Terms And Conditions - Speidell Homes

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TERMS AND CONDITIONS OF SUBCONTRACTOR AGREEMENT

Original Contract - Contractor has entered into an agreement (“Original Contract”) with (“Owner”) for the demolition and/or construction of single-family home, which Original Contract includes, without limitation; the work to be done under this Agreement. Subcontractor shall be bound to Contractor by the terms of this Agreement and the Original Contract and shall assume toward Contractor all the obligations and responsibilities which Contractor by the Original Contract assumes toward Owner.

Performance of Work -- Subcontractor agrees to complete the Work and will furnish all management, supervision, (satisfactory to Contractor and Owner), labor, materials, and equipment necessary or incident thereto and shall as often as directed by the Contractor or Owner, completely clean all Work and remove debris from the job site or to locations designated by the Contractor and perform all Work necessary to complete the items of Work as described in Exhibit “A”. Subcontractor represents that no substitution of any materials or equipment was contemplated by subcontractor in establishing the compensation to be paid Subcontractor pursuant to this Agreement, except as specifically recited in this Agreement.

Compensation - As the Work progresses, an amount equal to ninety percent (90%) of the value of completed Work done from month to month, including the materials which are intended to be incorporated in the Project and which are properly stored on the site and meeting the requirements of the Original Contract and certified by the architect, engineer or the Owner. On or before the 1 st day of each month, Subcontractor shall submit to Contractor, a written and itemized Application for Payment (in a form approved by the Contractor) representing a true and accurate estimate of the portion of the Work completed as of the date indicated in the Application for Payment and when permitted, an accurate inventory of materials and equipment suitably stored on the job site, supported by valid lien waivers together with such additional documentation as Contractor may request or the Original Contract requires. All Applications for Payment shall be subject to correction including revision to any prior or following Application(s) for Payment. Should any defective work, materials or equipment be discovered during the progress of construction, or should reasonable doubt arise as to whether certain work, materials or equipment is in accordance with this agreement or the original contract, the value of such defective or questioned work, material or equipment shall not be included in any Application for Payment, or if previously included and paid, shall be deducted by subcontractor in its next Application for Payment. Provided further, that payment for stored materials shall be made as stipulated by the Original Contract, and such requests for payments for stored materials shall be accompanied by vendor invoices, itemizing respective quantities and unit costs of such stored material. Payment to the Contractor by the Owner is a condition precedent to the obligation of Contractor to pay Subcontractor for stored materials. Final payment will be made within 30 days after the work called for hereunder has been completed by Subcontractor to the satisfaction of Owner, architect and Contractor, Subcontractor has submitted its final Application for Payment and all required closeout documents together with any required certificates of insurance for any insurance coverages required to be maintained after the date of final payment, and Contractor has received from Owner written acceptance thereof together with payment in full for the Work. Final payment is further subject to Contractor's determination that all of the terms, conditions, requirements and covenants of this Agreement have been well and truly met and discharged by Subcontractor. If at any time there shall be evidence of lien or claim for which, if established, Contractor or Owner might become liable, and which is chargeable to Subcontractor, or if Subcontractor shall incur any liability to Contractor, or Contractor shall have any claim or demand against Subcontractor of any kind or for any reason, whether or not reduced to judgment or award, the Contractor shall have the right to retain out of any payment due, or to become due under this Agreement, an amount sufficient to indemnify Contractor and Owner against such lien or claim, or to compensate Contractor for and fully satisfy such liability, claim, or demand, and charge or deduct all cost of defense, or collection with respect thereto, including attorneys’ fees and costs. Should any claim or lien develop after all payments are made, the Subcontractor shall refund to the Contractor all monies that the latter may be compelled to pay in discharging such claims or liens, and attorney fees and costs incurred in collecting said monies from the Subcontractor. Subcontractor shall remove or bond out any and all lien(s) filed against the Owner’s property which are the result of Subcontractor’s work within thirty (30) days of receipt of notice from the Owner. Subcontractor’s failure to remove or bond out such liens shall give Contractor the right to withhold payments to subcontractor the amount necessary to satisfy or bond out the lien at Contractor’s discretion. Contractor may deduct from any amounts due or to become due to Subcontractor under this Agreement any sums owed Contractor by Subcontractor under this Agreement. Prior to any payment made pursuant to this Agreement, Contractor may require Subcontractor required to furnish certification and signed waivers or releases that all materials, labor, and applicable taxes are paid. All prior All prior partial payments shall be subject to correction in the final payment.

Completion - Subcontractor shall commence work, after notice to proceed by Contractor, and a further designation by Contractor may designate, and Subcontractor will continue diligently in the performance of the Work. Subcontractor shall employ sufficient crews and work sufficient hours or shifts so as not to hinder or delay the actual progress of Contractor or other subcontractors and as directed by Contractor, and, in any event, Subcontractor shall complete the several portions and whole of the work at the times that will enable Contractor to fully comply with the terms of the Original Contract. Subcontractor is solely responsible for paying all salaries, wages, benefits, and all other compensation due to its employees, laborers, workers, independent contractors, and agents.

Reimbursement for Damages or Cost - Subcontractor shall reimburse Contractor for any actual damages or costs incurred by reason of Subcontractor’s failure to prosecute the work diligently

Take Over by Contractor - Should Subcontractor fail or neglect to proceed diligently, timely, competently, or in a workerlike manner, or should Subcontractor be delaying, interfering with, or jeopardizing the timely or satisfactory completion of the work under the Original Contract or other subcontracts, then and in that event Contractor, in its sole discretion, reserves the right, after giving 24 hours’ notice, written or oral, to take over the Work and complete the Work at the cost and expenses of Subcontractor, without prejudice to Contractor’s other rights or remedies for any loss or damages sustained. Previous demands made on Subcontractor not followed by a takeover shall not be deemed a waiver of Contractor’s rights to do so.

Permits - Subcontractor shall obtain and pay for all permits, passes, clearances, licenses, franchises, and other instruments and processes required in the performance of its Work.

Indemnity And Insurance - Subcontractor shall assume full responsibility for its employees, officers, agents, and business invitees. Subcontractor agrees to hold and save Contractor and Owner harmless from and against any claim, demand, action or cause of action that may be asserted by any person arising out of injury or death suffered by any of Subcontractor’s employees, officers, agents, and business invitees, including, but not limited to third-party actions for injury or death otherwise covered under applicable workers’ compensation laws, and regardless of the sole or concurring negligence of contractor. Subcontractor shall defend, indemnify and hold harmless Contractor, Owner, or their respective officers, agents, and employees. from and against any and all claims, losses, suits, damages, legal and otherwise, arising out of or in any way connected with the work. The Subcontractor shall, at its cost and expense, furnish and maintain commercial general liability and property damage insurance; commercial automobile liability and property damage insurance; and workers' compensation insurance together with such other insurance as may be required by the Original Contract, this Agreement or applicable law. All coverages shall be maintained in full force and effect at all times during the term of this Agreement from the date of commencement of Subcontractor's performance until expiration of the warranty period or such other date as established elsewhere in the Original Contract, this Agreement or applicable law, whichever is the later. All such coverages shall be written by a company satisfactory to Contractor. Subcontractor shall provide Contractor with a certificate of insurance evidencing that the required insurance coverages are in effect.

Warranties - Warranties - Subcontractor warrants to the Contractor and Owner that all materials and equipment furnished shall be new unless otherwise specified and that Work under this Agreement shall be of good quality, free of faults and defects and in conformance with the original contract. Subcontractor agrees to promptly make good, without cost to Contractor or Owner, all defects due to faulty workmanship and/or materials which may appear within the guarantee or warranty period(s) established in the Original Contract. If no such period(s) be stipulated, then such guarantee shall be for a period of one (1) year from the date of completion and acceptance of the project by Owner. Subcontractor further agrees to execute any special guarantees as provided by the Original Contract or required by law. Subcontractor shall require similar guarantees from all vendors and lower tier subcontractors, if any.

Insurance - Subcontractor agrees to provide commercial general liability and property damage insurance; commercial automobile liability and property damage insurance; and workers’ compensation and employer's liability insurance. Subcontractor shall furnish certificates of insurance coverage as follows in the following or minimum legal limits, whichever is greater.
The foregoing liability insurance coverages shall be in the following amounts:
(1) commercial general liability - general aggregate $ 1,000,000 products/completed operations aggregate $ 1,000,000 personal injury $ 50,000 each occurrence bodily injury and property damage combined 150,000
(2) commercial automobile liability policy - bodily injury and property damage combined single limit $ 250,000
(3) the workers' compensation and employer's liability insurance policy shall provide workers' compensation in the statutory limits
Subcontractor shall name Contractor and Owner as an additional insured on the commercial liability insurance policy.

Changes - Contractor may, from time to time, order changes in Subcontractor's work or otherwise direct acceleration in subcontractor's work, which will be authorized by a written Change Order. In the event the Subcontractor is required by the Contractor to perform additional work for which the amount of compensation is not previously agreed upon, the Subcontractor shall prepare and submit to the Contractor a proposal describing the estimated quantities and cost involved. Subcontractor shall keep accurate, detailed itemized records of the costs of any such change and shall report such costs to the Contractor in the form and manner prescribed by the Contractor. Subcontractor shall furnish to the Contractor all documents required to evidence the expenditures of the subcontractor as a result of such change. Unless specifically staled otherwise in the Original Contract, for any change, the increase in the Subcontract Sum will be the total of direct labor costs marked up at the rate of 1% for payroll burden and direct labor and material costs marked up 1% for profit, and 1% overhead. Material costs subject to mark-up are defined as those items which become a permanent part of the Work. Direct labor costs subject to mark-up are defined as the direct wages of field personnel from foreman down, required to put the Work in place. All other costs including bonds and insurance will be included in the allowable mark-ups shown above. Any reductions in the Subcontract Sum shall be calculated in the same manner. Receipt by Contractor of payment from Owner for changed or extra work ordered or directed by Owner shall be a condition precedent to the right of Subcontractor to receive payment from Contractor for such change, and the liability of Contractor's surety, if any, shall be subject to the same condition precedent. With respect to any extra work ordered by Contractor for its own convenience and not related to a change, changed condition, or extra work under the Original Contract, Subcontractor shall make no claim unless the same shall have been fully agreed upon in writing by Contractor prior to the performance of the extra work. That agreement shall set forth the extra work to be done, the compensation for it, and any extension of time necessarily occasioned by it. Contractor may order extra work without invalidating this agreement. If the parties cannot agree upon the compensation or time extensions, Subcontractor shall nevertheless proceed with the extra work and the question of entitlement or amount of compensation and/or extensions of time shall be subject to the dispute resolution procedures herein. Contractor shall cooperate with Subcontractor in submitting claims to Owner for changes, changed conditions, and the like, with respect to subcontract work, but this shall not be interpreted as an attempt to create any direct contractual relationship between Subcontractor and Owner or to permit subcontractor to engage in direct negotiations with Owner.

Assignment - Contractor may assign this agreement at its sole and absolute discretion to anyone, including without limitation to Speidell Developments, LLC, a Florida limited liability company. Subcontractor may not assign this subcontract absent written consent from Contractor.

Subcontract Approval and Renegotiation - This agreement is subject to approval by Owner but shall be effective in absence of specific written disapproval by Owner

Second Tier Subcontractors - Subcontractor shall not sublet the work to be performed under this Agreement either in whole or in part without the written consent of Contractor, in its absolute discretion. All subcontracts under this Agreement shall be subject to the provisions of the Original Contract and this Agreement but shall create no contractual relationship with Contractor.

Equal Opportunity - During the performance of this agreement, Subcontractor agrees not to discriminate against any employee because of race, color, creed, or national origin.

Special Provisions - Subcontractor shall comply with all federal, state, territorial, and local codes and statutes of the area involved, and all rules and regulations which may be established by Contractor or Owner from time to time and shall indemnify Contractor and Owner against any claims or liens as a result of acts or omissions on part of subcontractor with respect to any noncompliance.

Public Protection - Subcontractor shall provide, erect, and maintain proper warning signals, signs, lights, barricades, and fences on and along the line of the work and shall take all other necessary precautions for the protection of the work and safety of the public. Subcontractor shall indemnify Contractor and Owner from any liability for damage to the work, or for injury or damage to persons or property occurring on or about the project work area or in connection with it.

Cooperation - Subcontractor shall cooperate fully with other subcontractors employed on the work and shall so plan and conduct the work to be performed as not to interfere with their operations. Contractor will not be responsible for any delays or interference resulting from the acts or operations of other subcontractors, suppliers, or organizations.

Safety - Subcontractor shall cooperate with Contractor and Owner in efforts to prevent injuries to any workers employed in carrying on operations covered by this Agreement and to adopt and place in effect all reasonable practical suggestions that may be offered by Contractor or Owner to promote safety and safe working conditions. Should Subcontractor fail to maintain its equipment in safe operating condition and/or should Subcontractor’s operation be characterized by abnormally frequent injuries to workers, then at the option of Contractor, this contract may be canceled, on one day written notice to subcontractor, and subcontractor required to remove its equipment and employees from the work site immediately.

Clean-up - On completion of any unit of the Work, and on final completion of the Work, Subcontractor shall clean up and remove all refuse and rubbish around or alongside the Work caused by Subcontractor, and shall remove promptly all excess materials, tools, structures, and the like that may have been brought on the premises or erected by Subcontractor. In the event the subcontractor fails to do so, Contractor may clean up the premises, after giving reasonable notice to Subcontractor, and Subcontractor shall pay to Contractor the cost and expense of the clean-up immediately upon demand. At the close of each workday, Subcontractor shall keep the premises clean and free from debris as directed by Contractor.

Binding Effect - This agreement shall bind the heirs, executors, administrators, successors and assigns of the parties.

Term and Termination - This Agreement takes effect immediately as of the Effective Date and remains in full force and effect until the Work is completed or terminated with or without cause by Contractor, with one-week prior written notice. Either Party may terminate this Agreement with one week prior notice for cause by providing the other Party written notice if the other Party: (i) is in material breach of this Agreement and has failed to cure such breach within three (3) days after its receipt of written notice of such breach provided by the non-breaching Party; (ii) engages in any unlawful business practice related to that Party's performance under the Agreement; or (iii) files a petition for bankruptcy, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or has a receiver, trustee or similar party appointed for its property. Contractor shall have the right to terminate this contract with one week prior notice, by written notice in the event its Original Contract with the Owner is terminated. In such event, Contractor shall pay Subcontractor for work actually performed in an amount proportionate to the total Subcontract Sum. Contractor shall not be liable to Subcontractor for any costs or prospective profits on work not performed

Additional Miscellaneous Terms – (A) This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement. (B) This Agreement may be amended only by written agreement duly executed by an authorized representative of each party (email is acceptable). (C) If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement. (D) A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege. (E) This Agreement is be governed by and construed in accordance with the laws of the State of Florida without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. (F) Dispute Resolution, Jurisdiction, Venue and Bench Trial. The parties agree that all actions, lawsuits or claims to enforce obligations of parties under this Agreement, or remedy breaches of this Agreement, shall be brought, litigated and appealed exclusively in the state courts located in Broward County, Florida, which shall have exclusive jurisdiction over such actions, claims or lawsuits with the exception that any jurisdiction and venue may be applied for the enforcement of an injunction. The parties hereby waive any objections to such venue or jurisdiction, including objections based on forum non conveniens.. (G) Attorneys’ Fees. Should any party hereto institute any action or proceeding in equity to enforce any provision of this Agreement, including an action for declaratory or injunctive relief, or for damages by reason of an alleged breach of any provision of this Agreement, or otherwise in connection with this Agreement, or any provision hereof, the prevailing party shall be entitled to recover from the losing party or parties all of its attorneys’ fees and costs for services rendered to the prevailing party in such action or proceeding, at both trial and appellate levels, including, without limitation attorney’s fees and costs in establishing both entitlement and amount of attorney fees and costs. (H) Rights Cumulative. The rights and remedies provided hereby are cumulative, and the exercise of or failure to exercise any right or remedy, whether pursuant hereto, to any other agreement, or to law, shall not preclude or waive the right to exercise any or all other rights and remedies. (I) Headings. All headings set forth in this Agreement are intended for convenience only and shall not control or affect the meaning or construction or effect of this Agreement or of any of the provisions of this Agreement. (J) Interpretation. The parties agree that any rule of contract construction that requires a court to construe any term herein narrowly against the drafter of the contract, shall not be employed. (K) No Third-Party Beneficiaries. Nothing contained in this agreement shall be deemed to create any contractual or third-party beneficiary relationship between any parties other than contractor and subcontractor. (L) Validity of Signatures. This Agreement may be signed in counterparts, with facsimile and/or electronically transmitted signatures being deemed an original, all of which when signed by the respective parties and taken together, constitute the full and final agreement of the parties

Waiver of Jury Trial. IN ANY CIVIL ACTION, COUNTERCLAIM OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS OR RELATES TO THIS AGREEMENT, ANY TRANSACTIONS CONTEMPLATED HEREUNDER, THE PERFORMANCE HEREOF OR THE RELATIONSHIP CREATED HEREBY, WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT (STATUTORY, CONSTITUTIONAL, COMMON LAW OR OTHERWISE) IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF THE OTHER PARTIES’ RIGHT TO TRIAL BY JURY. NO PARTY HAS MADE OR RELIED UPON ANY ORAL REPRESENTATIONS BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY OF THIS PROVISION. EACH PARTY HAS READ AND UNDERSTANDS THE EFFECT OF THIS JURY WAIVER PROVISION