BEACON BUILDERS, LLC 

TRADE CONTRACTOR AGREEMENT 

 Business Name:  

Owner or Representative:  

Date:

Project:  Various 

This Trade Contractor Agreement (“Agreement”) shall be fully incorporated into each Purchase Order (“PO”) and Variance Purchase Order (“VPO”) executed by Beacon Builders, LLC (“Owner”) and the Supplier or Contractor identified in the PO or VPO (“Contractor”).  This Agreement is subject to revisions from time to time at the Owner’s discretion.  Any revision to this Agreement shall become effective immediately and shall apply to any PO or VPO (sometimes collectively referred to as “PO/VPO”) executed after the date of such revision.  Contractor is responsible for requesting a copy of the most recent version of this Agreement prior to executing any PO/VPO.  Agreement does not expire.  Agreement can be canceled with 30 days written notice.   

 SECTION A – WORK:  Contractor shall supply and deliver the materials (“Materials”) authorized and described in the PO/VPO (such supply and delivery of the Materials shall be referred to herein as the “Work”) in a prompt, good, neat, first-class and workmanlike manner in accordance with the Agreement, PO/VPO, any plans or specifications relating to the Work and issued by or at the direction of the Owner (sometimes referred to herein as “Plans” and “Specifications”, respectively), the Schedule (as defined below), Quality Standards and Contractor Guidelines per individual contractual agreement, and any exhibits or attachments thereto (collectively referred to herein as the “Contract Documents”).  Contractor shall furnish all labor, materials, services, supervision, management, administration, permits, equipment, tools, supplies, bonds, apparatus and incidentals required to complete the Work as required by the Contract Documents.  Contractor represents that it possesses the necessary experience, qualifications, and expertise to undertake and complete the Work.  Contractor shall be solely responsible for and have complete control over the means, methods, techniques, sequences and procedures applicable to the Work and for coordinating all aspects, portions and safety precautions of the Work.  In the event of an irreconcilable conflict within or between the Contract Documents, the terms that give greater rights to the Owner or describe the Work in more qualitative or quantitative respects shall govern.   Contractor shall be responsible for all damages caused to the work of others and to the buildings or structures in the area in which the Work is performed. 

 SECTION B – SCHEDULE:  It is agreed that time is of the essence and the Contractor shall proceed with the Work in a prompt, diligent, and workmanlike manner, employing individuals who are skilled and qualified in their respective areas of the Work.  The Work shall be performed and completed on the workday or date specified in the PO/VPO or other schedule communication (“Schedule”) from the Owner.  Contractor agrees to replace, at Contractor’s expense and within the timeframe specified by Owner, any materials deemed inferior, substandard, or defective by Owner in Owner’s sole discretion.  This Agreement is based upon a six-day work-week (Monday through Saturday). 

 Contractor acknowledges that revisions may be made to the Schedule and agrees to make no claim for acceleration or delay by reason of such revisions, so long as such revisions are the type normally experienced in work of this scope and complexity.  In the event that Contractor is delayed beyond that normally experienced in work of this scope and complexity, which delays are neither under the control of the Contractor nor caused, directly or indirectly, by the Contractor or the parties for whom the Contractor is responsible, then the Contractor shall, within three (3) days of the commencement of such delays, notify the Owner in writing explaining the cause of the delay and its anticipated impact.  Failure of Contractor to provide such timely written notice shall constitute a waiver of any and all claims by the Contractor with respect to such delays.  If timely and proper notice is provided and the Contractor is without fault with respect to such delays, then the Contractor shall be entitled to an extension of time equal to the impact of the delay as determined by the Owner.  The extension of time shall constitute the Contractor’s sole remedy with respect to such delays and in no event shall the Contractor be entitled to any increased compensation or monetary damages as a result of such delays and/or extensions of time.  Contractor agrees and understands that such time extension shall be Contractor’s sole remedy and, accordingly, Contractor shall assume any monetary risk that may be occasioned by such delay and shall not be entitled to claim or recover any damages or additional compensation of any kind whatsoever as a consequence of any such delay, suspension, hindrance or disruption, whether or not contemplated by the parties and regardless of the severity or duration. 

 SECTION C – PRICE:  Contractor agrees to perform the Work for the total amount stated in the PO/VPO (“Price”).  Owner shall pay the Price to Contractor in accordance with the payment provisions of this Agreement.  Contractor warrants and represents that the Price includes all labor, materials, services, supervision, management, fuel, travel cost, administration, permits, equipment, tools, supplies, apparatus, incidentals, overhead, and profit necessary to complete the Work in a prompt, good, neat, first-class and workmanlike manner and in accordance with the Contract Documents.  The Price may only be revised upon written approval by the Owner prior to the Contractor commencing the Work. 

 SECTION D – PAYMENT PROCEDURES:  

1. Payments are made per timelines specified in agreements between Owner and Contractor. 
2. In order to be paid, all invoices must be received by the Owner no later than 60 days following delivery of Materials or services.  All Materials or services must be delivered or completed prior to submitting invoices for payment.
3. Contractor should include corresponding Beacon Builders issued Purchase Order numbers on their submitted invoices whenever possible.
4. Invoice date will be date of receipt. 
5. Unless otherwise stipulated in writing by Owner , packing, crating, fuel, travel and delivery charges shall not be paid by Owner.  Any materials delivered in a damaged condition, in which condition resulted from inadequate or improper packing and/or crating, shall be held for disposition at the sole risk and expense of the Contractor.
6. Invoices can be submitted at any time during the weekly payment cycle via email to accountspayable@beacon-builders.com.  The cut-off for each Friday pay-run is 5pm on the preceding Wednesday.

 General Payment Terms  

1. Contractor shall inspect the Materials prior to submitting any invoice for payment. 

2. Upon execution of this Agreement, Contractor shall provide a list to Owner of all of its subcontractors and Contractors that will perform any part of the Work or furnish any labor, material, equipment, tools, services or supplies for performance thereof.  Contractor shall immediately notify Owner, in writing, of any changes or additions to this list.  Any subcontractor or supplier listed by Contractor shall be subject to Owner’s approval. 

3. In the event of any breach by the Contractor of any provision or obligation of this Agreement, or in the event of the assertion by other parties, under the direct or indirect control of Contractor, of any claim or lien against the Owner or any part of the Project, which claim or lien arises out of or relates to the Work, the Owner shall have the right, but is not required, to retain out of any payments due or to become due to the Contractor an amount sufficient to completely protect the Owner from any and all loss, damage or expense therefrom, until the claim or lien has been settled or adjusted by the Contractor to the satisfaction of the Owner.  Any acceptance of the Materials or approval of payment by the Owner does not relieve the Contractor of its duties or obligations under the terms of the Contract Documents. 

4. Contractor shall promptly make payment to all subcontractors, material suppliers, or other parties for whom the Contractor is responsible, as well as payment of all contributions, benefits and/or premiums payable on its employees or on its operations, pursuant to worker's compensation laws, social security laws, health and welfare benefit plans and any other taxes, contributions, benefits and/or premiums which become payable by operation of law or contract.  In the event any subcontractor, supplier, employee, agent or other person or entity for whom the Contractor is responsible, asserts a mechanic's lien, personal liability notice or other payment claim against the Owner or the premises upon which the Work was or is being performed, the Contractor shall promptly resolve such lien or claim, including bonding off the mechanic's lien upon request of the Owner, and shall defend, indemnify and hold harmless the Owner and the premises upon which the Work was or is being performed against all losses, damages or costs, including reasonable attorney’s fees, incurred in connection with the lien or claim.  In the event it appears to the Owner that the materials, equipment and/or labor incurred in the performance of the Work are not being paid when due, the Owner may take steps, as it deems appropriate, to address such payment issues, including withholding of appropriate payment from the Contractor and/or the issuing of joint checks or direct payments to the Contractor and/or its subcontractors, material/equipment suppliers or others for whom the Contractor is responsible.  Joint checks and/or direct payments when made by the Owner shall be deemed payments to the Contractor in accordance with this Agreement.  Owner does not, however, have any obligation to see to the payment of subcontractors, material/equipment suppliers or others for whom the Contractor is responsible and the Owner’s decision of whether or not to issue joint checks or direct payments shall not give rise to any such duty or responsibility. 

5. Concurrently with the delivery by Contractor of an invoice or other request for payment authorized under the Contact Documents, Contractor shall, if requested by the Owner, deliver to Owner affidavits and lien waivers and releases in a form approved by the Owner for all work, labor and materials furnished up to the date when the invoice or other request for payment authorized under the Contract Documents is submitted, or such similar documentation as may be appropriate and acceptable to Owner, executed by Contractor and all subcontractors, suppliers, and others directly or indirectly working under Contractor who provided any work, services, labor, or materials in connection with the portion of Work for which payment is being requested. Contractor shall, upon the request of Owner at any time prior to completion of the Work, obtain a performance bond and/or a payment bond in an amount and containing terms acceptable to Owner to ensure the performance of the Work and payment to all subcontractors, suppliers, or others providing services, labor, or materials in connection with completion of the Work. 

6. Work is deemed complete upon (1) inspection and approval by Owner and (2) delivery, if requested by the Owner, by Contractor to Owner of affidavits and lien waivers and releases in a form approved by the Owner, or other such documentation as may be appropriate and acceptable to the Owner, executed by Contractor and all subcontractors, suppliers and others that furnished any work, labor, services or materials in connection with the Work, certifying and warranting that all liabilities and obligations for work, labor, materials, supplies, and services and all other indebtedness connected with completion of the Work or any portion thereof have been paid in full and satisfied, and reciting that, to the best knowledge and belief of each affiant, there are no unsatisfied or outstanding claims or demands by virtue of completion of the Work which can or may be asserted against Owner or the premises upon which the Work was performed by way of mechanic's lien, personal liability notice or otherwise.      

7. Owner may deduct from any amounts due or to become due to the Contractor any sum or sums owing by the Contractor to Owner, regardless of whether those sums arise out of this Agreement or otherwise.

 

SECTION E – INSURANCE AND EMPLOYEE TAX RESPONSIBILITIES:  Contractor shall obtain from a company with a minimum Bests Financial Rating of A-VII, and maintain at all times and for a period of two (2) years after completion of the Work, Commercial General Liability and Automobile Liability limits of $1,000,000 combined single limits, and $2,000,000 in the aggregate.  Owner must be named as an “Additional Named Insured” on the General Liability Policy.  All such coverage shall be primary, and not require contribution from other insurance or person, shall be payable on a first dollar basis without deductible or retention, and shall not be subject to cancellation, non-renewal, or change without thirty (30) days prior written notice to Owner.  Contractor hereby waives any right of subrogation against Owner and its insured(s).  

Contractor shall carry Worker’s Compensation and Liability Insurance on all employees and will furnish evidence of such insurance to the Owner upon request.  Contractor further agrees to withhold taxes, Social Security payments and unemployment taxes from the wages of its employees and promptly pay such withheld taxes to proper authorities.  

It is Contractor’s responsibility to ensure that Owner has a current Certificate of Insurance that meets the above requirements on file at all times.  If the Owner does not have a current Certificate of Insurance on file, Contractor must provide a current Certificate of Insurance that meets the above requirements prior to commencing the Work.  Owner may withhold payment due to not providing certificate or renewal information as requested.  

Contractor certifies and acknowledges to Owner that Contractor has fully and truthfully complied with all applicable provisions of the Indiana Workers’ Compensation Act and the Indiana Workers’ Compensation Law (collectively referred to herein as the “Act”), or is exempt from compliance pursuant to the Act.  If Contractor has elected to self-insure its Workers’ Compensation liabilities, where applicable, Contractor shall furnish a copy of its license as a self-insurer issued by the appropriate governmental agency prior to commencing the Work.  Contractor shall require the same certifications from any independent contractors that it hires in connection with its performance of the Work.  

Contractor, for its part and on behalf of any independent contractors, employees or partners of Contractor, if any, certifies and acknowledges that nothing in this Agreement is intended to create any employment relationship, partnership, joint venture, or association between Contractor, its independent contractors hired by Contractor (if any), its employees (if any), or its partners (if any) and Owner, and any such relationship is expressly denied.  

SECTION F – CONTRACTOR INFORMATION:  Owner may request detailed business information from Contractor including but not limited to, type and form of ownership, date of incorporation, registration or organization, social security number or federal tax identification number (“FEIN”), identity and address of resident agent, and the identity, title, address and social security number or FEIN of each partner, officer and/or member.  Contractor shall provide all requested information within two (2) days after receiving the request from Owner.  

SECTION G – PLANS AND SPECIFICATIONS:  Owner makes no representation or warranty with respect to the sufficiency or completeness of the Plans or Specifications.  Contractor represents that it has carefully studied and compared the Contract Documents, which includes the Plans and Specifications, with each other and acknowledges that the Contract Documents are suitable for the Work and sufficient for their intended purpose and agrees to perform the Work and complete same in full and strict accordance therewith and to the satisfaction of the Owner.  Contractor shall at once report to the Owner in writing any error, inconsistency or omission discovered in the Contract Documents or any concerns relating to the design or construction of the Work.  Other than any error, inconsistency or omission previously reported to the Owner in writing, if any, Contractor agrees and acknowledges that the Contract Documents provide sufficient information and detail to permit the Contractor to undertake and complete the Work in accordance with the Contract Documents, including performance consistent with both the Price and Schedule.  If the Contractor makes any delivery of Materials when it knows, or in the discharge of its obligations to the Owner pursuant to this Agreement should have known, that an error, inconsistency or omission exists in the Contract Documents, without giving written notice to the Owner, then the Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction.  

SECTION H – SITE AND WORK PERFORMED BY OTHERS:  Contractor is responsible for its own layout and for the protection and preservation of the Materials and any work performed by others to the extent Contractor comes into contact with such work during the performance of the Work.  No materials other than those materials belonging to the Contractor shall be removed from the site without written approval of the Owner.  

SECTION I – INSPECTION BY OWNER:  Contractor shall at all times cooperate with Owner and other authorized representatives in connection with inspections of the Materials or any job site within the Project. Owner and its authorized representatives and the authorized representatives of any applicable public or regulatory authority shall have the right to reject Materials which are found, in their judgment, to be inferior, substandard or defective and Contractor shall, within a reasonable time, as mutually agreed by Owner and Contractor, after the receipt of written notice of rejection, take such steps as shall be necessary to correct or remove any inferior, substandard or defective Materials without charge to Owner. If Contractor shall fail to remove rejected Materials within the agreed upon time, Owner may, in Owner’s sole discretion, correct or authorize others to remove such Materials and charge the reasonable expenses incurred in connection therewith to Contractor or offset such amount against the Price or payment that may be due or become due under a separate PO/VPO or other agreement between Owner and Contractor.  In the event any inspection requires the removal of Materials, Contractor shall, upon request, promptly furnish all facilities, equipment, labor and materials necessary to effect such removal. If such inspected Materials are found to be inferior, substandard or defective in any respect, Contractor shall, upon written request, promptly furnish and defray all expenses of such inspections and for the satisfactory replacement of such inferior, substandard or defective Materials. No failure by Owner or other applicable authority to discover or reject inferior, substandard or defective Materials during the progress, or upon completion, of the Work shall be deemed an acceptance thereof nor shall such failure constitute a waiver of any defect. No payment to Contractor by Owner or its transferees or assigns shall be construed as an acceptance of Materials furnished which are not in conformity with the Contract Documents.  

SECTION J – REPRESENTATIONS OF CONTRACTOR:  Contractor represents and warrants to Owner the following:  

1. Contractor shall include a provision in its agreements with all subcontractors and suppliers that allows for these agreements to be unconditionally assigned to the Owner at the Owner’s sole discretion. 

2. The Work shall be done in a workmanlike manner, free from defects and in conformity with all industry standards, codes, laws, ordinances, rules and regulations, and any public or regulatory authorities having jurisdiction over the Work.  Contractor acknowledges that it is familiar with all applicable and relevant codes, laws, ordinances, rules and regulations.  Contractor shall be responsible for securing and paying for all permits, government fees, licenses and inspections necessary for proper execution and completion of the Work.  Contractor shall defend, indemnify, and hold harmless the Owner from all losses, damages or costs, including reasonable attorney’s fees, which arise out of or relate to the Contractor’s failure to adhere to the requirements of this provision. 

3. Contractor shall at all times comply with (1) all applicable federal, state and local safety and health laws, ordinances, rules, regulations and orders of public authorities, including but not limited to the Occupational Safety and Health Act of 1970 and any version of this Act adopted by the state in which the Work is being performed, (2) all safety-related policies, programs, and initiatives of Owner, and (3) all other general industry standards and regulations that may be applicable (collectively referred to as “Safety Standards”).  Contractor further agrees to comply with all Bureau of Immigration and Customs Enforcement rules and regulations (“ICE”).  Contractor acknowledges that it is the controlling employer in any and all instances relating to the Work and Contractor shall be fully liable for any violation of the Safety Standards or ICE by Contractor, its agents, employees, and subcontractors. Contractor further represents that it has studied and is familiar with all Safety Standards and ICE and agrees that it shall be responsible for any violation thereof, including, without limitation, any costs, expenses, or damages, incurred relating thereto.  Contractor shall indemnify, hold harmless and reimburse the Owner with respect to claims, fines, penalties, assessments or other damages including, but not limited to reasonable attorney’s fees, which are asserted against or incurred by Owner as a result of Contractor’s violation or deviation from the Safety Standards or ICE.  Contractor shall notify Owner within four (4) hours of any accidents relating to the Work and shall, at Owner’s request, immediately perform drug and alcohol testing on any of Contractor’s employees, subcontractors, or agents involved in or connected to the accident and shall, to the fullest extent allowed by law, provide Owner with copies of all test results.  Contractor agrees that any use, possession transfer or sale of illegal drugs on site by Contractor, its agents, employees and subcontractors, and their agents and employees, is prohibited.  Contractor agrees that its employees, agents and subcontractors, and their agents and employees, are prohibited from working on site under the influence of alcohol or illegal drugs.  Contractor, upon the request of Owner, shall immediately perform drug and alcohol testing on any of Contractor’s employees, subcontractors, or agents and shall include in any contract between Contractor and any subcontractor or agent, Contractor’s right to perform such testing.  All testing will be done using scientifically accepted analytical methods and procedures that are certified by the National Institute of Drug Abuse. To the fullest extent permitted by law, Contractor agrees to provide Owner all test results that confirm the presence of illegal drugs or alcohol in any employee tested.  

4. Contractor and its subcontractors and suppliers are duly qualified to do business in the jurisdiction where the Work is to be performed. 

5. Notwithstanding anything herein to the contrary, Contractor shall not hire or contract with any subcontractor or supplier without the written consent of Owner.  Contractor shall not assign or transfer any of its obligations, responsibilities, or duties hereunder without the written consent of Owner. 

6. Unless otherwise agreed upon by Owner, Contractor must make deliveries during normal working hours.  Contractor must use delivery methods that will not damage concrete or other surfaces or objects.  No materials shall be delivered without specific authorization as to its location by an authorized representative of Owner. 

SECTION K – CHANGES IN WORK:  The Owner may order the Contractor in writing, without invalidating the Contract Documents, to make changes in the Work consisting of additions, deletions or other revisions, with the Price and Schedule being adjusted, as appropriate, in accordance with the  

provisions of this Agreement.  The Contractor, prior to the commencement of any changed or revised Work, shall promptly submit a written request for any adjustment to the Price and/or Schedule for such changed or revised Work in a form acceptable to Owner.  The Contractor shall not be entitled to any adjustment in the Price and/or Schedule for changes in the Work unless:  

1. The Contractor gives prior written notice to the Owner of its claim for an increase in the Price as a result of the proposed changed or revised Work, including appropriate backup and justification as required by the Owner; and 

2. The Owner, in writing, approves and authorizes the Contractor to undertake the changed or revised Work. 

Failure of the Contractor to provide the prior written notice and obtain the prior written approval of the Owner shall constitute a waiver of any claim by the Contractor for an adjustment in the Price and/or Schedule for any change in the Work.  

Where any particular brand of manufactured article is specified, the specified brand shall be regarded as standard.  Another brand or make equally good (which quality shall be decided by the Owner) may be accepted.  If a brand other than that specified as the standard is used, application must be made in writing to the Owner and written approval obtained; otherwise, what is specified must be furnished.  

SECTION L – RIGHTS AND REMEDIES OF OWNER AND CONTRACTOR:  Owner and Contractor shall have the following rights and remedies: 

 If Contractor does not make a delivery at the time prescribed by the Schedule, Owner may cancel such order of Materials.  In such event, Owner shall be relieved from any express or implied obligation for such order.  

 In the event that Contractor shall at any time refuse or fail to promptly and diligently carry out or complete the Work in accordance with the Contract Documents or shall otherwise fail to perform its duties and obligations hereunder, or be responsible for any violation of any provision of the Contract Documents (all as determined by Owner), Owner may, if Contractor fails to provide Owner an acceptable plan to cure such default within twenty-four (24) hours after Owner has notified Contractor of default or if Contractor fails to cure any default within three (3) days after receiving notice from Owner specifying such default, terminate the PO/VPO and this Agreement and proceed with the completion of the Work.  Upon completion of the Work, the unpaid balance of the Price, after deduction of all reasonable expenses, direct and indirect, incurred or paid by Owner in completing the Work, including without limitation all legal and administrative fees incurred by Owner, shall be paid to Contractor subject to the Owner’s right to withhold or setoff payment under this Agreement. Provided, however, if the costs and expenses incurred by Owner shall exceed the unpaid balance of the Price, Contractor shall pay such excess to Owner immediately upon notice thereof from Owner.

Owner may, for any reason and without cause, cease or terminate the Work at any time upon three (3) days’ written notice to Contractor.  Such cessation or termination shall be effective in the manner specified in said notice, but shall not, except as otherwise provided for herein, affect or nullify any claims or rights of either Owner or Contractor. Upon notice of cessation or termination, Contractor shall, unless directed to the contrary, proceed to discontinue the Work as soon as practically possible and shall not place any further orders for materials or supplies or enter into any contracts or agreements in connection with completion of the Work. Contractor shall use its best efforts to obtain, upon terms satisfactory to the Owner, the cancellation of all existing orders, agreements, or contracts, and shall only take such actions and perform such services as are necessary to preserve and protect the Work and supplies or equipment being used in connection therewith. On the date of cessation or termination provided in the notice, Contractor shall provide Owner a final statement setting forth in detail all of the Work completed up to and including the date of cessation or termination and all expenses necessarily incurred by Contractor in connection with the cessation or termination. Within thirty (30) days of receipt of such final statement, Owner shall, upon verification and approval of the Work, pay to Contractor the invoiced amount or such portion thereof as has been verified and approved by Owner subject to Owner’s right to withhold or setoff any payment under this Agreement. The amount that Contractor is entitled to recover under this provision is limited to the actual cost of Work performed plus a reasonable amount for overhead and profit on the Work performed.  In exchange for payment by Owner to Contractor of such amount, Contractor shall execute and deliver to Owner a release of all claims, and provide to Owner affidavits and lien releases and waivers executed by all subcontractors, mechanics, suppliers, laborers, and all other persons who have performed labor or furnished materials or machinery for the Work in a form acceptable to Owner.  Owner shall be entitled to all materials and supplies and shall succeed to, if Owner so chooses, some or all of the contractual rights of Contractor.

Owner may direct Contractor to work overtime and/or supplement Contractor’s performance of the Work in the event that Owner reasonably believes that Contractor will not meet the Schedule.  Such overtime work will be performed at no cost to Owner and, in the event that Owner supplements Contractor’s work, Contractor shall reimburse Owner for all direct and indirect costs incurred by the Owner in implementing and furnishing such supplemental work, which costs may be deducted from any payments due or to become due to Contractor.

Upon seven (7) days advance written notice, and after satisfying any conditions precedent that may apply, Contractor may terminate the PO/VPO for nonpayment of amounts past due under the Contract Documents for sixty (60) days or longer. In the event of such termination by the Contractor, provided that it is not due to the fault of the Contractor, its subcontractors or their agents or employees or other persons performing portions of the Work, the Contractor shall be entitled to recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, and profit on any Work performed.  The Contractor, however, shall have no right to terminate or suspend its Work if the Owner proceeds as follows:

(a)  The Owner advises the Contractor, in writing, of its reasons for withholding payment, or any portion thereof; 

(b)  The Owner issues payment to the Contractor for all amounts which are not in controversy; and 

(c)  The Owner decides, in its sole and absolute discretion, to place the amount in controversy in an interest-bearing escrow account, acceptable to both the Owner and Contractor, until the dispute is resolved.  

All rights and remedies available to the Owner under the terms of this Agreement are in addition to and not in limitation of any rights or remedies that Owner may have at law or equity. 

 SECTION M – RISK OF LOSS, PROTECTION OF WORK:  Contractor shall, until final acceptance of the Work by Owner, be responsible for the risk of  loss to all materials, supplies, tools, apparatus, and equipment used in connection with the Work and shall at all times protect the Work from damage  and Owner's property from injury or loss. Contractor shall be responsible for all damage to the Work or the work of others caused by the acts or  omissions of Contractor, its employees, agents and subcontractors and their agents or employees. Until final acceptance of the Work, Contractor shall  be responsible for the proper storage and care of the Work and its materials, supplies, tools, apparatus and equipment used in connection with the  Work.  Contractor shall at all times properly maintain all necessary safeguards required by the conditions and progress of Work for the protection of  workmen and the public and shall post signs warning against the dangers and hazards created by construction. 

 SECTION N – INDEMNIFICATION:  In addition to the indemnification rights and obligations set forth elsewhere in this Agreement and to the fullest  extent permitted by law, Contractor shall indemnify and hold harmless the Owner, and its agents and employees from and against claims, damages,  losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Work, provided that any such claim,  damage, loss or expense is (1) attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (including the  Work itself), including the loss of use resulting therefrom, and (2) is caused in whole or in part by any act or omission of the Contractor, the Contractor's  subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this provision. In claims against any person or entity indemnified under this provision by an employee of the Contractor, the Contractor's subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this provision shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or the Contractor's subcontractors under workers' compensation acts, disability benefit acts or other employee benefit acts. 

 SECTION O – RIGHT OF OWNER TO WITHHOLD PAYMENTS:  Owner may withhold payment that is otherwise due and payable to Contractor for all  or a portion of the Work in order to protect Owner from any loss or damage that arises out of, or that Owner reasonably believes may arise out of, (1)  Contractor’s failure to perform the Work in accordance with the Contract Documents, (2) Contractor’s breach of any term or provision contained in this Agreement, (3) Contractor’s performance of the Work, (4) work performed by Contractor under a separate PO/VPO or Warranty Request, or (5) work performed by Contractor under any other agreement.  Owner’s right to withhold payments under this provision includes, but is not limited to, the right to withhold payments in an amount that Owner believes is necessary to pay for all costs to correct and/or repair any inferior, substandard or defective work furnished by Contractor, including all costs to repair damage to work performed by others, regardless of whether such work is performed  pursuant to this Agreement or a separate agreement between Owner and Contractor.  Under this provision, Owner may withhold payment if there is reason to suspect that any work performed by Contractor under any agreement with Owner may be inferior, substandard or defective, provided that owner proceeds in a timely manner to inspect and confirm whether or not such work is in fact inferior, substandard or defective. 

 SECTION P – HAZARDOUS MATERIALS:    

1. If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the Contractor, the Contractor’s subcontractors or anyone directly or indirectly employed by them, the Contractor shall, prior to harmful exposure of any employees on the site to such substance, give written notice of the chemical composition thereof to the Owner in sufficient detail and time to permit compliance with such laws by the Owner, other Contractors and other employers on the site.  Contractor shall provide to the Owner MSDA sheets on all materials which Contractor utilizes on the Project site. 

2. If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner in writing. When the material or substance has been rendered harmless, the Contractor’s Work in the affected area shall resume upon written agreement of the Owner and Contractor. The Contractor shall be entitled to a reasonable extension of time resulting from any such delay, so long as the hazardous materials were not brought onto the site by the Contractor or parties from whom the Contractor is responsible.  Contractor agrees and understands that such time extension shall be Contractor’s sole remedy and, accordingly, Contractor shall assume and monetary risks that may be occasioned by such delay and shall not be entitled to claim or recover any damages or additional compensation of any kind whatsoever as a consequence of any such delay, suspensions, hindrances or disruptions, whether or not contemplated by the parties and regardless of the severity or duration.

 Should the Contractor, knowing or suspecting that hazardous material has been encountered on the site, fail to immediately stop work and/or fail to give notice as required above, the Contractor shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the Owner with respect to claims, damages, losses and expenses, including but not limited to reasonable attorney’s fees, which are asserted against or incurred by the Owner as a result of such hazardous materials being disturbed, transported and/or disposed of, regardless of whether such claim, damage, loss or expense is caused in part by a party indemnified hereunder.

 SECTION Q – TAXES AND FEES:  Contractor assumes all responsibility for the payment of any and all taxes imposed by reason of the performance of  the Work, including gross and net income taxes, sales taxes and any and all payroll taxes or deductions attributable to wages, salaries or other remuneration paid to the employees of Contractor or its sub contractors.  Contractor assumes and shall pay all royalties or license fees, if any, necessary  for the use of specified materials and equipment in the Work, and shall indemnify and save harmless Owner from any and all costs and expenses  including, but not limited to reasonable attorney’s fees, in connection with any suit or claims for the infringement of any patent, copyright, trademark, or similar property right.  

SECTION R – WARRANTY WORK AND GUIDELINES:  

Contractor shall provide a warranty not less than one year from the date of closing (between Owner and Owner’s buyer) of the home for which the Materials were ordered.   

Warranty Against Defective Workmanship and Materials: 

Contractor warrants to Owner that the Work shall be performed in a good and workmanlike manner and shall be free from defects caused by faulty workmanship or defective materials.  Contractor agrees to correct all defects within ten (10) days from date of notice of such defects from Owner or Owner’s buyer.  In the event Contractor does not correct such defects, Owner reserves the right to correct same, and Contractor agrees to pay the Owner its costs in connection therewith, including any and all attorneys’ fees, costs and expenses arising out of or connected with such defects. To the extent the warranties set forth below are applicable to the Contractor’s scope of Work, the Contractor warrants: 

(1)  That the Work will be free from defects caused by faulty workmanship or defective material for a period of one year from final completion of the residential unit; 

(2)  That the Work will be free from defects caused by faulty installation of plumbing, electrical, heating, cooling or ventilation systems  

       (exclusive of fixtures, appliances or items of equipment) for a period of one year from final completion of the residential unit; 

(3)  That the Work will be free from defects caused by faulty workmanship or defective materials in the roof or roofing system for a period of       one year from final completion of the residential unit; and 

(4)  That the Work will be free from major structural defects for a period of ten years from final completion of the residential unit.  

All work necessary to correct and/or repair any faulty workmanship or defective materials under this Section R shall be referred to as “Warranty Work”.   

All Warranty Work shall be performed at Contractor’s sole expense and in accordance with this Section R.  Should any faulty workmanship or defective materials appear before payment has been made for the Work, it is agreed that the Owner may withhold payment for the Work until such faulty workmanship or defective materials are corrected and/or replaced.  Anything contained herein to the contrary notwithstanding, Owner shall have the sole authority to determine whether Contractor shall be denied the opportunity to perform Warranty Work for reasons including but not limited to past issues with Contractor’s workmanship, capability to complete repairs as deemed necessary, and/or lack of professionalism.  If Owner determines that a party other than Contractor shall perform Warranty Work, Contractor shall be responsible for all costs associated with the Warranty Work including, but not limited to, the cost of all labor and materials necessary to complete the Warranty Work.  

Warranty Service Order: 

 Owner may authorize and direct Contractor to perform Warranty Work by issuing a PO, VPO or Warranty Order (collectively referred to in this  section as “Warranty Service Order”).  Unless otherwise stated in this Section R of the Agreement, Warranty Work shall fully comply with this Agreement  in the same manner and to the same extent as Work performed pursuant to POs and VPOs.  

Warranty Scheduling: 

 1.  Appointments are scheduled on an a.m. or p.m. basis or as a specific time range.  The Contractor must arrive at the appointment between 8:00a.m. and  12:00p.m. for an a.m. appointment and between 12:00p.m. and 5:00p.m. for a p.m. appointment.  If a time range is specified, the Contractor must arrive at the designated location between the hours listed.  All appointments will be scheduled on business days, Monday through Friday.  In an emergency/short notice situation, the Contractor will receive a phone call prior to receiving the Warranty Service Order to confirm availability.  All Warranty Work shall be completed within the Schedule for such work provided by Owner. 

2. All Warranty Service Orders will include the following information: Homeowner Name ; Community and Lot Number ; Address ; Description of the Request for Work and/or Repair Instructions Outlined By Owner ; Inspection Appointment Date and Time.

3. If the date and time cannot be accommodated, the Contractor must advise the Owner’s Warranty Representative of an alternate date and time.

4. Contractor agrees that it may be assigned Warranty Work to correct and/or repair defective workmanship or materials that were not originally furnished by Contractor. Such work will be ordered via a Warranty Service Order and Contractor will be entitled to payment for this work in accordance with the terms of this Agreement. 

5.  All appointments for Warranty Work must be kept with homeowners.  Only the Owner may authorize cancellation of, or changes to, appointment times.  Contractor shall also be responsible for any trip charges incurred by other trades as a result of failing to meet scheduled appointment times.

 Payment:  

1. In the event that Contractor is entitled to receive payment for any Warranty Work under the terms of this Agreement, Contractor shall ensure that all Work on the Warranty Service Order is completed prior to submitting to Owner for payment. 

2. Upon Owner’s request, Contractor shall comply with all, or any part of, the Payment Procedures and/or General Payment Terms stated above under in Section D for all Warranty. 

General Guidelines for Warranty Work:  

1. All areas where Warranty Work is to be performed must be protected as needed.  Contractor shall use tenting and masking as necessary to protect other areas of the home from dust, over-spray, and debris.

2. All debris and trash must be removed from the home.  All areas must be broom swept, vacuumed, and wiped clean after completion of the repair.

3. NO SMOKING, FOOD, OR DRINKS ARE ALLOWED IN OR AROUND THE HOMES.  ABSOLUTELY NO ALCOHOL OR DRUGS ON PROJECT.

4. Remove shoes or use shoe covers before entering any carpeted or vinyl areas.

5. No parking on driveways unless heavy equipment must be unloaded.  When parking on driveways to unload, the Contractor must ensure that no oil or leaks damage the concrete.  Once equipment is unloaded, all vehicles must remain on the street.  Do not block mailboxes or driveways of other occupied home.
6. All homeowner concerns should be forwarded to the Owner’s Warranty Representative.  Contractor and its employees and representatives shall not, at any time, discuss opinions or decisions made by Owner or other contractors with the homeowner.
7. Any questions by a homeowner concerning any Warranty Work shall be immediately communicated to the Owner’s Warranty Representative responsible for the Warranty Service Order.
8. Contractor’s employees performing Warranty Work shall maintain a neat, clean, and professional appearance and a courteous attitude at all times.

 Direct Call Guidelines 

 Non-Emergency Direct Call by Homeowner to Contractor and Appointment Scheduling  

1. Owner may designate Contractor as a “Direct Call Contractor”, which requires the Contractor to receive calls directly from homeowners regarding defective workmanship or materials and respond to these calls in accordance with these guidelines.  Owner will provide a direct call listing for Direct Call Contractors to the homeowner.
2. Owner will direct homeowners to contact Direct Call Trade Contractors via the phone number listed, when appropriate.
3. Direct Call Contractor must respond to homeowner by phone on all direct call requests within two business days.  This applies only to non-emergency.
4. If an inspection appointment is deemed necessary to address a direct call request from the homeowner, Direct Call Contractor must provide availability for appointment from 8:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays.
5. All direct calls must be reported to Owner in writing within two (2) business days of appointment.  The direct call report must include the following information:

(a)  Homeowner Name; 

(b)  Community and Lot Number; 

(c)  Address; 

(d)  Description of Request Submitted by Homeowner; 

(e)  Inspection Appointment Date and Time; and 

(f)  Description of any Damages or Repairs Resulting from the Direct Call. 

 

Direct Call Issued by Owner to Contractor for Appointment Scheduling:  

1. Owner will issue the Contractor a Warranty Service Order for all direct call items that are received by Owner.
2. All inspection appointments will be scheduled on an a.m. or p.m. basis.   The Contractor must arrive at the appointment between 8:00a.m. and 12:00p.m. for an a.m. appointment and between 12:00p.m. and 5:00p.m. for a p.m. appointment.  All appointments will be scheduled on business days, Monday through Friday.
3. All Warranty Service Orders will be submitted in writing and will include the following information: Homeowner Name ; Community and Lot Number ; Address ; Description of the Request for Work and/or Repair Instructions Outlined By Owner ; Inspection Appointment Date and Time.
4.  All inspection appointments scheduled by the Direct Call Trade Contractor must be kept on a daily basis.  

 

Direct Call Billing to Homeowner Guidelines:  

1. Contractor must obtain signature from homeowner accepting responsibility for the cost of non-warranted repairs, prior to performing repairs.
2. After repairs are completed, the homeowner must be given an invoice with the detailed breakdown or flat rate costing of work completed and the total cost of the service call.
3. Owner will not assume responsibility for costs due to the Contractor’s inability to collect from the homeowner.

 Repair Appointment Scheduling:  

1. Appointments are scheduled on an a.m. or p.m. basis or as a specific time range.  The Contractor must arrive at the appointment between 8:00a.m. and 12:00p.m. for an a.m. appointment and between 12:00p.m. and 5:00p.m. for a p.m. appointment.  If a time range is specified, the Contractor must arrive at the designated location between the hours listed. All appointments will be scheduled on business days, Monday through Friday.   

2. All repair requests will be submitted in writing and will include the following information: Homeowner Name ; Community and Lot Number ; Address ; Description of the Request for Work and/or Repair Instructions Outlined By Owner ; Inspection Appointment Date and Time.
3. All repair appointments must be kept on a daily basis.  Owner representatives and Contractor management are the only people authorized to cancel or change repair appointment times.  If repair appointment time must be changed, a minimum of two hour advanced notification is required.  If contractor changes appointment, owner must be notified.

 

Emergency Service Requirements:  

1. Each Contractor must have emergency request availability 24 hours a day, seven days a week, 365 days a year. 

2. Each Contractor will insure that they have adequate service technicians available for emergency service depending on seasonal workload.  A rollover or back-up plan is required to handle seasonal influxes in volume so that homeowners receive a return phone call within 60 minutes and service within six hours from time of return call.
3. Each Contractor must have management availability for emergency service.
4. Each service technician responsible for emergency service will be required to have a company uniform or name badge identifying the company they work for and their name.  Service technicians should contact homeowner prior to arrival to inform them when they are in the neighborhood.
5. Contractors are only required to respond outside of normal business hours to the following emergency calls:

(a)  Total Loss of Heat; 

(b)  Total Loss of Electricity; 

(c)  Total Loss of Water; 

(d)  Gas Leak; 

(e)  Plumbing Leaks that Require the Entire Water Supply to be Turned Off; or 

(f)   Any Situation that Endangers the Occupancy of the Home.  

6. Contractor must ensure that service trucks are equipped to handle the most frequently requested service issues.  If emergency service requires a part not normally stocked, the Contractor must be able to requisition that part within 24 hours subject to supplier availability.
7. Owner will provide management availability for extreme emergencies and when direct on-call people cannot be contacted.  Extreme emergencies will be as follows:

(a)  Whole House Flood; 

(b)  Whole House Sewer Back-Up (no operable facilities); 

(c)  Life Safety Issue; or 

(d)  Fire.

8. Contractors will be required to submit a listing of all on-call personnel and contacts to Owner periodically or when there are any changes.

 

SECTION S – GENERAL JOBSITE GUIDELINES  

1. All Trade Contractors must cleanup daily both inside and outside the home and place all debris in trash pens.   All boxes will be broken down before being placed in the trash pen. Homes must be broom swept each day.  Driveways must be scraped as needed and broom swept at the end of each workday.  
2. Any hazardous or toxic chemicals used must be taken with the trade Trade Contractor once the job has been completed.  Under no circumstances are hazardous or toxic chemicals to be placed in the trash pen.  Examples of hazardous or toxic chemicals include but are not limited to:  paint, paint thinner, PVC glue, PVC cleaner, flooring glue, and household cleaners. 
3. Keep entry doors and garage doors closed while working in our homes.  Close all windows and doors (including garage door) in home before leaving.  Before leaving, all windows and doors (including the garage door) must be locked, with the lockbox installed and key to home placed back inside the lockbox.  Each Trade Contractor with access to the home will have the lockbox code. 
4. All extension cords must be run through windows.  Trade PartnerContractor is responsible for protecting windows from cord damage.  Care must be taken to prevent damage to windows.  Do not run extension cords through exterior doors.  
5. Remove shoes or use protective shoe covers before entering carpeted and vinyl areas. 
6. Countertops are to remain free of tools and materials at all times. 
7. No smoking, food, or drinks in the home or garage area.   
8. Absolutely no alcohol or drugs on projects.   
9. When heat/cooling is available, at no time can the thermostat be adjusted to anything other than what is set forth below: 

• Air Conditioning: 75 Degrees 

• Heating Between 68 and 70 Degrees 

 

SECTION T – MISCELLANEOUS 

Successors and Assigns. This Agreement and the rights and duties hereunder shall inure to the benefit of and be binding upon both Owner and Contractor and their successors and assigns. Contractor may not assign any rights or obligations under this Agreement without prior written approval from Owner.

Governing Law. This Agreement is executed under and shall be construed in accordance with the laws of the State of Indiana.

Arbitration. Any controversy or claim arising out of or relating to this Agreement or the Work shall be settled by binding arbitration in accordance with the Construction Industry Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Such arbitration shall take place in Indianapolis, Indiana.  Contractor shall enter into a written agreement with all of its subcontractors and suppliers and include in this agreement a provision that permits the subcontractor and supplier to be joined in any arbitration proceeding between the Owner and Contractor.

 Notices. All notices required hereunder shall be in writing and shall be deemed given when personally delivered to the authorized representatives of Owner or Contractor or when faxed, e-mailed or mailed, postage prepaid, to Owner or to Contractor.  If the person or department to receive a certain type of notice is not identified in this Agreement, then notice shall be sent to the person identified in the PO/VPO.

Confidentiality

1. The terms of this Agreement are confidential and Contractor agrees not to discuss any details of this Agreement with anyone not employed by Owner or Contractor, except as may be required by law or order of a court of competent jurisdiction.  For the purpose of this provision, “Confidential Information” includes Plans, Specifications, POs, VPOs, selection information, prints, scheduling information, financial statements, customer information, product specifications, training techniques, trade secrets and all other information relating to the Owner’s business, customers, operations, and financial activities, in any form including hard copy and electronic format.  Such information is confidential and proprietary and remains the property of Owner.  Upon completion of the Work, or in the event this Agreement is terminated, Contractor shall immediately return to Owner all documents containing all information that, under the terms of this Agreement, constitute Confidential Information and/or property of Owner.  Owner reserves the right to withhold payments to Contractor if said documents are not returned in a timely manner. 
2. It is understood and agreed that Contractor shall use any Confidential Information solely for the agreed purposes and shall not use the Confidential Information for its own or a third party’s benefit, without the written consent of Owner.  Except as expressly permitted herein, Contractor shall not, at any time, without the express prior written consent of Owner, redistribute, market, publish, disclose or divulge to any other person or entity any Confidential Information or the data, results, methods, or processes resulting from or established by the agreed purposes.  Additionally, Contractor shall cooperate with Owner in any efforts which Owner might undertake to prevent the unauthorized disclosure or use of any Confidential Information by any person or entity who or which shall have obtained the Confidential Information from Contractor and to enforce the terms of this Agreement against any other person or entity. 
3. Upon completion of Contractor’s use of any Confidential Information for the agreed purposes for which it was disclosed by Owner or at any time upon Owner’s request, Contractor shall return to Owner any materials evidencing any Confidential Information or, at Owner’s option and written authorization, shall destroy such materials.
4. Entire Agreement. The PO/VPO and this Agreement, and any exhibits or attachments thereto, contain all promises and agreements between the parties for the Work.  Any modifications or amendments shall be in writing and shall be valid and enforceable only if signed by Owner and Contractor.

 Insurance Addendum

Indemnification and Subcontractor's Liability

1. Subcontractor hereby assumes the entire responsibility and liability for all Work, supervision, labor and materials provided under any Work Order issued pursuant to this Subcontract, whether or not erected in place and for all plant, scaffolding, tools, equipment, supplies and other things provided by Subcontractor until final acceptance of the entirety of the Work by Owner. In the event of any loss, damage or destruction thereof from any cause, Subcontractor shall be liable therefor, and shall repair, rebuild and make good said loss, damage or destruction at Subcontractor's cost,, subject only to the extent that any net proceeds are payable under any builder's risk property insurance that may be maintained by Owner or Contractor, if any.

2. Subcontractor shall be liable to Contractor for all costs Contractor incurs as a result of any failure of Subcontractor, or any of its suppliers, vendors or subcontractors of any tier, to fully and properly perform their obligations and duties with respect to the Work.

3. To the fullest extent permitted by law, the Subcontractor shall indemnify, defend, and hold harmless the Contractor, Owner and their respective officers, directors, employees and agents (“Indemnified Parties”) from and against all claims, damages, demands, losses, expenses, fines, causes of action, suits or other liabilities, (including all costs reasonable attorneys' fees, consequential damages, and punitive damages), arising out of or resulting from, or alleged to arise out of or arise from, the performance of Subcontractor's Work under the Subcontract, and any Work Order whether such claim, damage, demand, loss or expense is attributable to bodily injury, personal injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss of use resulting therefrom; but only to the extent arising out of the Work of the Subcontractor or any entity for which it is legally responsible or vicariously liable, regardless of whether the claim is presented by an employee of Subcontractor.

4. To the fullest extent permitted by law, the Subcontractor shall also indemnify, defend, and hold harmless the Indemnified Parties from and against all claims, damages, demands, losses, expenses, fines, causes of action, suits or other liabilities, (including all costs reasonable attorneys' fees, consequential damages, and punitive damages), arising out of or resulting from, or alleged to arise out of, the failure of Subcontractor, or any of its suppliers or subcontractors of any tier, to compensate any of its employees or independent contractors in accordance with any applicable federal, state or local law regarding the payment of wages.

5. The indemnity obligations referenced herein shall not be construed to negate, abridge or otherwise limit any other obligations of the Subcontractor or rights of Contractor hereunder. This indemnification shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor under any workers' compensation act, disability benefits acts or other employee benefits act and includes any loss or injury suffered by an employee of the This indemnification shall be in addition to any indemnity liability imposed by the Contract Documents, and shall survive the completion of the Work or the termination of the Subcontract.

6. Subcontractor's assumption of liability is independent from, and not limited in any manner by, the Subcontractor's insurance coverage obtained pursuant to Article 5 or otherwise.

Subcontractor's Insurance

Prior to commencing the Work, Subcontractor shall procure, and thereafter maintain, at its own expense, until final acceptance of the Work or later as required by the terms of the Subcontract or any individual Work Order, insurance coverage required by this Subcontract. At a minimum, and subject to modification in individual Work Orders, the types of insurance and minimum policy limits specified shall be maintained in a form and from insurers acceptable to Contractor as set forth below. All insurers shall have at least an A- (excellent) rating by

A.M. Best and be qualified to do business in the state where the project is located.

This insurance will provide a defense and indemnify the Contractor, but only with respect to liability for bodily injury, property damage and personal and advertising injury caused in whole or in part by the Subcontractor’s acts or omissions or the acts or omissions of those acting on the Subcontractor’s behalf.

Proof of this insurance shall be provided to the Contractor before the Work commences, as set forth below. To the extent that the Subcontractor subcontracts with any other entity or individual to perform all or part of the Subcontractor's Work, the Subcontractor shall require the other Sub-Subcontractors to furnish evidence of equivalent insurance coverage, in all respects, terms and conditions as set forth herein, prior to the commencement of work by the Sub-Subcontractor. In no event shall the failure to provide this proof, prior to the commencement of the Work, be deemed a waiver by the Contractor of Subcontractor's or the Sub-Subcontractor's insurance obligations set forth herein.

In the event that the insurance company(ies) issuing the policy(ies) required by this exhibit deny coverage to the Contractor, the Subcontractor or the Sub-Subcontractor will, upon demand by the Contractor, defend and indemnify the Contractor at the Subcontractor's or Sub-Subcontractor’s expense.

Commercial General Liability Insurance

$1,000,000 Each Occurrence Limit (Bodily Injury and Property Damage)

$2,000,000 General Aggregate per Project

$2,000,000 Products & Completed Operations Aggregate

$1,000,000 Personal and Advertising Injury Limit

Business or Commercial Automobile Liability Insurance

$1,000,000 combined single limit per accident

Workers' Compensation and Employers' Liability Insurance (at the limit chosen in the drop down box below)

$100,000 Each Accident; $100,000 Each Employee for Injury by Disease;

$500,000 Aggregate for Injury by Disease

Excess or Umbrella Liability (to overlay Employer’s Liability, Automobile Liability and Commercial General Liability coverages at the limit chosen in the drop down box below).

$1,000,000 Occurrence /aggregate

The Subcontractor’s Commercial General Liability policy shall not contain an exclusion or restriction of coverage for the following:

1. Claims by one insured against another insured, if the exclusion or restriction is based solely on the fact that the claimant is an insured, and there would otherwise be coverage for the claim.

2. Claims for property damage to the Work arising out of the products-completed operations hazard where the damaged Work or the Work out of which the damage arises was performed by the Subcontractor or any sub-subcontractor of the Subcontractor.

3. Claims for bodily injury, including but not limited to claims that concern or relate in any to bodily injury to an employee of the Subcontractor, whether or not such claim is direct, vicarious, “action over” or any other type of claim and whether or not such claim is asserted against the Contractor or Subcontractor.

4. Claims for indemnity under Article 4 Indemnification arising out of injury to employees of the insured.

5. Claims or loss excluded under a prior work endorsement or other similar exclusionary language.

6. Claims or loss due to physical damage under a prior injury endorsement or similar exclusionary language.

7. Claims related to residential, multi-family, or other habitational projects, if the Work is to be performed on such a project.

8. Claims related to roofing, if the Work involves

9. Claims related to exterior insulation finish systems (EIFS), synthetic stucco or similar exterior coatings or surfaces, if the Work

Involves such coatings or surfaces.

10. Claims related to earth subsidence or movement, where the Work involves such hazards.

11. Claims related to explosion, collapse and underground hazards, where the Work involves such hazards.

Additional Insureds

The Contractor and Owner, along with their respective officers, agents and employees, shall be named as additional insureds for Ongoing Operations and Products/Completed Operations on the Subcontractor's and any Sub-Subcontractor's Commercial General Liability Policy and Excess or Umbrella Policy, which must be primary and noncontributory with respect to these additional insureds. The Subcontractor shall continue to carry Completed Operations Liability Insurance for at least the length of the Statute of Repose in the state where the subject work is performed after either ninety (90) days following Substantial Completion of the Work or final payment to the Contractor on any individual Project, whichever is later.

The Contractor and Owner, along with their respective officers, agents and employees shall be named as additional Insureds on the Business or Commercial Automobile Liability Policy, which must be primary and noncontributory with respect to these additional insureds. It is expressly understood by the parties to this Subcontract that it is the intent of the Parties that any insurance obtained by the Contractor is deemed excess, non-contributory and not co-primary in relation to the coverage(s) procured by the Subcontractor, the Sub-Subcontractor or any of their respective consultants, officers, agents, subcontractors, employees or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of the aforementioned may be liable by operation of statute, government regulation or applicable case law.

To the fullest extent permitted by applicable state law, a Waiver of Subrogation Clause shall be added to the General Liability, Automobile, Excess or Umbrella and Workers Compensation policies in favor of Contractor and Owner, and this clause shall apply to the Contractor's and Owner's officers, agents and employees, with respect to all Projects during the policy term.

 

IN WITNESS WHEREOF the Owner and Contractor have executed this contract the day and date herein above written. 

 

Beacon Builders, LLC. 

Contractor (Company Name) Owner