SUBCONTRACT No:
CONSTRUCTION SUBCONTRACT
(Under a U.S. Government Prime Contract)
This construction subcontract which shall be effective on the last signature date set forth below, is
between CHUGACH _________________________________________, an Alaska corporation
(“Chugach” or “Contractor”), and ___________________________, an Alaska ______________
(“Subcontractor”).
Chugach and ____________ (“Customer”) entered into a Prime Contract (insert contract number) for
the construction of __________________ (“Project”).
Chugach desires to subcontract the portion of its work under the Prime Contract described in Exhibit A
(“Work”).
Subcontractor has the experience, organization, human resources, and financial and technical ability to
perform such Work.
The parties therefore agree as follows:
ARTICLE 1.
SUBCONTRACT DOCUMENTS
This is a [Firm Fixed-Price/Cost-Reimbursable/Time and Materials] construction subcontract
(“Subcontract”). The “Subcontract Documents” consist of this Subcontract and attachments, and the
prime contract (“Prime Contract”) which, by this reference, is incorporated herein and made a part of
this Subcontract. The Prime Contract refers to the general and special conditions, drawings,
specifications, addenda, amendments, change orders, modifications, and all other documents forming a
part of or incorporated by reference in the contract between Chugach and Customer. Subcontractor
assumes toward Chugach all obligations and responsibilities which Chugach has assumed toward
Customer under the Prime Contract, and shall be entitled to all privileges and protections granted
Chugach by Customer under the Prime Contract, provided, however, that where any provision of the
Prime Contract is inconsistent with a provision of this Subcontract, the Subcontract provision will
control. The following documents constitute the Subcontract attachments:
Exhibit A: Scope of Work/Specifications/Drawings
Exhibit B: Completion Schedule/Work Schedule
Exhibit C: Payment Schedule
Exhibit D: Invoice Template
Exhibit E: Insurance Requirements
Exhibit F: Deliverables
Exhibit G: Release of Claims
Exhibit H: Federal Acquisition Regulation Clauses
Exhibit I: Attachments
Should any inconsistencies or omissions appear in the Subcontract Documents, it shall be the duty of the
Subcontractor to so notify Chugach in writing within three (3) working days of the Subcontractor’s
discovery thereof. Upon receipt of said notice, Chugach shall instruct the Subcontractor as to the
measures to be taken and the Subcontractor shall comply with Chugach’s instructions. If the
Subcontractor performs Work knowing it to be contrary to any applicable laws, statutes, ordinances,
building codes, rules or regulations without notice to Chugach and advance approval by appropriate
authorities, including Chugach, then the Subcontractor shall assume full responsibility for such Work and
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shall bear all associated costs, charges, fees and expenses necessarily incurred to remedy the violation.
ARTICLE 2.
2.1
GENERAL CONDITIONS
INVESTIGATION OF SITE AND PROJECT CONDITIONS
Subcontractor represents that it has taken steps reasonably necessary to ascertain the nature and
location of the Work, and that it has investigated and satisfied itself as to the general and local
conditions which can affect the Work or its cost. In the event that Chugach furnishes Subcontractor with
any information about such matters, Subcontractor acknowledges that any reliance on the information
will be at its own risk and that Chugach does not warrant the correctness or accuracy of the information.
Subcontractor represents that it has examined the Subcontract Documents and familiarized itself with
the Project, the laws, rules, and regulations relating to the Project; the environmental considerations
affecting the Project and the Work; and the character of equipment and facilities needed preliminary to
and during Work performance. No allowance will be made to Subcontractor for not having made such
examination and review, or for requirements which a reasonable examination, inquiry, or review would
have disclosed. Except to the extent relief is provided in Article 5 of the Subcontract, Subcontractor will
complete the work for the compensation stated in this Subcontract and assume complete responsibility
for the conditions (including subsurface or otherwise latent conditions) existing at the site and its
surroundings. Subcontractor’s obligation hereunder shall include but not be limited to the location of all
utilities that may affect or interfere with Subcontractor’s Work. Subcontractor shall obtain all utility
locates for all areas of its work and shall fully protect and maintain in operation all utilities at all times.
2.2
PERFORMANCE
2.2.1 Subcontractor shall perform all work which is necessary or incidental to carry out the Work for
the Project in accordance with and reasonably inferable from the Subcontract Documents, or which is
customarily done in performing this type of work. All Subcontractor Work shall be performed to the
complete satisfaction of Chugach, Customer and/or the representative of Customer authorized to
interpret and judge the performance of the Prime Contract.
2.2.2 Subcontractor agrees to perform the Work in accordance with good construction practice and
strictly in accordance with the applicable state, federal and local laws and regulations and the
Subcontract Documents. Subcontractor also agrees to furnish all supervision, labor, supplies, tools,
construction equipment, facilities, storage, permanent equipment, materials (except as specified herein
to be furnished by Customer or Chugach), and all other commodities and services necessary to perform
the Work.
2.2.3 Subcontractor shall be responsible for the correctness of the positions, levels, and dimensions of
the Work, notwithstanding that Subcontractor may have been assisted by Chugach or any other
subcontractor in setting out the same; and if at any time during the performance of the Work, an error
shall appear or arise, the Subcontractor shall immediately notify Chugach’s Project Manager and await
instructions for removal and replacement, or performance of corrective work, before proceeding with
that portion of the Work.
2.2.4 The Subcontractor promptly shall submit for approval of Customer or its representative through
Chugach all shop drawings, samples, product data, manufacturers’ literature and similar submittals
required by the Subcontract Documents. The Subcontractor shall be responsible to Chugach for the
accuracy and conformity of its submittals to the Subcontract Documents. The Subcontractor shall
prepare and deliver its submittals to Chugach in a manner consistent with the schedule of work and in
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such time and sequence so as not to delay Chugach or others in the performance of the Prime Contract
work. Approvals of submittals by Chugach shall have the effect specified in the Prime Contract. The
approval of any Subcontractor submittal shall not be deemed to authorize deviations, substitutions or
changes in the requirements of the Subcontract Documents unless express written approval is obtained
from Chugach and Customer authorizing such deviation, substitution or change. In the event that the
Subcontract Documents do not contain submittal requirements pertaining to Subcontract Work, the
Subcontractor agrees upon request to submit in a timely fashion to Chugach for approval any shop
drawings, samples, product data, manufacturers’ literature or similar submittals as may reasonably be
required by Chugach, Customer or its representative. Any Work performed by Subcontractor without
approved submittals is at Subcontractor’s risk and responsibility. Chugach and the Customer are entitled
to rely on the accuracy and completeness of any professional certifications required by the Subcontract
Documents concerning the performance criteria of systems, equipment or materials, including all
calculations relating thereto and any governing performance requirements.
2.2.5 The Subcontractor shall schedule all required tests, approvals and inspections of the
Subcontract Work or portions thereof at appropriate times so as not to delay the progress of the Project
Work. The Subcontractor shall give proper written notice to all required parties of such tests, approvals
and inspections. The Subcontractor shall bear all expenses associated with tests, inspections and
approvals required of the Subcontractor by the Subcontract Documents which, unless otherwise agreed
to, shall be conducted by an independent testing laboratory or entity approved by Chugach and
Customer. Required certificates of testing, approval or inspection shall, unless otherwise required by
the Subcontract Documents, be secured by the Subcontractor and promptly delivered to Chugach.
2.2.6 Subcontractor specifically agrees that it is responsible for the damage to any other entity’s work
until final completion and acceptance thereof by Customer and will make good or replace, at no expense
to Chugach or Customer, any damage to such work which occurs prior to said final acceptance.
2.2.7 Chugach and Customer shall have access to the Work at all times. Chugach and Customer may
occupy and use any portion of the Work which is sufficiently completed to permit such occupancy and
use, provided there is no substantial interference with performance of the balance of the Work. Such
partial occupancy and use shall not relieve Subcontractor of the obligation to complete all of the Work
strictly in accordance with the requirements of this Subcontract.
2.2.8 Subcontractor shall provide competent and adequately- trained and skilled personnel.
Subcontractor shall, on request, remove from the Project any person found by Chugach to be
incompetent, unsafe, disorderly, unreliable, or unwilling to comply with regulations. Subcontractor shall
provide badges, color codes, or other symbols or identification for its employees, tools, and equipment,
in accordance with the system specified by Chugach. Subcontractor shall cooperate in security
measures for the prevention of theft, pilferage, and waste.
2.3
SUPERINTENDENT
At all times during the performance of the Work, Subcontractor shall provide a competent resident
superintendent, who is an employee of Subcontractor, and any necessary assistants, all satisfactory to
Chugach. Chugach has the right to review the qualifications of the proposed superintendent, and to
approve or disapprove the assignment prior to Subcontractor’s mobilization onto the Project. If any of
Subcontractor’s workers are not fluent in English, Subcontractor shall provide a superintendent who is
fluent in English as well as the language spoken by the non-English speaking workers. The
superintendent shall not be replaced without Chugach’s consent, unless the superintendent ceases to
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be in the Subcontractor’s employ. Subcontractor’s superintendent shall represent Subcontractor and (1)
all directions given to the superintendent shall be as binding as if given to Subcontractor, and (2) all
decisions made by the superintendent shall be as binding as if made by Subcontractor.
2.4
COORDINATION
2.4.1 Subcontractor shall fully cooperate with Chugach and others engaged in the work on the
Project, and shall not interfere with the performance of such work, and Subcontractor shall coordinate
its work with the work of Chugach, other subcontractors, Customer and its agents or inspectors, and
utility companies or others that may be working in the area, so that the work of the entire Project may
be performed with the utmost speed consistent with good practice. The Subcontractor shall specifically
note and immediately advise Chugach in writing of any interference with the Subcontract Work, and
participate in the preparation of coordination drawings and work schedules involving the Subcontract
Work. In the case of conflict or other reasons for coordination, Chugach may direct the necessary
coordination or the performance of certain work and Subcontractor will execute its portion of such work
even at increased expense to Subcontractor and not at Chugach’s expense.
2.4.2 Subcontractor communications by and with the Customer or its representatives, separate
contractors and/or other subcontractors and suppliers of Chugach, regardless of tier, shall be through
Chugach.
2.4.3 Subcontractor shall inform itself regarding the nature, condition, and state of progress of work
of others which affects or connects with the Work. Before connecting the Work with work of others,
Subcontractor shall ascertain that such work of others is ready, properly aligned, and in suitable
condition for such connection and integration with the Work, and shall report any discrepancies to
Chugach for adjustment prior to proceeding.
2.5
INSPECTION
At all reasonable times, Subcontractor shall provide safe and sufficient facilities and access for
inspection of the Work by Chugach and Customer and their representatives at the site and at all
locations where portions of the Work are in progress or various stages of completion. Chugach may also
direct the Subcontractor to uncover portions of the Subcontract Work for inspection by the Customer or
Chugach at any time. If the Work has been covered by Subcontractor in violation of the Subcontract
Documents or contrary to a directive issued to Subcontractor by Chugach or if any portion of the Work is
determined by Chugach or the Customer to be defective, such improperly covered or defective Work
shall be discontinued, removed, and replaced or corrected at Subcontractor’s expense in accordance
with the Subcontract Documents. Any Chugach or Customer review, inspection or approval shall not
relieve Subcontractor of its obligation to comply with all requirements of the Subcontract Documents.
2.6
SAFETY, CLEANLINESS AND SANITATION
2.6.1 In the performance of the Work, Subcontractor shall protect the lives and health of its
employees and other persons; prevent damage to property, materials, and equipment, and avoid work
interruption. The Subcontractor shall comply with all Federal, State and local government regulations,
whether specified or not, in matters relating to or concerning safety and environmental protection.
Subcontractor shall also comply with all safety standards, rules and regulations relating to safety,
cleanliness, and sanitation established by Chugach for the Project as a whole and by the Customer of the
site at which the Work is performed. Subcontractor shall immediately stop work and take corrective
action when directed by Chugach or Customer because of any unsafe condition or practice. In case of an
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emergency, Chugach or Customer may direct Subcontractor’s personnel and resources for the
protection of life and property.
2.6.2 Subcontractor shall attend all safety meetings called by Chugach and conduct hazard
communication training, as well as any other training programs required by Chugach. Upon request,
Subcontractor must provide evidence that its employees have taken all training programs required by
Chugach. Any employee who fails to take the training or fails to observe the safety precautions shall be
removed from the jobsite upon request by Chugach. Establishment of a safety program by Chugach
shall not relieve the Subcontractor or other parties of their safety responsibilities. The Subcontractor
shall establish its own safety program implementing safety measures, policies and standards conforming
to those required or recommended by governmental and quasi-government authorities having
jurisdiction and by Chugach and the Customer, including but not limited to requirements imposed by the
Subcontract Documents. Chugach’s failure to stop the Subcontractor’s unsafe practices shall not relieve
the Subcontractor of the responsibility therefore.
2.6.3 The Subcontractor shall implement appropriate safety measures pertaining to the Subcontract
Work and the Project, including establishing proper notice procedures to protect persons and property
at the site and adjacent thereto from injury, loss or damage. Subcontractor shall promptly submit to
Chugach’s safety coordinator at the site, a written report covering all injuries to the employees of
Subcontractor or lower tier subcontractors occurring on the site. This report must include the following
information: (1) name and address of the injured person; (2) name and address of Subcontractor’s
liability insurance carrier; (3) a detailed description of the accident and whether any of Chugach’s
equipment, tools, materials, or personnel were involved; (4) dated copy of Subcontractor’s report of
injury to Subcontractor’s insurance carrier; and (5) any other information reasonably requested by
Chugach.
2.6.4 At all times during the progress of the Work, and upon completion of the Work, Subcontractor
shall clean up, remove, and dispose of all surplus materials, containers, trash, debris, and the like
resulting from Subcontractor’s Work. Upon completion, Subcontractor shall promptly remove all its
construction equipment, temporary construction buildings, and tools from the site and broom clean its
work area. If Subcontractor fails to comply with its cleanup duties within twenty-four (24) hours after
written notification from Chugach of noncompliance, Chugach may implement appropriate cleanup
measures without further notice and the cost of the cleanup will be deducted from any amounts due or
to become due the Subcontractor.
2.7
AUDIT
Subcontractor shall allow Chugach or Customer, at their expense, to examine and audit all of
Subcontractor’s and lower tier subcontractors’ billings related to the Work and all supporting cost
information of those billings. In addition to cost information, Subcontractor shall maintain and make
available all books, site records and documents related to the performance of the Work. Such
information shall be made available to Chugach or Customer at the office of Subcontractor upon request
and at reasonable times for the greater of a period of three (3) years following termination of this
Subcontract, or, that period of time prescribed by FAR 4.7, or, in the event of litigation or claims
between the parties or with third parties which relate to the Work and/or the Project, until such
litigation or claims are disposed of.
2.8
PERMITS, LICENSES, ACCESS
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Chugach or Customer will provide all licenses and permits required for construction of the Project as a
whole. Subcontractor shall obtain all approvals, licenses and permits required to perform the Work,
including (without limitation) contractors’ licenses, specialty permits, and transportation permits.
Chugach or Customer will provide access to the work site and easements or land rights in the work site,
and Subcontractor shall comply with all restrictions, limitations, terms and conditions relative thereto.
2.9
MATERIAL SAFETY DATA SHEETS
2.9.1 Subcontractor shall comply fully with the OSHA Hazard Communication Standard, 29 CFR
1910.1200 and 1926.59 regarding the container labeling, warning notices, supply of Material Data Safety
Sheets (MSDS), and training as detailed therein, to include but not be limited to, the following specific
requirements.
2.9.2 Any Subcontractor causing any hazardous chemical or substance to be introduced on site shall
be responsible for proper tagging and warning labels being affixed to the containers and shall have on
record all required MSDS, with copies being readily available to Subcontractor site personnel.
Subcontractor shall inform Chugach of any precautionary measures that need to be taken to protect
Chugach during normal operating conditions and in foreseeable emergencies at the job site.
2.9.3 Unless expressly exempted, Subcontractor is required to supply Chugach with all required MSDS
and associated information for Subcontractor’s scope of supply prior to the arrival of the materials on
site. It is the responsibility of Subcontractor to assure the complete and proper submittal of such
documents from its lower-tier suppliers and lower-tier subcontractors.
2.10
COMPLIANCE WITH LAWS AND ETHICS
2.10.1 Compliance with Laws. In the performance of this Agreement (and all Orders issued hereunder,
if applicable), Subcontractor agrees to comply with all applicable federal, state, county and/or local (and
international, if applicable) laws, rules, regulations and ordinances in effect or hereafter adopted which
affect Subcontractor’s performance of this Agreement, including without limitation, those pertaining to
health and safety, workers’ compensation laws, pension benefits and employment laws, unemployment
compensation laws, and all environmental laws and policies. If Subcontractor observes that any of the
specifications for supplies or services to be provided pursuant to this Agreement or any Orders issued
hereunder are at variance with any applicable laws, statutes, building codes or other regulations, it shall
promptly notify Contractor in writing.
Subcontractor shall not engage in any conduct in violation of the Foreign Corrupt Practices Act, the False
Claims Act, and/or the Truth In Negotiations Act.
Subcontractor shall assume full and complete responsibility for compliance with this Article, and shall
indemnify, defend and hold harmless Contractor and all respective affiliates, parents, subsidiaries,
divisions, directors, officers, agents, heirs, assigns, successors in interest, representatives, and
employees from and against any damages, loss, penalty, fine or claims thereof, including attorney’s fees,
resulting from Subcontractor’s failure to comply therewith.
Subcontractor’s failure to comply with the terms of this Article shall be considered a material breach of
this Agreement and shall entitle Chugach to immediately terminate part or all of this Agreement (or part
or all of any and all Orders issued hereunder) for default.
2.10.2 Export Compliance. Products, services, and/or technical data provided or disclosed in
performance of this Agreement may be subject to required and continuing U.S. Government approvals,
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clearances, regulations, and export/import and re-export requirements, including the U.S. Department
of State International Traffic In Arms Regulations (Title 22, CFR Parts 120-130), the U.S. Department of
Commerce Export Administration Regulations (Title 15, CFR 730-774), and any other U.S. Government
regulation applicable to the export/import, re-export, or disclosure of such controlled technical data (or
the products thereof) to Foreign Nationals whether within, or outside, the U.S. including those
employed by, or otherwise associated with, the Parties. Parties acknowledge and agree to comply with
the above and to obtain any and all such registrations, licenses, agreements, approvals and/or
certifications, as may be required by regulations for the export of the products, services, and/or
technical data that may be provided under this Agreement before initiating performance.
2.10.3 Conflicts of Interest. Subcontractor represents that its execution and performance of this
Agreement does not conflict with or breach any contractual, fiduciary or other duty or obligation to
which Subcontractor is bound. Subcontractor further represents that it will not accept work during the
term of this Agreement or any and all Orders issued hereunder which would create an Organizational
Conflict of Interest (“OCI”) as such term is defined in Federal Acquisition Regulation (FAR) Subpart 9.5.
Further, Subcontractor agrees that it shall not perform any work outside this Agreement, or any Order
issued hereunder, that would create to a reasonable business person the appearance of an OCI.
Subcontractor shall immediately provide notice to Contractor in the event that it discovers any
potential, actual or apparent personal or organizational conflict of interest related to or arising out of
this Agreement (or any and all Orders issued hereunder). Failure to immediately disclose and adequately
avoid or mitigate any OCI shall be considered a material breach of this Agreement and shall entitle
Contractor to immediately terminate part or all of this Agreement (or part or all of any and all Orders
issued hereunder) for default.
2.10.4 Contractor Code of Business Ethics and Conduct (IAW FAR 3.10). The following Federal
Acquisition Regulation (FAR) clauses are incorporated by reference into this Agreement for subcontracts
that have a value in excess of $5,000,000 and a performance period of more than 120 days.
FAR 52.203-13 Contractor Code of Business Ethics and Conduct (Apr 2010)
FAR 52.203-14 Display of Hotline Poster(s) (Dec 2007) (applicable regardless of period of performance)
2.10.5 Ethical Conduct. In the performance of this Agreement, Subcontractor shall conduct all of its
activities in an ethical manner consistent with the values of complete integrity, honesty, respect and
openness in accomplishing our goals with all our customers. At a minimum, Subcontractor’s conduct
shall abide or comply with the ethical standards/ethics program of Chugach Alaska Corporation and its
subsidiaries and joint ventures, a copy of which can be obtained from the Chugach representative
designated herein. Any failure by Subcontractor in this respect shall be considered a material breach of
this Agreement and shall entitle Chugach to immediately terminate part or all of this Agreement.
2.10.6 Certification. Subcontractor shall furnish to Contractor, upon request, any certification required
to be furnished by any provision of this Agreement or Order issued hereunder, including any clauses
incorporated by reference herein, and any certificate required by any law, ordinance or regulation with
respect to Subcontractor’s compliance with the terms and provisions of such law, ordinance, or
regulation.
2.10.7 Wages, Benefits, and Payroll Taxes. Subcontractor shall comply with applicable U.S.
Department of Labor Wage Determinations for all wages paid under the terms of this Subcontract, and
shall submit a weekly Certified Payroll to that extent for work identified within the purview of the DavisBacon Act. Subcontractor's compensation includes, and Subcontractor accepts exclusive liability for, the
payment of all wages, benefit contributions, and payroll taxes for all employees of Subcontractor
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engaged in the performance of TO Work under this Subcontract.
2.10.8 Employment Practices. Subcontractor shall not discriminate against any employee or applicant
for employment because of race, color, national origin, religion, sex, age, or for any reason prohibited by
law. Subcontractor agrees to participate and cooperate in the implementation of any Affirmative Action
Plan for equal employment opportunity adopted for the Project as a whole. To the extent applicable to
the Sublet Work on this Project, Subcontractor shall comply with Executive Order 11246, or any
amendment, replacement, or counterpart thereof.
2.10.9 Foreign Ownership, Control or Influence (FOCI). Subcontractor represents and warrants that it
shall fully comply with all applicable federal statutes and regulations which pertain to foreign ownership,
control or influence (FOCI) and without limitation, specifically, the National Industrial Security Program
Operating Manual (NISPOM), Chapter 2. Security Clearances, Section 3. Foreign Ownership, Control or
Influence (FOCI).
Subcontractor shall immediately advise Contractor in writing of all changes in its organization which
create a situation of FOCI or increases the level or amount of a FOCI whether previously disclosed or not.
Any failure by Subcontractor to comply with any of the requirements of this provision shall constitute a
material breach of this agreement, entitling Contractor to immediately terminate this subcontract.
2.10.10 Protected Veteran Clause. This contractor and subcontractor shall abide by the requirements
of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans,
and requires affirmative action by covered prime contractors and subcontractors to employ and
advance in employment qualified protected veterans.
2.10.11 Individuals with Disability Clause. This contractor and subcontractor shall abide by the
requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination again qualified
individuals on the basis of disability, and requires affirmative action by covered prime contractors and
subcontractors to employ and advance in employment qualified individuals with disabilities.
2.11
PAYMENT
2.11.1 Chugach agrees to pay Subcontractor, subject to other provisions hereof, including additions
and deletions as herein provided, the total sum of ____________ for satisfactory performance of the
Subcontract Work, in the manner described below. The subcontract price includes all sales and use
taxes, franchise, excise and other taxes and governmental impositions of all kinds and is not subject to
any addition for any such taxes or impositions now or hereafter levied.
2.11.2 Subject to the condition precedent set forth below, Chugach will make progress payments to
Subcontractor on a monthly basis for the portion of the Work performed in the preceding month in
accordance with monthly applications prepared by Subcontractor and as approved by Chugach and
Customer. Such payments to Subcontractor will be made no later than seven (7) calendar days after
receipt by Chugach of payment from the Customer for the Subcontract Work. The Subcontractor is
required to pay for all labor, materials and equipment used in the performance of the Subcontract Work
through the most current period applicable from progress payments received from Chugach.
Subcontractor assumes the risk of Customer’s failure to make or delay in making any payment to
Chugach for Subcontract Work. Chugach’s obligation to make any payment to Subcontractor is
conditioned on and subject to (as an express condition precedent) receipt of payment by Chugach from
Customer covering the corresponding monthly estimate of Chugach, including the approved portion of
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Subcontractor’s monthly estimate. Subcontractor specifically waives any claims against Chugach for
failure or delays in payment by Customer.
2.11.3 Subcontractor’s applications for payment shall be itemized and supported by the
Subcontractor’s schedule of values and any other substantiating data as required in the Prime Contract
for the contractor’s payment applications. Subcontractor must submit monthly estimates by the 25th of
each month or as directed by Chugach. Payment to Subcontractor pursuant to monthly estimates shall
not constitute or imply acceptance by Chugach or Customer of any portion of Subcontractor’s Work.
2.11.4 An amount equal to 10 percent of Subcontractor’s approved monthly estimates shall be
retained by Chugach, which retainage shall not be released until all of the following express conditions
precedent have occurred: (a) Chugach receives final project payment from Customer; (b) Customer
accepts Subcontractor’s work and applicable guarantees; (c) Subcontractor furnishes Chugach with
satisfactory evidence that all obligations incurred by Subcontractor pursuant to this Subcontract which
may be the basis for a lien against the premises, retainage, or payment bond have been paid in full; (d)
Subcontractor provides a full and complete waiver and release of any and all claims relating to the
Project; (e) Subcontractor completes all as-builts and provides all operations and maintenance manuals
required by this subcontract to the satisfaction of the Customer and (f) Subcontractor furnishes Chugach
with all certified payrolls required by the subcontract. Acceptance of final payment by Subcontractor
shall operate independently as a full and complete waiver and release by Subcontractor of any and all
claims or liens against the Project, Chugach, Customer on any retainage or bonds.
2.11.5 It is understood and agreed that if the Work is performed and paid for on a unit price basis,
quantities shown above or referenced in the Subcontract Documents are quantities estimated to be
required under the subcontract and are not binding on Chugach, and that the actual quantities shall be
in such amounts as may eventually be required and determined under the Prime Contract. The
estimated quantities under this Subcontract are subject to the same conditions of increase and decrease
as the estimated quantities under the Prime Contract.
2.11.6 If the Work is not to be performed on a unit price basis, then within fourteen (14) days of
execution of this Subcontract, Subcontractor shall furnish to Chugach for approval a schedule of values
apportioned to the various divisions or phases of the Subcontract Work. Each line item contained in the
schedule of values shall be assigned a monetary price such that the total of all such items shall equal the
subcontract price. Such schedule of values, when approved by Chugach, shall be used as the basis for
Subcontractor’s payment.
2.11.7 Subcontractor may be paid for materials, not incorporated in the Work, but delivered and
stored at the site, or at some other agreed location, only to the extent Chugach is entitled to apply for
and in fact receives payment from Customer for such materials. In no event, may Subcontractor receive
payment in an amount greater than supplier invoice cost and only upon receipt of a supplier release on
a form acceptable to Chugach. Approval of payment applications for materials and equipment stored on
or off the site shall be conditioned on submission by the Subcontractor of bills of sale and applicable
insurance or such other procedures satisfactory to the Customer and Chugach to establish the proper
valuation of the stored materials and equipment, the Customer’s title to such materials and equipment,
and to otherwise protect the Customer’s and Chugach’s interests therein, including transportation to
the site.
2.11.8 At Chugach’s option and request, Subcontractor’s application for payment shall be accompanied
by labor, material, and/or equipment releases, in a form acceptable to the Customer and Contractor,
properly executed by all labor, sub-subcontractors, suppliers, vendors, and others who may have lien or
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claim rights against the Project or any bond. Subcontractor shall also furnish upon request and as a
condition precedent to payment, satisfactory evidence of payment made for debts incurred in the
performance of the Work.
2.11.9 Payments otherwise due Subcontractor may be withheld by Chugach on account of (a) of
defective Work not remedied, (b) any breach by Subcontractor of any provision or obligation of this
Subcontract, (c) failure of Subcontractor to perform the Work as required by the Subcontract
Documents, including failure to timely submit reports and/or submittals, (d) failure of Subcontractor to
make payments for labor, supplies, equipment or other materials, (e) loss or damage arising out of or
relating to the subcontract and caused by the Subcontractor to the Customer, Chugach or others to
whom Chugach may be liable, or (f) a reasonable doubt by Chugach that Subcontractor can timely
complete the Work for the balance then unpaid. In the event that third party claims involving the
Subcontractor are asserted or there is reasonable evidence that third party claims are likely to be
asserted against Subcontractor, Chugach shall have the right to offset payments otherwise due
Subcontractor until Subcontractor satisfies amounts owed or claimed due from Subcontractor by any
third party. In the event it appears Subcontractor is unable to currently pay bills incurred in the
performance of the Work, Chugach may take such steps as it deems necessary, including direct payment
or issuing joint checks, to ensure that amounts paid will be utilized to discharge such bills. Exercise of
Chugach’s rights under this paragraph does not create any third-party beneficiary rights on the part of
Subcontractor’s creditors.
2.11.10. Total Aggregate Labor Cost Report. Subcontractor must submit a Total aggregate Labor Cost
Report to Chugach prior to submission of the final invoice. This cost must include a total aggregate labor
cost for the Subcontractor including its entire subcontractor’s labor cost. This total aggregate labor cost
must include all direct labor, management labor and any G&A and overhead paid on this labor.
2.11.11 Final payment will be made to Subcontractor within seven (7) calendar days after receipt by
Chugach of final payment from the Customer for Subcontractor Work. Before Chugach shall be required
to incorporate the Subcontractor’s application for final payment into Chugach’s next application for
payment to the Customer, the following must have occurred: (a) the Work is fully completed and
performed by Subcontractor, (b) the Work hereunder is accepted in writing by the Customer, (c) full
payment for such work has been received by Chugach from the Customer, (d) consent of the
Subcontractor’s surety to final payment, if required, and (e) a complete release of any and all claims
against Chugach has been executed by Subcontractor and delivered to Chugach. Acceptance of final
payment by Subcontractor shall operate independently as a full and complete waiver and release by
Subcontractor of any and all claims or liens against the Project, Chugach, and Customer, any retainage or
bonds.
2.12
SCHEDULE
2.12.1 Upon Chugach’s request, Subcontractor shall provide Chugach with any scheduling information
proposed by the Subcontractor for the Subcontract Work, including without limitation, Subcontractor’s
schedule of submittals, materials delivery and as-builts. Chugach may then prepare the schedule for
performance of the Prime Contract (“Schedule of Work”). The Schedule of Work shall be subject to
revision by Chugach to coordinate the Work with the overall rate of progress of Chugach and other
participants in the Project as a whole, and to expedite performance of critical items of work on the
Schedule of Work. Chugach shall have the right to determine and, if necessary, change the time, order,
and priority in which the various portions of the Work shall be performed and all other matters relative
to the timely and orderly conduct of the Subcontract Work. Subcontractor acknowledges that Chugach
may make such revisions to the Schedule of Work and agrees to make no claim for acceleration or delay
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by reason of such revisions so long as such revisions are of the type normally experienced in work of this
scope and complexity.
2.12.2 Time is of the essence of this Subcontract. Subcontractor therefore agrees to commence the
Work promptly when directed by Chugach, prosecute the Work diligently to completion, and to provide
adequate number and types of: (a) laborers, skilled craftsmen, technicians, supervisors, administrators,
and managers; (b) construction equipment in good condition; (c) materials, permanent equipment, and
supplies (except for items specified to be supplied by Chugach or Customer) to accomplish the Work and
maintain the Schedule of Work. Any overtime costs incurred by Subcontractor to meet its schedule
commitment to Contractor are the responsibility of Subcontractor. All materials that are to be furnished
by Subcontractor shall be furnished and installed in sufficient time to enable Subcontractor to perform
and complete his Work within the time or times provided by the Schedule of Work.
2.12.3 Subcontractor agrees to reimburse, defend and indemnify Chugach for any and all liquidated or
actual damages that may be asserted against, assessed against and/or incurred by Chugach which are
attributable to or caused in whole or in part by Subcontractor’s failure to perform the Work required by
this Subcontract within the time fixed or the manner provided in the Schedule of Work as adjusted
during the course of the Project. Reimbursement of liquidated or actual damages assessed against
and/or incurred by Chugach is not the exclusive remedy of Chugach against Subcontractor for
Subcontractor’s failure to perform the Work required by this Subcontract within the time fixed or in the
manner provided in the Schedule of Work as adjusted during the course of the Project.
2.13 Chugach will designate for use by Subcontractor, entrances, parking areas, storage areas, office
and work areas, and such facilities and construction equipment, as Chugach is to provide. Chugach will
allocate, and schedule the use of, such common facilities and utilities as are provided by Chugach for use
of Subcontractor and other participants in the Project. Temporary interruption of services, utilities, and
use of facilities are anticipated, and shall not justify a claim for an adjustment in compensation or time
of performance. No signs shall be erected on the site without the express written consent (including
size and location) of Chugach.
ARTICLE 3
3.1
WARRANTY
MATERIALS AND WORKMANSHIP
Subcontractor expressly warrants that all items, materials, and work furnished by Subcontractor under
this Subcontract will strictly conform to the Subcontract Documents. All the Work shall be performed
with workmanship consistent with sound construction practice, and all items and materials shall be new
(unless otherwise provided in the Subcontract Documents), free from defects, of merchantable quality,
and fit for the purposes intended. Subcontractor shall install or apply all materials in strict accordance
with installation or application instructions and procedures set forth by the material manufacturer.
Installation or application by any other method shall not be permitted or accepted, unless specifically
allowed pursuant to Article 3.3 herein. If required by Chugach or Customer, Subcontractor shall supply
satisfactory evidence of the kind and quality of the items and materials purchased or otherwise supplied
by Subcontractor. In the event the scope of the Subcontract Work includes installation of materials or
equipment furnished by others, it shall be the responsibility of the Subcontractor to examine the items
so provided and thereupon handle, store and install the items, unless otherwise provided in the
Subcontract Documents, with such skill and care as to ensure a satisfactory and proper installation.
3.2
BREACH OF WARRANTY/REMEDY
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3.2.1 Should there be defects, errors, or omissions or breach of any warranty of Subcontractor
concerning the items, materials, or workmanship relating to Subcontractor’s Work, Subcontractor,
without cost to Chugach or Customer, shall promptly correct, repair, or replace the materials or
workmanship in whatever manner necessary so that all the requirements of the Work and the
obligations of Subcontractor under this Subcontract are fulfilled. If Subcontractor fails after reasonable
notice to proceed promptly with the correction, repair, or replacement of any defective items,
materials, or workmanship, Chugach may replace or repair such items or materials, correct such
workmanship, and charge the cost thereof to Subcontractor, and/or may terminate Subcontractor for
default.
3.2.2 Unless otherwise specified in the Subcontract Documents, Subcontractor’s liability under this
Article shall continue from the date of this Subcontract through the last day of the twelfth month
following the date of acceptance by Customer of the Project. Subcontractor’s responsibility for latent
defects shall extend beyond the guarantee period to the extent applicable statutes permit. In addition,
Subcontractor’s liability for items, material, or workmanship which Subcontractor may have corrected,
repaired, or replaced shall continue through the last day of the twelfth month following the date of
acceptance by Customer of such corrected, repaired, or replaced items or workmanship.
3.2.3 The Subcontractor further agrees to furnish any guarantees, maintenance agreements, special
warranties or other documents that shall be required in accordance with the Subcontract Documents for
the Subcontract Work prior to final payment.
3.2.4 All of Subcontractor’s warranties and all warranty remedies hereunder shall be for the benefit
of, and shall be enforceable by, either Chugach or the Customer.
3.3
SUBSTITUTION
Subcontractor shall not substitute materials or equipment from those specified in the Subcontract
Documents, or otherwise deviate from the requirements of this Subcontract unless permitted in the
Subcontract Documents and only then upon the Subcontractor first receiving all approvals required the
Subcontract Documents for substitution. Approval does not relieve Subcontractor of any responsibility
if material proves not to be equal to that specified. Any increased costs of the substitution shall be
charged to Subcontractor.
ARTICLE 4
4.1
INDEMNIFICATION/INSURANCE/BONDS/PATENTS
INDEMNITY
Subcontractor agrees to indemnify and hold the Customer and Chugach, its agents, representatives,
contractors, and/or others acting on its behalf, harmless for any and all claims, demands, liabilities,
losses, expenses, suits, and actions (including attorney’s fees) for or on account of any injury to any
person, or any death at any time resulting from such injury, or any damage to any property, including
resulting loss of property use , which may arise (or which may be alleged to have arisen) out of or in
connection with the Work even though such injury, death, or damage may be (or may be alleged to be)
attributable in part to negligence or other fault on the part of Chugach, its officers, agents or employees.
The obligation of Subcontractor to indemnify and hold Chugach and the Customer harmless shall not be
enforceable if and only if it be determined by arbitration or judicial proceeding that the injury, death or
damages complained of was attributable solely to the fault of Chugach or the Customer or their agents
or independent contractors (other than Subcontractor) and not in any manner or in any part
attributable to Subcontractor, or was the result of willful misconduct on the part of Chugach or the
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Customer or their agents or independent contractors (other than Subcontractor). Subcontractor agrees
to reimburse Chugach for all sums which Chugach may pay or be compelled to pay in settlement of any
claim hereunder, including any claim under the provisions of any worker’s compensation law or any plan
for employees’ benefits which Chugach may adopt. Subcontractor’s duty to defend, indemnify and hold
Chugach and Customer harmless shall include, as to all claims, demands, losses and liability to which it
applies, Chugach’s personnel related costs, reasonable attorneys’ fees and other costs incurred by
Chugach to enforce and establish its rights under this Article. Chugach shall be entitled to withhold from
any payment otherwise due pursuant to this Subcontract such amount or amounts as may be
reasonably necessary to protect it against liability for any personal injury, death or property damage
resulting from Subcontractor’s performance of the Work. For purposes of this Article only,
Subcontractor specifically and expressly waives any immunity that may be granted it under any worker’s
compensation laws or industrial insurance act. The indemnification obligation under this Subcontract
shall not be limited in any way by any limitation on the amount or type of damages, compensation or
benefits payable to or for any third party under worker’s compensation acts, disability benefits acts or
other employee benefits acts. This promise of indemnity specifically applies in the case of injuries to
Subcontractor’s own employees and entitles Chugach to seek indemnity from Subcontractor if
Subcontractor’s employees sue Chugach for injuries occurring while performing work pursuant to this
Subcontract.
4.2
INSURANCE
Subcontractor shall maintain in full force and effect the insurance requirements as stated in Exhibit E
attached hereto.
4.3
BONDS
Subcontractor shall furnish Performance and/or Payment Bonds in an amount equal to the full
Subcontract price unless otherwise specified herein. The Subcontractor surety bond requirements are as
follows:
___ Performance bond required
___Payment Bond required
Such bonds shall be on forms approved by, and with a surety satisfactory to, Chugach. Premiums for
such bonds shall be paid by Subcontractor. Failure to provide such bonds shall constitute a material
breach of this Subcontract, and Chugach may at its discretion terminate Subcontractor for default
pursuant to Article 6.1 of this Subcontract.
4.4
PATENTS AND PROPRIETARY RIGHTS
Subcontractor shall pay all royalties and obtain all licenses required for items specified to be furnished
by Subcontractor, and for all items and methods selected by Subcontractor for the Work. Subcontractor
shall indemnify, defend and hold harmless Chugach and the Customer against any claim of patent or
other infringement resulting from the use of such items or methods.
ARTICLE 5
5.1
CHANGES, CLAIMS AND DELAYS
CHANGES
5.1.1 SUBCONTRACT MODIFICATION. A Subcontract modification is any change in the Subcontract
Work within the general scope of the Subcontract including a change in the drawings, specifications or
technical requirements of the Subcontract and/or a change in the Schedule of Work affecting the
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performance of the Subcontract.
5.1.2 CHANGE DIRECTION. When Chugach orders in writing, the Subcontractor, without nullifying this
Subcontract, shall promptly make any and all changes in the Subcontract Work so ordered. Adjustments
in the Subcontract Price or Subcontract Time, if any, resulting from such changes shall be set forth in a
Subcontract Modification pursuant to the Subcontract Documents. No such adjustments shall be made
for any changes performed by the Subcontractor that have not been ordered by Chugach in writing.
Subcontractor expressly agrees that this requirement cannot be waived. A Subcontract Modification is a
written instrument prepared by Chugach and signed by the Subcontractor stating their agreement upon
the change in the scope of the Subcontract Work, adjustment in the Subcontract price and/or
Subcontract time.
5.1.3 SUBCONTRACT CHANGE ORDER. A Subcontract Change Order is a written instrument prepared
by Chugach directing a change in the Subcontract Work and stating a proposed adjustment, if any, in the
Subcontract price or Subcontract time or both. A Subcontract Change Order shall be used in the
absence of agreement on the terms of a Subcontract Modification. The Subcontractor shall comply with
all Subcontract Change Orders received from Chugach and perform the required changes in the
Subcontract Work in a prompt and expeditious manner. The Subcontractor shall evaluate the proposed
adjustment in the Subcontract price or Subcontract time, if any, as set forth in the Subcontract Change
Modification and respond, in writing within three (3) days, to Chugach stating the Subcontractor’s
acceptance or rejection of the proposed adjustment and the reasons therefore. Failure to give timely
written notice shall constitute a waiver of the Subcontractor to dispute the proposed adjustment or to
seek an adjustment if no adjustment is proposed.
The Subcontractor may agree to the Subcontract Change Order and the terms of the proposed
adjustment, if any, by signing the Subcontract Change Order and returning it forthwith to Chugach.
5.1.4 ADJUSTMENT IN SUBCONTRACT PRICE. If a Subcontract Change requires an adjustment in the
Subcontract price, the adjustment shall be established by one of the following methods:
(1) mutual agreement on a lump sum with sufficient information to substantiate the amount;
(2) unit prices already established in the Subcontract Documents or if not established by the
Subcontract Documents then established by mutual agreement for the adjustment;
(3) a mutually determined cost plus a jointly acceptable markup for overhead and profit; or
(4) as may otherwise be required by the Subcontract Documents.
Subcontractor agrees to submit cost estimates in complete and full analytical detail as required or
requested by Chugach. If agreement is not possible, then the amount of additional compensation shall
be determined as provided in the Claims clause of this Subcontract; provided, however, that
Subcontractor assumes the risk of Customer’s failure to make or delay in making any payment to
Chugach for Subcontract Work. Chugach’s obligation to make any payment to Subcontractor is
conditioned on and subject to (as an express condition precedent) receipt of payment by Chugach from
Customer and no payment shall be due Subcontractor because of changed, extra, or additional work
arising out of Customer acts or omissions unless and until Chugach has received such payment from
Customer for said work performed by Subcontractor. Any limitation on payment for changed or extra
work contained in the Prime Contract shall apply to Subcontractor.
5.1.5 SUBSTANTIATION OF ADJUSTMENT. Pending final determination of costs to Chugach and/or
Customer, the Subcontractor may include in Subcontractor applications for payment to Chugach
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amounts due that are not in dispute for work performed pursuant to properly authorized Subcontract
Change Orders.
5.1.6 INCIDENTAL CHANGES IN THE SUBCONTRACT WORK. Chugach may direct the Subcontractor to
perform incidental changes in the Subcontract Work which do not involve adjustments in the
Subcontract price or Subcontract time. Incidental changes shall be consistent with the scope and intent
of the Subcontract Documents. Chugach shall initiate an incidental change in the Subcontract Work by
issuing a written order to the Subcontractor. Such written orders shall be carried out promptly and are
binding on the parties.
5.2
CLAIMS
5.2.1 CLAIM. A claim is a demand or assertion made in writing by the Subcontractor seeking an
adjustment in the Subcontract price and/or Subcontract time, an adjustment or interpretation of the
Subcontract terms, or other relief arising under or relating to this Subcontract, including the resolution
of any matters in dispute between Chugach and Subcontractor in connection with the Project. In the
event that Subcontractor encounters a condition giving rise to a claim, the Subcontractor shall
immediately notify Chugach in writing of such condition. No allowance for an extension of time or
additional compensation shall be claimed by Subcontractor unless Subcontractor shall have timely
notified Chugach of the condition and made written request for such allowance within three (3) working
days after such condition was encountered or, if the Prime Contract provides for a shorter period, within
sufficient time to permit Chugach to give the specified notice to Customer. No claim, dispute or
controversy shall interfere with the progress and performance of Work required to be performed under
this Subcontract and Subcontractor shall proceed as directed by Chugach in all instances with its work
under this Subcontract.
5.2.2 CLAIMS RELATING TO CUSTOMER. As to any claims asserted by Subcontractor for or on account
of acts or omissions of Customer or its representatives or any claims made by Customer for which
Subcontractor may be responsible, which claims are not disposed of by agreement, Subcontractor
agrees to prosecute or defend such claims in Chugach’s name, in accordance with the provisions in the
Prime Contract for determining disputes. Chugach shall have the option to present such claims upon
Subcontractor’s behalf, in advance of and even without Subcontractor’s written request. Chugach and
Subcontractor further agree to cooperate in prosecuting or defending claims. Subcontractor shall have
full responsibility for preparation and presentation of such claims and shall bear the expenses thereof,
including attorneys fees. Subcontractor agrees to be bound by the procedure and final determinations
as specified in any such disputes clause, and agrees that it will not take, or will suspend, any other
action or actions, arbitration or arbitrations with respect to or in any way relating to any such claims,
including without limitation any claims against Customer, Chugach or Chugach’s sureties, and will
pursue no independent litigation or arbitration with respect thereto or relating thereto, pending final
determination under such disputes clause. If the disputes clause of the Prime Contract requires claim
certification, then Subcontractor shall so certify its claim. Subcontractor shall not be entitled to receive
any greater amount from Chugach than Chugach actually does receive from Customer on account of
Subcontractor’s Work, less any mark-ups or costs incurred by Chugach and to which Chugach is
otherwise entitled, and Subcontractor agrees that it will accept such amount, if any, received by
Chugach from Customer as full satisfaction and discharge of all claims for or on account of acts or
omissions of Customer or its representatives.
5.2.3 CLAIMS RELATING TO CHUGACH. Should a dispute arise which is not controlled or determined
by Article 5.2.2 or other provisions of this Subcontract, then said dispute shall be decided by arbitration.
The arbitrator shall be appointed by mutual consent of the parties or, in the event the parties are unable
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to agree within ten (10) days of demand for arbitration, then the Superior Court of the State of Alaska at
Anchorage shall appoint an arbitrator. The arbitration shall be governed in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association then in effect.
Notwithstanding any of the foregoing, Chugach, at its sole and absolute discretion, may decide to
dispense with arbitration, in which case resort shall be to the courts. If Chugach does not dispense with
arbitration, Chugach may join or consolidate any third party or claim into an arbitration with
Subcontractor for final resolution. The award rendered by the arbitrators shall be final, and judgment
may be entered upon and in accordance with applicable law in any court having jurisdiction thereof. If
Chugach does dispense with arbitration, the Subcontractor hereby knowingly, voluntarily and
intentionally waives (to the extent permitted by law) any right it may have to a trial by jury of any
dispute arising under or relating in any way to this Subcontract and agrees that any such dispute may, at
Chugach’s option, be tried before a judge sitting without a jury.
5.3
DELAY
5.3.1 If the Subcontractor is delayed in the performance of the Subcontract Work for any reason
beyond the Subcontractor’s control, and without the Subcontractor’s fault or negligence, including
delays caused in whole or in part by Chugach, Customer, Customer’s designated representative or any
other persons, entities or events, or if the Subcontract Work is delayed for any reason or cause for which
Chugach, Customer and Customer’s designated representative concludes has resulted in an excusable
delay, then the Subcontractor is entitled to an extension of the Subcontract time in which to complete
its Work. Said extension shall be set forth in a Subcontract Change Order for such time as the parties
may agree is reasonable. To the extent such delay is the result of acts or omissions of the Customer or
its representatives, Subcontractor may request an extension of the time for the performance of its
Work, but only upon the same terms and conditions and only to the extent actually allowed to Chugach
by Customer.
5.3.2 Subcontractor shall not be entitled to any increase in the Subcontract price or to damages or
additional compensation as a consequence of delay or interference, or for acceleration relating to an
such delay or interference, except to the extent that the Prime Contract entitles Chugach to
compensation for such delays and then only to the extent of any amounts that Chugach may, on behalf
of Subcontractor, recover from Customer for such delays.
5.3.3 Chugach and Subcontractor shall not be liable to one another for any delays arising out of acts
of God, strikes, embargoes or other causes explicitly determined to be beyond their control; except in
the event that Customer should assess actual or liquidated damages or penalties against Chugach, then
Subcontractor shall be responsible for such portion of the assessment as may be directly attributable to
it, regardless of the cause of delay or, in the event the cause is not capable of attribution, then
assessment shall be by the Subcontractor’s pro rata portion of the Prime Contract value. Liquidated
damages, if accessed, will be at the amount of $________ per_________.
ARTICLE 6
6.1
TERMINATION
RECOURSE BY CONTRACTOR
FAILURE OF PERFORMANCE. Except as otherwise provided in the Subcontract, in the event that
Subcontractor fails to comply, becomes disabled from complying or fails to furnish where requested
written assurance of its ability to comply, with the provisions herein as to character or time of
performance, and the failure is not corrected within 72 hours after written notice by Chugach to
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Subcontractor, Chugach, may without prejudice to any other right or remedy against Subcontractor or
its surety, take over and complete the performance of this Subcontract, or any part of it, at the expense
of Subcontractor, or without taking over the work, may furnish the necessary materials and/or employ
the workmen necessary to remedy the situation at the expense of Subcontractor. If Chugach takes over
work pursuant to this Section 6.1, it is specifically agreed that Chugach may take possession of the
premises and of all materials, tools, and equipment of Subcontractor at the site or for which
Subcontractor has been paid for the purpose of completing the Work of this Subcontract. Subcontractor
shall be liable to Chugach for all costs, losses, damages and extra expense, including overhead, incurred
by Chugach incident to such completion. It is agreed that subcontractor shall be considered as disabled
from so complying with this Subcontract whenever a petition in bankruptcy or for the appointment of a
receiver is filed by or against him.
If Chugach wrongfully exercises its rights under this section, Chugach shall be liable to the Subcontractor
solely for the reasonable value of work performed by the Subcontractor prior to Chugach’s wrongful
action, including overhead and profit, less prior payments made. Subcontractor shall not be entitled to
prospective profits on unperformed work or consequential damages.
6.2
TERMINATION FOR CONVENIENCE
Chugach may, at its sole and absolute discretion, terminate part or all of this Subcontract for
convenience. If Chugach so elects, Chugach shall be liable to the Subcontractor solely for the reasonable
value of work performed by the Subcontractor prior to the Subcontract termination, including
reasonable overhead and profit, less prior payments made. Subcontractor shall not be entitled to
prospective profits on unperformed work or consequential damages. Upon receipt of notice of
termination for convenience, Subcontractor shall: (a) immediately discontinue the terminated Work on
the date and to the extent specified in the notice and place no further orders or subcontracts for
materials, services, supplies, or facilities, other than as may be required for completion of such portion
of the Work that is not terminated; (b) promptly obtain cancellation, upon terms satisfactory to
Chugach, of all purchase orders, subcontracts, rental agreements, or any other agreements existing for
the performance of the terminated Work, or assign those agreements to Chugach as directed; (c) assist
Chugach in the maintenance, protection, and disposition of Work in progress, plant, tools, equipment,
property, and materials acquired by Subcontractor or furnished by Subcontractor under this
Subcontract; and (d) complete performance of the Work which is not terminated.
6.3
REMOVAL
If the Prime Contract provides Customer with the right to request that Subcontractor be removed from
the project, and in the event that Customer so requests, then Subcontractor will not perform any further
work under this Subcontract and will be entitled only to its regular progress payment for work
completed but no additional damages for termination.
6.4
SUSPENSION BY CUSTOMER
In the event Customer, for any cause, suspends work under the Prime Contract, Chugach may order
Subcontractor to suspend work under this Subcontract. Subcontractor shall not be entitled to any
additional compensation or damage for such suspension, except and only to the extent Chugach
receives additional compensation from Customer under the provisions of the Prime Contract for work
covered by this Subcontract. Subcontractor shall not be entitled to profit on its costs attributable to any
suspension of work.
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6.5
TERMINATION BY CUSTOMER
Should the Customer terminate its Prime Contract with Chugach, or any part which includes the
Subcontract Work, prior to project completion, then an equitable settlement for work performed under
this subcontract prior to such termination will be made as provided by the Prime Contract documents, if
such provision is made; or, if none such exist, and agreement is not reached, as provided in Article 5 of
this Subcontract. Subcontractor shall not be entitled to prospective profits on unperformed work or
consequential damages.
6.6
CONTINGENT ASSIGNMENT OF SUBCONTRACT
Chugach may assign this Subcontract to the Customer if required under the Prime Contract. The
assignment shall be effective only when the Customer: (a) has terminated the Prime Contract for cause,
and (b) has accepted the assignment by notifying the Subcontractor in writing. The contingent
assignment is subject to the prior rights of a surety that may be obligated under Chugach’s bond, if any.
Subcontractor hereby consents to such assignment and agrees to be bound to the Customer, as
assignee, by the terms of this Subcontract.
6.7
SUSPENSION BY CHUGACH FOR CONVENIENCE
6.7.1 Chugach may order the Subcontractor in writing to suspend, delay or interrupt all or any part of
the Subcontract Work for such period of time as may be determined to be appropriate for the
convenience of Chugach. If such suspension, delay or interruption is unreasonable, then Subcontractor
shall be entitled to an equitable adjustment under the Article 5.1 and if agreement is not reached, as
provided in Article 5.2 of this Subcontract. The short/incidental/reasonable stoppage of the Subcontract
Work shall not be deemed suspension, delay, or interruption of work.
6.7.2 The Subcontract price shall not be adjusted under this Article 6.7 for any suspension, delay or
interruption to the extent that the performance of the Subcontract is, was or would have been so
suspended, delayed or interrupted by the fault or neglect of the Subcontractor, by a cause for which the
Subcontractor is responsible, or by a cause for which the Subcontractor is entitled only to a time
extension under this Subcontract.
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1
NOTICES
Notices of changes, deficiencies, delays, claims, or disputes shall be in writing, and shall furnish full
information to the extent available. The party notified shall acknowledge receipt by endorsement of a
copy if requested, or will otherwise confirm receipt in writing. Ordinarily, notice will be given by delivery
to Chugach’s project manager, or Subcontractor’s designated representative at the site, and mailing a
copy to the address shown below:
Chugach
3800 Centerpoint Drive, Suite 1200
Anchorage, Alaska 99503
Attn:
[Insert Subcontractor mailing address]
7.2
INDEPENDENT CONTRACTOR
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Subcontractor shall perform the Work as an independent contractor with exclusive control of the
manner and means of performing the Work in accordance with the requirements of the Subcontract
Documents. Subcontractor has no authority to act or make any agreements or representations on behalf
of Chugach or Customer, and no contractual relationship exists between Subcontractor and Customer.
No employee or agent engaged by Subcontractor shall be, or shall be deemed to be, and an employee or
agent of Chugach or Customer. In the event Chugach should, at the request of Subcontractor, furnish
workers to Subcontractor for any purpose to work under the direction and supervision of Subcontractor,
such employees of Chugach shall be deemed to be the borrowed servants of Subcontractor, and
Subcontractor shall be responsible for their actions while so engaged.
7.3
SUBCONTRACTING AND ASSIGNMENT
Subcontractor shall not subcontract any portion of the Work without the prior written approval of
Chugach of the lower-tier subcontractor and the form, terms, and conditions of the lower-tier
subcontract. Subcontractor shall not assign this Subcontract or any of its rights hereunder, without the
prior written approval of Chugach. No assignment or subcontracting, even with Chugach’s approval,
shall relieve Subcontractor of any obligations hereunder, or create any contractual relationship between
such lower-tier subcontractor and Chugach or the Customer. Any lower-tier subcontractor shall assume
unto Chugach all of the obligations of Subcontractor as they relate to such portion of the sublet Work.
7.4
INTEGRATION AND INTERPRETATION
This Subcontract constitutes the entire agreement of the parties relating to the subject matter of this
agreement and supersedes all other oral or written agreements relating thereto. Chugach and
Subcontractor agree that both parties had opportunity to negotiate the terms of this Subcontract and
obtain the assistance of counsel in reviewing its terms prior to execution Therefore, this Subcontract
shall be construed neither against nor in favor of either party, but shall be construed in a neutral
manner.
7.5
GOVERNING LAW AND VENUE
The laws of the State of Alaska (without giving effect to its conflict of laws principles) govern all matters
arising under this subcontract, including all tort claims. The location for any arbitration or venue for any
lawsuit arising out of the Subcontract or the Work hereunder shall be Anchorage, Alaska or, at
Chugach’s sole discretion, the location of the Project, and all proceedings shall be strictly in accordance
with the laws of the State of Alaska.
7.6
CONFIDENTIALITY
Subcontractor shall not publicize, publish, or photograph the Project, the Work or this Subcontract
except by consent of Chugach and the Customer and in accordance with the Subcontract Documents.
Subcontractor shall maintain in confidence and not use or disclose any confidential proprietary
information of Chugach or Customer.
7.7
NONWAIVER
Waiver by Chugach of any provision of or default under this Subcontract, shall not constitute a waiver
concerning any other provision, a waiver of succeeding default, or a waiver of the same provision in the
future, and shall not affect the right of Chugach to thereafter exercise any right or remedy concerning
any other provision or default, whether similar or not.
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7.8
SEVERABILITY
If any provision of this Subcontract is unenforceable to any extent, the remainder of this subcontract, or
any application of that provision to any persons or circumstances other than those as to which it is held
unenforceable, will not be affected by that unenforceability and will be enforceable to the fullest extent
permitted by law.
7.9
CHUGACH ALASKA CORPORATION SHAREHOLDER HIRE
Chugach is a wholly-owned subsidiary of Chugach Alaska Corporation, an Alaska Native Regional
Corporation, organized pursuant to the Alaska Native Claims Settlement Act of 1971. It is an important
goal of Chugach to maximize employment opportunities for the Chugach Alaska Corporation
Shareholders. Subcontractor agrees that whenever reasonable and consistent with good business
practices, it will inform Chugach of employment opportunities for Chugach Alaska Corporation
shareholders and consider Chugach Alaska Corporation shareholders for such positions.
7.10
DEFENSE PRIORITIES AND ALLOCATION SYSTEM (DPAS)
This is not
(DPAS_rating of
this is a DPAS rated subcontract. A Defense Priorities and Allocation System
applies to this agreement.
IN WITNESS WHEREOF, the parties hereto have made and entered into this Subcontract as of the day
and year last executed by either party hereto, as indicated below.
Agreed to and Accepted:
DATE:
DATE:
BY:
BY:
ITS:
BY:
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SUBCONTRACT No:
EXHIBIT A
SCOPE OF WORK/SPECIFICATIONS/DRAWINGS
1. Scope of Work
2. Specifications
3. Drawings
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SUBCONTRACT No:
EXHIBIT B
COMPLETION SCHEDULE / WORK SCHEDULE
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SUBCONTRACT No:
EXHIBIT C
PAYMENT SCHEDULE
CLIN
0001
0002
0003
0004
0005
DESCRIPTION
QTY
UNIT
UNIT PRICE
$
$
$
$
$
TOTAL:
LINE PRICE
$
$
$
$
$
$
FUNDING
CLIN
DESCRIPTION
ACCT UNIT
0001
0002
0003
0004
0005
Remarks:
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ACCT
ACTIVITY
ACCT
CAT
SUBCONTRACT No:
EXHIBIT D
INVOICE TEMPLATE
SUBCONTRACTOR:
DATE:
ADDRESS:
JOB #:
PROJECT TITLE:
Subcontract #:
INVOICE #:
Subcontract Option Year:
FOR PERIOD
to
(Month / Day)
(Month/Day)
STATEMENT OF PERFORMANCE:
1. Beginning Subcontract Year Total Amount
2. Approved Change Orders
3. Adjusted Subcontract Amount (1 + / - 2)
4. Value of Work Completed to Date
5. Less Total Previous Invoices
6. AMOUNT DUE THIS REQUEST
CAC PM APPROVAL
CAC ACCOUNTING COST CODE:
CERTIFICATE OF SUBCONTRACTOR/SUPPLIER:
I hereby certify, to the best of my knowledge and belief, that – (1) The amounts requested are only for
performance in accordance with the specifications, terms, and conditions of the subcontract; (2) Payments
to subtier subcontractors and suppliers have been made from previous payments Received under the
contract, and timely payments will be made from the proceeds of the payment covered by this certification,
in accordance with Subcontract and the requirements of Chapter 39 of Title 31, United States Code; and (3)
This request for payments does not include any amounts which the prime contractor intends to withhold or
retain from a subcontractor or suppliers in accordance with the terms and conditions of the subcontract.
Subcontractor Signature: __________________________________
Name / Print___________________________________
Title_________________________
CAC-FIN-S056 / Rev 13 / 4-15-14
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Date: __________________
SUBCONTRACT No:
EXHIBIT E
INSURANCE REQUIREMENTS
During the term of this Subcontract and any project awarded to the Subcontractor hereunder, the
Subcontractor will, at its sole expense, secure and maintain and will file with the Contractor, proper and
acceptable evidence of the following described insurance, which coverage shall (1) be secured with an
insurance company acceptable to the Contractor, (2) be issued as a primary policy not contributing with
and not in excess of any primary and/or excess coverages carried by the Contractor and (3) contain loss
payable clauses satisfactory to the Contractor for applicable coverages.
Such coverage shall be provided without interruption or lapse of any kind regardless of the reason for
the same. Without limiting the foregoing, Subcontractor shall comply in all material respects with FAR
52.228-5 and specifically, Subcontractor shall ensure that the policies evidencing required insurance
shall contain an endorsement to the effect that any cancellation or any material change adversely
affecting Contractor and/or the underlying customer herein shall not be effective (1) for such period as
the laws of the State in which this contract is to be performed prescribe or (2) until 30 days after the
insurer or Subcontractor gives written notice to Contractor, whichever period is longer.
1.
2.
Worker’s Compensation Insurance and Employer’s Liability Insurance.
Worker’s
compensation insurance and employer’s liability insurance in compliance with the laws of all
applicable states and USL&H, Jones Act, and any other coverages that may apply where the
work is performed covering all employees engaged in the performance of the Work specified in
this Subcontract and any project hereunder, including coverage for Employer’s Liability for:
a.
Bodily Injury by Accident
-
$500,000 each accident
b.
Bodily Injury by Disease
-
$500,000 each employee
c.
Bodily Injury by Disease
-
$500,000 policy limit
General Liability Insurance, Comprehensive General Liability Insurance including blanket
Contractual, Property Damage and Independent Contractors Personal Injury, and ProductsCompleted Operations Liability Insurance insuring the indemnity agreement set forth in
Paragraph 6.8 of this Subcontract with minimum limits as follows:
a.
b.
c.
d.
3.
Each Occurrence Limit - $1,000,000 combined single limit for bodily injury and property
damage liability.
Personal and advertising injury limit - $1,000,000.
Products-Completed Operations Aggregate Limit - $2,000,000
General Aggregate Limit (other than Products-Completed Operations) - $2,000,000. This
policy shall be endorsed to have the General Aggregate limit apply on a “per project
basis”.
Property Insurance. Unless otherwise provided, the Subcontractor shall purchase and maintain
property insurance upon the entire work at the site to the full insurable value thereof for any
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SUBCONTRACT No:
property under its care, custody and control.. This insurance shall insure against the perils of
fire and extended coverage and shall include all risk insurance for physical loss or damage
including, without duplication of coverage, theft, vandalism and malicious mischief.
4.
Automobile Liability Insurance. Automobile liability insurance covering owned, non-owned and
hired vehicles with limits of not less than $1,000,000 combined single limit for bodily injury and
property damage liability resulting from any one accident.
5.
Excess/Umbrella Liability Insurance. Excess/Umbrella insurance in an amount not less than
$2,000,000 combined single limit for any one occurrence, and $2,000,000 annual aggregate.
This policy is to provide no less that the same coverage described in Paragraphs 1, 2, and 4
above, and is to be in excess of required primary limits of liability.
6.
Builder’s Risk. Builder’s risk insurance that also covers commissioning in an insured amount
equal to the amount of the Project.
7.
Pollution Insurance. Pollution insurance in an amount not less than $5,000,000 combined single
limit for any one occurrence, and $10,000,000 annual aggregate. The policy shall include
endorsements for abatement of all hazardous materials including, but limited to, asbestos and
lead containing materials.
8.
Professional Liability Insurance. Professional liability insurance in an amount not less than
$1,000,000 per claim with a $2,000,000 annual aggregate, to include limited contractual liability
coverage. Insurance will be maintained in force for a period of three (3) years after substantial
completion of the project.
9.
All liability insurance shall insure performance by the Subcontractor of the indemnification
provisions under Article 7 of this Subcontract.
10.
All insurance required under this Subcontract shall be issued by insurance companies with a
minimum rating of A-VII or better in the most recent edition of Best’s Insurance Reports.
11.
The minimum policy limits required in this section are exclusive of costs of defense. The
Subcontractor’s obligation to procure and maintain the insurance required in this exhibit D,
subparagraphs 1-10 above is not in derogation of, nor in substitution for Subcontractor’s
obligation to protect, defend, indemnify and save the Contractor harmless under those
provisions or under Article 7, it being understood that Subcontractor’s obligation to protect,
defend, indemnify and save the Contractor harmless are not dependent upon nor limited to the
amount or availability of insurance proceeds.
12.
Additional Insured. The Contractor shall be listed as additional insured on the Subcontractor’s
policies for all liability insurance, except worker compensation, required under the terms of this
Subcontract, and such liability insurance policies, including all primary policies and any
excess/umbrella policies shall be primary to any primary and/or excess/umbrella liability
insurance carried by Contractor.
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SUBCONTRACT No:
13.
Waiver of Subrogation. All policies shall be endorsed to provide that underwriters and
insurance companies of the Subcontractor shall not have any rights to subrogate against
Contractor.
14.
Certificates and Policies. The Subcontractor shall furnish certificates of insurance evidencing
compliance with the foregoing requirements, including the per project general aggregate, as a
condition of initial prequalification as well as a condition of continued prequalification for the
Contract period. Each Certificate will provide that:
That the “other insurance” clause of the policies evidenced by the Certificates shall be
interpreted to make it primary to any insurance policies maintained by Contractor which might
otherwise be applicable.
Certificates of Insurances shall be sent to:
Subsidiary
ATTN:
15.
Premiums Responsibility. All policies shall be endorsed to provide that there will be no
recourse against Contractor for payment of the Subcontractor’s premiums.
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SUBCONTRACT No:
EXHIBIT F
DELIVERABLES
Deliverables: All Deliverables shall be provided by the Subcontractor to the Contractor’s Program/Project
Manager unless directed otherwise. Deliverables are identified within the Scope of Work and will be listed at
Exhibit A.
Deliverable
1.
2.
Reference
Performance/Payment Bond
Subcontract Section 4.3
Consent of Surety to Final Payment
As required
Release of Claims
Exhibit G
Warranty Documents
Subcontract Article 3
Permits, Licenses, etc.
Subcontract Section 2.9
Certificate of Insurance
Subcontract Section 4.2
and Exhibit E
7.
Progress Billing
Subcontract Section 2.2
and Exhibit C
8.
Total Aggregate Labor Cost
Subcontract Section
2.12.10
9.
Industrial Security and/or Government Background Check:
The DD Form 254 and/or other related information, if
required, will be incorporated at Exhibit I.
As Required
10.
Health and Safety Requirements
Subcontract Section 2.6.3
11.
Quality Control/Assurance Requirements
Subcontract Section 2.2
12.
Additional Warranty Period Beyond One (1) Year
Subcontract Section 3.2.2
13.
Davis-Bacon Deliverables
14.
Submittals
15.
Subcontract Closeout Letter, CAC-FIN-S047
16.
Executive Compensation Certification
3.
4.
5.
6.
CAC-FIN-S056 / Rev 13 / 4-15-14
Due
As required
Subcontract award
Prior to final payment
Project completion
FAR Clause 52.204-10
Reporting Executive
Compensation and FirstTier Subcontract Awards
(July 2013)
Page 1 of 1
As required – Prior to
Exercising Option Year
Subcontract No:
EXHIBIT G
RELEASE OF CLAIMS
SUBCONTRACTOR’s RELEASE OF CLAIMS
Reference:
(a)
Subcontract No.
(b)
Prime Contract No.
Pursuant to the terms of the referenced subcontract and in consideration of the sum of
__________________________ dollars ($
), which has been or is to be paid to
_____________________________ (subcontractor's name), (herein called Subcontractor) or its assignees, if any, the
subcontractor, upon payment of the said sum by Contractor does remise, release and discharge Contractor, its officers,
agents and employees of and from all liabilities, obligations, claims and demands whatsoever under or arising from the
said Subcontract.
IN WITNESS THEREOF, this release has been executed this
day of
, 20 by the undersigned who certifies that
this release was duly signed for and on behalf of the Subcontractor by authority of its governing body and is within the
scope of my corporate powers.
BY:
NAME:
TITLE:
SIGNATURE:
COMPANY:
Witnesses: (1)
____
(2) _______________________________
(Note: In the case of a corporation, witnesses are not required but the certificate below must be completed.)
CERTIFICATE
I,
(printed/typed name), certify that I am the
(official title) of the corporation named as Contractor in the foregoing release; that
who
signed the release on behalf of the Contractor was the
(official title) of said
corporation; that said release was duly signed for and in behalf of said corporation by authority of its
governing body and is within the scope of its corporate power.
Signed:
____________________
(CORPORATE SEAL)
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Subcontract No:
EXHIBIT H
FEDERAL ACQUISITION REGULATION CLAUSES
1. Where the words “Contracting Officer” and “Contractor” appear in the text of such provisions, such
reference shall mean the “Contractor” and “Subcontractor” respectively. References in such provisions
to the “Government” shall remain as stated except where it is clear that the “Contractor” should be
substituted accordingly. All references in the following provisions to “Contract” shall mean this
Subcontract.
2. This Subcontract incorporates one or more clauses by reference, with the same force and effect as if
they were given in full text. Upon request the Contractor will make their full text available. Also, the
full text of a clause may be accessed electronically at this address:
http://arnet.gov/far
3. Subcontractor shall be bound and obligated with respect to any and/or all terms, conditions,
provisions or clauses mandated or required to be included in the Prime Contract and flowed down to
the Subcontractor irrespective of whether the same have been expressly included in this Subcontract.
Subcontractor shall be so bound and obligated to the same extent as if the same has been set out
verbatim in this Subcontract.
4. CLAUSES INCORPORATED IN FULL TEXT:
5. CLAUSES INCORPORATED BY REFERENCE:
Obtained from prime contract, “boilerplate”
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EXHIBIT I
ATTACHMENTS
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