notification system, no less than 48 hours prior to when work is to begin.
C. Permittee shall not bore across roadways until Permittee has submitted to the City of Mesa Engineering Construction Inspector a design (drawing) by an engineer showing all existing utilities, their locations and planned location (distance and elevations) of the bore per detail M-18, and in accordance with the Policy Statement for Street Utility Crossings Using Boring Methods. Prior to such excavation, Permittee must obtain permission from the City of Mesa Construction Inspector.
D. Permittee shall not perform open cutting of paved streets or alleys under this permit, without first: ( 1) obtaining a geotechnical report from an independent and accredited testing laboratory or company stating that soil conditions prohibit the use of reasonable boring techniques and/or equipment; and (2) notifying the City of Mesa Construction Inspector.
E. Permittee shall call 480-644-2262 and follow up with the required DIMES EMS electronic notification system for all after-hours repairs or emergencies. Permittee shall not perform any work without complying with Arizona Revised Statutes, Chapter 2, Article 6.3, Sections 40-360.21, .22, .23, .24, .25, .26, .27, .28, .30, .31, and .32. (Blue Stake 602-263-1100).
F. When City of Mesa natural gas mains and services are exposed, Permittee shall notify the City of Mesa at 480-644-2754 for inspection of the exposed pipe and coating prior to backfilling the trench. Permittee shall fill excavations around natural gas facilities as follows:
1. All bedding or shading materials adjacent to the City of Mesa's natural gas pipes shall be select sand type soil free of rock debris, that will pass through a No. 4 sieve, as defined by the American Society for Testing and Materials D-2487 1983 ed.
2. The bedding or shading material shall be no less than 6-inches in thickness around the pipe.
G. Traffic control shall be in accordance with the City of Mesa Traffic Barricade Manual. A Temporary Traffic Control (TTC) Permit must be obtained from the City of Mesa Transportation Department prior to restricting access on public streets, sidewalks, bike lanes, alleys, or other public facilities unless exempt by the TTC program rules. The TTC program rules, procedures, permit applications, and submittal information may be obtained at https://www.mesaaz.gov/business/barricading-temporary-traffic-control-permits . Traffic restrictions are prohibited during the weekday peak traffic hours of 6:30 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m. unless specifically authorized by the TTC Permit. All traffic control devices must be removed from the street or sidewalk as soon as work is complete, and it is safe to restore traffic. Additional restrictions may be required when near schools.
H. Permittee agrees to defend, indemnify, and hold harmless the City of Mesa, its officials, employees and agents (each an “Indemnitee”) against all claims, actions, demands, judgments and legal proceedings for any damage or loss of property or injury or death arising out of, related to or resulting from in whole or in part, an act or omission of Permittee, its officers, employees, agents, subcontractors or independent contractors except to the extent caused by the gross negligence or willful misconduct of an Indemnitee.
I. The Permittee agrees to keep in proper maintenance all facilities installed under this permit, and restore to its original state all existing landscaping, asphalt, concrete curb, sidewalk, etc. disturbed and/or damaged during installation under this permit. LEGAL RECEIVED 07/15/2024
NON-CITY UTILITIES PERMIT NO. UTL23-01461 (Public Utility Providers)
Permittee may also be required to use a street sweeper after completion of work.
J. All construction performed by Permittee shall conform to MAG Uniform Standard Specifications and Details, as well as City of Mesa Standard Details and Specifications, and are subject to prior approval by the City of Mesa Traffic and Streets Division (480-644-2160) and/or Engineering Construction (480-644-2253).
K. The Permittee shall provide the City of Mesa Engineering Construction Services with the company name, phone numbers (including a local 24-hour emergency phone number) and point-of-contact for all contractors and subcontractors working under this permit. The contact information must be provided to Engineering Construction Services via the DIMES EMS electronic notification system and immediately updated if any changes occur. The notifications to Engineering Construction Services must include the contractor’s and subcontractor’s location, nature of work and expected duration.
L. The Permittee agrees to a maximum of 2,640 linear feet of continuous work area at a time. Before proceeding on to the next work area (also 2,640 linear feet maximum), the Permittee agrees to complete all cleanups, patching, restoration and other work associated with the previous work area. Permittee will confer with Engineering Construction Services at 480-644-2253 for approval prior to proceeding with the next 2,640 feet of continuous work area.
M. The Permittee shall provide Engineering Construction Services (Using the DIMES EMS electronic notification system or 480-644-2253) the name and telephone number of a point-of-contact for emergency response. Failure to respond to an emergency callout or failure to provide an emergency point -of-contact shall be construed as authorization for the City of Mesa to have the situation corrected and to bill the Permittee for all costs associated with the corrective action. Each incident requiring work by the City of Mesa, either through its employees or its independent contractors, shall be covered by a separate billing and the amount of each billing shall either be $250 or the actual accumulated charges for employee's time, materials and equipment, whichever is greater.
N. Permittee shall notify all adjacent property owners in advance of construction work authorized under this permit. Notice shall be accomplished by door hanger or by mail and shall include: the project location, address, general description, Permittee contact information and a construction schedule. Sample shall be provided to the City of Mesa Inspector at the preconstruction meeting. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Case No. 2024-07476 Northstar Communications Inc.,
COMPLAINANT, v. CITATION Ansco & Associates LLC License No. ROC 341287,
RESPONDENT.
The Registrar issues this Citation to Ansco & Associates LLC (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by September 20, 2024, then under A.R.S. § 32-1155(C), Respondent’s failure to answer may be deemed an admission of the act or acts charged in the underlying complaint, and the Registrar may then suspend or revoke Respondent’s license(s). THE WRITTEN COMPLAINT On July 2, 2024, Northstar Communications Inc. (“Complainant”) filed a written complaint with the Registrar. A copy of that Complaint is attached to this Citation. A FORMAL STATEMENT OF THE CHARGES AGAINST RESPONDENT The Registrar investigated this matter and finds cause to charge Respondent with violation(s) of Title 32, Chapter 10 of the Arizona Revised Statutes. Respondent is charged with violating: Charge :1 A.R.S. § 32-1154(A)(10) — Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's
of 5
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. If the matter proceeds to a hearing and the administrative law judge determines that any of the charges listed above are supported by a preponderance of the evidence, then Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32-1154(E) and (F). FILING A WRITTEN ANSWER Respondent must appear by filing with the Registrar a written answer to the citation and complaint showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). Respondent’s written answer should contain the heading “Written Answer to Citation and Complaint” and should include the case number, which is Case No. 2024-07476. How to File a Written Answer: Respondent’s written answer may be submitted in the following ways: In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 Email: [email redacted] The Registrar’s normal office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. If Respondent submits a written answer by mail, it is not filed with the Registrar until the Registrar actually receives it. Deadline for Filing a Written Answer: Respondent must file a written answer with the Registrar no later than September 20, 2024. This deadline is calculated under A.R.S. §§ 32-1155(A) and (B), which provides a
of 5
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 deadline ten days after service of the Citation. Service of the Citation and Complaint is complete five days after the Registrar mails a copy of the Citation and Complaint to Respondent’s latest address of record in the Registrar’s office. Consequences for Failing to File a Written Answer: If Respondent fails to answer, Respondent’s failure may be deemed an admission of the act or acts charged in the written complaint. A.R.S. § 32-1155(C). The Registrar may then suspend or revoke Respondent’s license(s). THE ADMINISTRATIVE HEARING If Respondent files a timely written answer contesting any charges in the Complaint, then the Registrar will request the Office of Administrative Hearings set a date for an administrative hearing and will notify all the parties at least 30 days before that hearing. A.R.S. § 41-1092.05(D). RESPONDENT’S RIGHT TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an informal settlement conference, the Registrar must hold a conference within 15 days after receiving the request. Respondent’s request for an informal settlement conference must be in writing and must be filed no later than 20 days before the administrative hearing. A.R.S. § 41- 1092.06(A). The Registrar will not close or settle any case without both parties’ appearance at the Settlement Conference. The parties participating in the settlement conference must have the authority to settle the case and must waive their right to object to the participation of the Registrar’s settlement conference representative in the final administrative decision. A.R.S. § 41-1092.06(B). Any statements, either written or oral, made by the parties at the conference, including a written document, created or expressed solely for the purpose of settlement negotiations, are
of 5
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 inadmissible in the administrative hearing. A.R.S. § 41-1092.06(B). RESPONDENT’S PRIOR RECORD Under A.A.C. R4-9-117, in determining the appropriate discipline, the administrative law judge and the Registrar may consider not only facts in the current case, but also facts in prior cases and any documents regarding Respondent on file with the Registrar. Respondent’s prior disciplinary record and current license(s) status may be considered as a mitigating or aggravating factor in determining the appropriate discipline. EVIDENTIARY DISCLAIMER By issuing this Citation, the Registrar is directing Respondent to file a written answer to the Citation and Complaint, showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). This Citation does not constitute proof that any charge or allegation in Complainant’s written complaint is in fact true. This Citation does not constitute proof that Respondent violated any statutory provision or rule adopted by the Registrar. Dated September 5, 2024. By: /s/ Margaret Lindsey Margaret Lindsey Assistant General Counsel Legal Department Arizona Registrar of Contractors
COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, September 5, 2024 to: Respondent Certified Mail No: [number redacted] Ansco & Associates LLC 5250 Triangle Parkway Ste 175 Norcross, GA 30092
of 5
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Copy mailed by USPS First Class mail this same date to: Respondent Ansco & Associates LLC 5250 Triangle Parkway Ste 175 Norcross, GA 30092 Complainant Northstar Communications Inc. 6939 S HARL AVE Tempe, AZ 85283 Copy sent electronically this same date to:
Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2024-07476
of 5
1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Non-Payment Complaint Form Departmental Use Only Complaint Number: Mail to: Registrar of Contractors P.O. Box 18243 Phoenix, AZ 85005-8243
Person Filing Complaint (Payee) Business Name Full Name (First Middle Last) ROC License Number(s) (if any) Cody JOHN Nelson Street Address City State Zip Code 6939 S HARL AVE STE 1 Tempe Arizona 85283 Phone Number Email Address [number redacted] [email redacted] I consent to receive communications electronically in connection with this case
Name of Attorney (if any)
Attorney’s Street Address City State Zip Code
Attorney’s Phone Number Attorney’s Email Address
Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Ansco & Associates LLC ROC 341287 Street Address City State Zip Code
Phone Number Email Address
Name of Person(s) Representing License Dubi Kazula Complaint Information Principal Amount Due (excluding interest and fees) Contract Date (if applicable) $144,942.70 September 28, 2023 Have you filed a civil complaint? No List all specific invoices which have not been paid. Attach additional pages if necessary. 880059-03 - was short paid by $7k. They claim this was a back charge for restoration, however we were never contacted to cure per contract section 3.26 and 3.57. We had to press them for the release of retention, and were only notified of the backcharge when we received our remittance showing a negative $7k. When we asked, and referenced the contract, we received no response.
Certification I certify, upon information and belief, that the above-named licensee has failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor. I further certify, upon information and belief, that the above-named licensee has the capacity to pay, or has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. A.R.S. § 32-1154(A)(10). Printed Name Signature Date Cody JOHN Nelson Declaration & Signature I am the Complainant in this Complaint Form or Complainant’s duly authorized representative. I declare under penalty of perjury that the information contained in this Form is true and correct to the best of my knowledge. I further certify that any documents submitted in support of this complaint are true and correct copies of the originals and are accurate to the best of my knowledge. I will assist in the investigation or in the prosecution of the contractor or other parties, and will, if necessary, attend hearings and testify to facts. Printed Name Signature Date Cody JOHN Nelson DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
SUBCONTRACT AGREEMENT
This Subcontract Agreement ("Agreement") is made on this ___ June 27th day of __________, 23 by 20___, and between _________________________ ("Contractor") and _________________________ Ansco & Associates, LLC Northstar Communications Inc ("Subcontractor") for the purpose of performing certain subcontract work under Contractor’s primary contract (the "Primary Contract") with _______________________________ Gigapower, LLC ("Owner"). The subcontract work includes, but is not limited to, the following services: _____________________ Underground boring and fiber placement (the "Work"). In
consideration of the foregoing and the mutual promises and obligations set forth herein, Contractor and Subcontractor agree and bind themselves as follows:
Section 1. Contract Documents:
(a) The Contract Documents include this Agreement and the Primary Contract; any amendments or modifications thereto; any exhibits, annexes, or attachments to this Agreement or the Primary Contract, including all the conditions, covenants, drawings, specifications, and other documents forming or made a part of this Agreement or the Primary Contract; and any subsequent addenda, amendments, or modifications to the Primary Contract issued prior to the execution of this Agreement (collectively, the "Contract Documents").
(b) Subcontractor is bound to Contractor by all of the terms and conditions in the Contract Documents that apply to the Work in the same manner that Contractor is bound to Owner under the Contract Documents, including any government contractor requirements that are imposed on Contractor or Owner, if applicable. Contractor shall have the benefit of all rights, remedies and redress against Subcontractor that Owner has against Contractor under the Primary Contract. In the event of any conflict between this Agreement and the other Contract Documents, the provisions in this Agreement shall govern and prevail unless specifically provided for otherwise in another Contract Document.
(c) All of the Contract Documents are available for inspection by Subcontractor at Contractor’s address identified herein. Copies of the Contract Documents applicable to the Work shall be made available to Subcontractor upon request. Certain information within the Contract Documents may be considered confidential and proprietary by Owner or by Contractor and, if so, such information may be redacted from the Contract Documents before being made available for Subcontractor. Subcontractor acknowledges that it has had a sufficient and reasonable opportunity to review and consider the Contract Documents.
(d) Subcontractor understands that the laws, requirements, and provisions from the Primary Contract and any Government Contracts (as defined by Section 4(t) herein) flow down and are applicable to Subcontractor, the Work, Subcontractor’s employees, Subcontractor’s subcontractors, and their work. Subcontractor understands and agrees that such laws, requirements, and provisions cannot be amended or modified by Contractor or Subcontractor, unless agreed to in writing and unless such modification does not conflict with the laws, requirements, and provisions applicable to the Primary Contract.
(e) It is Subcontractor’s responsibility and obligation to read, understand, and follow the Contract Documents to achieve the intended purpose of a timely, efficient, and successful completion of the Work.
(f) Commencement of the Work by Subcontractor constitutes acceptance by Subcontractor of this Agreement.
For Multistate Use DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Section 2. Knowledge of Laws Applying to the Work.
Subcontractor represents and understands that it is not relying on Contractor regarding what federal, state, county, municipal, and local laws, ordinances, rules, regulations, codes, and any other orders of governmental or public authorities (collectively, “laws”) apply to the Work. Subcontractor represents that it has had an opportunity to seek advice of counsel regarding which laws apply to the Work and how to comply with them. Subcontractor also represents that it knows and understands that the laws may be amended and/or change from time to time, and that it is Subcontractor’s responsibility and obligation to maintain knowledge about and compliance with the laws in order to promote the timely, cost effective, and efficient completion of the Work according to the Contract Documents. Subcontractor acknowledges and agrees that, where the terms contained herein conflict with or are insufficient to comply with the applicable laws of the state where the Work is being performed, the terms and conditions set forth in Exhibit E, which is attached and incorporated herein, will supersede or supplement, respectively, such conflicting or insufficient terms.
Section 3. Site Conditions.
Subcontractor represents and agrees that, prior to making a bid or entering into this Agreement, it carefully investigated the nature, locality, type, quality, and site of the Work and the conditions and difficulties under which the Work is to be performed, including aerial, above ground, underground, or subsurface conditions (“Site Conditions”), and that it enters this Agreement on the basis of its own examination, investigation, and evaluation of the Site Conditions and not in reliance upon any opinions or representations of the Contractor or Owner, or any of their respective officers, agents, representatives, or employees, unless stated specifically in writing and signed by a representative of Contractor or Owner with authority to make such a written statement.
Section 4. Performance Obligations of Subcontractor; Compliance with Laws.
In the event that Subcontractor fails to satisfy any of its obligations under this Agreement, such occurrence is a material breach of this Agreement, and Contractor may terminate this Agreement without any liability to Subcontractor, except for Work already furnished and accepted by Contractor and Owner. In addition to its obligations under Section 9, Subcontractor agrees to reimburse, indemnify, defend, and hold harmless Contractor for any costs, expenses, damages, penalties, fines, charges, liabilities, and attorneys’ fees incurred by Contractor related to Subcontractor’s failure to satisfy its obligations under this Agreement.
To the extent permitted by applicable state law, Subcontractor shall:
(a) maintain the applicable state contractor’s license(s) and any other licenses, permits or approvals necessary to perform the Work and shall perform the Work within the time established by Contractor and in strict conformity with the Contract Documents;
(b) supervise and direct the performance of the Work by its employees, contractors, and vendors in strict conformity with means and methods for the timely, safe, efficient, and successful performance of the Work at its location at the time of year prevailing and otherwise to avoid conflict, delay, or interference with the work of others;
(c) maintain a competent foreman or superintendent, satisfactory to Contractor, on the site of the Work at all times during the progress of the Work with authority to act for the Subcontractor.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Subcontractor shall notify Contractor in writing, prior to commencement of Work at the job site, of the name(s) of the foreman or superintendent who will be in charge of office work. Notification in writing shall be given to the Contractor prior to the Subcontractor making any changes in said individuals, and no changes in the foreman or superintendent shall be made without Contractor’s prior written consent;
(d) have a sufficient number of skilled, qualified, and licensed personnel who comply with any written certification policy required by Contractor or Owner and who are supervised at all times to effectively prosecute the Work in a timely and diligent manner so as not to delay the Work, keep supervisory personnel on the project until completion of the Work, and remove unsatisfactory or unsafe personnel at the request of Contractor;
(e) timely and fully pay and compensate all persons or parties who have furnished labor or material for use in and about the Work so as not to delay or otherwise affect the successful, timely completion of the Work;
(f) attend any meeting called by Contractor or Owner, and Subcontractor shall be represented at these meetings by someone authorized to make decisions during these meetings for Subcontractor;
(g) maintain the highest ethical standards and ensure that its employees, agents, and representatives do not engage in actions that may detrimentally affect Contractor’s or Owner’s reputation, and prohibit them from carrying weapons or ammunition onto Contractor’s or Owner’s premises or using or carrying weapons while performing the Work;
(h) prohibit its employees, agents, and representatives from engaging in the manufacture, distribution, dispensation, possession, or use of alcohol or other drugs, except possession of medically prescribed use of prescription medication, from working on or be present at the job site under impaired judgment or physical abilities due to the use of alcohol or other drugs, including impairment from prescription drugs, and from any other illegal activity;
(i) make all submissions required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay to the Work or to the work of others;
(j) unless provided for by Contractor or Owner, furnish good quality and new vehicles, materials, equipment, and tools necessary to perform the Work, and pay promptly for all materials, equipment, and labor furnished or to be furnished to the location of the Work and furnish written evidence thereof to Contractor. If materials are provided by Contractor or Owner, Subcontractor shall only use such materials in connection with the Work. Subcontractor shall be responsible for delivery, unloading, storage, moving, and protection of all materials and/or equipment supplied or used in connection with the Work. Subcontractor is responsible for the materials until the Work is completed and is accepted by Contractor and Owner. Any unused materials provided by Contractor shall be returned to Contractor (unless Contractor specifies another location) at the conclusion of the Work in the same condition as when provided. Subcontractor will be responsible for any damaged or missing materials;
(k) investigate and assess fully and promptly any claim, allegation, citation, charge, demand, lien, encumbrance, or liability (collectively, “Claim”), or notice of a possible Claim, related to any alleged physical injury, injury to real property, injury to personal property, harm, cost, expense, damage, or other monetary damages of any kind related to or arising out of, in whole or in part, Subcontractor’s, its agents’, or its subcontractors’ performance of the Work or any obligation under this Agreement. Subcontractor expressly understands, consents, and agrees that any time, resource, liability, cost, or expense Contractor expends or incurs on account of or related to a Claim or notice of a possible Claim constitutes
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
delay and inefficiency caused by Subcontractor and damages and a loss to Contractor for which Contractor is entitled to recover from Subcontractor and which Subcontractor must and shall reimburse, indemnify, defend, and hold harmless Contractor;
(l) report, notify, and submit promptly to Subcontractor’s insurer any such Claim or notice of possible Claim and provide Contractor written confirmation that Subcontractor has provided the required information to the Subcontractor’s insurer;
(m) report to Contractor in writing within five (5) calendar days of the occurrence any event, fact, or circumstance that could give rise to a Claim, lien, damages, suit, or delay involving the Work; Subcontractor’s failure to give timely notice constitutes Subcontractor’s waiver of and surrender of any claims, suits, liens, liability, or damages of any kind it may have against Contractor for or related to the occurrence;
(n) turn all Work over to Contractor free and clear of any and all Claims or notices of possible Claims. Subcontractor agrees it shall promptly notify Contractor of and, without limiting and in addition to the indemnity in Section 9, thereafter defend, indemnify, and hold harmless Contractor, Contractor’s sureties, and Owner from all Claims and notices of possible Claims filed, submitted, or maintained by any of Subcontractor’s sub-subcontractors or suppliers and by any other person or entity making such a Claim or giving notice of a possible Claim that is related to or arising out of, in whole or in part, Subcontractor’s, its agents’, or its subcontractors’ performance of the Work or any obligation under this Agreement. Without limiting the foregoing, Subcontractor, upon notice by Contractor, shall cause any such Claim or notice of possible Claim to be discharged or satisfied. If Subcontractor fails to have any such Claim or notice of possible Claim discharged or satisfied, or otherwise fails to correct, resolve, or remedy any Claim or notice of possible Claim, Contractor shall have the right, but not the obligation, to satisfy, resolve, or remedy any Claim or notice of possible Claim, whether it is valid or not, and Contractor must and shall be indemnified, reimbursed, and made whole by Subcontractor for and from all losses, expenses, liabilities, damages, and costs, including attorneys’ fees, incurred as a result of Contractor’s actions taken on account of such Claim or notice of possible Claim;
(o) take reasonable and prudent precautions to protect the Work and the work of others from damage or adulteration, and repair or pay the cost of repairing any damage caused by Subcontractor or any of its agents or subcontractors;
(p) coordinate the performance of the Work with and cooperate with Contractor and others working in the same vicinity;
(q) comply with all applicable federal, state, county and local laws, standards, ordinances, statutes, rules, regulations, codes and orders of governmental and public authorities bearing on or related to the performance of the Work (collectively, "laws"), as each may be amended from time to time. Subcontractor shall also give notices and procure required permits or certificates necessary to perform its obligations under this Agreement, including but not limited to zoning requirements, zoning variances, special zoning permits, demolition permits, building permits, and street and curb permits;
(r) if applicable, comply with the requirements of 41 CFR § 60-1.4(b);
(s) warrant that it has registered and is currently using, or will register and begin to use prior to performing the Work, the Federal E-Verify program, and further warrants that it is now, and will continue to be for the duration of this Agreement, in compliance with all applicable federal and state immigration laws, including without limitation and as amended from time to time, the Immigration and Nationality Act of 1952 (“INA”), the Immigration Reform and Control Act of 1986 ("IRCA"), the Illegal
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), and have written documentation proving its employees and personnel working on its behalf are eligible to work in the United States. Subcontractor agrees that it is responsible for completing IRCA verification of the identity and employment eligibility of all employees and employees of its subcontractors performing services for Contractor, that Subcontractor assumes any and all liability arising out of its failure to fully comply with INA, IRCA, IIRAIRA, and/or other employment-related immigration laws and that Subcontractor will fully indemnify and hold Contractor harmless for any and all IRCA, IRCA, IIRAIRA, or other immigration- related civil money or criminal penalties assessed against Contractor for services rendered by Subcontractor’s employees or its subcontractor’s employees, and reasonable attorneys’ fees and costs incurred by Contractor. It is the responsibility of Subcontractor to establish the means to communicate effectively with Contractor and Owner. In the absence of English-speaking workers, Subcontractor must provide cards with the contact name and numbers of the supervisor responsible for that crew or provide some other effective communication tool;
(t) in the event that the Primary Contract at any time involves providing goods or services to a governmental entity or entity receiving funding from state or federal government, include in its contracts with its subcontractors obligations that are consistent with the obligations imposed on Contractor in its agreements with federal, state or local governments or agreements with entities receiving funding from federal, state or local governments or resulting from any legislation, rule, decree or governmental or executive order (collectively, “Government Contracts”). If Subcontractor performs Work for the Contractor under any Government Contract, the terms set forth in Exhibit D attached hereto and any other state or local laws or provisions are applicable to such Work. The terms identified in Exhibit D attached hereto and any other state or local laws or provisions applicable to such Work shall apply to the Work whether or not the Contractor has included notification of such in the Work documents if (1) the Work has previously been designated by the Contractor or in the Work documents as being performed pursuant to a Government Contract, (2) the Work documents issued to the Subcontractor in connection with the Work otherwise indicate that the Work is pursuant to a Government Contract by, for example and not by way of limitation, the customer’s name or address, or (3) the context of the Work is such that the Subcontractor knew or should have known that the Work is pursuant to a Government Contract. In addition, Work Orders executed hereunder containing a notation that the Work is intended for use under federal, state or local Government Contracts shall be subject to such other Government provisions as are included in the Work documents;
(u) perform all tests, reviews, and inspections called for in the Contract Documents;
(v) be exclusively responsible for the occupational safety and health of its employees and agents while engaged in the performance of the Work, protect against property damage and personal injury at all locations, and take all reasonable safety precautions with respect to its performance of this Agreement and take all necessary precautions while performing its work to ensure the safety of its employees and the employees of other subcontractors or entities on the job site. Subcontractor must report to Contractor immediately, but in any event within three (3) calendar days, any injuries to employees or agents of Subcontractor that occur at the project site. Subcontractor shall follow all requirements of Contractor’s and Owner’s safety policies and ensure compliance with the Occupational Safety and Health Act of 1970 ("OSHA") and all regulations issued thereunder; all applicable state occupational safety and health acts and any applicable regulations promulgated thereunder; and any other lawful orders of any public authorities bearing on the safety of persons or property or their protection from damage, injury or loss. Contractor, at is discretion, may fine Subcontractor for non-compliance with any safety procedure up to $500.00 for each occurrence, depending upon the frequency and severity of the violation. Contractor shall have the right to stop the Work and/or correct such practices, equipment, or devices at Subcontractor’s expense. Subcontractor shall employ competent persons capable of identifying unsafe hazards and whose duty shall be to ensure that
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
all laws are followed and that all reasonable steps necessary to avoid, prevent, or abate any hazards associated with the Work are taken;
(w) timely pay and be fully responsible and liable for all withholding, social security, disability, unemployment, excise, sales, use, or other taxes or insurance as required under federal, state, and local law or regulation, except such sales and use taxes applicable to material and other items furnished by Contractor or Owner. In addition, Subcontractor shall timely pay all fees and any labor supply licenses if required in connection with the Work and/or as required by law. Subcontractor shall provide all employees with a remittance advice (paystub) with each paycheck reflecting the calculation of wages paid. Subcontractor shall maintain all records on all of its employees as required by laws;
(x) at all times keep the worksite and surrounding area free from accumulation of trash, debris, waste materials, or rubbish caused by performance of the Work;
(y) provide to Contractor a completed Form W-9 as required by the United States Internal Revenue Service upon Subcontractor’s execution of this Agreement;
(z) give written notice to Contractor, prior to harmful exposure of any personnel on the site to such substance, of the chemical composition of any hazardous or toxic substance in sufficient details and time to permit compliance with applicable laws;
(aa) immediately stop work, if Subcontractor encounters materials reasonably believed to be asbestos, polychlorinated biphenyl (PCB), or other hazardous or toxic substance, which have not been rendered harmless in the area affected, and report in writing the condition to Contractor. Subcontractor’s work in the affected area shall resume in the absence of asbestos, PCB, or another hazardous or toxic substance, or when it has been rendered harmless by Owner, by written agreement of Contractor and Subcontractor, or in accordance with final determination by Owner;
(bb) certify to Contractor that it, by and through licensed vendors, has conducted a background check (collectively referred to as “background checking”) on each of its employees performing Work under this Agreement. For purposes of this Section 4(bb) and its related subsections below, “employee” shall include Subcontractor’s employees and any of Subcontractor’s contract personnel; and “assign” shall include training for Work to be provided to Contractor, unless otherwise agreed to by Contractor. Where permitted by law and to the extent required by Owner, Subcontractor shall conduct one or more of the following: (i) a Federal and state check for felony and misdemeanor criminal convictions in all locations where the assigned employee has resided, has been employed, or has attended school in the immediately preceding seven (7) years, (ii) a check of U.S. Government Specially Designated National (OFAC) and export denial lists, (iii) a check of the employee against the National/State Sex Offender Registry, (iv) drug testing consisting of an eleven-panel urine analysis drug screen, (v) verification of the highest college diploma, degree or certificate earned, (vi) verification of employment history, (vii) verification of the name to which the employee’s Social Security Number is attributed and (viii) verification of the employee’s legal right to work:
i. Subcontractor shall comply with all applicable laws in conducting the background check, including, but not limited to, securing from each employee who performs Work for Contractor such employee’s written consent to perform the background checking and to disclose the results thereof to Contractor upon Contractor’s request;
ii. Without prior written consent of Contractor, Subcontractor shall not assign any employee to perform Work if such employee (a) has been convicted of a felony within the last seven (7) years or a misdemeanor within the last three (3) years, which Subcontractor concludes
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
the circumstances of which are job-related to the assignment at the Work and therefore makes the employee unsuitable for that assignment, or is on the national or any state Sex Offender Registry, or for whom a warrant is outstanding, or for whom a felony or misdemeanor charge is currently pending, or is on a U.S. Government Specially Designated National or export denial list, or (b) has a confirmed positive test result from the drug screening above, or (c) does not have the legal right to work in the jurisdiction in which the employee will be performing Work; and
iii. Subcontractor understands and agrees that, to the extent that the Contract Documents provide for any background check procedures which are more restrictive than the background check procedures set forth above, such more restrictive background check procedures shall govern Subcontractor’s obligations with respect thereto;
(cc) comply with all laws regarding the location of underground cable and utilities, timely notify all utility companies and others who may have underground facilities in the vicinity of the Work if the Work involves excavation or construction, obtain appropriate information on the location of buried cable and utilities prior to performing any Work, and shall locate, expose, and protect from damage all existing underground facilities, including electrical, telephone, cable, water, gas, sewer, or other utilities. Subcontractor has assumed the risk of damage to underground facilities in the Contract Amount and shall not be entitled to any extra or additional compensation with respect thereto. Subcontractor is responsible for maintaining locate tickets until the Work is complete. Subcontractor must notify Contractor and the owner of any damage to underground cable or utilities as soon as possible after damage occurs;
(dd) absolutely waive and release any and all liens, claims, or right to file a lien on all Contractor or Owner properties, real and personal, including, but not limited to, equipment, buildings, lines, and poles, upon which Subcontractor or its employees, agents or subcontractors have performed labor or supplied material, under laws of the state where the Work was performed relating to mechanic’s liens;
(ee) execute and comply with Contractor’s Supplier Code of Conduct, attached hereto as Appendix A and available at https://anscollc.com/subcontractors/, and comply with any other supplier policies which Contractor may make publicly available on its website. Contractor’s supplier policies may be updated from time to time and Subcontractor is expected to regularly check Contractor’s website for updates;
(ff) if required under the Primary Contract, furnish to Contractor, within ten (10) days of executing this Agreement, performance and payment bonds issued by a surety company satisfactory to Contractor, and inform satisfactory to Contractor, guaranteeing the due and prompt performance of the Work to be performed by Subcontractor in accordance with all of the terms of the Contract Documents, and the prompt payment of all amounts to be paid by the Subcontractor for labor and materials. The performance and payment bonds shall name Contractor as obligee (together with other obligees if so designated by Contractor) and shall include language expressly acknowledging that the bonds shall remain in force and effect notwithstanding any assignment, conversion or novation of this Agreement; and
(gg) not sub-subcontract any portion of the Work without Contractor’s express written approval. Subcontractor’s request for such approval shall include (i) the identity of and a complete description of the activities to be performed by such sub-subcontractor and (ii) proof that such sub- subcontractor’s insurance is the same or substantially similar to the insurance required in Exhibit C. Subcontractor will remain responsible and liable for any Work performed by a sub-subcontractor as if Subcontractor had provided the Work itself. Subcontractor shall bind any sub-subcontractors to terms and conditions consistent with the terms of this Agreement and ensure that the principles of Contractor’s Supplier Code of Conduct, and any other applicable supplier policies which Contractor may make publicly available on its website, are communicated to any sub-subcontractors.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Section 5. Warranty. Subcontractor warrants to Contractor and Owner the following:
(a) The Work will be new, of good quality, free from defects, and in strict conformity with the Contract Documents. Subcontractor further warrants that all materials and equipment furnished and incorporated into the Work shall be new and of good quality unless otherwise specified. The failure of Contractor or Owner to inspect, to test, or to discover defective workmanship, materials, or equipment shall not relieve Subcontractor of its obligation to perform the Work in strict accordance with the Contract Documents. Costs of correcting defective Work, whether discovered before or after final payment, and any damage to other Work or other property caused or made necessary thereby, including additional testing and inspections, the cost of uncovering and replacement, and compensation for professional services and expenses made necessary thereby, shall be at Subcontractor’s expense.
(b) If within one (1) year after completion of the Work, or as provided by applicable law as to latent defects, any of the Work is found to be defective or not in accordance with the Contract Documents, Subcontractor shall correct it promptly upon notice from Contractor. This obligation shall survive final payment by Contractor and termination of this Agreement.
Section 6. Time is of the Essence:
(a) Subcontractor acknowledges and agrees that its obligations under this Agreement and the timely performance and successful completion of the Work are of the essence. Contractor may, from time to time, establish and change scheduling requirements for the completion of a part or all of the Work. Subcontractor shall comply with Contractor’s requirements as to timely performance and, if necessary, employ additional crews and work overtime without additional compensation. Subcontractor shall procure and store the materials needed to perform the Work so as not to delay the Work.
(b) Subcontractor expressly understands, consents, and agrees that any time, resource, liability, cost, attorneys’ fee, or expense Contractor expends or incurs on account of or related to a Claim or notice of a possible Claim is (i) costly and inefficient, (ii) delays the Work, and (iii) constitutes damages and a loss to Contractor for which Subcontractor must and shall indemnify, reimburse, and hold harmless Contractor.
(c) If Subcontractor is delayed in the performance of the Work by conditions that could not be foreseen by Subcontractor and that are beyond the reasonable control of Subcontractor, then Contractor will grant Subcontractor a reasonable extension of time, provided that Subcontractor applies in writing for such an extension of time within five (5) calendar days after the commencement of the delay; if Subcontractor fails to apply in writing for such an extension, Subcontractor waives the right to an extension of the contract time. Contractor and Subcontractor agree, and Subcontractor acknowledges, that the Contract Amount is based upon the fact that Contractor shall not be liable to Subcontractor for any damages, costs, or expenses incurred by Subcontractor due to delays, acceleration, non-performance, interference with performance, suspensions, or changes in the performance or sequence of performance of the Work. Subcontractor is not and will not be entitled to any damages or other monetary compensation for delay even if such delay is caused, or partly caused, by Contractor or Owner. Instead, Subcontractor’s sole remedy for any delay shall be an extension of time as provided for in this Section 6(c).
Section 7. Change Orders. Owner or Contractor may from time to time, by written directive to Subcontractor, require Subcontractor to make changes in the Work (both additions and deletions), and the changed work shall be part of the Work. Subcontractor shall not proceed with changed Work unless it first receives a written Change Order signed by both parties.
Section 8. Independent Contractor:
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(a) Subcontractor is at all times an independent contractor and not an employee, partner, or agent of Contractor, or engaged in a joint venture with Contractor. Contractor has engaged Subcontractor solely to deliver a result, and Contractor has no power, control, or authority over the method, manner, or means by which Subcontractor performs the Work. The Contract Documents shall not be construed as creating any contractual relationship between Subcontractor and Owner (except to the extent Owner is an express third-party beneficiary of some of the provisions of this Agreement) or between Subcontractor and any consulting engineer or other professional engaged by Owner or Contractor.
(b) Subcontractor is responsible and accountable for the performance and actions of its employees, for supervising and directing the work of its employees and for others acting at Subcontractor’s direction and/or on Subcontractor’s behalf, and for ensuring that all of Subcontractor’s employees and such other persons comply with the terms and conditions of this Agreement. Subcontractor shall be responsible for Subcontractor’s own labor relations with any labor organization, and Subcontractor shall not and may not bind Contractor or any customer of Contractor or any affiliate of either to any labor union. Subcontractor shall maintain labor peace and harmony for the duration of the Work.
(c) Persons furnished by Subcontractor under this Agreement shall not be entitled to any benefits that Contractor provides to its own employees.
Section 9. Indemnity/Duty to Defend (See Exhibit E, if applicable):
(a) To the fullest extent permitted by law, Subcontractor must and shall defend, indemnify, and hold harmless Contractor, Owner, Owner’s lender(s), and their respective parents, subsidiaries, affiliates, officers, directors, agents, servants and/or employees (each an "Indemnified Party" and, collectively, the "Indemnified Parties") from and against all liability, damages, citations, Claims, charges, fines, penalties, or injuries (collectively, “Liability”), or threat of Liability, of any kind or nature whatsoever to all persons and to all property including all settlement sums, losses and expenses, and attorneys’ fees, suffered by any Indemnified Party, which are caused by, result from or arise out of Subcontractor’s (i) performance or nonperformance of this Agreement or the Work, (ii) breach of this Agreement, and/or (iii) violation of any law, and, regardless whether the Liability is based upon an Indemnified Party’s alleged active or passive negligence or participation or upon any alleged breach of any statutory duty or obligation on the part of an Indemnified Party, Subcontractor agrees to this indemnification. In addition, Subcontractor expressly agrees to defend, indemnify, and hold harmless the Indemnified Parties from and against any and all Liability that may be asserted against any Indemnified Party by an employee or former employee of Subcontractor for which Subcontractor’s liability to such employee or former employee would otherwise be limited to payments under state workers’ compensation or similar laws. Subcontractor also expressly and specifically agrees that its obligations to defend, indemnify, and hold harmless the Indemnified Parties shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability under state workers’ compensation laws.
(b) Subcontractor’s duty to defend the Indemnified Parties shall apply whether such claim or legal proceeding is brought only against any or all of the Indemnified Parties, either separately or jointly with Subcontractor. Subcontractor shall reimburse each Indemnified Party for any legal expenses and attorneys’ fees incurred in enforcing Subcontractor’s obligations and/or the indemnity granted to them under this Agreement.
(c) One percent (1%) of the Contract Amount represents specific consideration to the Subcontractor for the indemnification provisions set forth in this Agreement and the other Contract Documents and said consideration is deemed paid out of the earliest payments made under this Agreement.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Section 10. Extra Work. Claims for extra work and changes in the Work made by Subcontractor will only be allowed when written authorization has been given by Contractor prior to execution of the work; Subcontractor waives all claims for any extra work or changes not so authorized. When such authority for extra work or changes in the Work is given without an agreed upon price, the fully documented claim must be submitted promptly upon completion of the extra work. Contractor may order in writing changes in the Work without notice to Subcontractor or its sureties consisting of additions, deletions, or modifications. Where work is required to be done and the parties cannot agree as to whether such work is extra work or cannot agree as to the valuation of the addition, deletion, or modification, Subcontractor shall not delay performance of the Work, and Subcontractor shall proceed with the Work upon the written order of Contractor. If the Contractor orders a change in the Work or requests the Subcontractor to review a proposal for a change in the Work, the Subcontractor agrees to review the change, or proposal for change, and within two-thirds (2/3) of the time required by the Primary Contract or five (5) calendar days, whichever is the shorter period of time, Subcontractor shall submit to Contractor a written proposal for the Work amply detailed and supported and conforming to the requirements of the Primary Contract and this Agreement. Subcontractor agrees that it waives all its rights to both price and time adjustments if it fails to submit its written proposal within the required time.
Section 11. Contract Amount. Contractor shall pay Subcontractor the prices and costs for work, materials, and supplies only as set forth in Exhibit A, as consideration for Subcontractor’s compliance with this Agreement and performance of the Work in accordance with the Contract Documents. Subcontractor shall not be entitled to any increase in the contract amount unless a Change Order has been accepted by the parties in writing. Subcontractor shall not be entitled to any increase in the contract amount due to price escalation of materials and/or labor costs.
Section 12. Conditions Precedent to Payment. As conditions precedent to Subcontractor’s right to receive payment and to the extent permitted by applicable state law:
(a) Subcontractor agrees, consents, and acknowledges that its request for payment constitutes its representation that its work performed up to the date of the request for payment complies with the Contract Documents and satisfies fully its obligations under the Contract Documents. Subcontractor further agrees, consents, and acknowledges that its request for payment constitutes Subcontractor’s waiver of and surrender of any claims, suits, liens, or damages of any kind against Contractor for or related to Subcontractor’s work performed up to the date of the request for payment and for which Subcontractor seeks payment.
(b) Owner must first accept the Work performed by Subcontractor and pay Contractor for the Work before Contractor has the ability, obligation, or duty to pay Subcontractor;
(c) Subcontractor shall furnish Contractor with signed waivers of lien from all of its subcontractors and laborers complying with the requirements of all applicable mechanic’s lien laws and such other evidence as may be reasonably required by Contractor or Owner to substantiate payment;
(d) Subcontractor shall keep full and detailed records to confirm compliance with the Agreement in form satisfactory to Contractor. Contractor and any state government or federal government auditor shall be afforded access to, and shall have access to and be permitted to audit and copy, Subcontractor’s records, books, correspondence, instructions, drawings, receipts, employment records, subcontracts, purchase orders, vouchers, memoranda, and other data relating to this Agreement or the Work. Subcontractor shall preserve such documents and records referred to herein for a period of three (3) years after final payment, or for such longer period as may be required by law. Subcontractor shall not impose any charges for access to its books and records regarding its performance under this Agreement, and shall fully cooperate with authorized representatives in the examination or audit of books and records;
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(e) All paperwork required by Contractor from Subcontractor has been completed, submitted to, and approved by Contractor; and,
(f) Payments to Subcontractor may be withheld at Contractor’s sole discretion to insure the timely progress and completion of the Work and adherence to the Contract Documents.
Section 13. Payment Procedure. Subcontractor agrees that the following payment procedure shall govern all payments made hereunder:
(a) Invoicing. No later than Monday of each week, Subcontractor is to submit an invoice or daily billing sheet for the portion of the Work completed through the preceding Saturday. The invoice or daily billing sheet shall be prepared in duplicate and submitted to Contractor’s supervisor for review and approval. After approval, Contractor shall pay Subcontractor within thirty (30) days for the invoice generated or presented, less the amount set forth in Exhibit B (the "Retainage"). As a material part of the consideration under this Agreement, Subcontractor agrees to satisfy any Deficiencies in Retainage out of or from any Retainage held or owed to Contractor as a result of Work performed hereunder or being performed by Subcontractor under a separate agreement. This provision will survive the termination of this Agreement for one (1) year. Acceptance of final payment by Subcontractor shall act as a release of all claims of Subcontractor or any person claiming under or through Subcontractor against Owner, Contractor, Contractor’s surety, if any, in any way related to the Work. As used herein, "Deficiencies in Retainage" shall mean an insufficient amount of Retainage withheld under this Agreement to satisfy any and all claims that result from the performance or non-performance of the Work, regardless of whether such deficiencies become known to Contractor or Owner after final acceptance of the Work.
(b) Payments Held in Trust. Subcontractor shall hold all payments made to it by Contractor in a trust account to be applied first to the payment of its employees, subcontractors, laborers, and suppliers of materials or services used for or in connection with the Work, including, without limitation, any amount payable in taxes on account of the Work or labor supplied and to any applicable employee benefit plan. Subcontractor shall apply all payments from Contractor in the preceding manner before using any part thereof for any other purpose.
(c) Joint Checks. Contractor shall have the right, at its sole discretion, to make any payments to be made hereunder in the form of checks payable jointly to Subcontractor and any unpaid sub- subcontractor, suppliers or materialmen. If Subcontractor shall fail to pay when due any payments for labor, supplies, materials or services furnished in connection with the performance of the Work, Contractor may, after five (5) days written notice to Subcontractor, directly pay the amount of such liabilities and recover the amount thereof from Subcontractor, directly or by the deduction of such sum from any amounts then or thereafter due to Subcontractor hereunder. If the remaining contract amount is insufficient to cover such costs, Subcontractor shall reimburse such costs to Contractor immediately upon written demand therefor.
(d) Right to Withhold Payment for Defective Work or other Failure to Satisfy Obligations. In addition to Retainage, Contractor shall have the right to withhold payment for failure of Subcontractor to meet its obligations under the Agreement, for defective Work not remedied, for failure of the Work to conform to the Contract Documents, to satisfy any and all Claims or notices of possible Claims, or for other failure of Subcontractor to comply with the terms and conditions of the Contract Documents. Contractor shall be entitled to withhold such amount as may be necessary, from Retainage or otherwise, in Contractor’s good faith opinion, to protect Contractor from loss due to such defects, non-performance, or failure to comply with the Contract Documents. If such deficiencies are not promptly corrected after Contractor provides written notice to Subcontractor, Contractor may correct such deficiencies at Subcontractor’s expense and deduct all costs incurred from payment due to Subcontractor. The withholding by Contractor of any amounts otherwise due to Subcontractor shall not enable Subcontractor to stop the Work
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
or terminate this Agreement.
(e) Right to Deduct Payment for Contribution to Pollution Liability Insurance Program beginning 2024. Contractor maintains a pollution liability insurance program that provides insurance coverage for pollution liability exposures on its projects that may include the interests of its subcontractors. For each calendar year or any part thereof that this Agreement remains in effect, Contractor shall deduct from amounts due to Subcontractor hereunder a payment for Subcontractor’s contribution (the “Insurance Contribution”) to the pollution liability insurance program in such amount as Contractor deems necessary in its sole discretion. Such deduction is generally expected to be made once per calendar year, but the frequency thereof is subject to change without notice to Subcontractor. Each date on which such deduction is made is referred to as a “Deduction Date”. To the extent that there are no amounts due and payable to Subcontractor on any Deduction Date, Contractor shall invoice Subcontractor for Subcontractor’s Insurance Contribution and Subcontractor shall remit payment for such Insurance Contribution to Contractor within thirty (30) days of the date of such invoice. Contractor reserves the right, if deemed necessary by Contractor in its sole discretion, to deduct Subcontractor’s Insurance Contribution from any Retainage held or owed to Contractor as a result of Work performed hereunder or being performed by Subcontractor under a separate agreement.
(f) Right to Offset Payment. In addition to other rights and remedies Contractor may have, Contractor may offset any payment obligations to Subcontractor that Contractor may incur under this Agreement against any amounts claimed by Contractor to be owed by Subcontractor to Contractor under this Agreement or any other agreement between Subcontractor and Contractor. Contractor also may withhold and offset against its payment obligations under this Agreement or require Subcontractor to pay Contractor within thirty (30) business days of receipt of any invoice, any amounts Contractor may have overpaid to Subcontractor in prior periods.
Section 14. Insurance; Waiver of Subrogation. Before Contractor makes any payment to Subcontractor under this Agreement and before Subcontractor performs any Work, Subcontractor shall deliver to Contractor certificates of insurance in accordance with the policies, coverages, and limits of liability set forth on Exhibit C. Subcontractor waives all rights against Contractor and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by commercial general liability, commercial umbrella liability, business auto liability, workers’ compensation and employers’ liability, and errors and omissions or professional liability insurance maintained per the requirements stated in Exhibit C.
Section 15. Subcontractor Submittals. Contractor may, at any time in its sole discretion, require from Subcontractor and Subcontractor shall submit to Contractor any of the following submittals (collectively, "Submittals") in a form satisfactory to Contractor:
(a) Certificates from providers evidencing that all bonds and insurance required by the Contract Documents are in full force and effect;
(b) Satisfactory evidence that Subcontractor is in compliance with all government, administrative, reporting or accounting requirements of the Contract Documents;
(c) Satisfactory evidence that neither Subcontractor nor any person or entity claiming under or through Subcontractor has placed or has the right to maintain a lien or other claim against Owner, Contractor, Contractor’s surety, if any, or the Work, including a sworn certification of payment and releases of liens filed by suppliers or persons working under or on behalf of Subcontractor on forms specified by Contractor; DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(d) Satisfactory evidence that all individuals performing Work have completed a background check and drug test in accordance with the terms herein and the Contract Documents;
(e) Affidavit stating that all persons working for Subcontractor have been paid in full for any labor, materials, supplies or services provided in connection with the Work, including, without limitation, any taxes, benefits or government charges with respect thereto; and,
(f) Contractor may withhold payment of any invoice then due or that may become due until Subcontractor provides a requested Submittal.
Section 16. Assignment. Contractor may assign this Agreement. Subcontractor shall not assign this Agreement nor subcontract the whole or any part of the Work or this Agreement without the written consent of Contractor. Subcontractor shall not assign any amounts due or that may become due under this Agreement without the written consent of Contractor. Any such assignment without the consent of Contractor shall be void, and Contractor, at its option, may terminate this Agreement. Contractor shall have the right to approve and/or remove any and all subcontractors of Subcontractor.
Section 17. Termination: If Subcontractor (i) is adjudged bankrupt, (ii) makes a general assignment for the benefit of its creditors, (iii) allows a receiver to be appointed on account of its insolvency, (iv) fails to carry forward and complete its Work as rapidly as the Contractor may judge that the progress of the Work will permit, (v) becomes insolvent or fails to make prompt payment to its subcontractors, materialmen, or laborers, (vi) fails to comply with instructions of the Architect or Engineer, (vii) fails to timely correct defective Work, (viii) fails to purchase and maintain the insurance required under Exhibit C to this Agreement, (ix) otherwise breaches this Agreement or violates any provision of the Contract Documents, or (x) violates any applicable laws, then the Contractor may, after giving Subcontractor written notice and without prejudice to any of its rights, exercise its rights under this Agreement or otherwise pursue any right or remedy it may have in law or equity.
(a) Termination for Cause. Subcontractor shall satisfy its obligations under this Agreement and perform the Work in accordance with this Agreement and the Contract Documents so that the result contracted for is reasonably satisfactory to Contractor and Owner. If Subcontractor fails within seven (7) calendar days following written notice by Contractor to fulfill Subcontractor’s obligations under this Agreement, Contractor, in addition to any lawful remedies, may terminate this Agreement or Contractor may complete the Work or correct any deficiencies by alternate means. If the expenses, attorneys’ fees, or costs borne or incurred by Contractor to complete the Work or correct any deficiencies exceed any amount due Subcontractor from Contractor, Contractor has the right to offset the amount due and seek any balance from Subcontractor. Upon receipt of a written notice of termination, Subcontractor shall (i) suspend all operations at the site, (ii) take such action as is necessary to protect and preserve the Work, and (iii) to the extent possible without committing an act of breach, terminate all existing sub-subcontracts and purchase orders and refrain from entering into additional sub-subcontracts and purchase orders.
(b) Termination for Convenience. Contractor may terminate this Agreement if (i) Owner terminates the Primary Contract, (ii) in good faith or otherwise based on reasonable information, Contractor believes Subcontractor may default on its obligations under the Agreement, or (iii) for Contractor's convenience.
(c) Contractor may elect at any time to convert a termination for convenience into a termination for cause.
(d) Subcontractor's exclusive and only remedy under Section 17, if any, and subject specifically to Sections 12 and 13, is to receive payment for Work performed by Subcontractor up to the
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
effective date of the termination that has been accepted by the Contractor and Owner and otherwise fully satisfies the Contract Documents. Subcontractor shall not be entitled to receive payment, profit, overhead, or other compensation for any work not performed.
Section 18. Limitation on Remedy.
In the event of a breach of this Agreement by Contractor, Subcontractor agrees that its sole and exclusive remedy shall be the recovery of actual and direct damages only. In no event shall Contractor be responsible for or liable to Subcontractor for consequential, multiple, indirect, liquidated, incidental, exemplary, or punitive damages, or for any special statutory remedies, penalties, or attorney’s fees. For any delay or suspension of the Work caused by Contractor, Subcontractor’s only remedy is a time extension, but only if, as a condition precedent, Subcontractor provided written notice to Contractor within five (5) calendar days of the event allegedly causing the delay. In no event shall Contractor be liable to Subcontractor for delay to Subcontractor’s Work caused by the act, neglect, or default of the Owner, the Architect/Engineer, design professionals, consultants, experts or by reason of fire or other casualty, or on account of civil unrest, government action, riots, or strikes, or other combined action of workmen or others, or on account of any other cause.
Section 19. Non-Competition and Non-Solicitation.
Except where prohibited by applicable state law:
(a) For so long as Subcontractor is performing the Work and for a period of two (2) years after Subcontractor ceases performing the Work, for any reason whatsoever, Subcontractor shall not, either directly or indirectly, on Subcontractor's own behalf, or, on behalf of others, (i) engage in, own any interest in, manage, operate, gain control of, consult with, finance or otherwise participate in, (ii) solicit to or on behalf of any Competing Business (as hereinafter defined), or (iii) attempt to solicit, divert, or appropriate to or on behalf of any Competing Business, any business of Contractor from any customer of Contractor with whom Subcontractor has had material contact in furtherance of Contractor’s business during the last two (2) years within which Subcontractor was performing the Work.
(b) The territory covered by this Section is the state or states in which Contractor, or its affiliates or subsidiaries, as applicable, conduct business.
(c) For the purposes of this Section: (i) "customer" shall mean a customer who has obtained products or services from Contractor within the last two (2) years and has not advised Contractor of a decision to no longer obtain products or services from Contractor, (ii) "material contact" shall mean contact between Subcontractor and the customer that was intended to further the business relationship between Contractor and the customer, and (iii) "Competing Business" means any business organization of whatever form engaged, in whole or in relevant part, in any business or enterprise which is the same as, or substantially the same as, the business of Contractor, or any of Contractor’s affiliates or subsidiaries, as applicable.
(d) For so long as Subcontractor is performing the Work and for one (1) year thereafter (the “Non-Solicit Period”), Subcontractor will not solicit for employment or for use as an independent contractor (or advise, suggest or recommend that any other person or entity employ or offer employment to or solicit for use as an independent contractor) (i) any current employee of Contractor or (ii) any former Contractor employee within six (6) months of that employee’s departure from Contractor, nor shall Subcontractor solicit or encourage any current employee of Contractor to terminate his or her employment with
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Contractor for any reason during the Non-Solicit Period. Newspaper advertisements, job postings and other public advertisements of positions, by themselves, do not constitute solicitation.
Section 20. Confidential Information and Trade Secrets:
(a) Subcontractor will hold all Confidential Information (as hereinafter defined) in trust and strictest confidence, and will not use, reproduce, distribute, disclose, or otherwise disseminate Confidential Information, or any physical embodiments thereof, and may in no event take any action causing or fail to take action necessary in order to prevent any Confidential Information disclosed to or developed by Contractor to lose its character or cease to qualify as Confidential Information. This obligation commences when Subcontractor first comes into possession of Confidential Information and continues for a period of four (4) years after Subcontractor ceases performing the Work for which such Confidential Information was provided to or developed by Subcontractor or Contractor under this Agreement.
(b) During the term of this Agreement and following termination of it (until such time as they are no longer Trade Secrets under applicable state laws), Subcontractor will hold all Trade Secrets (as hereinafter defined) in trust and strictest confidence, and will not use, reproduce, distribute, disclose or otherwise disseminate the Trade Secrets, or any physical embodiments thereof, and may in no event take any action causing or fail to take action necessary in order to prevent any Trade Secrets disclosed to or developed by Subcontractor to lose its character or cease to qualify as Trade Secrets.
(c) "Confidential Information" means information related to the operation and business of Contractor, which derives economic value, actual or potential, from not being generally known to or readily ascertainable by others, and which is not a Trade Secret. Assuming the foregoing criteria are met, Confidential Information includes, but is not limited to, the following: compilations of information concerning pending or potential transactions within the business of Contractor that if pursued by Contractor would or could result in a fee or income to Contractor; compilations of information concerning Contractor’s customers and prospective or potential customers; compilations of service manuals; Contractor’s pricing information; compilation of information related to Contractor’s vendors and suppliers, including the identity of Contractor’s vendors and suppliers; compilation of Contractor’s vendor and supplier pricing; Contractor’s financial, marketing and sale information; proposals submitted to customers or potential customers of Contractor, including the services requested or preferred by Contractor’s customers; Contractor’s methods and procedures of operation; the composition, description, schematic or design of software or other products, future products or equipment of Contractor; communication systems, audio systems, system designs and related documentation; systems, processes and methodologies used by Contractor to conduct the business of Contractor; and the amounts paid by Contractor’s customers for services rendered by Contractor. Confidential Information shall also include information which has been disclosed to Contractor by any third party, and, as to which, Contractor has an obligation to the third party to treat as confidential.
(d) "Trade Secrets" means all information that constitutes trade secrets as defined by the Uniform Trade Secrets Act and other applicable laws of the state where the Work is conducted.
Section 21. Notices. All notices, requests, claims, demands, and other communications under this Agreement shall be in writing and shall be given by delivery in person, facsimile, or registered or certified mail to the respective parties at the following addresses. In addition, Subcontractor agrees and consents that service of process is accomplished and perfected by written notice to the address below:
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
If to Contractor: If to Subcontractor:
Ansco & Associates, LLC ________________________________ Northstar Communications Inc ________________________________ 1220 Old Alpharetta Road ________________________________ 6939 S Harl Ave ________________________________ Suite 380 ________________________________ Tempe, AZ 85283 ________________________________ Alpharetta, GA 30005 ________________________________ ________________________________
Attention: George Summers ______________________ Attention: Cody J Nelson ______________________ Office: 404-508-5737 ______________________ Office: (480)217-1962 ______________________ Fax: N/A ______________________ Fax: N/A ______________________
Section 22. Amendment. This Agreement may be amended only by a written instrument signed by Contractor and Subcontractor.
Section 23. Waiver of Breach. The waiver by either party of a breach of any provision in this Agreement shall not operate or be construed as a waiver by such party of any subsequent breach.
Section 24. Headings. The descriptive headings in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement.
Section 26. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes any and all prior and contemporaneous agreements, either oral or written, between the parties relating to the subject matter of this Agreement. There are no courses of dealing, courses of performance, or usages of trade that constitute a portion of this Agreement. As a jointly drafted Agreement, no provision of this Agreement shall be construed more harshly or disfavorably against either Contractor or Subcontractor regardless of which party drafted the provision or for whose benefit such provision was included.
Section 27. Governing Law. The interpretation, construction and enforcement of this Agreement shall be governed by the laws of the jurisdiction where the Work is to be performed under this Agreement.
Section 28. Dispute Resolution.
(a) In the event of a dispute, claim, or other matter in question of any kind whatsoever between the parties arising out of or related to the provisions and/or subject matter of this Agreement, or the breach, interpretation, or performance thereof, it is agreed that the parties will attempt to resolve such dispute, claim, or other matter in question amicably by informal discussions and negotiations within a seven (7) day period. All such disputes, claims, or other matters in question that involve claimed damages of less than $50,000.00 which cannot be settled by negotiation among the parties within such time shall be resolved through arbitration and without litigation. All such disputes, claims, or other matters in question that
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
involve claimed damages equal to or greater than $50,000.00 which cannot be settled by negotiation among the parties within such time shall, upon the demand of, and at the exclusive election of, Contractor (but not otherwise), be submitted by the parties to arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association. The parties hereby agree and recognize that $100 of the contract price has been paid to Subcontractor as separate and sufficient consideration for Contractor’s right to elect arbitration of any dispute or claim under, arising out of, or in any way related to this Agreement. The arbitration panel shall have the power to rule on its own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement. The location of the arbitration hearing shall be in a location mutually agreeable to the parties. This provision to arbitrate shall be specifically enforceable in any court of competent jurisdiction. The award rendered by the arbitration panel shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.
(b) Subcontractor agrees that any arbitration instituted under this Section, shall, at Contractor’s election and sole discretion, be consolidated with any other litigation or arbitration proceeding involving a common question of fact or law between the Contractor, the Owner, the Architect/Engineer, and/or any other subcontractor(s) of any tier performing work in connection with the Work or Project. Subcontractor shall carry on the Work pending final resolution of any dispute, claim, or other matter in question, unless Contractor has exercised a remedy that has terminated Subcontractor’s Work and/or presence on the Project. The exercise by Contractor of its remedies shall not be conditioned upon resolution, by arbitration or otherwise, of the dispute, claim, or other matter in question upon which Contractor bases its decision to exercise any such remedy or remedies. It is hereby agreed that during any arbitration proceedings discovery shall be available and shall be conducted as directed by the arbitrator(s).
(c) In the event Contractor is required by the terms of the Primary Contract to arbitrate any controversy with Owner or with any other prime contractor, subcontractor, or supplier, and such controversy involves, in whole or in part, the Work or materials of Subcontractor, then Subcontractor agrees, upon demand of Contractor, to participate in the prosecution or defense of such controversy in said arbitration and to be bound by the result thereof. Subcontractor shall not commence or maintain any action or proceeding against Contractor for any damages resulting from any default, breach, or interference by the Owner or for extra work ordered by Owner or by virtue of any deduction or refusal to pay by the Owner, except to the extent of the sum ultimately obtained from the Owner on account thereof by Contractor.
(d) In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party the attorney’s fees reasonably incurred by the prevailing party in connection with the arbitration. The prevailing party shall be the party that prevails on at least 51% of its asserted claims or counterclaims as determined by the arbitrator(s). Each party shall bear its own administrative costs of arbitration and shall be responsible for an equal percentage of the compensation and expenses paid to the arbitrator(s).
(e) As a condition precedent to any arbitration proceeding or litigation, the parties agree to submit to a non-binding mediation proceeding with the associated costs shared equally.
(f) In the event Contractor does not elect arbitration as the binding dispute resolution method of a dispute, claim, or other matter in question that involves claimed damages equal to or greater than $50,000.00, , or if the arbitration clause is declared unconscionable or otherwise invalid, then (i) the parties hereby waive any right to a trial by jury on any dispute not resolved by arbitration or otherwise, and (ii) any legal proceeding of any nature brought in court by any party, its surety or both of them against the other party, its surety or both of them, relating to or seeking to enforce any obligation under this Agreement arising out of any matter pertaining to this Agreement or the Work to be performed hereunder, shall be filed in a court of competent jurisdiction in a location mutually agreeable to the parties sitting without a jury, and
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
the parties hereby consent to the jurisdiction of such Court as the exclusive forum for any such legal proceedings not subject to arbitration.
Section 29. Facsimile Signature. Any party transmitting its signature by facsimile or portable document format (".pdf") shall be deemed to have accepted and adopted such facsimile or .pdf signature as such party’s original signature and that same is sufficient to bind such party to this Agreement as if such party’s original handwritten signature is attached hereto. It is the intention of the parties, however, that a facsimile or .pdf signature is binding from the time it is telecopied or transmitted for attachment to this Agreement and that any person may rely on the authority thereof for implementing the provisions of this Agreement.
Section 30. Remedies. Duties and obligations imposed by this Agreement and the Contract Documents upon Subcontractor, and the rights and remedies available to Contractor thereunder, shall be in addition to, and not a limitation of, duties, obligations, rights and remedies otherwise imposed or available by law. Contractor’s remedies shall be cumulative and Contractor’s failure to exercise a particular remedy shall not constitute a waiver of a right or duty afforded Contractor herein or pursuant to applicable law. Subcontractor agrees that the covenants contained in this Agreement are reasonable and necessary to protect and preserve the interests and properties of Contractor and the business of Contractor; and that irreparable loss and damage will be suffered by Contractor should Subcontractor breach any of its obligations. Therefore, Subcontractor agrees and consents that, in addition to all the remedies provided at law or in equity, Contractor shall be entitled in a court of law to a temporary restraining order and temporary and permanent injunctions to prevent a breach or threatened breach of any of its obligations. Subcontractor waives and will not (i) assert any defense that Contractor has an adequate remedy at law with respect to the breach, (ii) require that Contractor submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require Contractor to post a bond or any other security. Further, Contractor and Subcontractor acknowledge and agree that any claims by Subcontractor against Contractor hereunder or otherwise shall not constitute a defense to injunctive relief as to the enforcement of this Agreement. In the event that either party is forced to bring suit to enforce the provisions of this Agreement, the enforcing party shall be entitled to recover from from the other party its attorneys’ fees, expenses, and costs of litigation in addition to all other remedies available at law or in equity.
Section 31. Survival. Unless otherwise stated, and to the extent permitted by applicable law, all rights of Contractor hereunder and all obligations and duties of Subcontractor hereunder shall survive termination or completion of this Agreement.
Section 32. Severability. Contractor and Subcontractor agree that each of the provisions included in this Agreement is separate, distinct, and severable from the other and remaining provisions of this Agreement, and that the invalidity or unenforceability of any Agreement provision shall not affect the validity or enforceability of any other provision or provisions of this Agreement. If any provision of this Agreement is found by any court with jurisdiction to be less than fully enforceable, then each such provision shall be deemed amended or modified to the fullest extent permitted under applicable law. Any such amendment or modification does not alter or amend any other provision of the Agreement, which otherwise remains in full force and effect. The existence of any claim, demand, action, or cause of action of Subcontractor against Contractor shall not constitute a defense to the enforcement by Contractor of any of the covenants or obligations of Subcontractor set forth in this Agreement.
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
The parties have executed this Agreement as of the date indicated above.
CONTRACTOR: SUBCONTRACTOR:
Ansco & Associates, LLC Northstar Communications Inc ___________________________________
By: _____________________________ By: _____________________________ Craig Clark Name: _____________________________ Cody J Nelson Name: _____________________________ Title: Vice President Title: COO _____________________________
Subcontractor’s Taxpayer Identification Number: __________________
DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Exhibit A
Pricing
See Attached Pricing.
Ex. A-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Exhibit B
Retainage
(a) In accordance with Section 13, Contractor shall pay Subcontractor for each invoice presented, less ___% (the "Retainage") to be capped at $100,000. Payment of Retainage (less any amounts previously withheld or deducted) shall be made one hundred eighty (180) after all the following conditions precedent are satisfied:
(i) Full completion of and acceptance of the Work in accordance with this Agreement, as determined in the sole discretion of both Contractor and Owner; and
(ii) Final payment made to Contractor by Owner of all sums owed to Contractor under the Primary Contract and any amendments thereto.
(b) Subcontractor agrees that Contractor may use all or any portion of the Retainage to satisfy any and all Claims or notices of possible Claims.
Ex. B-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Exhibit C
Subcontractor Insurance Requirements
(a) Subcontractor shall procure and maintain at its expense during the term of this Agreement the following policies, coverages and limits of liability in all states where Work is to be performed from an insurer (or insurers) licensed to do business in such state(s), with AM Best Rating "A-VIII" or better and otherwise acceptable to the Contractor. The Contractor specifically reserves the right to reject coverage provided by certain insurance companies not acceptable to the Contractor. If the Primary Contract requires additional coverage or limits higher than those stated below, then the insurance requirements of the Primary Contract will apply.
(i) Workers' Compensation and Employers Liability Insurance with the following minimum limits of liability and coverage endorsements:
Workers Compensation – Coverage A: Statutory Coverage (Statutory coverage is required in all working states, regardless of any reciprocity or extraterritoriality statutes)
Employer’s Liability – Coverage B:
• $1,000,000 each accident • $1,000,000 each employee by disease • $1,000,000 policy limit by disease
The policy shall be endorsed to contain the following coverage endorsements:
• United States Longshore and Harbor Workers Compensation Act (USL&H) coverage endorsement, if applicable • waiver of subrogation in favor of Contractor and Owner, their agents, officers, directors and employees where permitted by law • alternate employer endorsement, if applicable
If a Professional Employer Organization (PEO) arrangement is in place, a full copy of the PEO Workers’ Compensation policy must be provided for review, including all policy forms, endorsements, and class codes.
(ii) Commercial General Liability utilizing ISO’s CG 00 01 or equivalent including coverage for: broad form property damage coverage; settlement/subsidence/earth movement; collapse, explosion, and underground hazards; bodily injury and property damage; personal/advertising injury; contractual liability; and products-completed operations, with the following minimum limits of liability and coverage endorsements:
• $1,000,000 each occurrence • $2,000,000 general aggregate (must apply on a Per Project basis, not to be capped at an amount less than $5,000,000 Policy Total) • $2,000,000 product-/completed operations aggregate (must be dedicated aggregate limit; “included” is not acceptable) • $1,000,000 personal injury and advertising injury liability (must be dedicated aggregate limit; “included” is not acceptable)
Ex. C-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
The policy shall include the following conditions:
• Contractor, its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, agents, and Owner shall be included as Additional Insureds via CG 20 10 or equivalent and CG 20 37 or equivalent. ISO’s blanket forms CG 20 38 and CG 40 shall be considered equivalent to the CG 20 10 and CG 20 37, respectively. • waiver of subrogation in favor of Contractor, its direct and indirect parents, and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability policy, attaching CG 24 04 or an equivalent form • severability of interests (separation of insureds), whether in the conditions of the policy or by endorsement (Note: this is included by default in the unendorsed CG 00 01)
The policy shall not contain the following exclusions/endorsements or their equivalents, whether the exclusions are attached to the policy as separate endorsements or built into the insuring agreements. Please note that this is not an all-inclusive list; additional exclusions may be deemed unacceptable at Contractor’s sole discretion:
● Absolute/Amended Employer’s Liability Exclusion/”Action-Over” Exclusion ● Assault and Battery Exclusion ● Breach of Contract Exclusion (if applicable to bodily injury or property damage) ● Classification Limitation/Limitation of Coverage to Business Description ● Conditional Exclusion/Limitation of Subcontractor or Independent Contractor Claims ● Continuous or Progressive Injury And Damage Exclusion / “Pre-Existing Damage” Exclusion ● Contractors and Subcontractors Exclusion ● Contractual Liability Limitation (CG 21 39 or equivalent) ● Cross Suits Exclusion (if applicable to Additional Insureds) ● Damage to Work Performed by Subcontractors on Your Behalf Exclusion (CG 22 94 or equivalent) ● Earth Movement or Subsidence Exclusion ● Explosion, Collapse, Underground Hazards (XCU) Exclusion ● Failure to Supply Exclusion ● Fire or Fire-Related Injury or Damage Exclusion ● Highway or Bridge Work Exclusion ● Injury to Independent Contractors and Subcontractors Exclusion ● Injury to Temporary Worker, Volunteer Worker, or Casual Worker Exclusion ● Limitation of Coverage to Designated Premises, Project, or Operation (CG 21 44 or equivalent) ● Prior Work Exclusion ● Residential Construction Exclusion ● Traffic Control Exclusion ● Underground Utility Location Condition ● Wildfire Injury Exclusion
Ex. C-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
All General Liability policy Class Codes are subject to review and approval (e.g., GL policies classified for Pedestal/Pole-To-Home Cable Installation, Technology Consulting, or TV and Radio Set Installation and Repair will not be accepted for contractors who perform higher-risk operations such as Aerial Cable Construction, Conduit Construction or Horizontal Directional Drilling).
(iii) Commercial Automobile Liability, including coverage for contractual liability, with the following minimum limits of liability:
• $1,000,000 Combined Single Limit (each accident)
The policy shall contain the following provisions and endorsements:
• [Contractor], its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, agents, and Project Owner shall be included as Additional/Designated Insureds on a Primary and Noncontributory basis
• coverage must be included for owned, hired and non-owned vehicles (an "any auto" policy; Symbol 1 or Symbols 2, 8 and 9) • waiver of subrogation in favor of Contractor, its direct and indirect parents and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial automobile liability policy ● severability of interests (separation of insureds) to be included in the definition of "Insured" (Note: this is included by default in the unendorsed CA 00 01)
(iv) Commercial Umbrella or Excess Liability, if required by the Primary Contract between Contractor and Owner (which will vary from Owner to Owner), or if primary policy limits are less than those limits specified in this Exhibit C. The policy shall include the following conditions: • Contractor, its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, agents, and Owner shall be included as Additional Insureds via CG 20 10 or equivalent and CG 20 37 or equivalent. ISO’s blanket forms CG 20 38 and CG 40 shall be considered equivalent to the CG 20 10 and CG 20 37, respectively.
(v) For Subcontractors performing engineering, stamping, drafting, surveying, or other professional services, Errors & Omissions or Professional Liability with the following minimum limits of liability: • $1,000,000 Each Claim
The policy shall contain the following provisions and endorsements: • retroactive date prior to the date of this Agreement and extended claims reporting of not less than two years after termination of this Agreement
Ex. C-3 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
• waiver of subrogation in favor of Contractor, its direct and indirect parents and Owner, their agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the errors and omissions or professional liability policy • severability of interests (separation of insureds)
(b) The insurance limits set forth in this Exhibit C may be satisfied by a combination of Primary and Umbrella or Excess Liability Policies. All policies (except the Workers’ Compensation and Employers’ Liability Policy and the Errors & Omissions Policy) shall name as Additional Insureds (i) Contractor, its direct and indirect parent(s), subsidiary(ies) and affiliated companies, their respective officers, directors, stockholders, employees, and agents, and (ii) Owner. Subcontractor shall continuously maintain products/ completed operations coverage, including coverage for the Additional Insureds for a period of three (3) years immediately following completion of work. The policies shall be endorsed to provide coverage to these Additional Insureds on a primary and non-contributory basis without seeking contribution from any other insurance or self-insurance available to the Additional Insured, regardless of whether or not the Additional Insured is a Named Insured under such insurance. If any Umbrella or Excess Liability Policies are used to satisfy the insurance requirements, they shall be specifically endorsed to state that their coverage is primary and non-contributory to any insurance carried by the Additional Insured. This requirement must be stated on the certificate of insurance as required by (d) below. Any Umbrella or Excess Liability Policies shall contain a schedule specifying the carriers, limits, policy numbers, and policy periods of underlying Policies.
(c) If any Work is to be conducted within fifty (50) feet of a railroad or railroad right of way, any exclusions relating to railroads must be deleted from both the exclusions section and the definition of an insured contract. Evidence that the exclusions have been deleted by attaching form CG 24 17 or an equivalent form to the policy.
(d) Prior to commencement of any Work, Subcontractor shall furnish to Contractor insurance certificates in a form acceptable to Contractor evidencing compliance with the foregoing requirements and stating that the insurers will provide thirty (30) day written notice of cancellation or material alteration in any of the required policies of insurance. Copies of the General Liability Additional Insured endorsements shall be attached to the certificate of insurance. A copy of the insurance carrier’s Schedule of Named Insureds for each policy must be provided upon request. A copy of the schedule of forms from the General Liability policy must be attached to the certificate of insurance. Contractor reserves the right to reject any insurance coverage that contains forms, conditions, limitations, or exclusions that are not acceptable to Contractor. All policies shall be written on an Occurrence basis (except Errors & Omissions or Professional Liability Policy, which shall be written on a Claims-Made basis). If requested by Contractor, Subcontractor will provide Contractor with certified copies of the policies. The provision of the foregoing insurance requirements shall be a condition precedent to any obligation of Contractor to make payment to Subcontractor.
(e) Failure of Contractor to demand such certificate or other evidence of full compliance with these insurance requirements or failure of Contractor to identify a deficiency from evidence that is provided shall not be construed as a waiver of Subcontractor’s obligation to maintain such insurance.
(f) Contractor shall have the right, but not the obligation, to prohibit Subcontractor or any subcontractor from entering the Project site until such certificates or other evidence that insurance has been placed in complete compliance with these requirements is received and approved by Contractor.
(g) If any of the policies required by this Exhibit C contain deductibles or self-insured retentions, the deductibles or self-insured retentions shall be the sole responsibility of Subcontractor and coverage will
Ex. C-4 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
apply to Contractor, Owner and all Additional Insureds, as required above, as though the policies were written on a "first dollar" basis. In no event shall Subcontractor’s bankruptcy cause Contractor to be responsible for any deductible or self-insured retention.
(h) If any Work is to be performed in a jurisdiction where Subcontractor is insured for workers compensation through an "assigned risk pool", the certificate provided to Contractor shall indicate that the coverage is provided through the "assigned risk pool".
(i) Contractor reserves the right to adjust insurance coverage requirement limits to comply with specific limits established from time to time by Owner, or as otherwise determined appropriate at Contractor’s sole discretion.
(j) In the event Subcontractor subcontracts any of the Work to another subcontractor (Contractor’s prior approval required), Subcontractor shall cause each subcontractor employed by Subcontractor to purchase and maintain insurance of the types specified in this Exhibit C. When requested by Contractor, Subcontractor shall furnish to Contractor copies of certificates of insurance evidencing coverage for such subcontractor.
(k) By requiring the insurance as set out in this Exhibit C Contractor does not represent that coverage and limits will necessarily be adequate to protect Subcontractor, and such coverage and limits shall not be deemed as a limitation on Subcontractor’s liability under the indemnities provided to Contractor in this Agreement, or any other provision of the Contract Documents.
(l) Failure to maintain the insurance required in this Exhibit C shall constitute a cause for termination pursuant to Section 17 of this Agreement and shall allow Contractor to terminate this Agreement at Contractor’s option. If Subcontractor fails to maintain the insurance as set forth herein, Contractor shall have the right, but not the obligation, to purchase said insurance at Subcontractor’s expense.
(m) The insurance requirements set out in this Exhibit C are independent from all other obligations of Subcontractor under this Agreement and apply whether or not required by any other provision of this Agreement.
Ex. C-5 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
EXHIBIT D
GOVERNMENT CONTRACT REQUIREMENTS
Pursuant to Section 2(l) of the Agreement, and in addition to any other requirements set out in the Primary Contract, if the Subcontractor performs Work for the Contractor under Government Contracts, the following terms, which may be expanded or modified at any time, are applicable to the Work being performed by the Subcontractor: (i) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509). (ii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)). (iii) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities. (iv) 52.222-17, Nondisplacement of Qualified Workers (May 2014) (E.O. 13495). Flow down required in accordance with paragraph (1) of FAR clause 52.222-17. (v) 52.222-21, Prohibition of Segregated Facilities (Apr 2015). (vi) 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246). (vii) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212). (viii) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793). (ix) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212). (x) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40. (xi) 52.222-41, Service Contract Labor Standards (May 2014), (41 U.S.C. chapter 67). (xii) (A) 52.222-50, Combating Trafficking in Persons (Mar 2015) (22 U.S.C. chapter 78 and E.O. 13627). (B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 E.O. 13627). (xiii) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment--Requirements (May 2014) (41 U.S.C. chapter 67.) (xiv) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-- Requirements (May 2014) (41 U.S.C. chapter 67) (xv) 52.222-54, Employment Eligibility Verification (Oct 2015) (E. O. 12989). (xvi) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015).
Ex. D-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(xvii) 52.222-62, Paid sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706). (xviii) (A) 52.224-3, Privacy Training (Jan 2017) (5 U.S.C. 552a). (B) Alternate I (Jan 2017) of 52.224-3. Subcontractor acknowledges and agrees that the above laws, orders and regulations may be amended or modified from time to time and that Subcontractor will be responsible for complying with all such items, as amended or modified, including any newly enacted or additional laws, order or regulations that may be or become applicable to the Work.
Ex. D-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
EXHIBIT E
STATE-SPECIFIC PROVISIONS
Subcontractor agrees to be bound by any of the following state-specific provisions that apply to the jurisdiction in which the Work under this Agreement is to be performed. The applicable provisions, if any, contained in this Exhibit E, or any superseding provisions of applicable law, shall govern and take precedence over any corresponding provisions in the Agreement itself.
ALABAMA
Risk of Non-Payment by Owner. Subcontractor expressly agrees that receipt of payment by Contractor from Owner is an absolute condition precedent to the right of Subcontractor to receive any payment from Contractor for Work performed under this Agreement. Subcontractor expressly assumes the risk of non- payment by Owner.
ALASKA
Payment Procedure. On all public construction projects, Contractor will pay Subcontractor: (a) for satisfactory performance under this Agreement within eight (8) workdays after receiving payment from which Subcontractor is to be paid;
(b) all Retainage due under this Agreement within eight (8) workdays after final payment is received from the state or political subdivision or after the notice period under AS 36.25.020 (b) expires, whichever is later;
(c) interest on an amount that is not paid in accordance with subsection (a) above for the period beginning on the day after the required payment date and ending on the day on which payment of the amount due is made, computed at an interest rate that is equal to the amount set out in AS 45.45.010 (a);
(d) interest on Retainage withheld from Subcontractor at an interest rate that is equal to the amount set out in AS 45.45.010 (a).
CALIFORNIA
Performance Obligations of Subcontractor; Compliance with Laws.
(a) Subcontractor shall turn all Work over to Contractor free and clear of all liens, claims (including any claim related to a construction defect), or encumbrances and shall promptly notify Contractor of all liens, stop notices, bond claims and other claims and encumbrances, claim(s) of lien or suit(s) filed or maintained by any of Subcontractor's sub-subcontractors or suppliers. Subcontractor, upon notice by Contractor, shall immediately cause any such lien, stop notice or bond claim to be discharged, or satisfied by prompt payment, or released by immediately procuring a valid mechanic's lien or stop notice release bond and recording it in the Official Records of the county in which the project is located or served upon the lender, whichever is appropriate. In the event Subcontractor chooses to procure a lien release bond or stop notice release bond, Subcontractor agrees to take all further steps to perfect removal of the lien from the project that may be reasonably required by a title company or in the case of a stop notice, the lender.
Ex. E-1 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Subcontractor agrees to execute or have executed by any of its sub-subcontractors, suppliers or materialmen, such lien, stop notice or bond waiver forms as required by Contractor or Owner. If Subcontractor fails to have any such lien or encumbrance discharged, satisfied or removed, Contractor shall have the right but not the obligation to satisfy any such lien or encumbrance whether the lien or encumbrance is valid or not.
(b) Subcontractor shall be exclusively responsible for the occupational safety and health of its employees and agents while engaged in the performance of the Work, shall protect against property damage and personal injury at all locations, and shall take all reasonable safety precautions with respect to its performance of this Agreement and represents that it shall take all necessary precautions while performing its work to ensure the safety of its employees, and the employees of other subcontractors or entities on the Work site. Subcontractor shall follow all requirements of Contractor's and Owner's safety policies and ensure compliance with the Occupational Safety and Health Act of 1970 and all regulations issued thereunder; all applicable state occupational safety and health acts and any applicable regulations promulgated thereunder; and any other lawful orders of any public authorities bearing on the safety of persons or property or their protection from damage, injury or loss; as well as any safety or health programs published by Contractor or Owner. Contractor reserves the right to give Subcontractor notice of any unsafe employees from the Work site and Subcontractor shall remove such employees within the time specified by such notice. Contractor shall have the right to stop the Work and/or correct such practices, equipment or devices at Subcontractor's expense. Subcontractor shall employ competent persons on each Work site capable of identifying unsafe hazards and whose duty shall be to ensure that OSHA and the regulations issued under OSHA and all other laws, regulations, customs and practices are followed and that all reasonable steps necessary to avoid or abate any hazards associated with the Work are taken. Such persons shall have the authority to take prompt corrective measure to correct such hazards, to receive notices of unsafe work practices, equipment, devices or employees as provided herein and to carry out the responsibilities of a "competent" or "qualified" person as required by law or regulation.
(c) Subcontractor is responsible for requiring and enforcing the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions. Subcontractor is responsible for being fully compliant with the current Occupational Safety and Health Administration (OSHA), Part 1926 Safety and Health Regulations for Construction requirements as amended from time to time and any companion state regulations, including those of the California Division of Occupational Safety and Health ("CAL/OSHA"). Further, Subcontractor certifies that, to the extent required, it has provided the necessary OSHA and CAL/OSHA job safety and health training to all employees working on the project site and will require the same of sub-subcontractors or materialmen working on the project site. Subcontractor is responsible for meeting the requirements of any additional state regulations to the extent they are applicable. Material Safety Data Sheets ("MSDS") shall be present on the Work site for all hazardous materials used and/or stored on the Work site. A written weekly report of the employee safety meeting held by Subcontractor for his employees shall be turned in at the weekly subcontractors meeting
Indemnity/Duty to Defend.
(a) All operations, presence, activities or Work by Subcontractor or its principals, officers, agents, employees, vendors, suppliers, consultants, sub-subcontractors, invitees, or anyone employed directly or indirectly by any of them at or for the Work shall be at the sole risk of Subcontractor exclusively. As to its Work, Subcontractor shall be primarily and fully responsible for supervising construction and checking the job for proper workmanship in compliance with the Contract Documents.
(b) Subcontractor shall, to the fullest extent permitted by law, immediately defend (at Subcontractor's sole cost and expense and with legal counsel approved by Contractor, which approval shall not be unreasonably withheld), indemnify and hold harmless Contractor, Contractor’s Surety, Owner, Owner's lender(s), and their respective parents (direct or indirect), subsidiaries, affiliates, officers, directors, agents,
Ex. E-2 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
servants and/or employees and all additional insureds included pursuant to Exhibit C (each an "Indemnified Party" and collectively, the "Indemnified Parties") from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, liens, stop notices, bond claims, infringement of intellectual property rights, losses, judgments, awards, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs, and all other professional, expert or consultants' fees and costs), damage or injury of any kind or nature whatsoever to all persons whether employees of Subcontractor or otherwise, and to all property including all settlement sums, losses and expenses, including attorneys' fees, suffered by any Indemnified Party, which are caused by, result from or arise out of or are in any manner related to or connected with (directly or indirectly) the fault, negligence, or wrongdoing in performance of the Work by Subcontractor, its principals, officers, agents, employees, vendors, suppliers, consultants, sub-subcontractors, or anyone employed directly or indirectly by any of them at the Work relating to: (i) any operations, presence or activities at the Work site (including, without limitation, any work performed, services provided, equipment used, or materials delivered or prepared); (ii) performance or nonperformance of this Agreement and the Work; (iii) breach of this Agreement; or (iv) violation of any applicable law, ordinance, order, code, citation, rule, regulation, or standard with which Subcontractor is obligated to comply in the performance of Work pursuant to this Agreement. The Subcontractor’s obligation shall include indemnification of an Indemnified Party that is partly at fault but shall not extend to: (i) the sole negligence, active negligence, or willful misconduct of an Indemnified Party; (ii) defects in design furnished by an Indemnified Party; or (iii) claims that do not arise out of the Work or scope of work of Subcontractor pursuant to the Agreement. The duty to indemnify hereunder is not contingent upon Subcontractor's negligence, and even if Subcontractor is not negligent, Subcontractor shall indemnify Contractor. The indemnity obligations of the Subcontractor provided by this Section shall be included in all agreements issued by Subcontractor to its own subcontractors and subconsultants.
(c) In furtherance of, but not in limitation of, the indemnity provisions in this Agreement, Subcontractor hereby expressly and specifically agrees that its obligations to defend, indemnify and hold harmless the Indemnified Parties shall not be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability under state workers' compensation laws.
(d) Payment of any claim by any Indemnified Party shall not be a condition precedent to enforcing such party's rights to indemnification.
(e) In any and all claims against the Indemnified Party by any employee of Subcontractor, its principals, officers, agents, employees, vendors, suppliers, consultants, sub-subcontractors, or anyone employed directly or indirectly by any of them or anyone for whose act any of them may be liable, the indemnification obligation hereunder shall not be limited in any limitation on the amount or type of damages, compensation, or benefits payable under any worker's compensation acts, disability benefit acts, or other employee benefit acts.
(f) The contractual right of indemnification provided to Contractor hereunder shall be in addition to, and not in lieu of, all rights of indemnity at law or in equity for a breach by Subcontractor of any statutory or common law duty or obligation or any of the provisions of this Agreement to which Contractor may otherwise be entitled. Subcontractor's indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until such time as it is determined by final judgment that claims against the Indemnified Parties for such matters indemnified hereunder are fully and finally barred as to the Indemnified Parties by the applicable statute of limitations.
(g) Subcontractor shall, at its own expense, defend the Indemnified Parties against any claim, or any legal proceeding which may invoke Subcontractor's obligations under this Agreement. Subcontractor's duty to defend the Indemnified Parties shall apply whether such claim or legal proceeding is brought only against any or all of the Indemnified Parties, either separately or jointly with Subcontractor. Subcontractor shall
Ex. E-3 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
reimburse each Indemnified Party for any legal expenses and attorneys' fees incurred in enforcing Subcontractor's obligations and/or the indemnity granted to them under this Agreement. The duty to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend exists regardless of any ultimate finding of negligence or liability of Subcontractor or Indemnified Party, except to the extent otherwise provided in this Section. Such defense obligation shall arise immediately upon presentation of a claim by an Indemnified Party and written notice of such claim being provided to Subcontractor provided, however, that the cost of such defense shall be reimbursed to Subcontractor upon final resolution of the claim to the extent (but only to the extent) Subcontractor has no obligation to defend or indemnify Contractor for such claims pursuant to this Section. Subcontractor's liability for indemnification hereunder is in addition to any liability Subcontractor may have to the Indemnified Parties for a breach by Subcontractor of any of the provisions of the Agreement. Under no circumstances shall the insurance requirements and limits set forth in the Agreement be construed to limit Subcontractor's indemnification obligation or other liability hereunder.
Payment Requirements. Subcontractor shall provide, and Contractor shall have approved, all documentation reasonably necessary to process payments, including, but not limited to the following:
(a) A Form W-9, an executed copy of this Agreement, and any certificate of insurance required by Contractor.
(b) With each payment request, Subcontractor shall furnish Contractor with signed lien releases in the form prescribed by Civil Code Section 8132 from all of its subcontractors, suppliers and laborers complying with the requirements of all applicable mechanic lien laws and such other evidence as may be reasonably required by Contractor or Owner to substantiate payment. Commencing with the second payment request and continuing with all subsequent requests, Subcontractor shall provide lien releases in the form prescribed by Civil Code Section 8132 for the present pay period and provide Civil Code Section 8134 releases for the prior pay periods from itself and all of its subcontractors, laborers and suppliers.
(c) Subcontractor shall keep full and detailed records to confirm compliance with the obligations of this Agreement in form satisfactory to Contractor. Contractor shall be afforded access to, and shall be permitted to audit and copy, Subcontractor's records, books, correspondence, instructions, drawings, receipts, employment records, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Agreement. Subcontractor shall preserve such documents and records referred to herein for a period of three (3) years after final payment, or for such longer period as may be required by law. Subcontractor agrees that the auditor of the state in which the Work is performed or any authorized representative of the state, and, where applicable, the Comptroller General of the United States or any other representatives of the United States Government, shall have access to and the right to examine, audit, excerpt and transcribe any directly pertinent books, documents, papers and records of Subcontractor relating to orders, invoices, payments or Subcontractor's performance pursuant to this Agreement. Subcontractor shall not impose any charges for access to its books and records regarding its performance under this Agreement and shall fully cooperate with authorized representatives in the examination or audit of books and records.
(d) Subcontractor’s verification that all workers assigned to Contractor's Work site have a valid driver's license, meeting all driving requirements of the issuing state and Department of Transportation ("DOT"), when applicable.
(e) To the fullest extent permitted by law, all payments are conditioned upon satisfactory performance of the work and Contractor's field approval of work performed by Subcontractor. Any payment due to Subcontractor shall be payable upon Contractor’s receipt of payment from the Owner for the applicable Work. No payments shall be made if Subcontractor is in default of any provision of the Contract.
Ex. E-4 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(f) Final payment shall not be payable until Subcontractor has provided lien releases in the form prescribed by Civil Code Section 8138 from all of its subcontractors and suppliers and a lien release in the form prescribed by Civil Code Section 8136 from itself, together with such other project closeout documentation required by Contractor. Subcontractor shall provide a fully executed Civil Code Section 8138 release to Contractor within ten (10) days of receipt of final payment.
Payment Procedure.
(a) No later than Monday of each week, Subcontractor is to submit an invoice or daily billing sheet ("Application for Payment") for the portion of the Work completed and accepted or approved by the Owner through the preceding Saturday. The invoice or daily billing sheet shall be prepared in duplicate and submitted to Contractor's supervisor for review and approval. After approval, Contractor shall pay Subcontractor within thirty (30) days for the invoice generated or presented, less the amount set forth in Exhibit B (the "Retainage"). As a material part of the consideration under this Agreement, Subcontractor agrees to satisfy any Deficiencies in Retainage (as hereinafter defined) out of or from any Retainage held or owed to Contractor as a result of Work performed hereunder or being performed by Subcontractor under a separate agreement. This provision will survive the termination of this Agreement for one (1) year. Acceptance of final payment by Subcontractor shall act as a release of all claims of Subcontractor or any person claiming under or through Subcontractor against Owner, Contractor, Contractor's surety, if any, in any way related to the Work. As used herein, and subject to the requirements of Civil Code Sections 8810-8818, "Deficiencies in Retainage" shall mean an insufficient amount of Retainage withheld under this Agreement to satisfy any and all claims that result from the performance or non-performance of the Work, regardless of whether such deficiencies become known to Contractor or Owner after final acceptance of the Work. AN INCORRECT OR INCOMPLETE APPLICATION FOR PAYMENT WILL BE RETURNED TO SUBCONTRACTOR. A REVISED APPLICATION FOR PAYMENT SHALL BE RESUBMITTED IN CORRECT AND FINAL FORM WITHIN TWENTY-FOUR HOURS OF REJECTION. APPLICATIONS FOR PAYMENT NOT MEETING THIS DEADLINE WILL BE DEFERRED TO THE NEXT SUBSEQUENT INVOICE SUBMITTAL DATE.
(b) Subcontractor shall hold all payments made to it by Contractor in a trust account to be applied first to the payment of its employees, subcontractors, laborers, and suppliers of materials or services used for or in connection with the Work, including, without limitation, any amount payable in taxes on account of the Work or labor supplied and to any applicable employee benefit plan. Subcontractor shall apply all payments from Contractor in the preceding manner before using any part thereof for any other purpose.
(c) Subcontractor Subject to Owner’s Discount. Certain of Contractor’s customers have mandated in their contracts that they be allowed to take early payment discounts if they make payments, normally 10 to 15 days of receipt of invoice, rather than the standard terms which range from 30 to 60 days. These discounts normally range from 2% to 3%. To the extent Owner takes such discounts, Subcontractor agrees the same percentage of discounts shall be deducted from Subcontractor’s invoice, provided that Contractor pays Subcontractor within 10 days after receipt of Owner’s payment. If requested in advance, Subcontractor will be told whether or not Owner tends to take contract discounts and what percentage they take. Also, if requested, Owner shall provide proof that the Customer takes the applicable discount.
(d) Late billings to Contractor cause problems in its financial statements and to the extent the Subcontractors’ invoices are not timely considered in Contractor’s billings to its customers, cause relationship issues and may not be payable pursuant to the Owner’s contract. Invoices for work that was performed more than 60 days prior to receipt of the invoice will not be paid and will be considered as evidence of work that Subcontractor performed but is not charging Contractor for relationship purposes.
Ex. E-5 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(e) Contractor reserves the right to determine its preferred form of payment. Subcontractor agrees to accept payment from Contractor in the form of ACH Bank Electronic Funds Transfers.
(f) Payment of retainage to Subcontractor is not conditioned on final payment made to Contractor by Owner of all sums owed to Contractor under the Primary Contract and any amendment thereto.
Payment Procedure. Contractor’s receipt of payment from Owner shall not be a condition precedent to Subcontractor’s receipt of payment from Contractor. Such payment will be made to Subcontractor within a reasonable period of time of satisfactory completion of the Work.
Assignment. In the event Subcontractor desires to assign its rights to receive payment under this Agreement, it shall first give seven (7) days prior written notice to Contractor of its intent to assign the right to collect money due and/or its account receivable under this Agreement. Contractor reserves the right to charge a processing fee of up to twenty percent (20%) of each monthly invoice in order to cover its administrative expenses in processing the additional payment requests, lien releases and other documentation generated by the assignment. Contractor further reserves the right to make any payments otherwise due to Subcontractor under this Agreement directly to any of Subcontractor's material suppliers, subcontractors, laborers and/or equipment suppliers and to deduct said amounts from the amount due and owing to Subcontractor by Contractor before paying the balance of any payment to any financing or factoring institution.
Governing Law. Subcontractor agrees to participate in, join in, and be bound by any proceeding which directly or indirectly relates to this Agreement or the Work and for which Contractor demands, by written notice, that Subcontractor participate. Any claim or action by Subcontractor must be commenced within one (1) year of the date of the accrual of the cause of action, but in no event after final payment to Subcontractor. If any claim or dispute arises relating to this Agreement, Subcontractor shall immediately make all of its books and records available to Contractor for review and audit.
Hazardous Materials. As used herein, the term "Hazardous Materials" means and includes any flammable explosives, radioactive materials or hazardous, toxic or dangerous wastes, substances or related materials or any other chemicals, materials or substances, exposure to which is prohibited, limited or regulated by any federal, state, county, regional or local authority or which, even if not so regulated, may or could pose a hazard to the health and safety of the occupants of the Work or of property adjacent to the Work, including, but not limited to, asbestos, PCB's, petroleum products and by-products (including, but not limited to, crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), substances defined or listed as "hazardous substances", "hazardous materials", "hazardous wastes" or "toxic substances" or similarly identified in, pursuant to, or for purposes of the California Solid Waste Management, Resource Recovery and Recycling Act, as now or hereafter amended (California Government Code Section 66700 et seq.); the Comprehensive Environmental Response, Compensation, and Liability Act, as now or hereafter amended (42 U.S.C. Section 9601, et seq.); the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Section 1801, et seq.); the Resource Conversation and Recovery Act, as now or hereafter amended (42 U.S.C Section 6901, et seq.); Section 25281, Section 25316 or Section 25501 of the California Health & Safety Code, as now or hereafter amended; any so-called "Superfund" or "Superlien" law; or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material; or any substances or mixture regulated under the Toxic Substance Control Act of 1976, as now or hereafter amended (15 U.S.C. Section 2601 et seq.); and any "toxic pollutant" under the Clean Water Act, as now or hereafter amended (33 U.S.C. Section 1251 et seq.); and any hazardous air pollutant under the Clean Air Act, as now or hereafter amended (42 U.S.C. Section 7901 et seq.), and any "waste" under Section 13050
Ex. E-6 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
of the California Water Code, as now or hereafter amended; those substances, materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or such substances, materials and wastes that are or become regulated under any applicable local, state or federal law.
(a) As used herein, the term "Hazardous Materials Regulations" means and includes any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning the use, handling, storage, disposal or other activities involving Hazardous Materials, including, without limitation, any Hazardous Materials Regulations specifically referenced above.
(b) Prior to commencing the Work, Subcontractor shall identify to Contractor in writing, all Hazardous Materials to be used in performing the Work or to be brought onto the Work by Subcontractor, and shall maintain MSDSs for those substances as per OSHA requirements. All work, labor, services or materials necessary to comply with this Section will be furnished by Subcontractor as part of this Agreement without any additional compensation. Subcontractor shall immediately identify to Contractor in writing all Hazardous Materials discovered during the performance of the Work omitted from any previous notifications(s) and promptly provide the MSDS on those substances to Contractor. Subcontractor shall immediately notify Contractor if Subcontractor or any of its partners, employees, agents, subcontractors, customers, invitees or suppliers, brings a chemical which has been listed on the Governor's list pursuant to Proposition 65 (a "listed chemical") onto the Work and shall, in addition, provide Contractor with copies of all warning labels on products Subcontractor or said persons are using. Subcontractor may be released from its obligation thereunder to post the exposure warning signs required by Proposition 65, and only that obligation, only with the express written permission of Contractor.
(c) Except as provided for in this Agreement, Subcontractor shall not cause or permit any Hazardous Materials to be brought upon, stored, handled or used in or about the Work site without the prior written consent of Contractor, which Contractor shall not unreasonably withhold as long as Subcontractor demonstrates to Contractor's reasonable satisfaction that such Hazardous Materials (i) are necessary or useful to completion of the Work, (ii) are required pursuant to the Contract Documents, and (iii) will be used, stored, handled and disposed of in compliance with all applicable Hazardous Materials Regulations. Any unused or surplus Hazardous Materials, as well as any other Hazardous Materials which have been placed, released or discharged on the Work by Subcontractor or any of its partners, employees, agents, subcontractors, customers, invitees or suppliers, shall be removed from the Work site at the earlier of (i) the completion of the Work requiring the use of such Hazardous Materials; (ii) the completion of the Work as a whole; or (iii) within twenty-four (24) hours following Contractor's demand for such removal. Such removal shall be undertaken by Subcontractor at its sole cost and expense and shall be performed in accordance with all applicable Hazardous Materials Regulations.
(d) Subcontractor shall immediately notify Contractor if it should discover any Hazardous Materials on or under the Work site or within the improvements thereon. Subcontractor shall not take any action which may disturb any Hazardous Materials found on or under the Work site or within the improvements thereon. Contractor shall notify Subcontractor what, if any, measures shall be taken by Subcontractor with respect to any Hazardous Materials found and Subcontractor shall comply with such instructions.
(e) It shall be Subcontractor's duty to maintain and to provide Contractor with copies of any and all records, reports and disclosures required by any Hazardous Materials Regulations, including without limitation, all warning labels and MSDS on products which Subcontractor or any of its partners, employees, agents, subcontractors, customers, invitees or suppliers, will be bringing to the Work site and/or using in connection with the Work. Subcontractor shall be solely responsible for maintaining any such records and
Ex. E-7 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
making any and all reports or disclosures required under any applicable Hazardous Materials Regulations, OSHA, any "Community or Right-to-Know" Laws or Proposition 65. Subcontractor shall immediately notify Contractor of any citations, orders or warnings issued to or received by Subcontractor, or which Subcontractor, otherwise becomes aware, which relate to any Hazardous Materials on the Work.
(f) Neither Subcontractor nor any of its partners, employees, agents, subcontractors, customers, invitees or suppliers shall clean or service any tools, equipment, vehicles, materials or other items in such manner as to cause a violation of any Hazardous Materials Regulations, including without limitation, Proposition 65. Subcontractor shall collect, remove from the Work site and dispose of, all residue and waste materials resulting from any such cleaning action in accordance with all applicable Hazardous Materials Regulations.
(g) If Subcontractor breaches the obligations stated above, or if the presence of Hazardous Materials on or under the Work, caused, released or permitted by Subcontractor, results in contamination of the Work, or if contamination of the Work by Hazardous Materials otherwise occurs for which Subcontractor is liable to Contractor, Subcontractor shall, to the fullest extent permitted by law, indemnify, immediately defend without need for a court order (at Subcontractor's sole cost and expense, and with legal counsel approved by Contractor) and hold harmless Contractor, Contractor’s Surety, Owner, Owner's lender(s) and property management company and all other Indemnified Parties as set forth in Section 9 whether such obligation arises during or after the term of this Agreement as a result of such contamination. This indemnification by Subcontractor includes, without limitation, costs incurred in connection with any investigation of Work conditions, or any clean-up, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Materials present in the soil or ground water on or under the Work, arising out of or relating to, directly or indirectly, Subcontractor's failure to comply with any of the requirements of this Section. Without limiting the foregoing, if the presence of any Hazardous Materials on the Work caused, permitted or released by Subcontractor results in any damage to the Work, or any adjacent property, Subcontractor shall promptly take all actions at its sole cost and expense, and in compliance with all applicable Codes, as are necessary to return the Work, or adjacent property to the condition existing prior to the introduction of any such Hazardous Materials to the Work, provided that Contractor's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Work. The foregoing indemnity is in addition to the provisions of Section 9 of this Agreement and shall survive the expiration or earlier termination of this Agreement.
COLORADO
Risk of Non-Payment by Owner. Subcontractor expressly agrees that receipt of payment by Contractor from Owner is an absolute condition precedent to the right of Subcontractor to receive any payment from Contractor for Work performed under this Agreement. Subcontractor expressly bears the risk of non- payment by Owner.
FLORIDA
Contract Documents. Notwithstanding anything in this Agreement to the contrary, it is expressly acknowledged and agreed by the parties that any and all payment terms between Owner and Contractor set forth in the Contract Documents are not incorporated by reference herein and are expressly excluded from this Agreement.
Ex. E-8 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
Time is of the Essence. If Subcontractor is delayed in the performance of the Work by conditions that could not be foreseen by Subcontractor and that are beyond the reasonable control of Subcontractor, then Contractor will grant Subcontractor a reasonable extension of time, provided that Subcontractor applies in writing for such an extension of time within ten (10) days after the commencement of the delay (or such shorter period of time as may be required by the Contract Documents). If Subcontractor fails to apply in writing for such an extension within ten (10) days (or such shorter period of time as may be required by the Contract Documents) after the commencement of the delay, Subcontractor waives the right to an extension of the contract time. Contractor and Subcontractor agree, and Subcontractor acknowledges, that the contract amount is based upon the fact that Contractor shall not be liable to Subcontractor for any damages, costs or expenses incurred by Subcontractor due to delays, acceleration, non-performance, interference with performance, suspensions, or changes in the performance or sequence of performance of the Work. Accordingly, Subcontractor acknowledges and agrees that no such delay, acceleration, non-performance, interruption, interference, inefficiency, suspension or change from any cause whatever, including those for which Contractor, Owner and/or Owner's design professional may be responsible, in whole or in part, shall relieve Subcontractor of its duty to perform or give rise to any right to damages or additional compensation from Contractor or Owner. Subcontractor expressly acknowledges and agrees that it shall receive no damages for delay. Subcontractor's sole remedy, if any, against Contractor or Owner will be the right to seek an extension to the contract time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion. In no event shall Subcontractor be entitled to any extension of time for any delays, disruptions or interferences caused or contributed to in any way by Subcontractor.
Indemnity/Duty to Defend.
(a) Indemnity for Private Projects
(i) To the fullest extent permitted by Florida law, Subcontractor shall defend, indemnify and hold harmless Contractor, Owner, Owner's lender(s), and their respective parents (direct or indirect), subsidiaries, affiliates, officers, directors, agents, servants and/or employees (each an "Indemnified Party" and collectively, the "Indemnified Parties") from and against all liability, damage or injury of any kind or nature whatsoever to all persons, whether employees of Subcontractor or otherwise, and to all property including all settlement sums, losses and expenses, including attorneys' fees, suffered by any Indemnified Party, which are caused by, result from or arise out of Subcontractor's (i) performance or nonperformance of this Agreement and the Work, (ii) breach of this Agreement or (iii) violation of any applicable law; whether or not such claims are based upon an Indemnified Party's alleged active or passive sole negligence or participation or upon any alleged breach of any statutory duty or obligation on the part of an Indemnified Party, Subcontractor agrees to the aforesaid indemnification. In addition, Subcontractor expressly agrees to defend, indemnify and hold harmless the Indemnified Parties from and against any and all liabilities and claims which may be asserted against any Indemnified Party by an employee or former employee of Subcontractor for which Subcontractor's liability to such employee or former employee would otherwise be limited to payments under state workers' compensation or similar laws. In furtherance of, but not in limitation of, the indemnity provisions in this Agreement, Subcontractor hereby expressly and specifically agrees that its obligations to defend, indemnify and hold harmless the Indemnified Parties shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability under state workers' compensation laws. Subcontractor agrees that the indemnification given herein shall be limited to the amount of loss suffered by an Indemnified Party or Ten Million Dollars ($10,000,000) per occurrence, whichever is less, which amount is stipulated by the parties to bear a reasonable commercial relationship to the Agreement.
Ex. E-9 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(ii) Any indemnification provided by Subcontractor shall only apply to damages to persons or property caused in whole or in part by any act, omission, or default of:
(A) Subcontractor;
(B) Any of Subcontractor's sub-subcontractors, materialmen, or agents of any tier or their respective employees; or
(C) The Indemnified Parties or their officers, directors, members, agents, or employees. Provided, however, that such indemnification shall not include:
(1) claims of, or damages resulting from gross negligence, or willful, wanton or intentional misconduct of the Indemnified Parties or their officers, directors, members, agents or employees; or
(2) claims for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the Subcontractor's or any of the Subcontractor's sub-subcontractors, materialmen, or agents of any tier or their respective employees.
(b) Indemnity for Public Projects. In the event the Work to be performed under this Agreement is in connection with a public agency's project, to the fullest extent permitted by Florida law, Subcontractor shall defend, indemnify and hold harmless Contractor, Owner, Owner's lender(s), and their respective parents (direct or indirect), subsidiaries, affiliates, officers, directors, agents, servants and/or employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the Subcontractor and persons employed or utilized by the Subcontractor in the performance of this Agreement.
(c) The duty to defend under this Section is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of Subcontractor or any Indemnified Party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to Subcontractor. Subcontractor's obligation to indemnify and defend under this Section will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the Indemnified Party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations.
(d) If any word, clause or provision of this Section is determined not to be in compliance with Section 725.06, Florida Statutes, including any amendments thereto, it shall be stricken and the remaining words, clauses and provisions shall remain in full force and effect. It is the intent of the parties that this indemnification complies fully with Section 725.06, Florida Statutes, including any amendments thereto, in all respects. Furthermore, this indemnification is in addition to and not in lieu of common law indemnification to which the Indemnified Party is entitled. Subcontractor further agrees that it shall reimburse any Indemnified Party its reasonable attorneys' fees, costs and expenses incurred by such Indemnified Party in enforcing Subcontractor's obligations to defend and indemnify hereunder.
Performance Obligations of Subcontractor; Compliance with Laws.
Ex. E-10 DocuSign Envelope ID: 4B394BB4-CF11-4C35-9C9C-9A6D8D95BE35
RESTRICTED
(a) Subcontractor (to the extent Subcontractor receives payment from Owner and/or Contractor) hereby absolutely waives and releases any and all liens, claims or right to file a lien on all Contractor or Owner properties, real and personal, including, but not limited to, equipment, buildings, lines, and poles, upon which Subcontractor or its employees, agents or subcontractors have performed labor or supplied material (or both), pursuant to statutes of the state where the Work was performed relating to mechanic's liens. At any time, as a condition precedent to any payment to Subcontractor, Contractor may require Subcontractor to execute or have executed by any of its sub-subcontractors, suppliers or materialmen, a conditional lien or conditional bond waiver form in accordance with Chapter 713, Florida Statutes.
(b) In the event that any lien or other encumbrance of any kind is placed on the materials or Work provided by Subcontractor (to the extent Subcontractor receives payment from Owner and/or Contractor) or any person acting at Subcontractor's direction or directly or indirectly on Subcontractor's behalf, such occurrence shall be deemed a breach of this Agreement. In such case, Contractor may terminate this Agreement without any liability to Subcontractor, except for Work already furnished and accepted by Contractor. Subcontractor agrees to reimburse Contractor for any additional costs incurred by Contractor due to such occurrence, in addition to Subcontractor's obligations under Section 4 of this Agreement.
(c) Subc