Terms and Conditions
Western Partitions, Inc. (“WPI”) and Subcontractor (as that term is defined herein), or WPI and Vendor
(as that term is defined herein), or WPI and Consultant (as that term is defined herein), as applicable,
agree that all Work, Goods and/or Services (as those terms are defined below) performed or provided to
or on behalf of WPI, as applicable, shall be governed by the terms and conditions set forth in one or
more of the sections below (including Section A, Subcontractors, Section B, Vendors, and/or
Section C, Professional Services) (“Terms and Conditions”), to the extent that any one or more of
such sections apply to the Work, Goods and/or Services performed or provided, as further described
below. These Terms and Conditions constitute the final agreement between the parties and supersede
all previous communications, agreements, quotes, bids, or contracts, written or verbal, and no
understanding, agreement, term, condition, or trade custom at variance herewith shall be binding on
WPI. Any term contained in any other agreement or other document that is different from, inconsistent
with, or additional to, these Terms and Conditions shall be void unless specifically agreed to in writing by
WPI’s authorized agent. No modification of these Terms or Conditions shall be effective or binding
unless specifically recognized and assented to in writing by WPI's authorized agent.
A. SUBCONTRACTORS: The following terms and conditions shall govern all Work (as that term is
defined herein) that is performed by any entities providing labor and/or materials to or on behalf of WPI
(“Subcontractor”). This section shall also apply to crane providers with operation services, scaffold
providers with scaffold erection and dismantling services, cleaning service providers, and any other
contractors or service providers that are performing any type of labor at the project site.
1. The Work. Subcontractor is an independent contractor undertaking performance under the Contract
Documents for each respective project, together with all changes, addenda or modifications
hereunder and agrees to perform all obligations in strict accordance with the terms and conditions of
the Contract Documents (all of which are collectively referred to as “the Work”). The scope of Work
shall include all that is necessary, incidental or reasonably inferable from the Contract Documents
as being necessary to produce the intended results and as more particularly, though not exclusively,
as specified in the Contract Documents. Any Work performed by Subcontractor for WPI, including
Work performed under purchase order, work order, or any other oral or written agreement(s) shall
be governed by the Terms and Conditions herein.
2. Contract Documents. The term “Contract Documents” shall hereinafter collectively include, but is
not limited to, each project’s general and special conditions and provisions, plans and drawings,
specifications and standard specifications, addenda, change orders, modifications, purchase orders,
price agreements, and all exhibits, attachments and other documents referenced or incorporated
therein, all of which are incorporated by reference into these Terms and Conditions for each
respective project. All of these documents are available to Subcontractor upon request and
Subcontractor acknowledges that it will become fully familiar with all of the Contract Documents
before commencing any Work. In the event of a conflict between or within any of these documents,
Subcontractor agrees to notify WPI immediately in writing of any such concern and WPI shall
resolve any such written request promptly in order to resolve any possible conflict. Subcontractor is
hereby required to adhere at all times to the more strict requirements, of any nature, of these
documents in order to ensure its compliance with the Contract Documents for the Work. The Terms
and Conditions apply to any and all Work performed by Subcontractor for WPI as of the date of
each purchase order issued by WPI or as of the date Subcontractor’s work first commenced on the
project, whichever comes first. WPI is relying on Subcontractor’s expertise, best judgment and
discretion in connection with Subcontractor’s performance and management of any and all Work.
WPI shall utilize Subcontractor to perform work of the general type and nature for which
Subcontractor is skilled, or may perform such work with its own forces or through other subtiers, but
in no event shall these terms obligate WPI to provide work or to issue any purchase orders to
Subcontractor.
3. Required Documentation. Subcontractor shall return and complete any documentation required
under the Contract Documents and these Terms and Conditions including, but not limited to,
insurance certificates, insurance endorsements, signed agreements for the Work, safety
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documentation, and any bonds (if required), on or before the earlier of the fifteenth (15th) day
following award, commencement of the Work, or the time required by the Contract Documents. If
Subcontractor fails to timely return any required documents to WPI or Subcontractor returns
documents that are not in the required form to WPI, Subcontractor may, at WPI’s election, be
deemed in material breach of these Terms and Conditions.
4. Contact Information. WPI’s Project Manager shall serve as Subcontractor’s primary point of
contact for all communications and notices for each project. Subcontractor shall not at any time
communicate directly with the Owner, Contractor or other subtiers or their agents, unless otherwise
specified by WPI in writing or as otherwise specified in the Contract Documents.
5. Performance of the Work.
a. General. Subcontractor shall provide all labor and supervision and shall furnish all
materials, supplies, equipment, tools, utilities and facilities necessary or proper for the
performance and completion of the Work in strict accordance with all of the Terms and
Conditions and in accordance with all change orders, modifications, price agreements or
other documents of change issued in connection therewith.
b. Supervision. Subcontractor shall perform the Work under the general direction and
supervision of WPI and shall be subject to all of the inspection and testing requirements of
the Contract Documents as it relates to the Work. Subcontractor shall adequately and
continuously supervise and superintend its forces and shall, at the direction of WPI,
immediately remove from the Project any person, equipment or materials determined to be
inadequate or inappropriate to performance of the Work.
c. Laws. Subcontractor shall comply with all applicable federal, state and local laws,
regulations, ordinances and orders affecting its Work or the Project and as required by the
Contract Documents. Without limitation thereof, the Contract Documents may require all
agreements subject to the Project to contain certain provisions, in which event each and
every of said required provisions are by this reference hereby incorporated into these terms
and conditions for the Work, as though fully set forth herein, and in which event
Subcontractor agrees to incorporate each and every such required provision in every
agreement which Subcontractor may enter into pertaining to the Project or to the Work
including any work that Subcontractor sublets on any tier.
d. Taxes, Licenses and Permits. Subcontractor shall pay all applicable sales taxes, excise
taxes, old age benefits, unemployment compensation taxes, and any other applicable taxes
on labor furnished for the Work. Subcontractor shall make all Health and Welfare and
pension payments in accordance with any applicable union contract. Subcontractor shall
obtain and comply with any permits or licenses necessary for the performance of the Work
and is to furnish proof of State and/or City licenses applicable to the Work and Federal Tax
ID Numbers all of which Subcontractor shall keep current at all times.
e. Submittals. Subcontractor will furnish any and all shop drawings, schedules, samples,
literature or other required submittals within sufficient time for review and approval by WPI,
Contractor, Owner or any of their representatives in order to avoid any delay to the Work or
to the Project, and will make such changes and furnish such corrected submittals as may
be required.
f. Changes. At any time during the course of the Work, and until final acceptance of the
Project, WPI shall have the right to order additions or deletions in the Work or changes in
the Work without notice to or the consent of Subcontractor's surety, and fair increases or
decreases shall be made therefore in the Price; provided, however, no addition, deletion or
change in the Work shall be made by Subcontractor or paid for by WPI unless and until
such addition, deletion or change is duly authorized in writing by WPI. Subcontractor
acknowledges that any modification to the Work, contract price or schedule by written
change order shall constitute full satisfaction and acceptance by Subcontractor of all issues
negotiated including labor costs, material costs, furnishing costs, installation costs, delay
costs, any changes in scope of the Work, and any change or acceleration to the schedule
for performance. In the case of any dispute over changes to the Work, Subcontractor
agrees to proceed with the Work diligently and without delay until such dispute can be
resolved in accordance with the disputes resolution provisions of the Contract Documents.
g. Protection of the Work. Subcontractor will fully protect the Work and all portions and
components thereof and materials therefore until all of the Work is fully completed and
accepted by WPI, Contractor and Owner, and as between WPI and Subcontractor,
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Subcontractor shall bear all risk of loss thereof from any and all risk or hazard of
whatsoever nature. Subcontractor shall confine operations at the Project to areas permitted
by law, ordinances, permits, and as directed by the Contract Documents, Owner, Contractor
or WPI, and as covered by their insurance policy. Subcontractor acknowledges that the
Project may be crowded. Project jobsite storage area may be available but is subject to
WPI’s prior approval. Materials stored at the Project jobsite will be at Subcontractor’s own
risk. Areas designated as storage are not to be considered permanent and may require
immediate relocation at Subcontractor’s expense. Subcontractor’s liability will extend to
completely include the risk of loss to Subcontractor’s stored tools, equipment and materials
of any nature and at any location.
h. Clean Up. Subcontractor shall perform the Work in such manner that the site of the Project
shall at all times be clean, orderly and free from debris. Prior to breaks, the end of the shift,
or leaving the work area for an extended period of time, and upon completion of the Work,
Subcontractor shall remove from the site and dispose of all equipment, supplies, excess
materials, refuse and debris, so as to keep and leave the site of the Project in a good and
clean condition and in strict conformance with any requirements of the Contract Documents.
Subcontractor shall also be responsible for containing any dust caused by the Work. Failure
to provide clean up when directed by WPI, Contractor or Owner may result in additional
fees or charges to Subcontractor for clean-up services provided by or through WPI,
Contractor or Owner.
i. Site Conditions. If Subcontractor encounters any materials, soils or conditions that are or
may be hazardous or unanticipated, or that do or may require any notices, design
evaluation or special handling under any provision of the Contract Documents or of law, rule
or regulation, Subcontractor shall, before disturbing such materials, soils or conditions,
provide written notice to WPI and Subcontractor shall indemnify WPI against any cost,
delay or penalty from its failure to do so.
j. Site Investigation. Subcontractor warrants and represents that it is fully familiar with all of
the terms, conditions and obligations of the Contract Documents, with the local and general
conditions concerning the Project, and with all of the conditions under which the Work is to
be performed, including but not limited to the nature and character of the Work,
transportation and utility facilities, availability, storage and disposal of materials, availability
and requirements concerning labor and workmanship, laws, ordinances, regulations and
restrictions affecting the Work and the site of the Project, and uncertainties of weather and
physical conditions at the site of the Project and the risk and hazards inherent in the Work.
Such warranty and representation is based upon Subcontractor's own investigation and
analysis of all such matters and without reliance whatsoever upon any representation,
opinion or information of WPI.
6. Payment for the Work.
a. Price. In consideration of all of the covenants and conditions of the Contract Documents
and the full, faithful and prompt performance of all of the terms and conditions of the
Contract Documents pertaining to the Work, WPI agrees to pay Subcontractor the Price as
set forth in each Order placed by WPI, and Subcontractor agrees to receive and accept the
Price as full compensation for doing all things required to complete the Work to the
satisfaction of WPI, Contractor, and the Owner, including all taxes. It is specifically
understood and agreed that payment to Subcontractor is dependent, as a condition
precedent, upon WPI receiving contract payments, including retention, from Owner and/or
Contractor. Subcontractor expressly accepts the risk that it will not be paid for the Work in
the event that WPI, for whatever reason, does not receive funds for such Work. No payment
shall be due to Subcontractor until Subcontractor has returned to WPI all required items
including, but not limited to, insurance certificates and safety plan.
b. Payment. Payment will be made to Subcontractor for work actually performed and
completed, as measured and certified to by WPI or its representative. Payment shall be
accepted by Subcontractor as full compensation for furnishing all labor and/or material as
contemplated and embraced by the parties for performance of the Work. Application for
payment shall use WPI’s required forms, which may include Application for Payment Form,
Interim and Final Lien Release Form or whichever forms that WPI requests and/or is
required by Contractor or Owner for the Work and must be submitted by the 18th of the
month or sooner, in order to facilitate application for payment from the Contractor.
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Applications for payment received after the 18th will be submitted and considered for
payment the following month. If the 18th of the month is a holiday or weekend,
Subcontractor shall submit such applications for payment and all required forms for the
Work on the preceding business day. Application for payment shall be submitted via mail or
hand delivered to WPI’s Corporate Office located at Western Partitions, Inc., 8300 SW
Hunziker Rd., Tigard, OR 97223. Application for payment should be based on work
completed through the last day of the month. Payment is contingent upon Subcontractor
meeting wage requirements for employees as required by law and/or any other wage
requirement as required by the Contract Documents or the Project requirements. If WPI,
Contractor or Owner of the Work requires Certified Payroll, the requested and approved
form shall be submitted when required by the Contract Documents, with each monthly
progress payment requisition or when required by WPI. Subcontractor must comply with
any and all applicable wage requirements and laws for the Project. It is understood that it is
Subcontractor’s duty to familiarize itself with the existence of any payroll requirements,
employment opportunities, and hiring practices for the Project and conform to the
requirements thereof. Furthermore, Subcontractor is required to keep such records as is
necessary to establish compliance with these requirements and shall furnish as required or
upon request.
c. Payment for Work Performed. The determination made by WPI, Contractor or Owner of
quantities of the Work performed and to be paid for shall be binding and conclusive, and
shall conclusively establish the amount to be paid for the Work. No compensation shall be
paid Subcontractor for Work not approved and accepted by WPI, Contractor and Owner.
Subcontractor will make no claims against WPI based on any estimates or calculations
other than those made by WPI, Contractor or Owner and for which payment has been made
by Contractor or Owner to WPI. Payment is conditioned on and subject to (as an express
condition precedent) WPI’s receipt of payment for the corresponding approved monthly
estimate or final payment for Work provided by Subcontractor (unless otherwise required by
law in which case this provision shall continue in effect to the fullest extent permitted, and all
remaining provisions herein and of the Contract Documents shall remain in full force and
effect). Subcontractor expressly waives any claims against WPI for failure or delays in
payment by Owner.
d. Partial Payments. Partial payments for the Work performed under the Contract Documents
will be made by WPI as and when WPI is paid therefore by Contractor, and will equal the
value of the Work done by Subcontractor according to the Contractor’s estimate, less the
sum of previous payments, or as required by law, shall be less a retention equal to ten
percent (10%) of the Work done by Subcontractor; provided, that if Subcontractor is
indebted to WPI or anyone else for cash advances, supplies, materials, equipment, rental or
other proper charges against the Work, or is otherwise in default of any term or provision of
Contract Documents, the amount of such indebtedness may be deducted from any payment
or payments made under this provision, and provided further, that the fund from which such
payments shall be made shall be that created by the Contractor in making payments to
WPI. Partial progress payments will be made within thirty (30) days after WPI has been
paid by Owner or Contractor for the Subcontractor’s Work (to the maximum extent such
requirement is allowed under applicable law). No partial payment made by WPI shall be
deemed conclusive evidence that Subcontractor has satisfied its obligations in connection
with all or part of the Work covered by such payment, and WPI shall not by virtue of having
made any such payment be deemed to have accepted any Work not meeting the
requirements of these Terms and Conditions or the Contract Documents or to have waived
any claims against Subcontractor in connection therewith. All payments are provisional and
any overpayment by WPI to Subcontractor shall be deemed to be a mistake of fact and
shall be promptly repaid to WPI upon demand. The acceptance by Subcontractor of each
progress payment from WPI shall constitute a waiver and release by Subcontractor of all
claims of any kind against WPI for payment for Work performed up to the date of
Subcontractor’s estimate for payment against which payment was made and accepted,
excluding only Subcontractor’s entitlement to retainage withheld in connection with such
payment and any disputed amount withheld from payment by WPI.
e. Final Payment. Upon the completion and acceptance of the Project by WPI, Contractor
and Owner, final payment including retention will be made within thirty (30) days after WPI
has been paid in full by Owner or Contractor for the Subcontractor’s Work (to the maximum
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extent such requirement is allowed under applicable law).All prior partial payments shall be
subject to correction in the final payment. Final payment as herein provided shall release
WPI from any further obligation whatsoever. Subcontractor shall, as a condition precedent
to final payment, execute and send original via mail or hand deliver to WPI a full and valid
release and complete discharge of and from any and all claims and demands whatsoever
for all matters arising out of, or in any manner connected with Subcontractor’s Work for the
Project.
f. WPIs Payments. Subcontractor shall make prompt payment to all persons performing labor
or furnishing materials or equipment used or to be used in the performance of the Work. No
moneys shall be deemed as earned or owing until Subcontractor has paid all obligations
incurred for labor, materials, supplies, equipment and any other obligations incurred in
performance of the Work, or which may become claims against WPI's bond or may become
liens against WPI's earnings or against the property or improvements of the Project. All
funds paid to Subcontractor in connection with the Project constitute funds held in trust by
Subcontractor. Subcontractor agrees to apply to first to the payment of: (i) taxes owed by
Subcontractor based on labor, services, equipment, materials supplies, and other items
acquired, performed furnished or used in connection with the performance of the Work, (ii)
Subcontractor bond and insurance premiums; (iii) Subtiers and any applicable Subtier
benefit funds; and (iv) Subcontractor’s material suppliers. Any portion of the Price unpaid,
whether upon partial payments or final payment, may be considered as held by WPI in trust
for the benefit of any laborer, materialman or other creditor and WPI reserves the right but
not the obligation to make payment directly to such creditors of Subcontractor as may have
such claim or lien. WPI reserves the right, prior to making any partial payment or final
payment, to request and receive from Subcontractor a certification under oath, and such
other evidence as WPI may request, that all obligations incurred by or on behalf of
Subcontractor which are or may become such claim or lien have been paid in full, and
Subcontractor's written waiver of any claim or lien.
g. Quantities; Changes. It is specifically understood and agreed that WPI is not an insurer or
guarantor of the amount or nature of the Work and that quantities of the Work are
approximate only, WPI, Contractor and Owner expressly reserves the right to add to or
subtract from the amount thereof and to make changes therein. Subcontractor shall be
bound thereby to the same extent that WPI is bound thereby. No adjustment in the Price
shall be made unless Owner or Contractor adjusts said price with WPI and makes payment
therefore to WPI. No changes shall be valid or of any effect unless reduced to writing and
signed by the parties hereto prior to commencement of any change work. Any work
performed by Subcontractor without first having written authorization for such change work
shall be solely at the risk of Subcontractor and further Subcontractor holds Owner,
Contractor and WPI harmless from any such claims, damages or any other costs
associated with changes performed without such prior written authorization. Subcontractor
shall make all claims for additional compensation or extension of time or other adverse
impacts to the Work within a reasonable time for WPI to submit such request to Contractor
or Owner as required by the Contract Documents. Subcontractor’s compliance with this
notice and time requirement for submitting such request is a condition precedent to
Subcontractor’s entitlement to any adjustment. Failure to submit a timely request to WPI
shall constitute a representation by Subcontractor that no such adjustment is required and
shall forever constitute a waiver by Subcontractor or its right to any such adjustment. No
term, condition, exclusion, limitation or qualification given by Consultant, either orally or in
writing, in any proposal, bid, quotation, acceptance, addendum or otherwise, shall be valid
or binding on WPI except to the extent expressly set forth herein.
h. Payment for Delay. Subcontractor shall not be entitled to damages for delays by reason of
any act or omission of Contractor or Owner, unless and until Contractor or Owner
compensates WPI for Subcontractor's damages, and Subcontractor's sole remedy for such
delay shall otherwise be an extension of time, only to the extent actually granted by
Contractor or Owner. Subcontractor shall not be entitled to recover damages from WPI for
delays or damages caused by the act or omission of any other subtier or their agents, nor
shall WPI be liable to Subcontractor for delays occasioned by the act or omission of any
other Subcontractor of WPI, unless and until such other subtier compensates WPI for
Subcontractor's damages.
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Pricing Data. In the event that Subcontractor shall furnish any cost or pricing data
concerning or pertaining to any adjustment or proposed adjustment of the Price,
Subcontractor warrants and represents that any and all such data is complete, accurate and
correct, and Subcontractor agrees to indemnify WPI, Contractor and Owner against any
loss, cost or damage incurred by WPI as a result of any defect or deficiency in any such
data.
7. Progress And Completion Of The Work
a. General. Subcontractor warrants and represents that it is fully familiar with all of the
requirements and provisions of the Contract Documents concerning time of performance,
and that the Price contemplates performance and completion of the Work within such time
as may reasonably be necessary to permit WPI to complete the Contract within the time
required.
b. Schedule. Time is of the essence for work performed by Subcontractor. Subcontractor shall
start and complete the Work in accordance with the Contractor’s Progress Schedule and/or
in accordance with WPI’s notification of work/progress. Subcontractor shall be responsible
to WPI for any liquidated or actual damages imposed by Contractor or Owner upon WPI or
otherwise incurred by WPI as a result of Subcontractor's failure to perform or complete the
Work on schedule. Subcontractor shall reimburse WPI for any costs accumulated or
penalties levied against WPI due to the negligence or non-performance of Subcontractor,
and such costs or penalties may be deducted from the amount otherwise due to
Subcontractor. Subcontractor will not be responsible for any penalties and/or schedule
delay caused by WPI or Contractor prior to the date of start by Subcontractor.
c. Coordination of the Work. Subcontractor's performance of the Work will require
integration with work to be performed by WPI or its other agents, or by Contractor or Owner
or their other agents, or by other utilities, public bodies or third persons, and Subcontractor
agrees that it will fully cooperate with WPI and all other entities to integrate and coordinate
the Work with such other work as to time, location and schedule. Subcontractor
acknowledges that the Work must be commenced and completed prior to other work to be
performed by WPI or such other entities, and Subcontractor therefore agrees to perform the
Work diligently and expeditiously so that WPI or such other entities will not be delayed in
the performance of such other work. WPI shall not be responsible to Subcontractor for any
act, omissions or damage caused to Subcontractor by any other entity, including WPI's
other subtiers.
d. Inspection Prior to Performance. If any portion of the Work depends upon prior
performance of work by others. Subcontractor by commencing its portion of the Work
accepts the adequacy and completeness of such other work and affirms that it has
accurately inspected and checked all previously completed work. Failure of Subcontractor
to detect and report, in writing, to WPI any defects or discrepancies shall constitute a waiver
of any claim by Subcontractor arising out of such defects or discrepancies.
e. Suspension; Delays. Subcontractor shall comply with instructions given by WPI, including
any instruction to suspend or delay the performance or completion of the Work or any
portion thereof. Subcontractor shall be entitled to an adjustment of the Price or of the time
of performance only to the extent that WPI actually receives from Contractor an adjustment
of the amounts paid to WPI or an adjustment of the time of performance under the Contract
Documents as a result of such instruction.
f. Use of WPI’s Equipment. Subcontractor, its subtiers, employees, agents or suppliers shall
not use WPI’s, Contractor’s, Owner’s or Architect’s or any other subtier’s, supplier’s, or
agent’s equipment (including but not limited to scaffolding, machinery, tools or vehicles)
without the prior express written permission of an agent authorized to legally bind the above
party whose equipment Subcontractor will be using and evidence of adequate insurance
required for the use of such equipment, as required by the Contract Documents, or as
otherwise directed in writing by the party whose equipment Subcontractor will be using. In
the event WPI allows usage of its rented or leased equipment by Subcontractor,
Subcontractor shall be required to abide by all of the rental terms to which WPI is bound
thereby. Subcontractor shall indemnify WPI and other Indemnitees under the same
provisions provided in the Indemnity section herein and shall be fully responsible for and
shall inform and require the same of its other subtiers, agents, employees, or suppliers of
this requirement for each project.
i.
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8. Insurance.
a. General. All project specific insurance requirements in the Contract Documents will be
made available to Subcontractor upon request to WPI. Subcontractor agrees to become
familiar with and comply with the insurance requirements of the Contract Documents and
the insurance requirements described in these Terms and Conditions prior to
commencement of the Work by Subcontractor or any agent, representative or employee of
Subcontractor. To the fullest extent allowed by law and available on the normal insurance
products market, Subcontractor shall provide all insurance set out in these Terms and
Conditions. All questions regarding insurance requirements should be directed to WPI’s
Contracts Department, which may be contacted by telephone at (503) 620-1600 or by mail
directed to the attention of: Contracts Department, Western Partitions, Inc. 8300 SW
Hunziker Rd. Tigard, OR 97223. WPI has contracted with Insurance Tracking Services,
(Rev04/15/15)
Inc. (ITS), a new insurance compliance service, as of
04/15/15.
The
Subcontractor will deliver to Insurance Tracking Services, Inc. (ITS), Western Partitions, Inc.
authorized insurance verification service, a certificate of insurance with respect to each
required policy to be provided by the Subcontractor herein. The required certificates must
be signed by the authorized representative of the Insurance Company shown on the
(Rev4/15/15)
certificate.
Submit certificates of insurance to:
Certificate Holder Address:
(Certificates need to include the following as the Certificate Holder)
Western Partitions, Inc.
c/o Insurance Tracking Services, Inc. (ITS)
P.O. Box 20270
Long Beach, CA 90801
Email: WP@instracking.com or
(Rev4/15/15)
Facsimile: +1 (562) 435-2999
Description shall include: "All operations of the named insured. Project Owner, Owner’s
Architect/Engineer, General Contractor, Western Partitions, Inc. and all subsidiaries, as
well as their employees, agents, and principals and anyone else as stipulated under
written contract or written agreement have additional insured status with primary and noncontributory coverage. Waivers of subrogation shall apply to the maximum extent allowable
under applicable law. Workers compensation provides waiver of subrogation to the
maximum extent allowable under applicable law.”
i. Obligations Cumulative; Conflict. Each requirement for carrying insurance
described in these Terms and Conditions is cumulative with and shall not be in
derogation of any requirements imposed by the Contract Documents.
Subcontractor acknowledges and agrees that, to the extent the insurance
requirements of the Contract Documents conflict with the insurance requirements
described in these Terms and Conditions, Subcontractor is obligated to comply with
the requirements imposing the greater burden on Subcontractor. Notwithstanding
the foregoing, the qualification imposed on Subcontractor’s waiver of subrogation
obligations herein by the language “to the maximum extent allowable under
applicable law” shall control over any conflicting language in the Contract
Documents.
ii. Certificates of Insurance. Certificates of insurance with applicable endorsements
are strictly required under these Terms and Conditions. WPI may require
Subcontractor to leave the job site and assume the risk of resulting penalties,
liabilities and damages associated therewith, and WPI may withhold payments to
Subcontractor until the insurance requirements described in the Contract
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Documents and these Terms and Conditions are met and certificates of insurance
with applicable endorsements evidencing such coverage, in a form acceptable to
WPI, are provided to WPI.
iii. Additional Insureds; Cancellation, Reduction, Modification. To the fullest extent
applicable to the Work being provided and as available in the industry, the
certificates of insurance shall name the Additional Insureds or provide a blanket
endorsement to include any Additional Insureds as required per written contract.
Each insurance policy must be endorsed to provide that the coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after ten
(10) days written notice in the case of non-payment of premiums, or thirty (30) days
written notice in all other cases, has been given to Western Partitions, Inc. and such
notice is by postal mail, return receipt requested. This notice requirement does not
(Rev04/15/15)
waive the insurance requirements contained herein.
iv. Waiver of Subrogation. All insurance coverage required under the Contract
Documents and these Terms and Conditions shall include clauses providing that, to
the maximum extent allowable under applicable law, each insurer shall waive all of
its rights of recovery by subrogation against the Additional Insureds (as that term is
defined herein). The certificates of insurance shall indicate that such waiver has
been made.
v. Duration and Form of Coverage. Prior to commencement of Work with respect to
any project, Subcontractor agrees to procure, at its own expense, the insurance
coverage required under the Contract Documents, these Terms and Conditions and
applicable law, together with any other insurance coverage that WPI, Contractor or
Owner may consider necessary for the protection of the relevant parties and/or the
public, and to continuously maintain such coverage for the duration of the project
and for a period of no less than the period of ultimate repose for the jurisdiction in
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which the project is located, or such other
longer term as may be required
by the Contract Documents. The Subcontractor shall promptly deliver to ITS a
certificate of insurance with respect to each renewal policy, as necessary to
demonstrate the maintenance of the required insurance coverage for the terms
specified herein. Such certificate shall be delivered to ITS not less than five (5)
(Rev04/15/15)
business days before to the expiration date of any policy.
Such insurance
coverage shall be provided by such companies, under such policy forms and with
such deductibles or self-insured retentions as may be satisfactory to WPI,
Contractor and Owner. The companies issuing the insurance coverage shall, at a
minimum, maintain an A.M. Best Rating of A-VII.
vi. Project Specific Insurance. All insurance, except for Professional Liability Insurance,
shall be on a “Per Occurrence” basis and shall be specific to the project for which it
is required. Policy limits shall apply to each project specifically and without
relationship to any other project or claim Subcontractor may be involved in (Per
Project Aggregate). If the policy does not have an endorsement providing that the
general aggregate limit applies separately to the project, or if defense costs are
included in the general aggregate limit, then the required aggregate limits shall be
increased by $5,000,000 unless otherwise required at the sole discretion of WPI.
vii. Approval by WPI. The insurance required of Subcontractor shall be subject to the
approval of WPI, but any acceptance of certificates of insurance, endorsements or
policies by WPI shall in no way limit or relieve Subcontractor of the duties and
responsibilities imposed on Subcontractor under the Contract Documents and these
Terms and Conditions, nor shall such acceptance constitute a waiver by WPI of its
right to strictly enforce such insurance requirements. Subcontractor specifically
agrees to defend, indemnify and hold Indemnitees (as that term is defined herein)
from all claims, demands, losses, and liabilities to or by third parties arising from,
resulting from or connected with Subcontractor’s failure to comply with the
insurance requirements set forth in the Contract Documents and these Terms and
Conditions.
b. Additional Insureds. Owner, Owner’s Architect, Owner’s Engineer, Contractor, WPI, and
all of their respective subsidiaries, employees, agents, representatives, and principals, and
anyone else stipulated under the Contract Documents (collectively, “Additional Insureds”)
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c.
d.
e.
f.
g.
h.
are to be expressly named as Additional Insureds under the insurance policies required
under the Contract Documents and these Terms and Conditions. The policies shall
stipulate that the insurance afforded the Additional Insureds shall apply on a primary and
non-contributory basis and that any other insurance carried by any of the Additional
Insureds will be excess only and will not contribute with the insurance coverage provided
under Subcontractor’s policies. A Primary/Non-Contributory Additional Insured Endorsement
Form evidencing such coverage and specifically stating that the Additional Insured status
shall apply to ongoing and completed operations, including preparation to perform Work or
conduct such operations, must be provided to WPI along with the certificates of insurance.
Stored Material. Subcontractor shall be fully responsible for all materials used in
connection with the Work that are stored on the job site and Subcontractor shall procure
and maintain insurance coverage against theft, vandalism and any other peril with respect
to such materials until the Work is complete and has been accepted by WPI, Contractor and
Owner.
Owner or Contractor Provided Insurance Program (OCIP/CCIP). If the project involves a
wrap-up insurance program, such as an Owner Controlled Insurance Program (OCIP) or
Contractor Controlled Insurance Program (CCIP), it will be Subcontractor’s responsibility to
familiarize itself with any related requirements and become enrolled in such insurance
program immediately and, in any event, before commencing Work. Subcontractor agrees to
bear any and all risk associated with such insurance program enrollment. Subcontractor is
bound by and shall comply with all insurance requirements pertaining to such insurance
program that are specified in the Contract Documents and in these Terms and Conditions.
Subcontractor’s failure to enroll in a wrap-up insurance program, if required by the terms of
the Contract Documents, shall be deemed a material breach of these Terms and
Conditions. Any damages caused by, arising out of or resulting from Subcontractor’s failure
to enroll shall be the sole responsibility of Subcontractor.
Builder’s Risk. To the maximum extent allowable under applicable law, WPI and
Subcontractor waive all rights against each other and against Contractor, Owner, and all
other subtiers or suppliers and contractors for loss or damage to the extent covered by
Builder's Risk or any other property or equipment insurance applicable to the Work or the
project, except such rights as they may have to the proceeds of such insurance. If the
policies of insurance referred to in these Terms and Conditions require an endorsement
issued by or the consent of the insurance company to provide for continued coverage
where there is a waiver of subrogation, the owners of such policies will cause them to be so
endorsed or obtain such consent.
Costs. Subcontractor shall pay all premiums and costs incurred to comply with the
insurance requirements of the Contract Documents and these Terms and Conditions. Any
deductible or self-insured retention payable in connection with any insurance required of
Subcontractor shall be the sole responsibility of Subcontractor.
Right to Obtain Insurance. If, at any time, Subcontractor fails to maintain insurance
sufficient to protect the Work or fails to maintain insurance in compliance with the insurance
requirements set forth herein and in the Contract Documents, WPI may terminate its
agreement with Subcontractor or WPI may, at its sole discretion, procure and maintain such
insurance to cover the operations of Subcontractor, paying the premium therefore and
charging the amounts thereof to Subcontractor, which amounts will be payable by
Subcontractor on demand by WPI. WPI may offset amounts owed by Subcontractor to WPI
under these Terms and Conditions against payments owed by WPI to Subcontractor for the
Work.
Flow-Down Requirements. Subcontractor agrees that in the event any of the Work is
further sublet, Subcontractor will ensure that the parties to whom the Work is sublet procure
and maintain insurance coverage of the type and in the amounts required under the
Contract Documents and these Terms and Conditions. All mandatory insurance limits,
provisions and requirements set forth in the Contract Documents and these Terms and
Conditions are binding upon Subcontractor’s subtier agents, suppliers, manufacturers,
fabricators, and subcontractors to the extent applicable to their work, and shall be complied
with before such subtier agents, suppliers and subcontractors commence work on the
project. Subcontractor will provide to WPI evidence of insurance for any subtier agents,
suppliers, and subcontractors upon request by WPI.
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i.
Minimum Insurance Requirements. If higher limits or other forms of insurance are
required under the terms of the Contract Documents or applicable law, Subcontractor shall
comply with the most stringent of such requirements, otherwise, without limiting the
foregoing, Subcontractor shall procure and maintain insurance coverage of the following
types and in the following amounts:
i. Commercial General Liability: Subcontractor shall carry an Occurrence Form
Commercial General Liability Insurance policy (including Umbrella / Excess policies
if necessary to meet the minimum limits imposed hereunder) covering all operations
by or on behalf of Subcontractor and providing insurance for bodily injury liability
and property damage liability for the limits of liability indicated below and including
coverage for (a) premises and operations; (b) products and completed operations;
(c) contractual liability insuring the obligations assumed by Subcontractor under
these Terms and Conditions; (d) broad form property damage; (e) explosion,
collapse and underground hazards, including subsidence; (f) personal injury liability;
and (g) any other type of claim for which Subcontractor may be responsible under
the Contract Documents and these Terms and Conditions. Except with respect to
bodily injury and property damage included within the products and completed
operations hazards, the aggregate limit shall apply on a per project basis. Policy
limits shall be as follows:
1. $2,000,000 General Aggregate
2. $2,000,000 per Occurrence
3. $1,000,000 Personal and Advertising Injury
4. $2,000,000 Products & Completed Operations Aggregate
ii. Commercial Automobile Liability: Subcontractor shall carry automobile liability
insurance in the amount specified below, including coverage for all owned, hired
and non-owned automobiles. If Subcontractor’s Work involves the transportation of
hazardous waste, Subcontractor shall include the MCS 90 endorsement in
accordance with the Motor Carrier Act of 1980. Policy limits shall be as follows:
$2,000,000 per Occurrence.
iii. Workers’ Compensation and Employer’s Liability Insurance:
Workers’
Compensation insurance and/or Employer’s Liability insurance shall be procured
and maintained by Subcontractor as required by any applicable law or regulation. If
there is an exposure of injury to Subcontractor’s employees under the U.S.
Longshoremen’s and Harbor Workers’ Compensation Act, the Jones Act, or under
laws, regulations or statutes applicable to maritime employees, coverage shall be
included for such injuries or claims. Policy limits shall be as specified by applicable
law and shall in no event be less than the following:
1. $1,000,000 per Accident
2. $1,000,000 per Disease
3. $1,000,000 each Employee per Disease
4. $1,000,000 Washington Stop Gap (Employer’s Liability)
iv. Umbrella/Excess Liability: Subcontractor may obtain Umbrella / Excess Liability
insurance coverage to meet any of the liability obligations described herein.
v. Pollution Liability: Subcontractor shall procure and maintain pollution liability
insurance if applicable to Subcontractor’s Work on the project or if otherwise
required by WPI, Owner or Contractor. Coverage must be written on an occurrence
basis or claims made basis, so long as the coverage is maintained to cover
exposure throughout the statute of limitations period following completion of the
project. Such insurance must cover all construction operations performed by
Subcontractor, including Subcontractor’s vicarious liability for acts of its subtier
agents, suppliers and subcontractors, and must provide coverage for the following:
bodily injury, sickness, disease, mental anguish or shock sustained by any person,
death, property damage (including injury to or destruction of tangible property),
clean-up costs, the loss of use of tangible property, and the fees, costs, charges
and expenses incurred in the investigation, adjustment and defense of claims for
compensatory damages. If losses or damages related to water intrusion, leaks,
condensation or the like may arise from or in connection with Subcontractor’s Work,
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j.
Subcontractor’s coverage shall expressly extend the definition of “pollutant” to
include Microbial Matter. Microbial Matter means fungi or bacterial matter, including
but not limited to, mold, mildew, and viruses, whether or not living. Policy limits
shall be as follows: $2,000,000 per Occurrence and Aggregate.
vi. Professional Liability: If Subcontractor’s portion of the Work includes any
Professional or Design Build services including, without limitation, any design,
engineering, surveying, consulting, inspecting, testing or any other professional
service to be provided or performed by a qualified professional, Subcontractor shall
be responsible for procuring Professional Liability and Errors & Omissions
insurance covering liability for claims that arise from the negligent errors, omissions
or acts of such professionals in the amount specified below. Professional Liability
insurance shall include contractual liability coverage and shall be effective at a
minimum from commencement of the professional activities in connection with the
Work throughout the statute of ultimate repose following completion of the project.
The retroactive date of the policy must be on or before the date Subcontractor
began performing professional services in connection with the project.
Subcontractor shall notify WPI of any changes to its Professional Liability insurance
policy and of any claim that has adversely affected or drawn-down the required
professional liability limits within five (5) business days of such change or
Subcontractor’s actual knowledge of such claim, as applicable. WPI shall be under
no obligation and shall have no duty to examine policies, certificates or other
evidence of Subcontractor’s Professional Liability insurance or to advise
Subcontractor in the event that Subcontractor’s insurance is not in compliance with
the insurance requirements set forth herein. Subcontractor’s Professional Liability
insurance polices shall nevertheless be available to WPI upon request. Policy limits
shall be as follows: A minimum of $2,000,000 per Claim / Aggregate.
vii. Equipment Floater Liability: Subcontractor must procure and maintain Equipment
Floater Liability insurance coverage on all equipment utilized by Subcontractor in
the performance of the Work and all equipment rented and/or leased to WPI by
Subcontractor in connection with the Work. Such Equipment Floater coverage shall
cover the full value of the equipment and shall include an endorsement waiving
subrogation against the Indemnitees to the maximum extent allowable under
applicable law (as that term is defined herein).
viii. Off-site Insurance: If Subcontractor is involved in any Work off of the job site, then
Subcontractor agrees to procure and maintain insurance in such form and in such
amounts as is necessary to cover all such off-site operations. Subcontractor will
provide evidence of off-site insurance upon WPI’s request.
ix. Other Insurance: In the event Subcontractor’s Work involves any other type of
labor, manufacturing, use of equipment, or performance of any type of work
(including, but not limited to Pollution, EIFS, Mold, Silica, Asbestos or Lead
Abatement, Residential, use of Watercraft or any other type of equipment or
vehicle) that is not exclusively covered by insurance described in the Contract
Documents or these Terms and Conditions (“Other Tasks”), then Subcontractor
shall be responsible for procuring and maintaining such insurance as is necessary
to cover the Other Tasks. Such policy or policies will have sufficient limits to protect
Subcontractor and WPI against any and all claims related to the Other Tasks. The
sufficiency of the form and limits of such policy or policies will be determined by
WPI, at its sole discretion. However, in no event shall such insurance coverage be
less than that required by law.
All Operations Insurance.
i. An “All Operations” Insurance Certificate complete with blanket waivers and
endorsements must be issued to Western Partitions, Inc. c/o Insurance Tracking
Services, Inc. (ITS) P.O. Box 20270 Long Beach, CA 90801. If an All Operations
Certificate is not available to be provided under the policy(ies) then a project
(Rev04/15/15)
specific insurance certificate must be provided.
ii. If Subcontractor is required to enroll into an OCIP/CCIP under the Contract
Documents, Subcontractor will be required to provide proof of their enrollment
insurance certificate. If such enrollment is required and an All Operations Certificate
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is not available under the policy(ies), Subcontractor will additionally be required to
provide an offsite insurance certificate in addition to the proof of enrollment
(Rev04/15/15)
certificate to the extent necessary to properly insure its obligations herein.
k. No Limitation. The insurance coverage maintained by Subcontractor shall in no way limit
Subcontractor’s indemnity obligations or other liabilities under the Contract Documents or
these Terms and Conditions.
9. Indemnity. Subcontractor agrees to defend, indemnify, reimburse and hold harmless Owner,
Owner’s Architect, Owner’s Engineer, Contractor, WPI, and their respective subsidiaries,
employees, agents, representatives and principals, and anyone else stipulated under the Contract
Documents (hereinafter collectively called “Indemnitees”) from any and all actions, suits, claims,
losses, demands, liabilities, costs, expenses, fines, and damages of any kind or nature (including
but not limited to attorney's fees and costs incurred in any investigation, negotiation, pursuit,
defense, or settlement of any claim, including on appeal), from damage to the Work or the project,
and from bodily injury or death to persons and damage to property related to (directly or indirectly),
arising out of or resulting from: (a) the acts or omissions of Subcontractor, its employees, agents or
subtier contractors or suppliers including, without limitation, any acts or omissions that are in
violation of or do not comply with applicable federal, state, local or other public agency permits,
regulations, rules or laws, including but not limited to those pertaining to protection of the
environment, air, water, soil, noise or public or private property; (b) breach of any representation,
warranty or covenant of Subcontractor; (c) the performance of the Work; and (d) the infringement or
violation by the Work, or any portion thereof, of any patent, copyright, trademark or other property
right, regardless of whether any Indemnitee was involved in such act. Subcontractor’s duty to
indemnify, defend and hold Indemnitees harmless will be to the fullest extent permitted by
applicable law and will not extend to acts or omissions due to the sole negligence of WPI. Without
limiting the generality of the foregoing, Subcontractor's promise of indemnity specifically applies to
claims arising out of injury or death to Subcontractor's own employees. SUBCONTRACTOR'S
INDEMNITY OBLIGATION WITH RESPECT TO ITS OWN EMPLOYEES WILL NOT BE LIMITED
BY THE PROVISIONS OF ANY WORKERS' COMPENSATION OR SIMILAR STATUTE AND
SUBCONTRACTOR WAIVES ANY IMMUNITY THEREUNDER AS TO THIS OBLIGATION.
SUBCONTRACTOR FURTHER SPECIFICALLY AND EXPRESSELY WAIVES ANY IMMUNITY
THAT MAY BE GRANTED TO IT UNDER THE OREGON WORKERS’ COMPENSATION LAW
(ORS 656.001) THE WASHINGTON STATE INDUSTRIAL INSURANCE ACT (TITLE 51 RCW), THE
CALIFORNIA LABOR CODE (SECTION 3864), THE IDAHO WORKER’S COMP ACT (SECTION
72-209), THE ALASKA WORKER’S COMP ACT (SECTION 23.30.055), THE MONTANA
WORKER’S COMP ACT (SECTION 39-71-411) OR ANY SIMILAR STATUTE THAT MAY APPLY.
Subcontractor, in commencing its Work for the project, hereby certifies that the provisions of these
Terms and Conditions were mutually negotiated and accepted by the parties. Notwithstanding the
foregoing, any Indemnitee may, in its sole and absolute discretion, engage its own attorneys and
professionals to defend or otherwise assist the Indemnitee with a claim or proceeding to which
Subcontractor’s indemnity obligation applies and, at the option of the Indemnitee, Indemnitee’s
attorneys shall control resolution of such claim or proceeding, all at Subcontractor’s sole cost and
expense. Subcontractor shall promptly pay (or reimburse Indemnitee, as applicable) on demand all
amounts due and otherwise payable by Indemnitee hereunder promptly on receipt of a written
statement of the amounts incurred or to be incurred by the Indemnitee.
10. Claims and Disputes.
a. Investigation. It is understood and agreed by Subcontractor that it has made all
considerations with respects to its Work on the Project and has, by examination and
investigation, satisfied itself as to the nature and location of the Work, the character,
quantity and kind of materials to be used and encountered, the character, kind and quantity
of equipment necessary and appropriate for performance and timely completion of the
Work, and all conditions and other matters which can in any way affect the Work.
b. Duty to be Bound. Insofar as applicable to the Work, Subcontractor agrees to be bound to
WPI by all of the terms and conditions of the Contract Documents in the same manner and
to the same extent as WPI is bound thereby, and any changes or amendments thereof, and
to assume toward WPI all of the obligations and responsibilities that WPI assumes toward
Contractor and Owner with respect to the Work. WPI shall make all Contract Documents
available to Subcontractor upon its request prior to and at anytime subsequent to
Subcontractor’s commencement on the project. Subcontractor’s duty to be bound shall also
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c.
d.
e.
f.
g.
h.
extend to any of Subcontractor’s sub-subcontractors, employees, agents or suppliers of any
tier.
Claims. Subcontractor warrants and represents that it is fully familiar with all provisions of
the Contract Documents, if any, pertaining to the presentation and resolution of disputes,
claims and termination. Subcontractor further agrees to cooperate and participate with WPI,
in the presentation and resolution of any claim or dispute pertaining to the Work, and
Subcontractor agrees to be bound by any determination of any such claim or dispute or
other disputed question or issue to the extent provided by the Contract Documents. The
timely presentation, cooperation and participation by Subcontractor, and any determination
thereof provided in the Contract Documents, shall be conditions precedent to any suit or
action by Subcontractor against WPI with respect to any such claim or dispute. Upon the
presentation of a claim or lien related to Subcontractor, as described in the Contract
Documents, or if WPI has any reason to believe that such a claim or lien exists, WPI
reserves the right to withhold any further payments to Subcontractor, on any and/or all
(Rev04/15/15)
projects
, as sufficient enough to cover the potential amount of said lien or claim,
until such claim or lien has been resolved, at the sole reasonable discretion of WPI. If
Subcontractor subcontracts any portion of the Work, Subcontractor shall arrange for its
subtiers to be bound by the terms and provisions hereto to the same extent that
Subcontractor is bound to WPI. Subcontractor, at all times, shall indemnify defend and hold
WPI, Contractor and Owner, and their sureties, and the Project harmless from any claim
which arises out of or is related to labor, services, material or equipment covered by any
applicable lien and claim waiver and which is asserted by Subcontractor or by a lower tier
supplier, vendor, laborer, subcontractor, fabricator or any entity for which Subcontractor is
directly or indirectly responsible who may have rights to assert a claim against Contractor or
WPI’s bonds or lien rights against the property.
No Delay. In the event that any dispute shall arise between Subcontractor and Contractor
or WPI and Owner as to the scope, adequacy, cost or quantity of the Work performed or to
be performed, Subcontractor agrees to continue and complete the Work without interruption
as directed in writing by Contractor or Owner, or WPI.
Additional Compensation. In no event shall Subcontractor receive additional
compensation for extra work, request for extension of time, or otherwise, unless and until
WPI receives payment of such additional compensation by Contractor under the Contract
Documents. Prior to commencing work on the project, Subcontractor agrees that it will
become fully familiar with all notice provisions of the Contract Documents requiring timely
presentation of claim for extra work, request for extension of time, or otherwise, and that,
unless Subcontractor presents such claims in a proper and timely manner, it shall be
deemed to have waived same.
Claims Relating to WPI. Any claim by Subcontractor against WPI or any of its other
subtiers, suppliers, or agents of any tier, for damage to the Work, for additional
compensation, or otherwise, shall be presented to WPI in writing within five (5) business
days, or less if required by any other provision of the Contract Documents, whichever
requirements are most stringent, after the occurrence giving rise to such claim, or be
deemed to be waived.
Claims Relating to Owner or Contractor. All claims and disputes (legal or otherwise)
between Subcontractor and Owner. Contractor, or any of their representatives, third parties,
suppliers or subtiers (besides WPI), shall be subject to the same provisions as set forth in
the Contract Documents and the location for resolution of said claims shall take place in the
location as described in the Contract Documents. If no location is described, then the place
for proceeding of such claim or dispute shall be in the county and state where the project is
located, unless otherwise agreed to by the parties involved. At WPI’s sole discretion,
Subcontractor consents to consolidate any of WPI’s and Subcontractor’s such claims or
disputes of comparable nature into a single legal proceeding.
Disputes. In the event suit, action, arbitration or other formal proceeding is commenced by
either party to enforce any term or provision of the Contract Documents, or to recover
damages or award for breach thereof, or otherwise caused by Subcontractor, the prevailing
party shall be entitled to recover its attorney fees and costs from the other party in such
amount as may be found to be reasonable by the court, arbitrators or other forum, both at
trial or hearing and upon any appeal or further proceedings thereof. As a condition
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precedent to any other form of suit, action, arbitration or other formal proceeding,
Subcontractor agrees to attempt to resolve, in good faith, any dispute related to the Work by
mediation and each party shall be responsible its own attorney fees associated with such
efforts. All disputes of any nature whatsoever involving Subcontractor shall be subject to the
same provisions as set forth in the Contract Documents, and shall be resolved in a
jurisdiction of the county and state where the project is located unless otherwise mutually
agreed to by the parties involved. Subcontractor consents to consolidate any of
Subcontractor’s disputes of any comparable nature between WPI, Contractor and Owner, of
any of their representatives, subtiers, suppliers or other agents into a single proceeding.
11. Subletting, Assignment and Supply
a. Assignment; Subletting. The Work shall be performed by Subcontractor with the
assistance of workers under Subcontractor's immediate superintendence, and shall not be
sublet, assigned or otherwise delegated, either in whole or in part, except with the prior
written consent of WPI. In any such event, Subcontractor shall assure that all of the terms
and conditions of the Contract Documents are binding upon any such subtier, supplier or
other assignee of Subcontractor, and are fully complied with. Subcontractor shall not
assign, transfer, or otherwise convey any of the earnings or payments due or to become
due without the express written consent of WPI, and any such assignment shall not in any
event have priority over any claims for labor, materials or equipment or other obligations
incurred by Subcontractor which could be a claim against WPI's bond or a lien against
WPI's earnings or against the property or improvements of the Project, nor have priority
over any claim of WPI for moneys advanced or for costs or damages incurred or to be
incurred for breach or other default of Subcontractor or any of its subtiers, agents or
employees.
b. List of Subtiers and Suppliers. Prior to beginning the Work, Subcontractor shall deliver to
WPI a written list including the full name, correct address, contractors registration or license
number, work or material description and price thereof, of any subtier or supplier for any
portion of the Work and shall notify promptly WPI of any revisions thereto.
12. Payment and Performance Bond. Upon request by WPI, Subcontractor shall, during, after or prior
to the time for commencing performance of the Work, and in any event prior to any payment
becoming due to Subcontractor hereunder, provide WPI with a surety bond in a penal sum of the full
amount of the Price, in form satisfactory to WPI, and with a good and sufficient corporate surety
qualified in the state in which the Project is located, assuring Subcontractor's performance of all
obligations under the Contract Documents and assuring Subcontractor's payment of all due bills for
labor, materials and equipment. WPI may make modifications in the Price without notice to
Subcontractor’s surety, and the penal amount of said bond shall be adjusted accordingly without
consent of Subcontractor’s surety. Payment of bond costs or fees, if required or requested by the
Contractor or Owner, shall be paid by WPI.
13. Safety and Utilities
a. Compliance. Subcontractor shall request all project specific safety requirements from, and
submit any required safety documentation including MSDS, to, WPI prior to Subcontractor,
or any of its agents, commencing any Work on the Project. Contact WPI’s Safety
Department at (503) 620-1600 for a list of those requirements. Subcontractor shall conform
in all aspects to the latest requirements applicable by law, as well as any safety
requirements of WPI, Contractor or Owner, whichever are most stringent, and shall provide
WPI copies of written programs, including but not limited to, Fall Protection Plans and
Hazard Communication Program and a Site-Specific Safety Plan, prior to commencing
work. Without limitation, Subcontractor specifically agrees fully to comply with all provisions,
regulations and requirements of any federal, state or local statute or regulation concerning
occupational safety and health, and with any rules and regulations promulgated pursuant
thereto. Subcontractor agrees to indemnify and hold WPI and Indemnitees harmless from
any and all liability, fine, cost, expense or damage (including but not limited to attorneys'
fees) incurred by WPI arising out of any failure or allegation of failure of Subcontractor to
comply with such safety requirements. Subcontractor shall comply with all safety directives
and directions of WPI and with all requirements of the Contract Documents. Subcontractor
shall also comply with all safety guidelines and drug and alcohol testing guidelines or other
programs as required by the Contract Documents and/or by law.
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b. Notices. Subcontractor shall notify WPI immediately of any injury to Subcontractor's
employees or agents at the Project site. Failure of Subcontractor to inform WPI of such
injury within twenty-four (24) hours shall be deemed as a waiver of any claim Subcontractor
shall have against WPI and Subcontractor shall defend and indemnify the Indemnitees of
any damages resulting from such failure to give notice as set forth herein and in the
Contract Documents.
c. Utilities, Facilities, and Equipment. Subcontractor shall provide and utilize all safety
equipment required for the safety of Subcontractor's employees. Subcontractor shall
provide, erect and maintain such warning signs, signals, lights, barricades, fences, shoring,
cribbing and other devices on or about the Work or the Project as may be necessary for the
protection of the Work or the safety of workers or the public. Subcontractor shall, if
necessary or appropriate to the Work, provide all labor, equipment, materials and supplies
necessary for the control of traffic for the performance of the Work, without cost to WPI.
Subcontractor shall provide, at its own expense, all work lighting, power sources, water,
utilities, dump boxes and other facilities necessary for the clean, safe and proper
performance of the Work.
d. Conditions. Subcontractor shall perform the Work in a safe and workmanlike manner, and
shall at all times keep the site of the Work and the Project in a safe and orderly condition.
14. Labor
a. Equal Opportunity. Subcontractor and all Subcontractor’s subtiers, and suppliers are equal
opportunity employers. Subcontractor will comply with all federal, state and local laws and
regulations concerning equal employment opportunity and non-discriminatory hiring
policies. Subcontractor will comply with all requirements of the Contract Documents
concerning affirmative action in hiring policies, subcontracting and procurement.
b. Wages. Subcontractor represents and warrants that it is familiar with the terms and
conditions of the Contract Documents and of federal, state and local law or regulation
concerning hours and wages, and Subcontractor agrees to adhere thereto. Subcontractor
shall indemnify and hold Indemnitees harmless from any failure or alleged failure of
Subcontractor so to do.
c. Language Requirements. Subcontractor shall ensure that all personnel involved in the
performance of the Work shall speak the English language with adequate fluency to
understand instructions and perform all portions of the Work safely and without discrepancy.
If Subcontractor employees personnel who lack proficiency in the English language, then
Subcontractor shall provide, at its own expense, bilingual supervisors who are capable of
communication with the non-English speakers.
d. Union. Subcontractor understands and agrees that, prior to commencing the Work, it must
be a signatory to an applicable local union or unions, with a current local union agreement,
and in good standing.
15. Patents. Subcontractor shall hold and save WPI harmless from claim or liability of any nature or
kind for or on account of the use of any patented or unpatented invention, article, appliance or
process furnished or used in, or in connection with, the performance of the Work.
16. Termination
a. Default. If Subcontractor shall fail timely to commence or to complete the Work, or shall fail
to prosecute the Work continuously with sufficient workers or equipment to insure its timely
completion, or fail to promptly pay for any and all labor, material, equipment and services
used in connection with the performance of the Work, or shall fail to perform the Work
according to the provisions of the Contract Documents, or shall become insolvent or be the
subject of a petition in bankruptcy or assignment for the benefit of creditors, or shall for any
other cause or reason whatsoever, fail to carry on the Work in a manner acceptable to WPI,
Owner or Contractor, or shall be in breach of any term or obligation of the Contract
Documents, then WPI may elect to give notice in writing of such default, specifying the
same, and if Subcontractor, within a period of forty-eight (48) hours after such notice, or
less time if so stated in any other provisions of the Contract Documents, whichever
requirements are most stringent, shall not take such steps as may be necessary to cure
such default, then WPI reserves all its rights and remedies under these terms and
conditions and shall have full power and authority, without process of law and without notice
to Subcontractor's surety to take the performance of the Work or any portion of the Work,
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out of the hands of Subcontractor and complete the Work, or any portion of the Work, with
WPI's own forces, or contract with other parties for its completion, or use such other
measures as in WPI's opinion are necessary for its completion including the use of the
equipment, plant, materials and other property of Subcontractor at the Project. Neither by
taking over the Work nor by its completion in accordance with the terms of this provision
shall WPI forfeit its right to recover damages from Subcontractor or from Subcontractor's
surety for failure to complete the Work or for delay in such completion. Should the expense
incurred by WPI in taking over and completing the Work, including but not limited to WPI's
cost of overhead and administration and a reasonable profit, exceed the Price, then
Subcontractor and Subcontractor's surety shall be liable to WPI for the amount of such
excess. Upon the taking over of the Work by WPI as herein provided, no further payment
will be made to Subcontractor until the Work is completed, and any monies due or that may
become due Subcontractor may be withheld for the defaulted Work, or recoverable under
any project Subcontractor is performing under these terms and conditions, and may be
applied by WPI to payments for labor, materials, supplies and equipment used in the
performance of the Work, and/or for the payment of rental charges on equipment used
therein, or to the payment of any excess cost to WPI of completing the Work. The election
by WPI to take over the Work shall be in addition to any and all other remedies of WPI at
law or in equity, and WPI reserves all other remedies at law or in equity upon default or
breach by Subcontractor and as allowed for in the Contract Documents.
b. Convenience. WPI reserves the right, in its sole and exclusive discretion, with or without
cause, to suspend for any period of time, delay or terminate all or any part of the Work for
WPI's convenience at any time, by written notice effective upon Subcontractor's receipt of
notice or such later time as such notice may provide. In such event, Subcontractor shall
cease performance of the Work at the time provided, shall secure and protect any portion of
the Work then performed and all materials and equipment theretofore furnished, and shall
promptly notify all its subtiers, and suppliers to the same effect. Subcontractor, for itself and
for all of its subtiers, and suppliers, and third parties shall thereafter present to WPI a
termination inventory in writing describing the nature, quantity, cost and location of all
materials and equipment theretofore furnished or ordered for the Work in a timely manner
and within the time frame as set forth in the Contract Documents, if applicable, but in any
event by no less than ten (10) calendar days following notice to terminate or suspend
(whichever requirements are most stringent), and shall, at WPI's option, assign to WPI
Subcontractor’s written subtier agreements or purchase orders as WPI may direct.
Subcontractor shall take such actions as WPI may direct or as may be reasonable to
terminate, cancel, assign, assemble, return, sell or otherwise account for the termination
inventory, and shall thereafter account to WPI for all costs of labor, materials, equipment
and overhead incurred by Subcontractor pursuant to the Contract Documents, and all
credits realized upon termination. Such accounting shall be supported by adequate
documentation, and shall be subject to verification, as WPI shall reasonably require. WPI
shall thereupon pay to Subcontractor the amount of Subcontractor's net costs incurred
together with an allowance of ten percent (10%) as general overhead and profit, or as
allowed for in the Contract Documents, but in no event more than the Price, less such
amount as Subcontractor may have previously received as partial payment upon the Price.
In the event of any termination of Subcontractor, WPI’s liability to Subcontractor is limited to
the extent of WPI’s recovery of funds by WPI on Subcontractor’s behalf for its portion of the
Work under the Contract Documents.
17. Guaranty/Warranty. If any express guaranty and/or warranty exists in the Contract Documents or
modifications between Contractor and Owner, Subcontractor makes the same guaranty and/or
warranty to WPI with respect to its Work. In addition to all other guarantees and warranties required
by law, and not limited thereof, Subcontractor warrants and guarantees to the Owner, Architect,
Contractor and WPI that materials and equipment furnished under these terms and conditions will
be of good quality and new unless otherwise required or permitted by the Contract Documents, that
the Work will be free from defects not inherit in the quality required or permitted, and that the Work
will conform to the requirements and obligation including warranties under the Contract Documents.
In additions to this, Subcontractor shall for a period of not less than one (1) year after final
acceptance of the Work by the Owner, or as otherwise required by the Contract Documents or by
law, whichever requirements are most stringent, warranty the Work. During such warranty period,
Subcontractor shall correct any work found to be not in accordance with the requirements of the
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foregoing warranty or by terms of an applicable special warranty required by the Contract
Documents and without cost to WPI, Contractor or Owner.
18. Miscellaneous
a. Successors; Assigns. The successors, assigns and personal representatives of
Subcontractor shall be bound to the terms and conditions herein.
b. Severability. If any provision herein shall be determined to be invalid or unenforceable or
otherwise inoperative, such provision shall continue in effect to the extent permitted, and all
remaining provisions of the Contract Documents shall remain in full force and effect.
c. Waiver. A waiver by either party of any breach of violation of the other shall not constitute a
waiver of any further or additional breach of like kind. Furthermore, the failure of either party
to exercise any right or insist upon the performance of any of the terms, requirements or
conditions of the Contract Documents, shall not be construed as a waiver of such right,
term, requirement or condition.
d. Titles. Captions herein are for convenience only, and shall not limit the terms and
provisions hereof. Subcontractor may be a corporation or other entity, or one or more
natural persons of either gender, and all pronouns and other grammatical changes in the
terms and provisions shall be made and assumed.
e. Interpretation of Language. Nothing contained within the Contract Documents shall be
construed to deprive WPI of any rights or remedies it may have against Subcontractor or
pertaining to the Work. Furthermore, in the event that Subcontractor or any of its subtiers,
suppliers, or employees are at all responsible for or in any way involved with any delay or
damage of any nature, WPI’s ability to recover for any damages (including but not limited to
liquidated damages, time delays, attorney fees, property damage, or injury) shall also not
be limited by any interpretation of the language.
f. Notices. Notices shall be given to either party at their primary business address or at such
other address as a party may designate by written notice to the other party. Notices shall be
deemed given when actually delivered to such address, except that notices sent by United
States certified mail, correctly addressed and postage prepaid, shall be deemed given when
deposited.
g. Confidentiality. Subcontractor agrees to maintain the Contract Documents as confidential
and shall not disclose the same to any third parties, other than employee’s, subtiers,
suppliers, and professionals and consultants engaged by the other for any Work under
these terms and conditions for each project and except otherwise as required by law.
Subcontractor shall require any such person to whom the Contract Documents or any
portions thereof are disclosed similarly to maintain its confidentiality.
h. Signature Authority. Any document(s) signed by WPI shall not be valid unless signed by
an appropriately authorized corporate officer of WPI. Any Work performed by Subcontractor
for which an authorized corporate officer’s signature of WPI is not present, shall be solely at
the risk of Subcontractor. In the event of any ambiguity regarding signature authority prior to
its performance on any Project, Subcontractor may contact WPI’s Contracts Department at
(503) 620-1600.
19. Entire Agreement. These terms and conditions supersede all previous communications,
agreements, quotes, bids, or contracts, written or verbal, and no understanding, agreement, term,
condition, or trade custom at variance herewith shall be binding on WPI. Any term contained in any
other agreement or other document that is different from, inconsistent with, or additional to, these
terms and conditions shall be void. No modification of these terms or conditions shall be effective or
binding unless specifically recognized and assented to in writing by WPI's authorized agent. In the
event Subcontractor commences performance related to any order or purchase order placed by
WPI, all of the terms and conditions herein and Contract Documents pertaining to the project which
shall constitute the entire agreement between the parties shall be deemed to have been carefully
reviewed and accepted by Subcontractor.
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B. VENDORS: The following terms and conditions (“Terms and Conditions”) shall govern and be the
basis of any order placed or purchase order issued by WPI to any entities providing goods, material,
equipment, and/or off-site services related to goods, material or equipment (excluding Services, which
term is defined below) to or on behalf of WPI (“Vendor”). These Terms and Conditions shall apply to
suppliers, fabricators, manufacturers, equipment rental providers, transportation service providers or
any entities providing goods, material, equipment, and/or off-site services related to goods, material or
equipment (excluding Services, which term is defined below) for or in connection with the project which
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may include, but is not limited to, stocking, delivery or transport to or from the project.
1. These Terms and Conditions constitute the final agreement between the parties and supersede all
previous communications, agreements, quotes, bids, or contracts, written or verbal, and no
understanding, agreement, term, condition, or trade custom at variance herewith shall be binding on
WPI. No term, condition, exclusion, limitation or qualification given by Vendor, either orally or in
writing, in any proposal, bid, quotation, acceptance, addendum or otherwise, shall be valid or
binding on WPI except to the extent expressly set forth herein. Any term contained in any other
agreement or other document that is different from, inconsistent with, or additional to, these Terms
and Conditions shall be void. No modification of these Terms or Conditions shall be effective or
binding unless specifically recognized and assented to in writing by WPI's authorized agent. In the
event Vendor commences performance related to any order or purchase order placed by WPI, all of
the terms and conditions herein and in all incorporated Contract Documents pertaining to the project
shall constitute the entire agreement between the parties and shall be deemed to have been
carefully reviewed and accepted by Vendor.
2. The term “Contract Documents” shall hereinafter collectively include, but is not limited to, each
project’s general and special conditions and provisions, plans and drawings, specifications and
standard specifications, addenda, change orders, modifications, purchase orders, price
agreements, and all exhibits, attachments and other documents referenced or incorporated therein,
all of which are incorporated by reference into these Terms and Conditions for each respective
project. All of these documents are available to Vendor upon request and Vendor acknowledges that
it will become fully familiar with all of the Contract Documents before commencing any Work. In the
event of a conflict between or within any of these documents, Vendor agrees to notify WPI
immediately in writing of any such concern and WPI shall resolve any such written request promptly
in order to resolve any possible conflict. Vendor is hereby required to adhere at all times to the more
strict requirements, of any nature, of these documents in order to ensure its compliance with the
Contract Documents for the Work.
3. Vendor is an independent contractor undertaking to provide goods, material, equipment, and/or offsite services related to goods, material or equipment (excluding Services, which term is defined
below) under the Contract Documents for each respective project, together with all changes,
addenda or modifications hereunder and agrees to perform all obligations in strict accordance with
these Terms and Conditions (all of which are collectively referred to as “the Goods” , which term
shall apply without limitation to the foregoing described services, as appropriate). The Goods shall
include all that is necessary, incidental or reasonably inferable from the Contract Documents as
being necessary to produce the intended results and as more particularly, though not exclusively, as
specified in the Contract Documents. Any Goods provided by or through Vendor for WPI, including
Goods provided under purchase order, work order, or any other oral or written agreement(s) shall be
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governed by these Terms and Conditions.
4. Vendor must comply with all of these Terms and Conditions, including WPI’s safety requirements
and submittal of any requested safety documentation, including MSDS, if applicable to the Goods.
Vendor shall request all project specific safety requirements from, and submit any required safety
documentation to, WPI prior to Vendor, or any of its agents, providing Goods to or in connection with
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the project. Contact WPI’s Safety Department at (503) 620-1600.
5. Vendor shall return and complete any documentation required under the Contract Documents and
these Terms and Conditions including, but not limited to, insurance certificates, insurance
endorsements, signed agreements for the Goods, safety documentation, and any bonds (if
required), on or before the day of acceptance of a purchase order, work order, or other oral or
written agreement for the Goods, commencement of the work necessary to produce or provide the
Goods, or within the time required by the Contract Documents. If Vendor fails to return any required
documents to WPI in time or Vendor returns documents that are not in the required form to WPI,
Vendor may, at WPI’s election, be deemed in material breach of these Terms and Conditions.
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6. All Goods furnished under these Terms and Conditions or any order or purchase order subject to
these Terms and Conditions, shall be in the strict accordance with the plans, specifications, and
general conditions to which WPI is subject under the Contract Documents. Vendor, and Vendor’s
agents, shall be bound to these Terms and Conditions. If Vendor’s quote, bid or proposal has been
attached hereto, the most stringent requirements of these Terms and Conditions shall govern in the
event of any conflict.
7. All Goods furnished under these Terms and Conditions shall be subject to the approval of WPI,
Architect, Owner, Contractor and/or any other party designated in the Contract Documents and shall
not be deemed accepted until accepted by the Contractor and Owner. Vendor shall furnish promptly
any required shop drawings, samples or other product data in such time, manner and sequence as
to assure timely delivery of all Goods. Approvals of submittals shall not excuse Vendor from any
other requirements of these Terms and Conditions or the Contract Documents.
8. Vendor agrees that the Goods shall be provided, fabricated, packaged, shipped, transported and/or
delivered per the Contract Documents, these Terms and Conditions, or any order or purchase order
subject to these Terms and Conditions. Goods shall be free of mold and moisture beyond normal or
specified product tolerances. Vendor shall be responsible for all costs, including testing, remediation
and repair, caused by any breach hereunder, and shall defend and indemnify WPI and anyone else
as required by the Contract Documents, against any and all claims and liabilities arising from the
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fault or negligence of Vendor.
9. Time is of the essence for transport and deliveries under these Terms and Conditions, and WPI
reserves the right to cancel without charge, any portion of this order if not performed or delivered
within the specified time. Vendor further agrees to indemnify WPI from any loss WPI may incur
through delay in the completion of the Project arising out of or relating to Vendor’s untimely
performance or delivery of any goods, Vendor’s delivery of non-conforming Goods, or damage to
products manufactured by WPI caused or contributed to by Vendor in the course of Vendor’s
performance hereunder. WPI may be entitled, upon written request, to receive promptly from
Vendor adequate assurance that Vendor will duly and timely perform its obligations hereunder.
Failure to furnish such assurance satisfactory to WPI shall be a material breach hereof. Exercise of
the right to cancellation shall not be deemed a waiver of any other rights WPI may have. Delivery of
non-conforming Goods shall not entitle Vendor to a time extension. Any material breach may result
in Vendor being backcharged for any and all added costs incurred by WPI, including but not limited
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to expedited shipping costs and or pricing that exceeds the pricing quoted herein.
10. The Vendor agrees to comply with all laws, regulations, ordinances and enactments of whatever
kind, applicable to Vendor’s performance under these Terms and Conditions and any provisions
required by law to be incorporated shall be deemed fully incorporated herein. Vendor shall fully hold
harmless and indemnify WPI and anyone as required by the Contract Documents for such failures.
11. Goods rejected as non-conforming or defective may be returned at Vendor’s expense, including
cost of transportation both ways, reloading or other related costs subject to WPI’s reasonable
discretion. This right is in addition to any other remedies provided by law.
12. No partial shipments will be accepted unless WPI agrees in writing, or unless otherwise stipulated
by WPI. WPI reserves the absolute right to cancel any or all portions of this order if not yet
performed and/or return any items to Vendor, at the invoice price, subject to reasonable restocking
fees.
13. The price(s) appearing on any order or purchase order subject to these Terms and Conditions ( “the
Price”) is complete and final and inclusive of all taxes and fees as to the Goods (unless expressly
stated elsewhere in these Terms and Conditions). Any changes or modifications to the Price must
be agreed in writing by WPI in order to be binding on WPI. Vendor shall not proceed with changes
affecting the Price without prior written authorization from WPI.
14. Unless otherwise agreed, or unless otherwise provided herein, all Prices are based on F.O.B.
destination point as indicated by WPI and may include product being stocked on the Job Site as
directed by WPI. The Price includes all shipping and packaging costs, and Vendor shall pay, any
and all applicable federal, state and local taxes and assessments applicable to the Goods and in no
event shall WPI be liable for interest or finance charges sooner than thirty (30) days after receipt of
invoice. All interest or finance charges shall not exceed 5% per annum simple interest. Unless
otherwise agreed to in writing by WPI, payments shall be made within thirty (30) days from invoice
by Vendor. Vendor may be eligible for WPI’s early payment program in return for negotiated
discounts. If Vendor would like to negotiate a discount for early payment, please contact WPI
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Accounts Payable Department at (503) 620-1600.
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15. Vendor represents and warrants to WPI that Vendor and all Goods shall meet any and all applicable
federal, state or local laws, regulations, standards and/or requirements, as amended from time to
time, especially those pertaining to safety. Vendor shall comply with any and all other applicable
requirements, including but not limited to safety, employment, equal opportunity, sexual harassment,
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and any other requirements as stipulated in the Contract Documents.
16. All Goods shall be guaranteed by Vendor against defects and Vendor agrees to replace without
charge any defective Goods, or remedy any defects latent or patent, not due to ordinary wear and
tear, or not due to improper use or maintenance, which defects may develop within one year from
date of acceptance by Owner or within the guarantee period set forth in the Contract Documents or
by law, whichever is longer. WPI may, at its option, require inspection and testing of the Goods and
Vendor shall be liable for all such costs associated with correction and/or replacement of the Goods.
These costs may include but not be limited to deconstruction costs, shipping, handling, removal, as
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well as costs incurred by WPI or other trades and/or entities.
17. Vendor shall hold and save WPI harmless from claim or liability of any nature or kind for or on
account of the use of any patented or unpatented invention, article, appliance or process furnished
or used in, or in connection with, the Goods.
18. If WPI has any reason to believe that issues pertaining to claim or lien exists which are in any way
caused by Vendor, WPI reserves the right to withhold any further payments to Consultant, on any
and/or all projects, in amounts sufficient enough to cover the potential amount of said lien or claim,
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until such claim or lien has been resolved, at the sole reasonable discretion of WPI.
19. Vendor, if applicable, shall arrange for its agents to be bound by the terms and provisions hereto to
the same extent that Vendor is bound to WPI to the extent required herein or by the Contract
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Documents.
20. Vendor also guarantees that the Goods (1) shall be of merchantable quality, fit for their intended
purpose, and new and free from defects; and (2) as herein set forth; and (3) as published or
warranted by the manufacturer for the Goods involved. In the event any of the Goods does not
meet the foregoing requirements, Vendor shall immediately replace same, or remedy any
deficiency, without expense to WPI, and Vendor shall pay to WPI any loss or damage resulting
therefrom. No disclaimer of express or implied warranties applies to the Goods.
21. Vendor agrees to defend, indemnify, reimburse and hold harmless Owner, Owner’s Architect,
Owner’s Engineer, Contractor, WPI, and their respective subsidiaries, employees, agents,
representatives and principals, and anyone else stipulated under the Contract Documents
(hereinafter collectively called “Indemnitees”) from any and all actions, suits, claims, losses,
demands, liabilities, costs, expenses, fines, and damages of any kind or nature (including but not
limited to attorney's fees and costs incurred in any investigation, negotiation, pursuit, defense, or
settlement of any claim, including on appeal), arising from or relating to the Goods, and from bodily
injury or death to persons and damage to property related to (directly or indirectly), arising out of or
resulting from: (a) the acts or omissions of Vendor, its employees, agents or subtier contractors or
suppliers including, without limitation, any acts or omissions that are in violation of or do not comply
with applicable federal, state, local or other public agency permits, regulations, rules or laws,
including but not limited to those pertaining to protection of the environment, air, water, soil, noise or
public or private property; (b) breach of any representation, warranty or covenant of Vendor; (c) the
performance of the work necessary to produce or provide the Goods and the actual provision of the
Goods; and (d) the infringement or violation by the Goods, or any portion thereof, of any patent,
copyright, trademark or other property right, regardless of whether any Indemnitee was involved in
such act. Vendor’s duty to indemnify, defend and hold Indemnitees harmless will be to the fullest
extent permitted by applicable law and will not extend to acts or omissions due to the sole
negligence of WPI. Without limiting the generality of the foregoing, Vendor's promise of indemnity
specifically applies to claims arising out of injury or death to Vendor's own employees. VENDOR'S
INDEMNITY OBLIGATION WITH RESPECT TO ITS OWN EMPLOYEES WILL NOT BE LIMITED
BY THE PROVISIONS OF ANY WORKERS' COMPENSATION OR SIMILAR STATUTE AND
VENDOR WAIVES ANY IMMUNITY THEREUNDER AS TO THIS OBLIGATION. VENDOR
FURTHER SPECIFICALLY AND EXPRESSELY WAIVES ANY IMMUNITY THAT MAY BE
GRANTED TO IT UNDER THE OREGON WORKERS’ COMPENSATION LAW (ORS 656.001) THE
WASHINGTON STATE INDUSTRIAL INSURANCE ACT (TITLE 51 RCW), THE CALIFORNIA
LABOR CODE (SECTION 3864), THE IDAHO WORKER’S COMP ACT (SECTION 72-209), THE
ALASKA WORKER’S COMP ACT (SECTION 23.30.055), THE MONTANA WORKER’S COMP ACT
(SECTION 39-71-411) OR ANY SIMILAR STATUTE THAT MAY APPLY. Vendor, in commencing the
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22.
23.
24.
25.
work necessary to produce or provide the Goods, hereby certifies that the indemnity provisions of
these Terms and Conditions were mutually negotiated and accepted by the parties.
Notwithstanding the foregoing, any Indemnitee may, in its sole and absolute discretion, engage its
own attorneys and professionals to defend or otherwise assist the Indemnitee with a claim or
proceeding to which Vendor’s indemnity obligation applies and, at the option of the Indemnitee,
Indemnitee’s attorneys shall control resolution of such claim or proceeding, all at Vendor’s sole cost
and expense. Vendor shall promptly pay (or reimburse Indemnitee, as applicable) on demand all
amounts due and otherwise payable by Indemnitee hereunder promptly on receipt of a written
statement of the amounts incurred or to be incurred by the Indemnitee.
Vendor, if requested by WPI and as a pre-requisite to any payment hereunder, shall furnish all
necessary lien waivers, affidavits or other documents required to keep the Project free from liens or
other claims arising out of or connected to the provision of the Goods by Vendor. Such documents
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shall be on forms approved by WPI.
Disputes shall be resolved under the terms and specified laws, forum, and jurisdiction as required
by the Contract Documents, unless otherwise mutually agreed to by the parties or as specified by
law. In the event of any default of any of these Terms or Conditions herein, Vendor shall pay any
and all costs resulting therefrom, including but not limited to, reasonable attorney’s fees and costs.
Vendor agrees not to assign these Terms and Conditions or any money due or to become due to
Vendor hereunder, without the prior written consent of WPI. Vendor consents to re-assignment of
these Terms and Conditions at the written request of WPI.
Insurance.
a. General.
All project specific insurance requirements in the Contract Documents will be made
available to Vendor upon request to WPI. Vendor agrees to become familiar with and
comply with the insurance requirements of the Contract Documents and the insurance
requirements described in these Terms and Conditions prior to commencement of the work
necessary to produce or provide the Goods by Vendor or any agent, representative or
employee of Vendor. To the fullest extent allowed by law and available on the normal
insurance products market, Vendor shall provide all insurance set out in these Terms and
Conditions. All questions regarding insurance requirements should be directed to WPI’s
Contracts Department, which may be contacted by telephone at (503) 620-1600 or by mail
directed to the attention of: Contracts Department, Western Partitions, Inc. 8300 SW
Hunziker Rd. Tigard, OR 97223. WPI has contracted with Insurance Tracking Services,
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Inc. (ITS), a new insurance compliance service, as of 4/15/15
. The Vendor will
deliver to Insurance Tracking Services, Inc. (ITS), Western Partitions, Inc. authorized
insurance verification service, a certificate of insurance with respect to each required policy
to be provided by the Vendor herein. The required certificates must be signed by the
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authorized representative of the Insurance Company shown on the certificate.
Submit certificates of insurance to:
Certificate Holder Address:
(Certificates need to include the following as the Certificate Holder)
Western Partitions, Inc.
c/o Insurance Tracking Services, Inc. (ITS)
P.O. Box 20270
Long Beach, CA 90801
Email: WP@instracking.com or
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Facsimile: +1 (562) 435-2999
Description shall include (to the fullest extent applicable to the Goods being provided and
as available in the industry): "All operations of the named insured. Project Owner, Owner’s
Architect/Engineer, General Contractor, Western Partitions, Inc. and all subsidiaries, as well
as their employees, agents, and principals and anyone else as stipulated under written
contract or written agreement have additional insured status with primary and noncontributory coverage. Waivers of subrogation shall apply to the maximum extent allowable
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under applicable law. Workers compensation provides waiver of subrogation to the
maximum extent allowable under applicable law.”
i. Obligations Cumulative; Conflict.
Each requirement for carrying insurance
described in these Terms and Conditions is cumulative with and shall not be in
derogation of any requirements imposed by the Contract Documents. Vendor
acknowledges and agrees that, to the extent the insurance requirements of the
Contract Documents conflict with the insurance requirements described in these
Terms and Conditions, Vendor is obligated to comply with the requirements
imposing the greater burden on Vendor. Notwithstanding the foregoing, the
qualification imposed on Vendor’s waiver of subrogation obligations herein by the
language “to the maximum extent allowable under applicable law” shall control over
any conflicting language in the Contract Documents.
ii. Certificates of Insurance. Certificates of insurance with applicable endorsements
are strictly required under these Terms and Conditions. WPI may require Vendor to
leave the job site and/or cease performance of any work in connection with the
production or provision of the Goods and assume the risk of resulting penalties,
liabilities and damages associated therewith, and WPI may withhold payments to
Vendor until the insurance requirements described in the Contract Documents and
these Terms and Conditions are met and certificates of insurance with applicable
endorsements evidencing such coverage, in a form acceptable to WPI, are
provided to WPI.
iii. Additional Insureds; Cancellation, Reduction, Modification. To the fullest extent
applicable to the Work being provided and as available in the industry, the
certificates of insurance shall name the Additional Insureds or provide a blanket
endorsement to include any Additional Insureds as required per written contract.
Each insurance policy must be endorsed to provide that the coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after ten
(10) days written notice in the case of non-payment of premiums, or thirty (30) days
written notice in all other cases, has been given to Western Partitions, Inc. and such
notice is by postal mail, return receipt requested. This notice requirement does not
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waive the insurance requirements contained herein.
iv. Waiver of Subrogation. All insurance coverage required under the Contract
Documents and these Terms and Conditions shall include clauses providing that, to
the maximum extent allowable under applicable law, each insurer shall waive all of
its rights of recovery by subrogation against the Additional Insureds (as that term is
defined in herein). The certificates of insurance shall indicate that such waiver has
been made.
v. Duration and Form of Coverage. Prior to commencement of work necessary to
produce or provide the Goods, Vendor agrees to procure, at its own expense, the
insurance coverage required under the Contract Documents, these Terms and
Conditions and applicable law, together with any other insurance coverage that
WPI, Contractor or Owner may consider necessary for the protection of the relevant
parties and/or the public, and to continuously maintain such coverage for the
duration of the project and for a period of no less than the statute of ultimate repose
for the jurisdiction in which the project is located, or such other longer term as may
be required by the Contract Documents. The Vendor shall promptly deliver to ITS a
certificate of insurance with respect to each renewal policy, as necessary to
demonstrate the maintenance of the required insurance coverage for the terms
specified herein. Such certificate shall be delivered to ITS not less than five (5)
Rev04/15/15)
business days before to the expiration date of any policy.
Such insurance
coverage shall be provided by such companies, under such policy forms and with
such deductibles or self-insured retentions as may be satisfactory to WPI,
Contractor and Owner. The companies issuing the insurance coverage shall, at a
(Rev04/15/15)
minimum, maintain an A.M. Best Rating of A-VII.
vi. Approval by WPI. The insurance required of Vendor shall be subject to the
approval of WPI, but any acceptance of certificates of insurance, endorsements or
policies by WPI shall in no way limit or relieve Vendor of the duties and
responsibilities imposed on Vendor under the Contract Documents and these Terms
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b.
c.
d.
e.
f.
g.
and Conditions, nor shall such acceptance constitute a waiver by WPI of its right to
strictly enforce such insurance requirements. Vendor specifically agrees to defend,
indemnify and hold Indemnitees (as that term is defined herein) from all claims,
demands, losses, and liabilities to or by third parties arising from, resulting from or
connected with Vendor’s failure to comply with the insurance requirements set forth
in the Contract Documents and these Terms and Conditions.
Additional Insureds. Owner, Owner’s Architect, Owner’s Engineer, Contractor, WPI, and
all of their respective subsidiaries, employees, agents, representatives, and principals, and
anyone else stipulated under the Contract Documents (collectively, “Additional Insureds”)
are to be expressly named as Additional Insureds under the insurance policies required
under the Contract Documents and these Terms and Conditions. The policies shall
stipulate that the insurance afforded the Additional Insureds shall apply on a primary and
non-contributory basis and that any other insurance carried by any of the Additional
Insureds will be excess only and will not contribute with the insurance coverage provided
under Vendor’s policies. A Primary / Non-Contributory Additional Insured Endorsement
Form evidencing such coverage and specifically stating that the Additional Insured status
shall apply to ongoing and completed operations, including preparation to perform the work
necessary to produce or provide the Goods or conduct such operations, must be provided
to WPI along with the certificates of insurance.
Stored Material. Vendor shall be fully responsible for all materials used in connection with
the production or provision of the Goods that are stored on the job site and Vendor shall
procure and maintain insurance coverage against theft, vandalism and any other peril with
respect to such materials until the Goods have been provided in full and have been
accepted by WPI, Contractor and Owner.
Owner or Contractor Provided Insurance Program (OCIP/CCIP). If the project involves a
wrap-up insurance program, such as an Owner Controlled Insurance Program (OCIP) or
Contractor Controlled Insurance Program (CCIP), and if Vendor is required to participate, it
will be Vendor’s responsibility to familiarize itself with any related requirements and become
enrolled in such insurance program immediately and, in any event, before commencing the
work necessary to produce or provide the Goods. Vendor agrees to bear any and all risk
associated with such insurance program enrollment. Vendor is bound by and shall comply
with all insurance requirements pertaining to such insurance program that are specified in
the Contract Documents and in these Terms and Conditions. Vendor’s failure to enroll in a
wrap-up insurance program, if required by the terms of the Contract Documents, shall be
deemed a material breach of these Terms and Conditions. Any damages caused by, arising
out of or resulting from Vendor’s failure to enroll shall be the sole responsibility of Vendor.
Builder’s Risk. To the maximum extent allowable under applicable law, WPI and Vendor
waive all rights against each other and against Contractor, Owner, and all other subtiers of
suppliers and contractors for loss or damage to the extent covered by Builder's Risk or any
other property or equipment insurance applicable to the Work or the project, except such
rights as they may have to the proceeds of such insurance. If the policies of insurance
referred to in these Terms and Conditions require an endorsement issued by or the consent
of the insurance company to provide for continued coverage where there is a waiver of
subrogation, the owners of such policies will cause them to be so endorsed or obtain such
consent.
Costs. Vendor shall pay all premiums and costs incurred to comply with the insurance
requirements of the Contract Documents and these Terms and Conditions. Any deductible
or self-insured retention payable in connection with any insurance required of Vendor shall
be the sole responsibility of Vendor.
Right to Obtain Insurance. If, at any time, Vendor fails to maintain insurance sufficient to
protect the Goods or fails to maintain insurance in compliance with the insurance
requirements set forth herein and in the Contract Documents, WPI may terminate its
agreement with Vendor or WPI may (but with no obligation to do so) procure and maintain
such insurance to cover Goods and the operations of Vendor, paying the premium therefore
and charging the amounts thereof to Vendor, which amounts will be payable by Vendor on
demand by WPI. WPI may set off amounts owed by Vendor to WPI under these Terms and
Conditions against payments owed by WPI to Vendor for the Goods.
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h. Flow-Down Requirements. Vendor agrees that in the event any portion of the Goods is
further sublet, Vendor will ensure that the parties to whom the production or provision of the
Goods is sublet procure and maintain insurance coverage of the type and in the amounts
required under the Contract Documents and these Terms and Conditions. All mandatory
insurance limits, provisions and requirements set forth in the Contract Documents and
these Terms and Conditions are binding upon Vendor’s subtier agents, suppliers, and
subcontractors to the extent applicable to their work, and shall be complied with before such
subtier agents, suppliers and subcontractors commence work on the project. Vendor will
provide to WPI evidence of insurance for any subtier agents, suppliers, and subcontractors
upon request by WPI.
i. Minimum Insurance Requirements. If higher limits or other forms of insurance are
required under the terms of the Contract Documents or applicable law, Vendor shall comply
with the most stringent of such requirements, otherwise, without limiting the foregoing,
Vendor shall procure and maintain insurance coverage of the following types and in the
following amounts:
i. Commercial General Liability: Vendor shall carry an Occurrence Form Commercial
General Liability Insurance policy (including Umbrella / Excess policies if necessary
to meet the minimum limits imposed hereunder) covering all operations by or on
behalf of Vendor and providing insurance for bodily injury liability and property
damage liability for the limits of liability indicated below and including coverage for
(a) premises and operations; (b) products and completed operations; (c) contractual
liability insuring the obligations assumed by Vendor under these Terms and
Conditions; (d) broad form property damage; (e) explosion, collapse and
underground hazards, including subsidence; (f) personal injury liability; and (g) any
other type of claim for which Vendor may be responsible under the Contract
Documents and these Terms and Conditions. Except with respect to bodily injury
and property damage included within the products and completed operations
hazards, the aggregate limit shall apply on a per project basis. Policy limits shall be
as follows:
1. $2,000,000 General Aggregate
2. $2,000,000 per Occurrence
3. $1,000,000 Personal and Advertising Injury
4. $2,000,000 Products & Completed Operations Aggregate
ii. Commercial Automobile Liability: Vendor shall carry automobile liability insurance in
the amount specified below, including coverage for all owned, hired and non-owned
automobiles. If the production or provision of the Goods involves the transportation
of hazardous waste, Vendor shall include the MCS 90 endorsement in accordance
with the Motor Carrier Act of 1980. Policy limits shall be as follows: $2,000,000 per
Occurrence
iii. Workers’ Compensation and Employer’s Liability Insurance:
Workers’
Compensation insurance and/or Employer’s Liability insurance shall be procured
and maintained by Vendor as required by any applicable law or regulation. If there
is an exposure of injury to Vendor’s employees under the U.S. Longshoremen’s and
Harbor Workers’ Compensation Act, the Jones Act, or under laws, regulations or
statutes applicable to maritime employees, coverage shall be included for such
injuries or claims. Policy limits shall be as specified by applicable law and shall in
no event be less than the following:
1. $1,000,000 per Accident
2. $1,000,000 per Disease
3. $1,000,000 each Employee per Disease
4. $1,000,000 Washington Stop Gap (Employer’s Liability)
iv. Umbrella/Excess Liability: Vendor may obtain Umbrella / Excess Liability insurance
coverage to meet any of the liability obligations described herein.
v. Pollution Liability: Vendor shall procure and maintain pollution liability insurance if
applicable to the production or provision of the Goods or if otherwise required by
WPI, Owner or Contractor. Coverage must be written on an occurrence basis or
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vi.
vii.
viii.
ix.
x.
Western Partitions, Inc.
claims made basis, so long as the coverage is maintained to cover exposure
throughout the statute of limitations period following completion of the project. Such
insurance must cover all operations performed by Vendor, including Vendor’s
vicarious liability for acts of its subtier agents, suppliers and subcontractors, and
must provide coverage for the following: bodily injury, sickness, disease, mental
anguish or shock sustained by any person, death, property damage (including injury
to or destruction of tangible property), clean-up costs, the loss of use of tangible
property, and the fees, costs, charges and expenses incurred in the investigation,
adjustment and defense of claims for compensatory damages. If losses or
damages related to water intrusion, leaks, condensation or the like may arise from
or in connection with the production or provision of the Goods, Vendor’s coverage
shall expressly extend the definition of “pollutant” to include Microbial Matter.
Microbial Matter means fungi or bacterial matter, including but not limited to, mold,
mildew, and viruses, whether or not living. Policy limits shall be as follows:
$2,000,000 per occurrence and aggregate
Professional Liability: If the production or provision of the Goods, Materials and or
Equipment includes any Professional or Design Build services including, without
limitation, any design, engineering, surveying, consulting, inspecting, testing or any
other professional service to be provided or performed by a qualified professional,
Vendor shall be responsible for procuring Professional Liability and Errors &
Omissions insurance covering liability for claims that arise from the negligent errors,
omissions or acts of such professionals in the amount specified below.
Professional Liability insurance shall include contractual liability coverage and shall
be effective at a minimum from commencement of the professional activities in
connection with the production or provision of the Goods throughout the statute of
ultimate repose following completion of the project. The retroactive date of the
policy must be on or before the date Vendor began performing professional
services in connection with the project. Vendor shall notify WPI of any changes to
its Professional Liability insurance policy and of any claim that has adversely
affected or drawn-down the required professional liability limits within five (5)
business days of such change or Vendor’s actual knowledge of such claim, as
applicable. WPI shall be under no obligation and shall have no duty to examine
policies, certificates or other evidence of Vendor’s Professional Liability insurance
or to advise Vendor in the event that Vendor’s insurance is not in compliance with
the insurance requirements set forth herein. Vendor’s Professional Liability
insurance polices shall nevertheless be available to WPI upon request. Policy limits
shall be as follows: A minimum of $2,000,000 per Claim / Aggregate
Equipment Floater Liability: Vendor must procure and maintain Equipment Floater
Liability insurance coverage on all equipment utilized by Vendor in the production or
provision of the Goods and all equipment rented and/or leased to WPI by Vendor in
connection with the production or provision of the Goods. Such Equipment Floater
coverage shall cover the full value of the equipment and shall include an
endorsement waiving subrogation against the Indemnitees to the maximum extent
allowable under applicable law (as that term is defined herein).
Off-site Insurance: If the production or provision of the Goods occurs off of the job
site, then Vendor agrees to procure and maintain insurance in such form and in
such amounts as is necessary to cover all such off-site operations. Vendor will
provide evidence of off-site insurance upon WPI’s request.
Cargo Insurance. If the Goods consist of freight transportation services to be
provided by Vendor to WPI, then Vendor agrees to procure and maintain Broad
Form Cargo Legal Liability insurance in an amount not less than the declared value
of the load in question or, if no value is declared, of at least $200,000.00 per
occurrence, in addition to cargo insurance required by applicable state or federal
(Rev04/15/15)
laws.
Other Insurance: In the event Vendor’s Work involves any other type of labor,
manufacturing, use of equipment, or performance of any type of work (including, but
not limited to Pollution, EIFS, Mold, Silica, Asbestos or Lead Abatement,
Residential, use of Watercraft or any other type of equipment or vehicle) that is not
exclusively covered by insurance described in the Contract Documents or these
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Terms and Conditions (“Other Tasks”), then Vendor shall be responsible for
procuring and maintaining such insurance as is necessary to cover the Other Tasks
and as may be required by applicable federal, state and local laws, rules and
regulations. Such policy or policies will have sufficient limits to protect Vendor and
WPI against any and all claims related to the Other Tasks. The sufficiency of the
form and limits of such policy or policies will be determined by WPI, at its sole
discretion. However, in no event shall such insurance coverage be less than that
(Rev04/15/15)
required by law.
j. All Operations.
i. An “All Operations” Insurance Certificate complete with blanket waivers and
endorsements must be issued to Western Partitions, Inc. c/o Insurance Tracking
Services, Inc. (ITS) P.O. Box 20270 Long Beach, CA 90801. If an All Operations
Certificate is not available to be provided under the policy(ies) then a project
(Rev04/15/15)
specific insurance certificate must be provided.
ii. If Vendor is required to enroll into an OCIP/CCIP under the Contract Documents,
Vendor will be required to provide proof of their enrollment insurance certificate. If
such enrollment is required and an All Operations Certificate is not available under
the policy(ies), Vendor may additionally be required to provide an offsite insurance
certificate in addition to the proof of enrollment certificate to the extent necessary to
(Rev04/15/15)
properly insure its obligations herein.
k. No Limitation. The insurance coverage maintained by Vendor shall in no way limit
Vendor’s indemnity obligations or other liabilities under the Contract Documents or these
Terms and Conditions.
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C. PROFESSIONAL SERVICES. The following terms and conditions (“Terms and Conditions”) shall
govern and be the basis of any order placed, or purchase order issued, by WPI to any consultant
(“Consultant”) to provide professional services,
testing, surveying, furnishing of shop
drawings/architectural specifications, providing engineering of any nature, providing consulting services
of any nature, providing estimations of price, quantity or plans, or reviewing the plans and specifications
for WPI to insure the suitability of the plans and specifications for a project, or to conduct associated
value engineering and estimating work for the purpose of reducing errors and omissions and project
costs ( “Services”). No term, condition, exclusion, limitation or qualification given by Consultant, either
orally or in writing, in any proposal, bid, quotation, acceptance, addendum or otherwise, shall be valid or
binding on WPI except to the extent expressly agreed to in writing by WPI. These Terms and Conditions
are expressly intended to govern any and all Services performed by or through Consultant for WPI,
whether or not WPI issues any written order or purchase order. Because Consultant possesses the
requisite experience and technical expertise to perform the Services, the parties hereto agree as
follows:
1. Contract Documents. The term “Contract Documents” shall hereinafter collectively include, but is
not limited to, each project’s general and special conditions and provisions, plans and drawings,
specifications and standard specifications, addenda, change orders, modifications, purchase orders,
price agreements, and all exhibits, attachments and other referenced contract documents therein all
of which are incorporated by reference into these terms and conditions for each respective project.
All of these documents are available to Consultant upon request and Consultant acknowledges that
it will become fully familiar with all of the Contract Documents before commencing any Services for
the Project. In the event of a conflict between or within any of these documents, Consultant agrees
to notify WPI immediately in writing of any such concern and WPI shall resolve any such written
request promptly in order to resolve any possible conflict. Consultant is hereby required to adhere at
all times to the more strict requirements, of any nature, of these documents in order to ensure its
compliance with the Contract Documents.
2. Required Documentation. Consultant shall return and complete any documentation required under
the Contract Documents and these Terms and Conditions including, but not limited to, insurance
certificates, insurance endorsements, signed agreements for the Services, safety documentation,
and any bonds (if required), on or before the day of acceptance of a purchase order, work order, or
other oral or written agreement for the Services, commencement of performance of the Services, or
within the time required by the Contract Documents. If Consultant fails to return any required
documents to WPI in time or Consultant returns documents that are not in the required form to WPI,
Consultant may, at WPI’s election, be deemed in material breach of these Terms and Conditions.
3. Services.
a. Consultant shall, as a part of the Services, and as an independent contractor and not as an
agent, employee, joint venture, or partner of WPI, perform the Services in a professional
and diligent manner in accord with the Contract Documents and the terms and conditions
herein, as well as any requirements imposed by the Federal, State, Local or Municipal laws,
rules, regulations, ordinances, codes, standards, governmental interpretations, or
requirements applicable at the time the Services are performed. WPI shall utilize Consultant
to perform work of the general type and nature for which Consultant is skilled, or may
perform such services with its own forces or through other entities, but in no event shall
these Terms and Conditions obligate WPI to provide services or to issue any written or oral
agreement to Consultant. Consultant further understands that multiple orders or purchase
orders may be issued under these Terms and Conditions and that each agreement or order,
whether written or oral, by WPI individually incorporates all of the Terms and Conditions
herein and the Contract Documents specific to each respective Project.
b. The Services shall consist of those services performed by the Consultant, Consultant’s
employees and/or Consultant’s agents to review, refine, and/or produce accurate and
suitable plans, drawings, specifications and related documents concerning the Project. A
detailed scope of Consultant’s Services may be submitted to Consultant by WPI or attached
to any other purchase order or similar document issued by WPI and shall be subject to
these Terms and Conditions and the Contract Documents as required for the Project. To
the extent applicable, the Services also include any shipping or labor, whether onsite or
offsite, performed by Consultant related to the Services for the Project
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c.
If applicable, WPI shall provide to the Consultant all plans and specifications upon request,
as well as information regarding requirements for the Project, including all pertinent
information regarding WPI’s Project objectives, schedule, constraints and criteria.
Consultant will provide the Services diligently and promptly so as to avoid any delay to the
Project and allow for sufficient time to permit adequate review by WPI. WPI’s review is not
conducted for the purpose of determining accuracy, completeness, safety, sufficiency or
performance of the Services and WPI’s review will not relieve Consultant of any obligation
or duty it has under the Contract Documents or these Terms and Conditions with regard to
its Services.
4. Changes.
a. At times, Consultant may be required in its performance of the Services to make changes in
the Services because of the requirement imposed by any federal, state, local or municipal
law, rule, regulation, ordinance, code, standard, governmental interpretation, requirement
applicable at the time the Services are performed, or, because the Owner or any of its
agents request that Consultant make a change to the Services (collectively, a “Change”). In
such event, Consultant shall immediately notify WPI of the Change, so as to allow for
reasonable time for WPI to submit such Change to Owner in order to preserve WPI’s right
to compensation for any such Change, to the extent allowed for by the Contract Documents
and Owner. Consultant shall not make such Change until it has promptly advised WPI and
has been given written consent to such Change. Failure to provide timely notice within the
time frames specified in the Contract Documents may, at WPI’s discretion, be deemed a
waiver of compensation for such Change. Performance of any Change without prior written
consent by WPI may, at WPI’s discretion, constitute a waiver of compensation for any such
Change. Further Consultant shall indemnify and defend WPI from any costs or damages to
the extent caused by its failure to comply with any of the provisions of this Changes section.
b. As an integral part of identifying each Change and communicating its impact on
constructability, schedule, and cost, Consultant shall provide a separate report titled “Notice
of Change”. The Notice of Change shall clearly identify and state: (1) the reason for the
Change, (2) the person who ordered the Change, (3) the date the Change was ordered, (4)
who approved the Change, (5) the impact the Change will have on the cost of construction
and the schedule, and (6) shall include supporting documentation of the foregoing with
detailed cost and pricing data, as may be reasonably required.
5. Payment.
a. WPI shall pay Consultant for the Services provided in accordance with the terms of the
Contract Documents and these Terms and Conditions. Progress payments will be made to
Consultant for Services actually performed and completed, as measured and certified to by
WPI or its representative, less retention if required by WPI. Application for payment shall
use WPI’s required forms, which may include Application for Payment Form, Interim and
Final Lien Release Form or whichever forms that WPI requests and/or is required by
Contractor or Owner and must be submitted by the 18th of the month or sooner, in order to
facilitate application for payment from the Contractor. Applications for payment received
after the 18th will be submitted and considered for payment the following month. If the 18th
of the month is a holiday or weekend, Consultant shall submit such applications for
payment and all required forms for the Services on the preceding business day. Application
for payment shall be submitted via mail or hand delivered to WPI’s Corporate Office located
at Western Partitions, Inc., 8300 SW Hunziker Rd., Tigard, OR 97223. Application for
payment should be based on Services provided through the last day of the month. Payment
is contingent upon Consultant’s adherence to the requirements set forth by the Contract
Documents and these Terms and Conditions, as well as all federal, state, and local laws.
WPI reserves the right to make payments according to Consultant’s terms at WPI’s sole
and reasonable discretion.
b. Payment shall be accepted by Consultant as full compensation for furnishing all Services
for which the payment pertains. Consultant unconditionally waives any and all claim, lien, or
other rights against WPI and the Project for each payment received for the Services
performed upon receipt of payment, including, but no limited to, Consultant’s rights to assert
a lien or other claim against a bond or property. Payment to Consultant pursuant to monthly
estimates shall not constitute or imply acceptance by Contractor or Owner of any portion of
Consultant’s Services.
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c.
The price for the Services includes the total cost of coordinating and securing, through WPI,
document approvals with the Owner and the Owner’s representative. All contact with the
Owner, or its representative or agents shall be through WPI.
d. All payments to Consultant are conditioned on and subject to (as an express condition
precedent) receipt of payment by WPI for Services provided by or through Consultant
(unless otherwise required by law in which case this provision shall continue in effect to the
fullest extent permitted, and all remaining provisions herein and of these Terms and
Conditions shall remain in full force and effect). Consultant expressly waives any claims
against WPI for failure or delays in payment by Owner.
6. Consultant’s Employees and Agents.
a. Consultant shall submit, for written approval by WPI, the names of Consultant’s employees
and agents proposed to assist in providing the Services. Nothing in these Terms and
Conditions shall create any contractual obligation or relation between WPI and any agents
employed by the Consultant for the Project.
b. Consultant and its employees and agents shall abide by all applicable laws, hold any
necessary permits and be properly licensed in the location where the Services are being
performed and/or as required by the Contract Documents. Consultant shall have relevant
experience during the last five years of the type of design and construction experience
necessary for it to perform its Services. If any employee or agent of the Consultant is not
acceptable to WPI, that individual shall be replaced with an acceptable competent person
upon WPI’s request.
c. Consultant and its agents shall abide by these Terms and Conditions as well as the
Contract Documents for the project, which includes the insurance and safety requirements
to the extent related to Consultant’s Services for the project. Consultant hereby binds itself,
its owners, officers, managers, board members, agents, employees, independent
contractors, successors, assigns and legal representatives to WPI, these Terms and
Conditions and to the Contract Documents with respect to the Services performed by or
through Consultant for the project.
d. Consultant agrees not to assign or sublet any portion of the Services for the Project
including any claims hereunder, without the written prior consent of WPI.
7. Indemnity. Consultant agrees to defend, indemnify, reimburse and hold harmless Owner, Owner’s
Architect, Owner’s Engineer, Contractor, WPI, and their respective subsidiaries, employees, agents,
representatives and principals, and anyone else stipulated under the Contract Documents
(hereinafter collectively called “Indemnitees”) from any and all actions, suits, claims, losses,
demands, liabilities, costs, expenses, fines, and damages of any kind or nature (including but not
limited to attorney's fees and costs incurred in any investigation, negotiation, pursuit, defense, or
settlement of any claim, including on appeal), from damage to the project, and from bodily injury or
death to persons and damage to property related to (directly or indirectly), arising out of or resulting
from: (a) the acts or omissions of Consultant, its employees or agents, without limitation, any acts or
omissions that are in violation of or do not comply with applicable federal, state, local or other public
agency permits, regulations, rules or laws, including but not limited to those pertaining to protection
of the environment, air, water, soil, noise or public or private property; (b) breach of any
representation, warranty or covenant of Consultant; (c) the performance of the Services; and (d) the
infringement or violation by the Services, or any product produced in connection therewith, of any
patent, copyright, trademark or other property right, regardless of whether any Indemnitee was
involved in such act. Consultant’s duty to indemnify, defend and hold Indemnitees harmless will be
to the fullest extent permitted by applicable law and will not extend to acts or omissions due to the
sole negligence of WPI. Without limiting the generality of the foregoing, Consultant’s promise of
indemnity specifically applies to claims arising out of injury or death to Consultant’s own employees.
CONSULTANT’S INDEMNITY OBLIGATION WITH RESPECT TO ITS OWN EMPLOYEES WILL
NOT BE LIMITED BY THE PROVISIONS OF ANY WORKERS' COMPENSATION OR SIMILAR
STATUTE AND CONSULTANT WAIVES ANY IMMUNITY THEREUNDER AS TO THIS
OBLIGATION. CONSULTANT FURTHER SPECIFICALLY AND EXPRESSELY WAIVES ANY
IMMUNITY THAT MAY BE GRANTED TO IT UNDER THE OREGON WORKERS’
COMPENSATION LAW (ORS 656.001) THE WASHINGTON STATE INDUSTRIAL INSURANCE
ACT (TITLE 51 RCW), THE CALIFORNIA LABOR CODE (SECTION 3864), THE IDAHO
WORKER’S COMP ACT (SECTION 72-209), THE ALASKA WORKER’S COMP ACT (SECTION
23.30.055), THE MONTANA WORKER’S COMP ACT (SECTION 39-71-411) OR ANY SIMILAR
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STATUTE THAT MAY APPLY. Consultant, in beginning to provide the Services for the project,
hereby certifies that the provisions of these Terms and Conditions were mutually negotiated and
accepted by the parties. Notwithstanding the foregoing, any Indemnitee may, in its sole and
absolute discretion, engage its own attorneys and professionals to defend or otherwise assist the
Indemnitee with a claim or proceeding to which Consultant’s indemnity obligation applies and, at the
option of the Indemnitee, Indemnitee’s attorneys shall control resolution of such claim or
proceeding, all at Consultant’s sole cost and expense. Consultant shall promptly pay (or reimburse
Indemnitee, as applicable) on demand all amounts due and otherwise payable by Indemnitee
hereunder promptly on receipt of a written statement of the amounts incurred or to be incurred by
the Indemnitee.
8. Insurance.
a. General. All project specific insurance requirements in the Contract Documents will be
made available to Consultant upon request to WPI. Consultant agrees to become familiar
with and comply with the insurance requirements of the Contract Documents and the
insurance requirements described in these Terms and Conditions before Consultant or any
agent, representative or employee of Consultant provides the Services. All questions
regarding insurance requirements should be directed to WPI’s Contracts Department, which
may be contacted by telephone at (503) 620-1600 or by mail directed to the attention of:
Contracts Department, Western Partitions, Inc. 8300 SW Hunziker Rd. Tigard, OR
97223. To the fullest extent allowed by law and available on the normal insurance products
market, Consultant shall provide all insurance set out in these Terms and Conditions. WPI
has contracted with, Insurance Tracking Services, Inc. (ITS), a new insurance compliance
(Rev04/15/15)
service as of 04/15/15.
The Consultant will deliver to Insurance Tracking Services,
Inc. (ITS), Western Partitions, Inc. authorized insurance verification service, a certificate of
insurance with respect to each required policy to be provided by the Consultant herein. The
required certificates must be signed by the authorized representative of the Insurance
(Rev4/15/15)
Company shown on the certificate.
Submit certificates of insurance to:
Certificate Holder Address:
(Certificates need to include the following as the Certificate Holder)
Western Partitions, Inc.
c/o Insurance Tracking Services, Inc. (ITS)
P.O. Box 20270
Long Beach, CA 90801
Email: WP@instracking.com or
(Rev04/15/15)
Facsimile: +1 (562) 435-2999
Description shall include (to the fullest extent applicable to the Services being provided and
as available in the industry): "All operations of the named insured. Project Owner, Owner’s
Architect/Engineer, General Contractor, Western Partitions, Inc. and all subsidiaries, as well
as their employees, agents, and principals and anyone else as stipulated under written
contract or written agreement have additional insured status with primary and noncontributory coverage. Waivers of subrogation shall apply to the maximum extent allowable
under applicable law. Workers compensation provides waiver of subrogation to the
maximum extent allowable under applicable law.”
i. Obligations Cumulative; Conflict.
Each requirement for carrying insurance
described in these Terms and Conditions is cumulative with and shall not be in
derogation of any requirements imposed by the Contract Documents. Consultant
acknowledges and agrees that, to the extent the insurance requirements of the
Contract Documents conflict with the insurance requirements described in these
Terms and Conditions, Consultant is obligated to comply with the requirements
imposing the greater burden on Consultant. Notwithstanding the foregoing, the
qualification imposed on Consultant’s waiver of subrogation obligations herein by
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ii.
iii.
iv.
v.
vi.
vii.
Western Partitions, Inc.
the language “to the maximum extent allowable under applicable law” shall control
over any conflicting language in the Contract Documents.
Certificates of Insurance. Certificates of insurance with applicable endorsements
are strictly required under these Terms and Conditions. WPI may require
Consultant to cease performing the Services or leave the job site and assume the
risk of resulting penalties, liabilities and damages associated therewith, and WPI
may withhold payments to Consultant until the insurance requirements described in
the Contract Documents and these Terms and Conditions are met and certificates
of insurance with applicable endorsements evidencing such coverage, in a form
acceptable to WPI, are provided to WPI.
Additional Insureds; Cancellation, Reduction, Modification. To the fullest extent
applicable to the Work being provided and as available in the industry, the
certificates of insurance shall name the Additional Insureds or provide a blanket
endorsement to include any Additional Insureds as required per written contract.
Each insurance policy must be endorsed to provide that the coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after ten
(10) days written notice in the case of non-payment of premiums, or thirty (30) days
written notice in all other cases, has been given to Western Partitions, Inc. and such
notice is by postal mail, return receipt requested. This notice requirement does not
(Rev04/15/15)
waive the insurance requirements contained herein.
Waiver of Subrogation. All insurance coverage required under the Contract
Documents and these Terms and Conditions shall include clauses providing that, to
the maximum extent allowable under applicable law, each insurer shall waive all of
its rights of recovery by subrogation against the Additional Insureds (as that term is
defined herein). The certificates of insurance shall indicate that such waiver has
been made.
Duration and Form of Coverage. Before providing any Services in connection with
a project, Consultant agrees to procure, at its own expense, the insurance coverage
required under the Contract Documents, these Terms and Conditions and
applicable law, together with any other insurance coverage that WPI, Contractor or
Owner may consider necessary for the protection of the relevant parties and/or the
public, and to continuously maintain such coverage for the duration of the project
and if the coverage maintained by Consultant and applicable to the project is on a
“claims-made” basis, to maintain such claims-made coverage via new
policy/renewals and/or extended reporting period coverage a/k/a “tail’ for a period of
no less than the period of ultimate repose for the jurisdiction in which the project is
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located, or such other
term as may be required by the Contract
Documents. The Consultant shall promptly deliver to ITS a certificate of insurance
with respect to each renewal policy, as necessary to demonstrate the maintenance
of the required insurance coverage for the terms specified herein. Such certificate
shall be delivered to ITS not less than five (5) business days before to the
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expiration date of any policy.
Such insurance coverage shall be provided
by such companies, under such policy forms and with such deductibles or selfinsured retentions as may be satisfactory to WPI, Contractor and Owner. The
companies issuing the insurance coverage shall, at a minimum, maintain an A.M.
Best Rating of A-VII.
Project Specific Insurance. If Consultant’s scope of work will include visiting of or
work at the site of the project, the requirements in this paragraph shall
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apply.
All insurance, except for Professional Liability Insurance, shall be on
a “Per Occurrence” basis and shall be specific to the project for which it is required.
Policy limits shall apply to each project specifically and without relationship to any
other project or claim Consultant may be involved in (Per Project Aggregate). If the
policy does not have an endorsement providing that the general aggregate limit
applies separately to the project, or if defense costs are included in the general
aggregate limit, then the required aggregate limits shall be increased by $5,000,000
unless otherwise required at the sole discretion of WPI.
Approval by WPI. The insurance required of Consultant shall be subject to the
approval of WPI, but any acceptance of certificates of insurance, endorsements or
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b.
c.
d.
e.
f.
policies by WPI shall in no way limit or relieve Consultant of the duties and
responsibilities imposed on Consultant under the Contract Documents and these
Terms and Conditions, nor shall such acceptance constitute a waiver by WPI of its
right to strictly enforce such insurance requirements. Consultant specifically agrees
to defend, indemnify and hold Indemnitees (as that term is defined herein) from all
claims, demands, losses, and liabilities to or by third parties arising from, resulting
from or connected with Consultant’s failure to comply with the insurance
requirements set forth in the Contract Documents and these Terms and Conditions.
Additional Insureds. If Consultant’s scope of work will include visiting of or work at the site
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of the project, the requirements in this paragraph shall apply.
Owner, Owner’s
Architect, Owner’s Engineer, Contractor, WPI, and all of their respective subsidiaries,
employees, agents, representatives, and principals, and anyone else stipulated under the
Contract Documents (collectively, “Additional Insureds”) are to be expressly named as
Additional Insureds under any General Liability insurance policies required under the
(Rev04/15/15)
Contract Documents and/or these Terms and Conditions
. The policies shall
stipulate that the insurance afforded the Additional Insureds shall apply on a primary and
non-contributory basis and that any other insurance carried by any of the Additional
Insureds will be excess only and will not contribute with the insurance coverage provided
under Consultant’s policies. A Primary / Non-Contributory Additional Insured Endorsement
Form evidencing such coverage and specifically stating that the Additional Insured status
shall apply to ongoing and completed operations, including preparation to perform Services
or conduct such operations, must be provided to WPI along with the certificates of
insurance.
Owner or Contractor Provided Insurance Program (OCIP/CCIP). If the project involves
a wrap-up insurance program, such as an Owner Controlled Insurance Program (OCIP) or
Contractor Controlled Insurance Program (CCIP), and if Consultant is required to
participate, it will be Consultant’s responsibility to familiarize itself with any related
requirements and become enrolled in such insurance program immediately and, in any
event, before commencing the performance of Services. Consultant agrees to bear any and
all risk associated with such insurance program enrollment. Consultant is bound by and
shall comply with all insurance requirements pertaining to such insurance program that are
specified in the Contract Documents and in these Terms and Conditions. Consultant’s
failure to enroll in a wrap-up insurance program, if required by the terms of the Contract
Documents, shall be deemed a material breach of these Terms and Conditions. Any
damages caused by, arising out of or resulting from Consultant’s failure to enroll shall be the
sole responsibility of Consultant.
Builder’s Risk. To the maximum extent allowable under applicable law, WPI and
Consultant waive all rights against each other and against Contractor, Owner, and all other
subtiers of suppliers and contractors for loss or damage to the extent covered by Builder's
Risk or any other property or equipment insurance applicable to the Services or the project,
except such rights as they may have to the proceeds of such insurance. If the policies of
insurance referred to in these Terms and Conditions require an endorsement issued by or
the consent of the insurance company to provide for continued coverage where there is a
waiver of subrogation, the owners of such policies will cause them to be so endorsed or
obtain such consent.
Costs. Consultant shall pay all premiums and costs incurred to comply with the insurance
requirements of the Contract Documents and these Terms and Conditions. Any deductible
or self-insured retention payable in connection with any insurance required of Consultant
shall be the sole responsibility of Consultant.
Right to Obtain Insurance. If, at any time, Consultant fails to maintain insurance sufficient
to cover the Services or fails to maintain insurance in compliance with the insurance
requirements set forth herein and in the Contract Documents, WPI may terminate its
agreement with Consultant or WPI may (but with no obligation to do so) procure and
maintain such insurance to cover the operations of Consultant, paying the premium
therefore and charging the amounts thereof to Consultant, which amounts will be payable
by Consultant on demand by WPI. WPI may set off amounts owed by Consultant to WPI
under these Terms and Conditions against payments owed by WPI to Consultant for the
Services.
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g. Flow-Down Requirements. Consultant agrees that in the event any portion of the Services
is further sublet, Consultant will ensure that the parties to whom the Services are sublet
procure and maintain insurance coverage of the type and in the amounts required under the
Contract Documents and these Terms and Conditions. All mandatory insurance limits,
provisions and requirements set forth in the Contract Documents and these Terms and
Conditions are binding upon Consultant’s subtier agents to the extent applicable to their
Services, and shall be complied with before such subtier agents commence Services on the
project. Consultant will provide to WPI evidence of insurance for any subtier agents upon
request by WPI.
h. Minimum Insurance Requirements. Consultant shall procure and maintain insurance
coverage of the following types and in the following amounts. If higher limits or other forms
of insurance are required under the terms of the Contract Documents or applicable law,
Consultant shall comply with the most stringent of such requirements, otherwise, without
(Rev04/15/15)
limiting the foregoing,
i. Commercial General Liability: Consultant shall carry an Occurrence Form
Commercial General Liability Insurance policy (including Umbrella / Excess policies
if necessary to meet the minimum limits imposed hereunder) covering all operations
by or on behalf of Consultant and providing insurance for bodily injury liability and
property damage liability for the limits of liability indicated below and including
coverage for (a) premises and operations; (b) products and completed operations;
(c) contractual liability insuring the obligations assumed by Consultant under these
Terms and Conditions; (d) broad form property damage; (e) explosion, collapse and
underground hazards, including subsidence; (f) personal injury liability; and (g) any
other type of claim for which Consultant may be responsible under the Contract
Documents and these Terms and Conditions. If Consultant’s scope of work will
include visiting of or work at the site of the project, the following requirement shall
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also apply: except
with respect to bodily injury and property damage
included within the products and completed operations hazards, the aggregate limit
shall apply on a per project basis. Policy limits shall be as follows. If two numbers
are shown below, the first number below only applies if Consultant’s scope of work
will include visiting of or work at the site of the project; otherwise the second
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number applies;
1. $2,000,000 General Aggregate
2. $2,000,000/$1,000,000 per Occurrence
3. $1,000,000 Personal and Advertising Injury
4. $2,000,000/$1,000,000 Products & Completed Operations Aggregate
ii. Commercial Automobile Liability: If Consultant’s scope of work will include visiting of
or work at the site of the project, the requirements in this paragraph shall apply.
(Rev04/15/15)
Consultant shall carry automobile liability insurance in the amount
specified below, including coverage for all owned, hired and non-owned
automobiles. If Consultant’s Services involves the transportation of hazardous
waste, Consultant shall include the MCS 90 endorsement in accordance with the
Motor Carrier Act of 1980. Policy limits shall be as follows: $2,000,000 per
Occurrence
iii. Workers’ Compensation and Employer’s Liability Insurance: If Consultant’s scope
of work will include visiting of or work at the site of the project, the requirements in
(Rev04/15/15)
this paragraph shall apply.
Workers’ Compensation insurance and/or
Employer’s Liability insurance shall be procured and maintained by Consultant as
required by any applicable law or regulation. If there is an exposure of injury to
Consultant’s employees under the U.S. Longshoremen’s and Harbor Workers’
Compensation Act, the Jones Act, or under laws, regulations or statutes applicable
to maritime employees, coverage shall be included for such injuries or claims.
Policy limits shall be as specified by applicable law and shall in no event be less
than the following:
1. $1,000,000 per Accident
2. $1,000,000 per Disease
3. $1,000,000 each Employee per Disease
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i.
4. $1,000,000 Washington Stop Gap (Employer’s Liability)
iv. Umbrella/Excess Liability: Consultant may obtain Umbrella / Excess Liability
insurance coverage to meet any of the liability obligations described herein.
v. Professional Liability: If, as anticipated, Consultant’s Services include any
Professional or Design-Build services including, without limitation, any design,
engineering, surveying, consulting, inspecting, or testing services, providing, shop
drawings, or performing any other service to be provided or performed by a
qualified professional, Consultant shall be responsible for procuring Professional
Liability/Errors & Omissions insurance covering liability for claims that arise from the
negligent errors, omissions or acts of such professionals (including, without
limitation, Consultant) in the amount specified below. Such Professional Liability
insurance shall include contractual liability coverage and shall be effective
beginning or specify a retroactive date beginning (at a minimum) from when
Consultant first begins to provide Services in connection with the Project and shall
continue in force as specified in 8(a)(v) above. Consultant shall notify WPI of any
changes to its Professional Liability insurance policy and of any claim that has
adversely affected or drawn-down the required professional liability limits within five
(5) business days of such change or Consultant’s actual knowledge of such claim,
as applicable. WPI shall be under no obligation and shall have no duty to examine
policies, certificates or other evidence of Consultant’s Professional Liability
insurance or to advise Consultant in the event that Consultant’s insurance is not in
compliance with the insurance requirements set forth herein.
Consultant’s
Professional Liability insurance polices shall nevertheless be available to WPI upon
request. Policy limits must meet the requirements set forth in the Contract
Documents, but in any event shall be no less than as follows: A minimum of
(All edits herein Rev04/15/15)
$2,000,000 per Claim / Aggregate.
vi. Off-site Insurance: If any portion of the Services are performed off of the job site,
then Consultant agrees to procure and maintain insurance in such form and in such
amounts as is necessary to cover all such off-site operations. Consultant will
provide evidence of off-site insurance upon WPI’s request.
vii. Other Insurance: In the event Consultant’s Services involves any other type of
labor, manufacturing, use of equipment, or performance of any type of service
(including, but not limited to Pollution, EIFS, Mold, Silica, Asbestos or Lead
Abatement, Residential, use of Watercraft or any other type of equipment or
vehicle) that is not exclusively covered by insurance described in the Contract
Documents or these Terms and Conditions (“Other Tasks”), then Consultant shall
be responsible for procuring and maintaining such insurance as is necessary to
cover the Other Tasks. Such policy or policies will have sufficient limits to protect
Consultant and WPI against any and all claims related to the Other Tasks. The
sufficiency of the form and limits of such policy or policies will be determined by
WPI, at its sole discretion. However, in no event shall such insurance coverage be
less than that required by law.
All Operations Insurance.
i. An “All Operations” Insurance Certificate complete with blanket waivers and
endorsements must be issued to Western Partitions, Inc. c/o Insurance Tracking
Services, Inc. (ITS) P.O. Box 20270 Long Beach, CA 90801. If an All Operations
Certificate is not available to be provided under the policy(ies) then a project
specific insurance certificate must be provided.
ii. If Consultant is required to enroll into an OCIP/CCIP under the Contract
Documents, Consultant will be required to provide proof of their enrollment
insurance certificate. If such enrollment is required, and an All Operations
Certificate is not available under the policy(ies), Consultant may additionally be
required to provide an offsite insurance certificate in addition to the proof of
enrollment certificate to the extent necessary to properly insure its obligations
(All edits herein Rev04/15/15)
herein.
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No Limitation. The insurance coverage maintained by Consultant shall in no way limit
Consultant’s indemnity obligations or other liabilities under the Contract Documents or these
Terms and Conditions.
9. Safety. In the event Consultant’s Services requires Consultant or any of its employees or agents to
enter the Project site, then Consultant and any of its employees and agents must comply with all of
the Safety requirements as required by WPI and the Contract Documents. Consultant shall request
all project specific safety requirements from, and submit any required safety documentation to, WPI
prior to Consultant, or any of its agents, commencement on the project. Contact WPI’s Safety
Department at (503) 620-1600.
10. Notices. Notices shall be given to either party at their primary business address or at such other
address as a party may designate by written notice to the other party. Notices shall be deemed
given when actually delivered to such address, except that notices sent by United States certified
mail, correctly addressed and postage prepaid, shall be deemed given when deposited.
11. Claims. Consultant warrants and represents that prior to its commencement of the Services, it will
become fully familiar with all provisions of the Contract Documents, if any, pertaining to the
presentation and resolution of disputes, claims and termination. Consultant further agrees to
cooperate and participate with WPI, and WPI agrees to cooperate and participate with Consultant,
in the presentation and resolution of any claim or dispute pertaining to the Services, and each
agrees to be bound by any determination of any such claim or dispute or other disputed question or
issue to the extent provided by the Contract Documents. The timely presentation, cooperation and
participation by Consultant, and any determination thereof provided in the Contract Documents,
shall be conditions precedent to any suit or action by Consultant against WPI with respect to any
such claim or dispute. Upon the presentation of a claim or lien related to Consultant or any of its
agents, or if WPI has any reason to believe that such a claim or lien exists, WPI reserves the right to
(Rev04/15/15)
withhold any further payments to Consultant, on any and/or all projects
, as sufficient
enough to cover the potential amount of said lien or claim, until such claim or lien has been
resolved, at the sole reasonable discretion of WPI. Consultant, if applicable, shall arrange for its
agents to be bound by the terms and provisions hereto to the same extent that Consultant is bound
to WPI.
12. Disputes.
a. In the event of a dispute between the parties as to performance or the value of the Services
rendered through the date of termination or the interpretation of these Terms and
Conditions or payment dispute, the parties shall attempt to resolve the dispute in good faith.
Pending resolution of this dispute, Consultant agrees to continue the Services diligently to
completion, if requested by WPI. If the dispute is not resolved, Consultant agrees it will
neither cease providing the Services nor stop the progress of the Services, unless
requested by WPI.
b. Any controversy or claim arising out of or relating to these terms and conditions shall be
settled by binding mediation unless otherwise required by the Contract Documents. To the
extent that the provisions within these Terms and Conditions do not conflict with the
mediation rules, the parties agree to all of the provisions set forth herein. If the parties are
unable to agree on the mediator within thirty (30) days of the receipt of a written request for
mediation, they shall request that the presiding judge of the County Superior Court for the
county in which the project is located shall appoint a mediator, unless otherwise mutually
negotiated by the parties. WPI shall pay one-half of the cost of the mediation and the
Consultant shall pay one-half of the cost of mediation. Each party shall be responsible for
its own attorney’s fees and costs as to any such mediation. Any mediator chosen or
designated must have experience in construction issues.
c. In the event suit, action, arbitration or other formal proceeding is commenced by either party
to enforce any term or provision of the Contract Documents, or to recover damages or
award for breach thereof, or otherwise caused by Consultant, the prevailing party shall be
entitled to recover from the other party its attorneys' fees and costs in such amount as may
be found to be reasonable by the court, arbitrators or other forum, both at trial or hearing
and upon any appeal or further proceedings thereof. All disputes of any nature whatsoever
involving Consultant shall be subject to the same provisions as set forth in the Contract
Documents, and shall be resolved in a jurisdiction of the county and state where the project
is located unless otherwise mutually agreed to by the parties involved. Consultant consents
to any joinder terms, if required by the Contract Documents, and consolidation of any of
j.
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Consultant’s disputes of any comparable nature between WPI, Contractor and Owner, of
any of their representatives, subtiers, suppliers or other agents into a single proceeding.
13. Termination
a. Default. If Consultant shall fail to timely commence or to timely complete the Services, or
shall fail to prosecute the Services continuously so as to insure the Project’s timely
completion, or fail to promptly pay its employees or agents used in connection with the
performance of the Services, or shall fail to perform the Services according to the provisions
of the Contract Documents or these Terms and Conditions, or shall become insolvent or the
subject of a petition in bankruptcy or assignment for the benefit of creditors, or shall for any
other cause or reason whatsoever, fail to carry on the Services in a manner acceptable to
WPI, Owner or Contractor, or shall be in breach of any term or obligation of the Contract
Documents, then WPI may elect to give notice in writing of such default, specifying the
same, and if Consultant, within a period of forty-eight (48) hours after such notice, or less
time if so stated in any other provisions of the Contract Documents, whichever requirements
are the most stringent, shall not take such steps as may be necessary to cure such default,
then WPI reserves all its rights and remedies under these terms and conditions and shall
have full power and authority, to take the performance of the Services or any portion of the
Services, out of the hands of Consultant and complete the Services, or any portion of the
Services, with WPI's own forces, or contract with other parties for its completion, or use
such other measures as in WPI's opinion are necessary. Neither by taking over the Services
nor by its completion in accordance with the terms of this provision shall WPI forfeit its right
to recover damages from Consultant for delay damages or for the costs to complete the
Services for the Project. The election by WPI to take over the Services shall be in addition
to any and all other remedies of WPI at law or in equity, and WPI reserves unto itself all
other remedies at law or in equity upon default or breach by Consultant and as allowed for
in the Contract Documents.
b. Convenience. WPI reserves the right, in its sole and exclusive discretion, with or without
cause, to suspend for any period of time, delay or terminate all or any part of the Services
for WPI's convenience at any time, by written notice effective upon Consultant's receipt of
notice or such later time as such notice may provide. In such event, Consultant shall cease
performance of the Services at the time provided and shall promptly notify all its employees
and agents to the same effect. Consultant, for itself and for all of its agents, and third parties
shall thereafter present to WPI in writing the details of all Services theretofore furnished or
ordered for the Project in a timely manner and within the time frame as set forth in the
Contract Documents, if applicable, but in any event by no less than ten (10) days following
notice to terminate or suspend (whichever requirements are most stringent), and shall, at
WPI's option, assign to WPI all of Consultant’s applicable written agreements or purchase
orders as WPI may direct. Consultant shall take such actions as WPI may direct or as may
be reasonable to terminate the Services and shall thereafter account to WPI for all costs
and overhead incurred by Consultant pursuant to the Contract Documents, and all credits
realized upon termination. Such accounting shall be supported by such documentation, and
shall be subject to such verification, as WPI shall reasonably require. WPI shall thereupon
pay to Consultant the amount of Consultant's net costs incurred together with an allowance
of ten percent (10%) as general overhead and profit, or as allowed for in the Contract
Documents, but in no event more than the agreed upon price for the Services, less such
amount as Consultant may have previously received as partial payments. In the event of
any termination of Consultant, WPI’s liability to Consultant is limited to the extent of WPI’s
recovery of funds by WPI on Consultant’s behalf for its portion of the Services under the
Contract Documents. Consultant and WPI expressly acknowledge that in the event of such
termination, Consultant will not receive any additional termination costs, and that
consideration for entry into this termination for convenience clause exists. In any event,
WPI’s liability to Consultant is limited to the extent of the WPI’s recovery of funds by WPI on
the Consultant’s behalf for its portion of the Services under the Contract Documents.
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14. Miscellaneous
a. Consultant shall make a written record of all meetings, conferences, discussions and
decisions made between or among the WPI, Consultant and WPI’s Consultants during all
phases of the Project and concerning any material condition in the requirements, scope,
performance and/or sequence of the Services.
b. Consultant, in the performance of the Services, shall be and act as an independent
contractor. Consultant understands and agrees that Consultant and all of Consultant’s
employees and agents shall not be considered officers, employees or agents of WPI, and
are not entitled to benefits of any kind or nature normally provided employees of WPI and/or
to which WPI’s employees are normally entitled, including, but not limited to, State
Unemployment Compensation or Worker’s Compensation. Consultant assumes the full
responsibility for the acts and/or omissions of Consultant’s employees or agents as they
relate to the services to be provided under this Master Agreement. Consultant shall
assume full responsibility for payment of all federal, state and local taxes or contributions,
including unemployment insurance, social security and income taxes for the respective
Consultant’s employees.
c. Consultant acknowledges that it has either received or had the opportunity to review any
and all portions of the Contract Documents (which includes all contractual agreements and
obligations that WPI holds toward the Contractor and that the Contractor holds toward the
Owner of any Project in which Consultant performs Services) and that Consultant is bound
to WPI, Contractor, Owner, and all other applicable entities by the terms and provisions of
the Subcontract, Prime Contract, and any other Contract Documents. Consultant
acknowledges that it assumes toward WPI all obligations and responsibilities which WPI, by
the Contract Documents, assumes toward Contractor.
d. Nothing contained in these Terms and Conditions shall create a contractual relationship
with or a cause of action in favor of any third party against either WPI or Consultant.
c. If any provision herein shall be determined to be invalid or unenforceable or otherwise
inoperative, such provision shall continue in effect to the extent permitted, and all remaining
provisions of these Terms and Conditions and of the Contract Documents shall remain in full
force and effect.
d. A waiver by either party of any breach of the other shall not constitute a waiver of any
further or additional breach of like kind. Furthermore, the failure of either party to exercise
any right or insist upon the performance of any of the terms, requirements or conditions of
these Terms and Conditions, shall not be construed as a waiver of such right, term,
requirement or condition.
e. Captions herein are for convenience only, and shall not limit the terms and provisions
hereof. Consultant may be a corporation or other entity, or one or more natural persons of
either gender, and all pronouns and other grammatical changes in the terms and provisions
shall be made and assumed.
f. Nothing contained within these Terms and Conditions shall be construed to deprive WPI of
any rights or remedies it may have against Consultant or pertaining to the Services.
Furthermore, in the event that Consultant or any of its employees and agents are at all
responsible for or in any way involved with any delay or damage of any nature, WPI’s ability
to recover for any damages (including but not limited to liquidated damages, time delays,
attorney fees, property damage, or injury) shall also not be limited by any interpretation of
the language.
g. Consultant agrees to maintain these Terms and Conditions and the Contract Documents as
confidential and shall not disclose the same to any third parties, other than employees,
subtiers, agents, and professionals and consultants engaged by the other for any Services
under these terms and conditions for each project and except otherwise as required by law.
Consultant shall require any such person to whom the Contract Documents or any portions
thereof are disclosed similarly to maintain its confidentiality.
h. Any document(s) signed by WPI shall not be valid unless signed by an appropriately
authorized corporate officer of WPI. Any Services performed by Consultant for which an
authorized corporate officer’s signature of WPI is not present, shall be solely at the risk of
Consultant. In the event of any ambiguity regarding signature authority prior to its
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performance on any Project, Consultant may contact WPI’s Contracts Department at (503)
620-1600.
15. Ownership of Intellectual Property Rights. All drawings and other work product of Consultant
hereunder whether in the form of prints, reproducible copies or computer data, are and shall remain
the property of Consultant. All copies of Consultant’s drawings and other work product hereunder
retained by Owner may be utilized by Owner only for Owner's use with respect to the Project, and
not for the construction of any other project. Owner’s right to use the Consultant’s work product for
the Project shall survive any termination of Consultant. Consultant agrees not to utilize (or permit to
be utilized) any work product, or any portion thereof, without the express prior written approval of
Owner. Except as set forth herein, Consultant shall retain all common law, statutory and other
reserved intellectual property rights, including copyrights. By commencing the Services, Consultant
grants the Owner a nonexclusive license to reproduce the Consultant’s work product documents for
purposes of constructing, using and maintaining the Project. The Consultant shall obtain similar
licenses from the Consultant’s agents consistent with these Terms and Conditions.
16. Entire Agreement. These Terms and Conditions supersede all previous communications,
agreements, quotes, bids, or contracts, written or verbal, and no understanding, agreement, term,
condition, or trade custom at variance herewith shall be binding on WPI. Any term contained in any
other agreement or other document that is different from, inconsistent with, or additional to, these
terms and conditions shall be void. No modification of these Terms or Conditions shall be effective
or binding unless specifically recognized and assented to in writing by WPI's authorized agent. In
the event Consultant commences performance related to any order or purchase order placed by
WPI, all of the Terms and Conditions herein and Contract Documents pertaining to the project which
shall constitute the entire agreement between the parties shall be deemed to have been carefully
reviewed and accepted by Consultant.
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Terms and Conditions ver070110 (Rev04/14/15)
THE FOLLOWING FORMS ARE TO BE SUBMITTED
WITH YOUR PAYMENT APPLICATIONS:
*Application for Payment Form*
*Interim Lien Claim Waiver Form (or use Interim/Final
Lien Claim Waiver Form(s) for CA Projects, as applicable)*
MUST BE COMPLETED ALONG WITH ONE FOR EACH SUBTIER, SUPPLIER OR ANY OTHER PERSONS OR ENTITIES
WHO HAVE SUPPLIED LABOR, MATERIALS, EQUIPMENT AND/OR SERVICES TO THE PROJECT WITH RESPECTS TO
EACH APPLICATION FOR PAYMENT.
*Final Statement of Contract Account*
*Subcontractor/Supplier List*
MUST BE SUBMITTED PRIOR TO COMMENCEMENT ON THE PROJECT AND COMPLETED FOR EACH APPLICATION
FOR PAYMENT AND THE FINAL STATEMENT OF CONTRACT ACCOUNT.
*Subtier/Supplier Final Statement of Contract Account*
MUST BE COMPLETED BY ANY SUBTIERS, SUPPLIERS OR ANY OTHER PERSONS OR ENTITIES WHO HAVE SUPPLIED
LABOR, MATERIALS, EQUIPMENT AND/OR SERVICES TO THE PROJECT AND SUBMIT WITH THE FINAL STATEMENT
OF CONTRACT ACCOUNT.
*Union Affidavit of Wages Paid (Sample Only)*
THE ATTACHED UNION AFFIDAVIT OF WAGES PAID FORM WHICH MUST BE OBTAINED FROM EACH APPLICABLE
UNION USED WITH RESPECT TO WORK INCLUDED ON THE APPLICATION FOR PAYMENT. THE AFFIDAVIT(S) MUST
BE ON THE UNION”S OWN LETTERHEAD AND INCLUDED WITH EACH APPLICATION FOR PAYMENT AND THE FINAL
STATEMENT OF CONTRACT ACCOUNT. (ONLY USE UPON REQUEST BY WPI)
Payment Application Packet
Page 1 of 9
Packet Instructions
APPLICATION FOR PAYMENT
(To be submitted with all monthly payment requests.)
TO: WESTERN PARTITIONS, INC. ATTN: ACCOUNTS RECEIVABLE 8300 SW HUNZIKER RD.TIGARD, OR 97223
FROM:
PROJECT: NO.
PAYMENT REQUEST NO:
PERIOD
, 20
, TO
, 20
WPI PHASE CODE:
STATEMENT OF CONTRACT AMOUNT:
1. Original Contract
$
2. Approved C.O.s (as per attached breakdown)
$
3. Revised Contract Amount
$
4. ______% Complete to Date per attached Schedule of Values. (This invoice plus previous invoices.)
$
5. Less Previous Payment(s)
($
)
6. Less Previous Retainage
($
)
7. Less Previous Net Billings Not Paid
($
)
8. Gross Billing This Request.
$
9. Less
($
% Retainage, plus previous retainage not withheld.
10. TOTAL AMOUNT DUE THIS REQUEST (Line 8 less line 9)
)
$
CERTIFICATION OF THE SUBCONTRACTOR:
I hereby certify that the work performed and the materials supplied to date, as shown above, represent the actual value of
accomplishment under the terms and conditions (and all authorized changes thereto) between the undersigned and WESTERN PARTITIONS,
INC. relating to the above-referenced project.
I also certify that the payments, less applicable retention, have been made through the period covered by previous payments received
from Contractor, to (1) all my subcontractors, and (2) for all materials and labor used in or in connection with the performance of this Project. I
further certify that I have compiled with Federal, State and local tax laws, including Social Security laws and Unemployment Compensation laws
and Workman’s Compensation laws insofar as is applicable to the performance of this Contract.
(“SUBCONTRACTOR”)
Date:
Signature of Authorized Corporate Officer
Printed Name/Title
APPROVED FOR PAYMENT:
Project Mgr:
Contracts:
Print Name:
Print Name:
Date:
Date:
Payment Application Packet
Page 2 of 9
Application for Payment Form
INTERIM LIEN CLAIM WAIVER FORM
(Name of Firm Giving Release)
(WPI Project Name & Number)
(Business Address)
(Project Address)
(City, State, Zip Code)
(Project City, State, Zip Code)
CONDITIONAL RELEASE
UNCONDITIONAL RELEASE
The undersigned, being first duly sworn, does hereby affirm that upon receipt by the
The undersigned, being first duly sworn, does hereby affirm that the undersigned has
undersigned of a check from
been paid and has received progress payments from
in
the sum of $
and when the check has been properly
in the sum of $
for
labor,
materials,
endorsed and has been paid by the bank upon which it was drawn, this document shall
equipment, services and/or supervision furnished to the above referenced Project and
become effective to release any and all claims or demand of whatsoever nature relating to
does hereby release any and all claims or demand of whatsoever nature relating to the
the Project, and waives any and all construction lien, stop notice, or bond claim rights it has
Project, and waives any and all construction lien, stop notice, or bond claim rights it has
on the above referenced Project through the
on the above referenced Project through the
, 20
day of
, which is the last day of the work period for which such
20
day of
, which is the last day of the work period for which such
progress payment check is to be received. This conditional release covers a progress
progress payment checks have been received. This unconditional release covers all
payment for labor, materials, equipment, services, and/or supervision furnished and all
payments for labor, materials, equipment, services, and/or supervision furnished and/or
claims to the above referenced project for the period ending on the date indicated above,
claims to the above referenced Project only through the date indicated above, except for
except for retention.
retention.
It is further stated that the undersigned has fully paid for all obligations furnished by or
It is further stated that the undersigned has fully paid for all obligations furnished by or
through it and its subcontractors and suppliers for use on/or incorporated into the Project.
through it and its subcontractors and suppliers for use on/or incorporated into the Project.
It is further warranted that no subcontractor, supplier or employee of the undersigned has
It is further warranted that no subcontractor, supplier or employee of the undersigned has
the right to assert a lien or any other claim against the Project or any part thereof. The
the right to assert a lien or any other claim against the Project or any part thereof. The
undersigned agrees to fully defend and indemnify the Project, the Owner, Contractor and
undersigned agrees to fully defend and indemnify the Project, the Owner, Contractor and
WPI from any such claims to the fullest extent allowed by law.
WPI from any such claims to the fullest extent allowed by law.
Effective upon signature, this release and agreement is effective upon signature.
Dated this
day of
at
Signature:
NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES
, 200
(City, State)
THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT
IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN
PAID. IF YOU HAVE NOT BEEN PAID, USE THE CONDITIONAL SIDE OF THIS
RELEASE FORM.
(Authorized Corporate Officer/Partner/Owner)
Dated this
day of
, 200
at
(Printed Name/Title)
Signature:
(City, State)
(Authorized Corporate Officer/Partner/Owner)
(Printed Name/Title)
Payment Application Packet
Page 3 of 9
Interim Lien Claim Waiver Form
FINAL STATEMENT OF CONTRACT ACCOUNT
TO:
WESTERN PARTITIONS, INC.
ATTN: ACCOUNTS RECEIVABLE
8300 SW HUNZIKER RD.TIGARD, OR 97223
(“WPI”)
FROM:
(“Subcontractor”)
PROJECT:
(“Project”)
OWNER:
(“Owner”)
CONTRACTOR:
(“Contractor”)
STATEMENT OF CONTRACT ACCOUNT:
1.
2.
3.
Original Contract Amount
Approved Change Orders through No.
Final Adjusted Contract Amount
$
$
$
4.
5.
Total Payments Received To Date (Gross Amount)
Balance of Payments Due (Gross Amount)
$
$
6.
7.
Retainage Held To Date
Adjustments/ Misc. Extras Due
$
$
8.
Final Payment Due
$
CERTIFICATION AND RELEASE:
KNOW ALL MEN BY THESE PRESENTS: For and in consideration of the payment to undersigned of the above balance (item 8) for labor,
materials, equipment and/or services furnished in connection with performance of the Project, the undersigned does hereby agree and
acknowledge:
1.
Upon payment of said balance, the undersigned agrees it will be fully and completely paid for any and all labor, materials, equipment and/or
services furnished by undersigned to the Project and the undersigned hereby releases and discharges the Project, the Owner, Contractor, and
WPI from any and all liens, demands, accounts and claims of any nature relating to the furnishing of said labor, materials, equipment and/or
services, whether arising now or in the future and whether known or unknown. These releases are not limited by the amount of the above
payment or in any other way.
2.
The undersigned certifies that all persons or entities who have supplied labor, materials, equipment and/or services to the Project for or at
the request of the undersigned have been paid in full, and the undersigned agrees to indemnify, defend, and hold harmless the Project, the
Owner, Contractor and WPI from and against any and all claims, liability and loss arising out of lack of payment of such persons or entities.
(“SUBCONTRACTOR”)
By:
(Authorized Corporate Officer/Partner/Owner)
Name/Title:
Date:
Payment Application Packet
Page 4 of 9
Final Statement of Contract Account
INTERIM LIEN CLAIM WAIVER FORM FOR CALIFORNIA PROJECTS (ONLY)
(Name of Firm Giving Release)
(WPI Project Name & Number)
(Business Address)
(Project Address)
(City, State, Zip Code)
(Project City, State, Zip Code)
CONDITIONAL RELEASE
UNCONDITIONAL RELEASE
UPON RECEIPT BY THE UNDERSIGNED OF A CHECK FROM:
Maker of Check:
In the sum of $
Payable To:
THE UNDERSIGNED HAS BEEN PAID AND HAS RECEIVED A PROGRESS
PAYMENT IN THE SUM OF $
FOR LABOR,
SERVICES, EQUIPMENT OR MATERIAL FURNISHED TO:
Your Customer:
Payee or Payees of Check:
AND WHEN THE CHECK HAS BEEN PROPERLY ENDORSED AND HAS BEEN PAID BY
THE BANK UPON WHICH IT IS DRAWN, THIS DOCUMENT SHALL BECOME
EFFECTIVE TO RELEASE ANY MECHANIC’S LIEN, STOP NOTICE, OR BOND RIGHT
THE UNDERSIGNED HAS ON THE JOB OF:
ON THE JOB OF:
Owner:
LOCATED AT:
Owner:
Job Description:
LOCATED AT:
Job Address:
Job Description:
Job Address:
TO THE FOLLOWING EXTENT: THIS RELEASE COVERS A PROGRESS PAYMENT
FOR LABOR, SERVICES, EQUIPMENT OR MATERIAL FURNISHED TO:
AND DOES HEREBY RELEASE ANY MECHANIC’S LIEN, STOP NOTICE, OR BOND
RIGHT THAT THE UNDERSIGNED HAS ON THE ABOVE REFERENCED JOB TO THE
FOLLOWING EXTENT: THIS RELEASE COVERS A PROGRESS PAYMENT FOR
LABOR, SERVICES, EQUIPMENT OR MATERIALS FURNISHED TO:
Your Customer:
Your Customer:
,
(date), ONLY
THROUGH
AND DOES NOT COVER ANY RETENTIONS RETAINED BEFORE OR AFTER THE
RELEASE DATE; EXTRAS FURNISHED BEFORE THE RELEASE DATE FOR WHICH
PAYMENT HAS NOT BEEN RECEIVED; EXTRAS OR ITEMS FURNISHED AFTER THE
RELEASE DATE. RIGHTS BASED UPON WORK PERFORMED OR ITEMS FURNISHED
UNDER A WRITTEN CHANGE ORDER WHICH HAS BEEN FULLY EXECUTED BY THE
PARTIES PRIOR TO THE RELEASE DATE ARE COVERED BY THIS RELEASE UNLESS
SPECIFICALLY RESERVED BY THE CLAIMAINANT IN THIS RELEASE. THIS RELEASE
OF ANY MECHANIC’S LIEN, STOP NOTICE, OR BOND RIGHT SHALL NOT
OTHERWISE AFFECT THE CONTRACT RIGHTS, INCLUDING RIGHTS BETWEEN
PARTIES TO THE CONTRACT BASED OPON A RESCISSION, ABANDONMENT, OR
BREACH OF THE CONTRACT, OR THE RIGHT OF THE UNDERSIGNED TO RECOVER
COMPENSATION FOR THE FURNISHED LABOR, SERVICES, EQUIPMENT, OR
MATERIAL COVERED BY THIS RELEASE IF THAT FURNISHED LABOR, SERVICES,
EQUIPMENT, OR MATERIAL WAS NOT COMPENSATED BY THE PROGRESS
PAYMENT. BEFORE ANY RECIPIENT OF THE DOCUMENT RELIES ON IT, SAID
PARTY SHOULD VERIFY EVIDENCE OF PAYMENT TO THE UNDERSIGNED.
DATE:
,
(date), ONLY
THROUGH
AND DOES NOT COVER ANY RETENTIONS RETAINED BEFORE OR AFTER THE
RELEASE DATE; EXTRAS FURNISHED BEFORE THE RELEASE DATE FOR WHICH
PAYMENT HAS NOT BEEN RECEIVED; EXTRAS OR ITEMS FURNISHED AFTER
THE RELEASE DATE. RIGHTS BASED UPON WORK PERFORMED OR ITEMS
FURNISHED UNDER A WRITTEN CHANGE ORDER WHICH HAS BEEN FULLY
EXECUTED BY THE PARTIES PRIOR TO THE RELEASE DATE ARE COVERED BY
THIS RELEASE UNLESS SPECIFICALLY RESERVED BY THE CLAIMAINANT IN THIS
RELEASE. THIS RELEASE OF ANY MECHANIC’S LIEN, STOP NOTICE, OR BOND
RIGHT SHALL NOT OTHERWISE AFFECT THE CONTRACT RIGHTS, INCLUDING
RIGHTS BETWEEN PARTIES TO THE CONTRACT BASED OPON A RESCISSION,
ABANDONMENT, OR BREACH OF THE CONTRACT, OR THE RIGHT OF THE
UNDERSIGNED TO RECOVER COMPENSATION FOR THE FURNISHED LABOR,
SERVICES, EQUIPMENT, OR MATERIAL COVERED BY THIS RELEASE IF THAT
FURNISHED LABOR, SERVICES, EQUIPMENT, OR MATERIAL WAS NOT
COMPENSATED BY THE PROGRESS PAYMENT.
DATE:
(Company)
BY:
(Name and Title)
(Company)
BY:
(Name and Title)
(Signature)
(Signature)
(Address)
(Address)
THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU
HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS
ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN
PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL RELEASE FORM.
Payment Application Packet
Page 5 of 9
Interim Lien Claim Waiver Form CA
FINAL PAYMENT WAIVER FORM FOR CALIFORNIA PROJECTS (ONLY)
(Name of Firm Giving Release)
(WPI Project Name & Number)
(Business Address)
(Project Address)
(City, State, Zip Code)
(Project City, State, Zip Code)
CONDITIONAL RELEASE
UNCONDITIONAL RELEASE
UPON RECEIPT BY THE UNDERSIGNED OF A CHECK FORM:
THE UNDERSIGNED HAS BEEN PAID IN FULL FOR ALL LABOR, SERVICES,
EQUIPMENT OR MATERIAL FURNISHED TO:
Maker of Check:
In the sum of $
Your Customer:
Payable To:
Payee or Payees of Check:
AND WHEN THE CHECK HAS BEEN PROPERTY ENDORSED AND HAS BEEN PAID
BY THE BANK UPON WHICH IT IS DRAWN, THIS DOCUMENT SHALL BECOME
EFFECTIVE TO RELEASE ANY MECHANIC’S LIEN, STOP NOTICE, OR BOND RIGHT
THE UNDERSIGNED HAS ON THE JOB OF:
ON THE JOB OF:
Owner:
LOCATED AT:
Owner:
Job Description:
LOCATED AT:
Job Address:
Job Description:
Job Address:
THIS RELEASE COVERS THE FINAL PAYMENT TO THE UNDERSIGNED FOR ALL
LABOR, SERVICES, EQUIPMENT, OR MATERIAL FURNISHED ON THE JOB, EXCEPT
FOR DISPUTED CLAIMS FOR ADDITIONAL WORK IN THE AMOUNT OF:
$
AND DOES HEREBY WAIVE AND RELEASE ANY RIGHT TO A MECHANIC’S LIEN,
STOP NOTICE, OR ANY RIGHT AGAINST A LABOR AND MATERIAL BOND ON THE
JOB, EXCEPT FOR DISPUTED CLAIMS FOR EXTRA WORK IN THE AMOUNT OF:
$
AND/OR THE FOLLOWING ITEMS:
AND/OR THE FOLLOWING ITEMS:
DATE:
BEFORE ANY RECIPIENT OF THIS DOCUMENT RELIES ON IT, THE PARTY SHOULD
VERIFY EVIDENCE OF PAYMENT TO THE UNDERSIGNED:
(Company)
BY:
(Name and Title)
DATE:
(Signature)
(Company)
(Address)
BY:
(Name and Title)
THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU
HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS
ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN
PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL RELEASE FORM.
(Signature)
(Address)
Payment Application Packet
Page 6 of 9
Final Payment Waiver Form CA
SUBTIER/SUPPLIER LIST
Company Name:
Contact Name:
Phone Number:
WPI Project Number / Name:
The following list must include all persons or entities that have or will be supplying labor, materials, equipment and/or services to the Project.
This form MUST be filled out before you begin work on the Project and submitted with each payment application thereafter.
Name of Subtier/Supplier
Subcontractor or
Supplier
A/R Credit
Contact Name
A/R Credit
Contact Ph.
Contract Value
The undersigned warrants that the above list is a full and complete listing of all persons or entities that have or will be supplying labor, materials,
equipment and/or services to the Project for or on behalf of the undersigned.
Signature of Authorized Corporate Officer/Partner/Owner
Date
Printed Name and Title
Payment Application Packet
Page 7 of 9
Subtier/Supplier List Form
SUBTIER/SUPPLIER FINAL STATEMENT OF CONTRACT ACCOUNT
TO:
Western Partitions, Inc. (“WPI”)
Attn: Accounts Receivable
8300 SW Hunziker Rd.
Tigard, OR 97223
FROM:
PROJECT:
SUBCONTRACTOR:
OWNER:
CONTRACTOR:
(“Company”)
(“Project”)
(“Subcontractor”)
(“Owner”)
(“Contractor”)
STATEMENT OF CONTRACT ACCOUNT:
1.
2.
3.
Original Contract Amount
Approved Change Orders through No.
Final Adjusted Contract Amount
$
$
$
4.
5.
Total Payments Received To Date (Gross Amount)
Balance of Payments Due (Gross Amount)
$
$
6.
7.
Retainage Held To Date
Adjustments/ Misc. Extras Due
$
$
8.
Final Payment Due
$
CERTIFICATION AND RELEASE:
KNOW ALL MEN BY THESE PRESENTS: For and in consideration of the payment to undersigned of the above balance (item 8) for labor,
materials, equipment and/or services furnished in connection with performance of the Project, the undersigned does hereby agree and
acknowledge:
1.
Upon payment of said balance, the undersigned agrees it will be fully and completely paid for any and all labor, materials, equipment and/or
services furnished by undersigned to the Project and the undersigned hereby releases and discharges the Project, the Owner, Contractor WPI
and Subcontractor from any and all liens, demands, accounts and claims of any nature relating to the furnishing of said labor, materials,
equipment and/or services, whether arising now or in the future and whether known or unknown. These releases are not limited by the
amount of the above payment or in any other way.
2.
The undersigned certifies that all persons or entities who have supplied labor, materials, equipment and/or services to the Project for or at
the request of the undersigned have been paid in full, and the undersigned agrees to indemnify, defend, and hold harmless the Project, the
Owner, Contractor, WPI and Subcontractor from and against any and all claims, liability and loss arising out of lack of payment of such
persons or entities.
COMPANY NAME
By:
(Authorized Corporate Officer/Partner/Owner)
Name/Title:
Date:
Payment Application Packet
Page 8 of 9
Subtier/Supplier Final Statement of Contract Account
UNION AFFIDAVIT OF WAGES PAID (SAMPLE)
THE FOLLOWING IS A SAMPLE OF A UNION AFFIDAVIT OF WAGES PAID FORM WHICH MUST BE OBTAINED FROM
EACH APPLICABLE UNION USED WITH RESPECT TO WORK INCLUDED ON THE PAYMENT APPLICATION. THE
AFFIDAVIT(S) MUST BE ON THE UNION”S OWN LETTERHEAD AND INCLUDED WITH EACH PAY APPLICATION.
AFFIDAVIT
FOR:
PROJECT:
Subcontractor Name
Project Name
Project Address
City, State and Zip
The undersigned hereby certify that all Trust benefits on behalf of the above-named subcontractor are paid and current through:
(Month)
(Year). This certification shall in no way relieve the above noted
Subcontractor of responsibility for employee benefit contributions not reported or incorrectly reported and due.
Union Trust:
By:
Title:
Date:
Address:
Telephone:
Fax:
Payment Application Packet
Page 9 of 9
Union Affidavit of Wages Paid (Sample Only)
REQUIRED FOR DAVIS BACON/FEDERAL PROJECTS
OMB No.: 9000-0014
Expires: 6/30/2014
STATEMENT AND ACKNOWLEDGMENT
Public reporting burden for this collection of information is estimated to average 30 minutes per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the FAR Secretariat,
(VIR), Regulatory and Federal Assistance Division, GSA, Washington, DC 20405; and to the Office of Management and Budget, Paperwork Reduction
Project (9000-0014), Washington, DC 20503.
PART I - STATEMENT OF PRIME CONTRACTOR
1. PRIME CONTRACT NO.
2. DATE SUBCONTRACT
AWARDED
3. SUBCONTRACT NUMBER
4. PRIME CONTRACTOR
5. SUBCONTRACTOR
a. NAME
a. NAME
b. STREET ADDRESS
b. STREET ADDRESS
c. CITY
d. STATE e. ZIP CODE
6. The prime contract
does,
Overtime Compensation."
c. CITY
d. STATE e. ZIP CODE
does not contain the clause entitled "Contract Work Hours and Safety Standards Act --
7. The prime contractor states that under the contract shown in Item 1, a subcontract was awarded on the date shown in Item 2 to the
subcontractor identified in item 5 by the following firm:
a. NAME OF AWARDING FIRM
b. DESCRIPTION OF WORK BY SUBCONTRACTOR
8. PROJECT
10a. NAME OF PERSON SIGNING
9. LOCATION
12. DATE SIGNED
11. BY (Signature)
10b. TITLE OF PERSON SIGNING
PART II - ACKNOWLEDGMENT OF SUBCONTRACTOR
13. The subcontractor acknowledges that the following clauses of the contract shown in Item 1 are included in this subcontract:
Contract Work Hours and Safety
Standards Act - Overtime
Compensation - (If included in prime contract see Block 6)
Payrolls and Basic Records
Withholding of Funds
Disputes Concerning Labor Standards
Compliance with Davis-Bacon and Related Act Regulations
Davis-Bacon Act
Apprentices and Trainees
Compliance with Copeland Act Requirements
Subcontracts (Labor Standards)
Contract Termination - Debarment
Certification of Eligibility
14. NAME(S) OF ANY INTERMEDIATE SUBCONTRACTORS, IF ANY
A
C
B
D
15a. NAME OF PERSON SIGNING
16. BY (Signature)
17. DATE SIGNED
15b. TITLE OF PERSON SIGNING
AUTHORIZED FOR LOCAL REPRODUCTION
PREVIOUS EDITION IS NOT USABLE
STANDARD FORM 1413
(REV. 7/2005)
Prescribed by GSA/FAR (48 CFR) 53.222(e)
SUB‐SUBCONTRACTOR/SUPPLIER INFORMATION FORM PLEASE COMPLETE THIS FORM IN ITS ENTIRETY AND RETURN IT TO: ATTN: CONTRACTS DEPARTMENT, WESTERN PARTITIONS, INC., 8300 SW HUNZIKER RD., TIGARD, OREGON 97223 Please type or print legibly all answers to the best of your knowledge If any questions do not apply, please put “NA” to show that you have not missed the question. Please enclose all required attachments and attach an extra sheet of paper where necessary if needed to answer any questions. Company Information Date Form Completed: Name of Company: Street Address: City: State: Zip: Mailing Address: State: Zip: City: Website: Main Fax Number: Main Phone Number : Main Office Regional Office Branch Office Is this address: Name of parent Company: Address of parent Company: Is this Company: MBE WBE DBE Certified By: Certification #s: (Please attach copies of all certifications.) State of incorporation: Date of incorporation: Year Company started: Type of Company: Corp. Partnership Proprietorship L.L.C. L.P. Other: Federal ID Number: Contractor license(s), issuing state(s) and license expiration(s): State Sales Tax Registration Number: State Unemployment Insurance Number: Under what other names has your Company operated? Is this Company: Subcontractor Supplier Both List of corporate officers, partners, proprietors, members and shareholders of more than 5% stock of the Company: Name Position % Owned # Yrs w/ Co. List key Company contacts: Department(s) Contact Name/Title Projects Contracts Accounting Emergency Phone Fax Email List key office personnel and field supervisors: Name Position WPI Sub/Supplier Info Form
# Yrs. w/ Co. 1 of 5
Yrs. of Experience SSI052008
How many people does your Company presently employ? Home Office Field Supervisory Trades People How many people did your Company employ for the past three (3) years? Year 20___ Home Office Field Supervisory Trades People Year 20___ Home Office Field Supervisory Trades People Year 20___ Home Office Field Supervisory Trades People List any subsidiaries and affiliates of your Company: Name Address Ownership List the Union(s) which you have agreements with: Local Number Union Name Type of Co. Expiration MBE/WBE participation in work which you subcontract (average for the last three (3) years): MBE ____% WBE ____% Minority/Female workforce participation (average for the last three (3) years): MIN ____% FEM ____% List three (3) of your major suppliers: Name Address Contact Name Phone No. List three (3) General/Sub Contractors (besides WPI) that subcontracts to you: Name Address Contact Name Phone No. Trade Association Memberships: List local or national accredited training programs in which you participate (craft or management training): Project/ Bidding Information Please list Company’s bidding interest by trades and Code Trade Name WPI Sub/Supplier Info Form
Code NAICS (N) codes or Trade Name 2 of 5
SIC (S) codes (attach list if needed). Code Trade Name SSI052008
List the geographical areas and/or states in which you work: Check all building types on which your Company has worked: High Rise Office Building Mid Rise Office Building Hotels / Motels Residential Renovation/TI Other(s): Hospital Industrial Building Sports / Entertainment High Tech Educational Laboratories Correctional Facilities Design Build Design Assist Government/Public Works Rank by order of precedence (1, 2, 3, etc) where “1” is the project size you are most competitive in performing. The numbers should be in order of preference and size of projects capable of performing (place an X if not applicable). Range # Range # Range # Under $10,000 $100,001 ‐ $200,000 $700,001 ‐ $1,000,000 $10,001 ‐ $50,000 $200,001 ‐ $400,000 $1,000,001 ‐ $5,000,000 $50,001 ‐ $100,000 $400,001 ‐ $700,000 Over $5,000,001 What is the largest contract your Company has completed? Amt: $ Scope: Project Name: What is the largest dollar volume job you expect to do during this year? Amt: $ Scope: Project Name: What is your expected annual volume this year? Amt: $ #of Projects What was the average annual volume of work performed over the past four (4) years? Year: Volume: Year: Volume: Year: Volume: Year: Volume: List the trades you normally perform with your own forces: Trade Name Trade Name Trade Name Year: Year: Trade Name What trades do you normally subcontract? Trade Name Trade Name Trade Name Trade Name What percentage of the Company’s work is normally subcontracted? % Attach a current list of major projects giving name of project, project address, owner, architect, general contractor, contract amount, scope of work, scheduled completion, and percent of completion. Attach a list of completed projects giving name of project, project address, owner, architect, general contractor, contract amount, scope of work, contact people and phone numbers and/or email addresses. WPI Sub/Supplier Info Form
3 of 5
SSI052008
Financial Information Has your Company or any of its principals ever petitioned for bankruptcy, failed in business, default or been terminated on a contract awarded to you? No Yes ‐ If Yes, please explain: Have any of the owners, officers or major stockholders of your Company ever been indicted or convicted of any felony or other criminal conduct? No Yes ‐ If Yes, please explain: Have any of your owners, officers, or major stockholders ever been suspended, disbarred or otherwise precluded from pursuing public work or ever been found to be non‐responsive by a public agency. No Yes ‐ If Yes, please explain: Has your Company ever had a claim made against it for improper, delayed, defective or non‐compliant work or failure to meet warranty obligations? No Yes ‐ If Yes, please explain: Is your Company or any of its owners, officers or major shareholders currently involved in any arbitration or litigation? No Yes ‐ If Yes, please explain: Does your Company have any outstanding judgments or claims against it? No Yes ‐ If Yes, please explain: Please list any litigation brought against your Company in the past five (5) years asserting that you failed to make payments to anyone. Attach a copy of your latest audited financial statement. (Your financial statement is strictly for qualification and shall be treated as confidential information for review only by the Contracts and Finance departments of WPI.) If the attached financial statement is not for the identical Company named above, explain the relationship and financial responsibility of the Company whose financial statement is provided. If not attached please explain why: Financial Institution/Bank Information: Name: Address: Phone: Fax: Amount of Credit Line: $ UCC Filing Yes No How is credit secured: What is your Company’s Dunn and Bradstreet (D&B) Bonding Information: Bonding Company: Surety: Contact Name: Bonding Capacity: Per Job: $ Date of Last Bond: WPI Sub/Supplier Info Form
4 of 5
Amount Available: $ Number: Pay Record: Remarks: Exp: D&B Rating: Date of Rating: Phone Number: Aggregate: $ Amount: $ Bond Rate: % SSI052008
Safety Information Complete and attach WPI’s Safety Program Evaluation Form Insurance Information Agent/Broker: Address: Contact: Insurance Carrier: Phone: Provide a copy of your insurance certificate showing your policy, exclusions and limits including: 9 Commercial General Liability (maximum obtainable) Is there any exclusion from Standard CGL Policy No Yes – If yes please explain: 9 Excess Liability (maximum obtainable) 9 Auto Liability (maximum obtainable) 9 Worker’s Compensation & Employer’s Liability (statutory) 9 Professional or Other Liability Coverage Submit Rate Pages for Worker’s Compensation, Commercial General Liability and Umbrella Insurance for current policy year. The above information has been completed and verified by the undersigned and he/she guarantees they are an officer, agent, owner or otherwise authorized representative of the Company and that the above information is true day of , 20 . and accurate to the best of his/her knowledge and signed on this Name of Company: Completed/Verified By: (Signature of Officer, Agent, Owner or Authorized Representative of the Company) Print Name & Title: WPI Sub/Supplier Info Form
5 of 5
SSI052008
W-9
Request for Taxpayer
Identification Number and Certification
Form
(Rev. October 2007)
Department of the Treasury
Internal Revenue Service
Give form to the
requester. Do not
send to the IRS.
Print or type
See Specific Instructions on page 2.
Name (as shown on your income tax return)
Business name, if different from above
Check appropriate box:
Individual/Sole proprietor
Corporation
Partnership
Limited liability company. Enter the tax classification (D=disregarded entity, C=corporation, P=partnership)
Other (see instructions)
©
Exempt
payee
©
Address (number, street, and apt. or suite no.)
Requester’s name and address (optional)
City, state, and ZIP code
List account number(s) here (optional)
Part I
Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on Line 1 to avoid
backup withholding. For individuals, this is your social security number (SSN). However, for a resident
alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is
your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3.
Social security number
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose
number to enter.
Employer identification number
Part II
or
Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding, and
3. I am a U.S. citizen or other U.S. person (defined below).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct TIN. See the instructions on page 4.
Sign
Here
Signature of
U.S. person ©
Date ©
General Instructions
Section references are to the Internal Revenue Code unless
otherwise noted.
Purpose of Form
A person who is required to file an information return with the
IRS must obtain your correct taxpayer identification number (TIN)
to report, for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.
Use Form W-9 only if you are a U.S. person (including a
resident alien), to provide your correct TIN to the person
requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S.
exempt payee. If applicable, you are also certifying that as a
U.S. person, your allocable share of any partnership income from
a U.S. trade or business is not subject to the withholding tax on
foreign partners’ share of effectively connected income.
Note. If a requester gives you a form other than Form W-9 to
request your TIN, you must use the requester’s form if it is
substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are
considered a U.S. person if you are:
● An individual who is a U.S. citizen or U.S. resident alien,
● A partnership, corporation, company, or association created or
organized in the United States or under the laws of the United
States,
● An estate (other than a foreign estate), or
● A domestic trust (as defined in Regulations section
301.7701-7).
Special rules for partnerships. Partnerships that conduct a
trade or business in the United States are generally required to
pay a withholding tax on any foreign partners’ share of income
from such business. Further, in certain cases where a Form W-9
has not been received, a partnership is required to presume that
a partner is a foreign person, and pay the withholding tax.
Therefore, if you are a U.S. person that is a partner in a
partnership conducting a trade or business in the United States,
provide Form W-9 to the partnership to establish your U.S.
status and avoid withholding on your share of partnership
income.
The person who gives Form W-9 to the partnership for
purposes of establishing its U.S. status and avoiding withholding
on its allocable share of net income from the partnership
conducting a trade or business in the United States is in the
following cases:
● The U.S. owner of a disregarded entity and not the entity,
Cat. No. 10231X
Form
W-9
(Rev. 10-2007)
Form W-9 (Rev. 10-2007)
Page
2
● The U.S. grantor or other owner of a grantor trust and not the
trust, and
● The U.S. trust (other than a grantor trust) and not the
beneficiaries of the trust.
4. The IRS tells you that you are subject to backup
withholding because you did not report all your interest and
dividends on your tax return (for reportable interest and
dividends only), or
Foreign person. If you are a foreign person, do not use Form
W-9. Instead, use the appropriate Form W-8 (see Publication
515, Withholding of Tax on Nonresident Aliens and Foreign
Entities).
5. You do not certify to the requester that you are not subject
to backup withholding under 4 above (for reportable interest and
dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup
withholding. See the instructions below and the separate
Instructions for the Requester of Form W-9.
Also see Special rules for partnerships on page 1.
Nonresident alien who becomes a resident alien. Generally,
only a nonresident alien individual may use the terms of a tax
treaty to reduce or eliminate U.S. tax on certain types of income.
However, most tax treaties contain a provision known as a
“saving clause.” Exceptions specified in the saving clause may
permit an exemption from tax to continue for certain types of
income even after the payee has otherwise become a U.S.
resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception
contained in the saving clause of a tax treaty to claim an
exemption from U.S. tax on certain types of income, you must
attach a statement to Form W-9 that specifies the following five
items:
1. The treaty country. Generally, this must be the same treaty
under which you claimed exemption from tax as a nonresident
alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that
contains the saving clause and its exceptions.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a
requester, you are subject to a penalty of $50 for each such
failure unless your failure is due to reasonable cause and not to
willful neglect.
Civil penalty for false information with respect to
withholding. If you make a false statement with no reasonable
basis that results in no backup withholding, you are subject to a
$500 penalty.
Criminal penalty for falsifying information. Willfully falsifying
certifications or affirmations may subject you to criminal
penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in
violation of federal law, the requester may be subject to civil and
criminal penalties.
4. The type and amount of income that qualifies for the
exemption from tax.
Specific Instructions
5. Sufficient facts to justify the exemption from tax under the
terms of the treaty article.
Name
Example. Article 20 of the U.S.-China income tax treaty allows
an exemption from tax for scholarship income received by a
Chinese student temporarily present in the United States. Under
U.S. law, this student will become a resident alien for tax
purposes if his or her stay in the United States exceeds 5
calendar years. However, paragraph 2 of the first Protocol to the
U.S.-China treaty (dated April 30, 1984) allows the provisions of
Article 20 to continue to apply even after the Chinese student
becomes a resident alien of the United States. A Chinese
student who qualifies for this exception (under paragraph 2 of
the first protocol) and is relying on this exception to claim an
exemption from tax on his or her scholarship or fellowship
income would attach to Form W-9 a statement that includes the
information described above to support that exemption.
If you are a nonresident alien or a foreign entity not subject to
backup withholding, give the requester the appropriate
completed Form W-8.
If you are an individual, you must generally enter the name
shown on your income tax return. However, if you have changed
your last name, for instance, due to marriage without informing
the Social Security Administration of the name change, enter
your first name, the last name shown on your social security
card, and your new last name.
What is backup withholding? Persons making certain payments
to you must under certain conditions withhold and pay to the
IRS 28% of such payments. This is called “backup withholding.”
Payments that may be subject to backup withholding include
interest, tax-exempt interest, dividends, broker and barter
exchange transactions, rents, royalties, nonemployee pay, and
certain payments from fishing boat operators. Real estate
transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments
you receive if you give the requester your correct TIN, make the
proper certifications, and report all your taxable interest and
dividends on your tax return.
Payments you receive will be subject to backup
withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the Part II
instructions on page 3 for details),
3. The IRS tells the requester that you furnished an incorrect
TIN,
If the account is in joint names, list first, and then circle, the
name of the person or entity whose number you entered in Part I
of the form.
Sole proprietor. Enter your individual name as shown on your
income tax return on the “Name” line. You may enter your
business, trade, or “doing business as (DBA)” name on the
“Business name” line.
Limited liability company (LLC). Check the “Limited liability
company” box only and enter the appropriate code for the tax
classification (“D” for disregarded entity, “C” for corporation, “P”
for partnership) in the space provided.
For a single-member LLC (including a foreign LLC with a
domestic owner) that is disregarded as an entity separate from
its owner under Regulations section 301.7701-3, enter the
owner’s name on the “Name” line. Enter the LLC’s name on the
“Business name” line.
For an LLC classified as a partnership or a corporation, enter
the LLC’s name on the “Name” line and any business, trade, or
DBA name on the “Business name” line.
Other entities. Enter your business name as shown on required
federal tax documents on the “Name” line. This name should
match the name shown on the charter or other legal document
creating the entity. You may enter any business, trade, or DBA
name on the “Business name” line.
Note. You are requested to check the appropriate box for your
status (individual/sole proprietor, corporation, etc.).
Exempt Payee
If you are exempt from backup withholding, enter your name as
described above and check the appropriate box for your status,
then check the “Exempt payee” box in the line following the
business name, sign and date the form.
Form W-9 (Rev. 10-2007)
Page
Generally, individuals (including sole proprietors) are not exempt
from backup withholding. Corporations are exempt from backup
withholding for certain payments, such as interest and dividends.
Note. If you are exempt from backup withholding, you should
still complete this form to avoid possible erroneous backup
withholding.
The following payees are exempt from backup withholding:
1. An organization exempt from tax under section 501(a), any
IRA, or a custodial account under section 403(b)(7) if the account
satisfies the requirements of section 401(f)(2),
3
Part I. Taxpayer Identification
Number (TIN)
The chart below shows types of payments that may be
exempt from backup withholding. The chart applies to the
exempt payees listed above, 1 through 15.
Enter your TIN in the appropriate box. If you are a resident
alien and you do not have and are not eligible to get an SSN,
your TIN is your IRS individual taxpayer identification number
(ITIN). Enter it in the social security number box. If you do not
have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may
enter either your SSN or EIN. However, the IRS prefers that you
use your SSN.
If you are a single-member LLC that is disregarded as an
entity separate from its owner (see Limited liability company
(LLC) on page 2), enter the owner’s SSN (or EIN, if the owner
has one). Do not enter the disregarded entity’s EIN. If the LLC is
classified as a corporation or partnership, enter the entity’s EIN.
Note. See the chart on page 4 for further clarification of name
and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one
immediately. To apply for an SSN, get Form SS-5, Application
for a Social Security Card, from your local Social Security
Administration office or get this form online at www.ssa.gov. You
may also get this form by calling 1-800-772-1213. Use Form
W-7, Application for IRS Individual Taxpayer Identification
Number, to apply for an ITIN, or Form SS-4, Application for
Employer Identification Number, to apply for an EIN. You can
apply for an EIN online by accessing the IRS website at
www.irs.gov/businesses and clicking on Employer Identification
Number (EIN) under Starting a Business. You can get Forms W-7
and SS-4 from the IRS by visiting www.irs.gov or by calling
1-800-TAX-FORM (1-800-829-3676).
If you are asked to complete Form W-9 but do not have a TIN,
write “Applied For” in the space for the TIN, sign and date the
form, and give it to the requester. For interest and dividend
payments, and certain payments made with respect to readily
tradable instruments, generally you will have 60 days to get a
TIN and give it to the requester before you are subject to backup
withholding on payments. The 60-day rule does not apply to
other types of payments. You will be subject to backup
withholding on all such payments until you provide your TIN to
the requester.
Note. Entering “Applied For” means that you have already
applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded domestic entity that has a foreign owner
must use the appropriate Form W-8.
IF the payment is for . . .
THEN the payment is exempt
for . . .
Part II. Certification
Interest and dividend payments
All exempt payees except
for 9
Broker transactions
Exempt payees 1 through 13.
Also, a person registered under
the Investment Advisers Act of
1940 who regularly acts as a
broker
Barter exchange transactions
and patronage dividends
Exempt payees 1 through 5
Payments over $600 required
to be reported and direct
1
sales over $5,000
Generally, exempt
payees
2
1 through 7
2. The United States or any of its agencies or
instrumentalities,
3. A state, the District of Columbia, a possession of the United
States, or any of their political subdivisions or instrumentalities,
4. A foreign government or any of its political subdivisions,
agencies, or instrumentalities, or
5. An international organization or any of its agencies or
instrumentalities.
Other payees that may be exempt from backup withholding
include:
6. A corporation,
7. A foreign central bank of issue,
8. A dealer in securities or commodities required to register in
the United States, the District of Columbia, or a possession of
the United States,
9. A futures commission merchant registered with the
Commodity Futures Trading Commission,
10. A real estate investment trust,
11. An entity registered at all times during the tax year under
the Investment Company Act of 1940,
12. A common trust fund operated by a bank under section
584(a),
13. A financial institution,
14. A middleman known in the investment community as a
nominee or custodian, or
15. A trust exempt from tax under section 664 or described in
section 4947.
1
2
See Form 1099-MISC, Miscellaneous Income, and its instructions.
However, the following payments made to a corporation (including gross
proceeds paid to an attorney under section 6045(f), even if the attorney is a
corporation) and reportable on Form 1099-MISC are not exempt from
backup withholding: medical and health care payments, attorneys’ fees, and
payments for services paid by a federal executive agency.
To establish to the withholding agent that you are a U.S. person,
or resident alien, sign Form W-9. You may be requested to sign
by the withholding agent even if items 1, 4, and 5 below indicate
otherwise.
For a joint account, only the person whose TIN is shown in
Part I should sign (when required). Exempt payees, see Exempt
Payee on page 2.
Signature requirements. Complete the certification as indicated
in 1 through 5 below.
1. Interest, dividend, and barter exchange accounts
opened before 1984 and broker accounts considered active
during 1983. You must give your correct TIN, but you do not
have to sign the certification.
2. Interest, dividend, broker, and barter exchange
accounts opened after 1983 and broker accounts considered
inactive during 1983. You must sign the certification or backup
withholding will apply. If you are subject to backup withholding
and you are merely providing your correct TIN to the requester,
you must cross out item 2 in the certification before signing the
form.
Form W-9 (Rev. 10-2007)
Page
3. Real estate transactions. You must sign the certification.
You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you
do not have to sign the certification unless you have been
notified that you have previously given an incorrect TIN. “Other
payments” include payments made in the course of the
requester’s trade or business for rents, royalties, goods (other
than bills for merchandise), medical and health care services
(including payments to corporations), payments to a
nonemployee for services, payments to certain fishing boat crew
members and fishermen, and gross proceeds paid to attorneys
(including payments to corporations).
5. Mortgage interest paid by you, acquisition or
abandonment of secured property, cancellation of debt,
qualified tuition program payments (under section 529), IRA,
Coverdell ESA, Archer MSA or HSA contributions or
distributions, and pension distributions. You must give your
correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
For this type of account:
1. Individual
2. Two or more individuals (joint
account)
3. Custodian account of a minor
(Uniform Gift to Minors Act)
4. a. The usual revocable savings
trust (grantor is also trustee)
b. So-called trust account that is
not a legal or valid trust under
state law
5. Sole proprietorship or disregarded
entity owned by an individual
Give name and SSN of:
The individual
The actual owner of the account or,
if combined funds, the first
1
individual on the account
2
The minor
The grantor-trustee
The actual owner
The owner
1
2
3
4
1
3
Give name and EIN of:
For this type of account:
6. Disregarded entity not owned by an
individual
7. A valid trust, estate, or pension trust
8. Corporate or LLC electing
corporate status on Form 8832
9. Association, club, religious,
charitable, educational, or other
tax-exempt organization
10. Partnership or multi-member LLC
11. A broker or registered nominee
12. Account with the Department of
Agriculture in the name of a public
entity (such as a state or local
government, school district, or
prison) that receives agricultural
program payments
1
The owner
4
Legal entity
The corporation
The organization
4
Secure Your Tax Records from Identity Theft
Identity theft occurs when someone uses your personal
information such as your name, social security number (SSN), or
other identifying information, without your permission, to commit
fraud or other crimes. An identity thief may use your SSN to get
a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
● Protect your SSN,
● Ensure your employer is protecting your SSN, and
● Be careful when choosing a tax preparer.
Call the IRS at 1-800-829-1040 if you think your identity has
been used inappropriately for tax purposes.
Victims of identity theft who are experiencing economic harm
or a system problem, or are seeking help in resolving tax
problems that have not been resolved through normal channels,
may be eligible for Taxpayer Advocate Service (TAS) assistance.
You can reach TAS by calling the TAS toll-free case intake line
at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing
schemes. Phishing is the creation and use of email and
websites designed to mimic legitimate business emails and
websites. The most common act is sending an email to a user
falsely claiming to be an established legitimate enterprise in an
attempt to scam the user into surrendering private information
that will be used for identity theft.
The IRS does not initiate contacts with taxpayers via emails.
Also, the IRS does not request personal detailed information
through email or ask taxpayers for the PIN numbers, passwords,
or similar secret access information for their credit card, bank, or
other financial accounts.
If you receive an unsolicited email claiming to be from the IRS,
forward this message to phishing@irs.gov. You may also report
misuse of the IRS name, logo, or other IRS personal property to
the Treasury Inspector General for Tax Administration at
1-800-366-4484. You can forward suspicious emails to the
Federal Trade Commission at: spam@uce.gov or contact them at
www.consumer.gov/idtheft or 1-877-IDTHEFT(438-4338).
Visit the IRS website at www.irs.gov to learn more about
identity theft and how to reduce your risk.
The partnership
The broker or nominee
The public entity
List first and circle the name of the person whose number you furnish. If only one person
on a joint account has an SSN, that person’s number must be furnished.
Circle the minor’s name and furnish the minor’s SSN.
You must show your individual name and you may also enter your business or “DBA”
name on the second name line. You may use either your SSN or EIN (if you have one),
but the IRS encourages you to use your SSN.
List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN
of the personal representative or trustee unless the legal entity itself is not designated in
the account title.) Also see Special rules for partnerships on page 1.
Note. If no name is circled when more than one name is listed,
the number will be considered to be that of the first name listed.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or
contributions you made to an IRA, or Archer MSA or HSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return.
The IRS may also provide this information to the Department of Justice for civil and criminal litigation, and to cities, states, the District of Columbia, and U.S.
possessions to carry out their tax laws. We may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal
nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism.
You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable interest, dividend, and certain other
payments to a payee who does not give a TIN to a payer. Certain penalties may also apply.
Safety Program Evaluation
All States
Company Name:
Company Address:
Telephone:
Fax:
Person Completing the Questionnaire:
Title:
Person Responsible for all Safety at your Company:
Title:
Date Prepared:
1. Please list your firm’s interstate (i.e. NCCI) experience modification rate, if any, for the past three (4)
years.
Year
NCCI Interstate
WA Rating
CA Rating
Rating
20
20
20
20
2. Number of injuries and illnesses for your entire company. Use your OSHA 300 logs from the past five
(4) years to complete this section.
Year 20
Year 20
Year 20
Year 20
Number of Lost
a)
Workday Cases1
Number of Restricted
b)
Day Cases2
Number of Recordable
c)
Cases3
d) Number of Fatalities4
Recordable Incident
Rate
Columns 4G, 1H, 2I, & 3J of the OSHA 300 Log.
3. Employee actual hours worked for each the last three (4) years (do not include any non-work time, even
though it was paid, i.e. sick leave, vacation)
Year
20
20
20
20
Sub/Supplier Safety Form
Man-hours
Page 1
Rev042611
Safety Program Evaluation
All States
4. Are accident reports (i.e. OSHA 300 log) and report summaries sent to the following individuals?
Monthly
Quarterly
Annually
Not Sent
Field Superintendents
Vice President
President
5. How often do you hold site safety meetings for field supervisors?
Weekly
Bi-weekly
Monthly
Quarterly
Semi-annually
Annually
Never
6. Does your firm conduct jobsite safety inspections?
If yes, who conducts this inspection? (Name/Title)
How often?
Yes
No
7. How frequently are summaries of OSHA incidence rates prepared for each of the following?
Monthly
Annually
Not Presented
at this Level
Incident Rates Totaled for Entire Company
Incident Rates Totaled by Project
Incident Rates Totaled by Superintendents
Incident Rates Totaled by Foremen
8. Does your firm have a written safety plan, also known as an Injury and Illness Prevention Program
(IIPP)?
Yes
No
9. Does your firm have a safety orientation program for new hires?
If yes, does this include instruction on the following?
Yes
No
N/A
Head Protection
Eye Protection
Hearing Protection
Respiratory Protection
Fall Protection
Scaffolding
Perimeter Guarding
Housekeeping
Fire Protection
First Aid Facilities
Overall Code of Safe Work practices
Injury Reporting
Emergency Procedures
Sub/Supplier Safety Form
Page 2
Yes
No
Rev042611
Safety Program Evaluation
All States
Signs, Barricades, Flagging
Electrical Safety
Rigging and Crane Safety
10. Do you have a training program for newly hired or promoted supervisors?
If yes, does this include instruction on the following?
Yes
No
Safe Work Practices
Safety Supervision
Toolbox/Tailgate Meetings
Emergency Procedures
First Aid/CPR Procedures
Accident Investigation
Fire protection and Prevention
New Worker Orientation
Yes
No
N/A
11. How frequently do your supervisors hold toolbox/tailgate safety meetings?
Yes
No
Daily
Weekly
Bi-Weekly
Monthly
Less often, as needed
12. Are supervisors/superintendent’s safety records and/or behavior specifically rated or measured on their
Yes
No
performance reviews?
13. Has your company been inspected/cited by OSHA for a safety or health violation within the last three
years?
Yes
No
If yes, please explain:
Signed:
Title:
Print Name:
Date submitted:
Sub/Supplier Safety Form
Page 3
Rev042611
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SUBCONTRACTORS
SUB #
1
2
3
4
Subcontractor/Contact/Phone Number
Specify equipment that will be used onsite:
Tasks to be Performed
Specify activities anticipated on this site:
aerial lifts
Asbestos abatement
cranes/boom trucks
Lead abatement
crane suspended work platforms
Clean construction
hand and power tools
Demolition
forklifts or all terrain material handlers
Excavation/trenching
ladders
Roof work
lasers
Steel erection
powder actuated tools
Other
pressure washers
scaffolds
welding/torch cutting equipment
other
If working on existing building components, have lead based paint and asbestos surveys been conducted?
yes
no
I don’t know
Local Utility Mark-Out Service (for any intrusive dirt work)
Name:
Phone:
SITE EMPLOYEES
RESPONSIBILITIES
Site Emergency Information (direct dial in addition to 911)
Medical Emergency
Facility Alarms:
y Medical Response #:
Local Ambulance #:
Fire/Spill Emergency
Hospital Name/Address:
Facility Fire Response #:
Local Fire Department #:
Security & Police – 911
Hospital Phone #:
y Security #:
Local Police #:
Utilities Emergency
Water:
Gas:
Electric:
Designated Safety Coordinator (SSC)
Name:
Phone:
Project Manager
Name:
Phone:
Facility/Site Evacuation Route(s):
Directions to Hospital:
Evacuation Assembly Area(s):