The PCI Contracts Committee reviewed the AGC 650 Standard Contract to provide some help in determining equitable contract terms.  While this review applies to a specific contract, it is helpful in suggesting language that you may wish to use on other contracts.
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Addendum to Standard Form of Agreement Between Contractor and Subcontractor

The undersigned Subcontractor accepts the terms of the proposed Agreement attached subject to the Contractors agreement to the modifications set forth in this Addendum, as well as those changes incorporated within the Agreement by interlineation or deletion. Anything to the contrary notwithstanding, this Addendum shall take precedence over any inconsistent provisions of the Agreement or other contract documents, Contractor's acceptance shall be evidenced by Contractor's signature or by first permitting Subcontractor to commence work on the project,

Agreement
1. The scope of Work shall include only the work set forth in the attached Subcontractor's proposal or description of work, which proposal or description is expressly incorporated and made a part of the Subcontract Documents between the Contractor and the Subcontractor.

Scope of Work
2. No terms and conditions or other document included by reference in the Agreement shall be binding on the Subcontractor unless a copy of any such terms and conditions or document has been furnished to the Subcontractor prior to execution of the Agreement unless expressly accepted in a writing signed by the Subcontractor.

Rejection of Work
3. In lieu of paragraphs 3.2 and 3.22.2, Subcontractor's work shall be executed in substantial compliance with the Contract Documents in a good and workmanlike manner as reflected in MNL-116/117 and free of defect not inherent in the type of work. Contractor may reject Subcontract Work only for demonstrated noncompliance with the Subcontract Documents and only if the Architect/Engineer concurs in writing that the Subcontract Work is unacceptable.

Completeness of Plans
4. Subcontractor is entitled to rely on the accuracy and completeness of the plans and specifications provided to the Subcontractor.

Design Responsibility
5. Any precast design services provided by the Subcontractor will be reviewed by the Architect/Engineer responsible for the overall project whose responsibility it is to assure that the design will be acceptable when integrated with the entire work. Contractor, Owner and Architect are entitled to rely on the accuracy and completeness of the precast design only if all design criteria are furnished to the Subcontractor by the Contractor, Owner and Architect.

Temporary Site Facilities
6. In lieu of paragraph 3.9, Contractor shall provide all temporary site facilities and utilities without cost to Subcontractor unless otherwise specifically agreed in writing signed by Subcontractor.

Backcharge Claims
7. No backcharge or claim of the Contractor shall be valid unless Subcontractor has been given written advance notice, has been allowed reasonable time to correct any deficiency, and has failed to do so. , Even then, no backcharge shall be valid unless billing is rendered no later than the 15th day of the month following the month in which the charge was incurred. Furthermore, any payments withheld under a claim of Subcontractor default shall be reasonably calculated to cover the anticipated liability only and all remaining payment amounts not in dispute shall be promptly paid.

Safety Barriers
8.  Subcontractor shall not be liable for erecting Project safety barriers unless expressly and specifically agreed to be part of the Subcontractor's Work.

Safety
9. Each party to the Agreement shall be liable for any safety violation fines or penalties imposed upon it by governing authorities, regardless of the cause of the fine or penalty.

Warranties
10. Notwithstanding 3.21, Subcontractor's warranty shall commence on the date of Substantial Completion of Subcontract Work or a designated portion thereof.

Owner's Ability to Pay
11.  Subcontractor shall be provided, upon written request, with the legal description of the property, the name, address and representative of the Owner, and evidence of adequate owner project financing. The Contractor shall promptly notify Subcontractor in writing of material changes in the Owner's identity or financial arrangements. Subcontractor shall not be obligated to commence or continue Subcontract Work unless adequate assurance of payment is received.

Delays
12.  Subcontractor shall be entitled to an extension in subcontract time and/or an equitable adjustment in the price of the work, including but not limited to any increased costs of labor, including overtime, or materials, resulting from any change of schedule, acceleration, out of sequence work, or delay caused by others for whom Subcontractor is not responsible.  Subcontractor shall not be liable for any delays beyond its reasonable control nor be required to commence or continue work unless sufficient areas are ready to ensure continuous work,

Subcontractor Claims
13.  Subcontractor's entitlement to adjustments in the subcontract time or price for changes in the work shall not be contingent upon or limited to the amount that the Contractor receives from the Owner. Under no circumstances does the Subcontractor waive its right to payment for extra work performed by the Subcontractor pursuant to instructions from the Contractor.

Consequential Damages
14. Under no circumstances shall Subcontractor be liable for any consequential damages.

Pricing of Adjustments
15. The percentage for overhead and profit shall represent a fixed percentage and not a maximum percentage.

Payment
16. No provision of this agreement shall serve to deny Subcontractor's entitlement to full payment each calendar month for properly performed work or suitably stored materials. Payments shall be due (7) days after payment is received or should have been received by Contractor from Owner. Final payment, including release of retainage, shall be due within 30 days after substantial completion of Subcontractor's Work, less the reasonable value of uncompleted Subcontract Work, Interest shall become due and payable on any Subcontractor billing that remainder paid after the payment due date. The rate of interest shall be three percentage points above the prevailing prime interest rate at the largest national bank in the state where the project is located.

Requirements for Final Payment
17. Contractor will not require any contract closeout procedures or any forms that have not been provided to and specifically accepted by the Subcontractor before signature of the Agreement.

Payment Use Restriction
18. Payments received by the Contractor for Subcontractor Work shall be held in trust and used solely for the benefit of Subcontractor, its sub-subcontractors and suppliers.

Payment Use Verification
19. Contractor's right to contact Subcontractor's sub-subcontractors and suppliers concerning payment status shall apply only if Subcontractor fails to furnish reasonable evidence, upon written request that payments made by Contractor to Subcontractor for the Work of sub-subcontractors and suppliers have been properly paid to such sub-subcontractors and suppliers.

Partial Lien Waivers
20.  Any form or contract language wherein the Subcontractor purports to release the Contractor, Owner or Design Profession is hereby qualified by the following language whether or not the Subcontractor specifically adds the language: “This release shall apply only to work for which payment has been received in full by Subcontractor; shall not apply to retention; shall not apply to unbilled changes, to claims which have been asserted in writing or which have not yet become known to Subcontractor, and shall be conditional upon receipt of funds to Subcontractor's account.”

Indemnity
21.  Any indemnification or hold harmless obligation of the Subcontractor shall extend only to claims relating to bodily injury and property damage and then only to that part or proportion of any claim, damage, loss or defect that results from the negligence or intentional act of the indemnitor or someone for whom it is responsible.  Subcontractor shall not have a duty to defend.

Insurance
22. Notwithstanding any provision to the contrary, Subcontractor shall provide the types and limitations on insurance shown on the attached certificate of insurance.  Contractor shall pay additional policy premium required for insurance policy limits or additional coverage that are in excess of those shown on the attached certificate of insurance.   Subcontractor shall not be required to include Contractor, Owner, Design Professionals as additional insured or named insured.

Builder's Risk Insurance
23. If Owner and Contractor fail to provide Builder's Risk insurance for the full value of Subcontractor's Work, including stored material and material in transit, Subcontractor shall be entitled to reimbursement of any insurance premium paid by Subcontractor for Builder's Risk insurance on the Subcontractor's Work.

Suspension of Work
24. In the event of a suspension of work by the Owner or the Contractor, Contractor's liability to the Subcontractor is for payment in full for all Work performed (including, but not limited to, shop drawings, forms, and manufacturing expenses) to date of suspension and any additional costs incurred as a result of the suspension, including demobilization and remobilization, plus reasonable overhead and profit.

Termination by Owner
25. In the event of any termination by the Owner or by the Contractor which is not justified by a default of the Subcontractor, Subcontractor shall be entitled to payment from the Contractor for all costs incurred by the Subcontractor for which the Subcontractor has not received payment, including, but not limited to, reasonable overhead, profit, expenses (including, but not limited to, shop drawings, forms, and manufacturing expenses) and damages, including attorneys' fees and interest, including profit on unperformed work.

Dispute Resolution
26. In lieu of the provision of Article 11, all claims, disputes, and matters arising out of or relating to this Agreement or breach thereof shall first be submitted to mediation through the American Arbitration Association and if not resolved by mediation shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect, unless the parties mutually agree otherwise at the time.  The mediation and/or arbitration shall not be stayed pending resolution of any disputes between the Contractor and the Owner or other third parties.

Governing Law
27, Any dispute shall be governed by the law of the state where the project is located. The federal or state courts in the state where the project is located shall have exclusive jurisdiction and venue, and any arbitration shall be conducted within the state where the project is located.

Lien Rights
28. Notwithstanding any provision to the contrary, Subcontractor may take all steps reasonably necessary to preserve and enforce its lien and bond rights.

Liquidated Damages
29.  If the Agreement specifically includes a liquidated damage provision, Contractor shall make no demand for liquidated or actual damages for delay in excess of the amount assessed against Contractor for unexcused delays to the extent actually caused by Subcontractor.

Other
30. Other (if applicable) insert below--
 
 
 

Subcontractor                                        Contractor
By__________________                       By____________________
Title_________________                       Title __________________
Date_________________                       Date___________________



Reference to AGC650/655 (1998)

Addendum      ACC 650/655 Reference

1.                   Article 1
2.                   Paragraph 2,3 Article 13
3.                   Paragraph 3,2 and 3.22.2
4.                   Paragraph 3.3
5.                   Paragraph 3,7 and 3.8
6.                   Paragraph 3,9
7.                   Paragraph 3.13.2, 3,15, and 8.2.7
8.                   Paragraph 3.14.3
9.                   Paragraph 3.14,9 (Delete the last sentence of 3,14.9)
10.                 Paragraph 3.21
11.                 Paragraph 4,3.1 and 4.5
12.                 Article 5
13.                 Paragraph 5.3 and 7,3
14.                 Paragraph 5.4.1 and 5,4.2
15.                 Paragraph 7.6
16.                 Article 8
17.                 Paragraph, 8,3,2 and 3.12
18.                 Paragraph 8.6
19.                 Paragraph 8.7
20.                 Paragraph 8.8
21.                 Paragraph 9.1.1 and 9.1.2
22.                 Paragraph 9.2
23.                 Paragraph 9.2.7.2 and 9.2.7,3
24.                 Paragraph 10.3 and 10.6
25.                 Paragraph 10.4
26.                 Article 11
27.                 None
28.                 None
29.                 None
30.                 None