Subcontractor Agreement

Agreement with Subcontractor to Perform Snow Removal Services

Agreement made on the (date), between

of referred to herein as Subcontractor, and

a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Contractor.

Whereas, Contractor has entered into an Agreement with for snow removal services, a copy of said Agreement being attached hereto as Exhibit A and made a part hereof by reference; and

Whereas, said Agreement reflected in Exhibit A is hereinafter called the Principal Contract; and

Whereas, Contractor wishes to subcontract to Subcontractor, and Subcontractor wishes to perform the work called for in the Principal Contract;

1. Scope of Work

Subcontractor shall perform all the work and furnish all the materials, equipment and labor necessary for performance of the Principal Contract, together with all tools, machinery, appliances, winter protection, and all other protection necessary to perform the work as called for and required in the Principal Contract.

2. Principal Contract

This Subcontract is to be performed in all respects in accordance with and subject to the provisions and conditions of the Principal Contract as defined above to the full extent that every part of it is applicable to the work to be performed under this Subcontract. Subcontractor agrees that whenever the Principal Contract requires the performance of any act or thing by Contractor, or imposes any obligation on Contractor in connection with the performance or completion of any of the work required to be performed by Subcontractor, such obligation of Contractor is also assumed by Subcontractor who also agrees to perform such work to the full extent as it may be required by the Principal Contract. Subcontractor agrees further that the Owner and Contractor shall have the same rights and remedies as against Subcontractor in respect of all matters in the Principal Contract, as the Owner has against Contractor, with the same force and effect as though every such obligation, responsibility, right, or remedy were set forth here in full.

3. Inspection; Accuracy of Work; Coordination with Others

Subcontractor acknowledges that he has visited the site and is familiar with all of the existing conditions that may affect the work. Subcontractor shall lay out his own work unless stated otherwise in this Subcontract and be responsible for the accuracy of such work. Subcontractor shall conform its own work to the work performed by others, so that the work of all shall be coordinated.

4. Payment

Contractor shall pay Subcontractor for the performance of this Subcontract the amounts described in Exhibit B attached hereto and made a part hereof, pursuant to the time and schedule set forth in said Exhibit B, subject to additions and deductions for changes agreed upon or determined, as provided below in this Subcontract.

5. Time of the Essence

Time is of the essence of Subcontractor's performance. Subcontractor shall commence work promptly following Contractor's orders to do so. Subcontractor shall proceed in such order and sequence as Contractor may direct so as to enable Contractor to complete its work within the time specified in the Principal Contract, or as such work may be extended.

6. Direction; Construction of Contract

All of the work to be performed under this Agreement shall be performed under the direction of Contractor and the decision of Contractor such parties as to the true construction of the meaning of the Snow Removal Agreement shall be binding upon Subcontractor.

7. Supply of Workers and Materials

Subcontractor shall keep a necessary and sufficient number of skilled workers in the performance of the work, so as to properly and diligently perform and complete all of the work by the time provided for under this Subcontract, so as not to delay or interfere with Contractor in its performance of its work under the Principal Contract. All of the materials and equipment to be supplied by Subcontractor in the performance of this Subcontract shall be suitable, and of the first quality for such work. Should Subcontractor, in the opinion of Contractor, which opinion shall be final, violate a provision of this Subcontract or at any time refuse or neglect to supply a sufficient number of skilled workers or equipment of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements contained under this Subcontract, then Contractor shall be entitled, upon days written notice to Subcontractor, to provide such labor and equipment and to deduct the cost of such labor and equipment from any money then due or that may afterwards become due to Subcontractor under this Subcontract; or at the election of Contractor, Contractor shall have the right to terminate the employment of Subcontractor under this Subcontract and for the purpose of completing the work, to enter upon the premises and take possession of all equipment and to employ other persons to finish the work and to provide all of the equipment. In case of such discontinuance of the employment of Subcontractor, Subcontractor shall not be entitled to receive any further payments under this Subcontract until the work is wholly finished by Contractor, at which time, if the unpaid balance of the amount to be paid under this Agreement shall exceed the expense incurred by Contractor in finishing the work, the excess shall be paid to Subcontractor, but if such expense shall exceed the unpaid balance then Subcontractor shall pay the difference to Contractor.

8. Termination

A. Contractor may terminate the employment of Subcontractor at any time and cancel this Subcontract, even though Subcontractor may not be in default, and in such event shall be liable to Subcontractor only for the following amounts:

1. The actual cost of all materials for which orders have been placed by Subcontractor for use under this Subcontract, it being agreed that, if required by Contractor, Subcontractor shall make every possible effort to cancel such orders;

2. The actual direct cost of labor performed and equipment use on the work; provided, however, that all of the above are in accordance with the terms of this Subcontract; and

3. State taxes for unemployment insurance and federal social security taxes.

4. Accrued premiums for compensation and liability insurance connected with the work of this Subcontract.

5. A sum equal to % of the above costs in lieu of overhead expense and profit, provided that Subcontractor's work is accepted by the Owner and Contractor.

B. From the amount so determined shall be deducted all payments previously made and all proper charges to Subcontractor.

9. Payments by Subcontractor; Liens

Subcontractor agrees to pay for all materials, equipment, labor and instrumentalities used in or in connection with the performance of this Subcontract when and as bills or claims become due. Subcontractor shall indemnify, save harmless and protect the premises, Contractor, and the Owner from and against any claims and mechanics liens. Contractor may retain moneys for such indemnification. Subcontractor agrees that it will look only to Contractor for payment and shall not, at any time, file any lien or notice of claim of any kind or nature nor permit such lien or claim against moneys due under the Principal Contract, or against the premises being improved, for work performed or for any other reason or upon any ground whatsoever. Subcontractor waives and relinquishes the right to lien or claim of lien as may be permitted by any provision of law.

10. Maintenance

A. Subcontractor shall be under the same obligation to Contractor to maintain the work performed by it as Contractor is obligated to the Owner under the Principal Contract to maintain such work. Subcontractor shall perform such maintenance work at its own cost and expense. Subcontractor shall also be fully responsible for:

1. Any defective or improper work or equipment;

2. Any damages caused by such defective or improper work or equipment;

3. The repair or replacement of such work, equipment, or damages, which repair or replacement shall be satisfactory to the Owner and Contractor; and

B. No payment made under this Subcontract shall be evidence of the performance of this Subcontract, either wholly or in part, and no payment including final payment shall be construed to be an acceptance of defective work or improper equipment, or the performance of this Subcontract, nor shall entrance and use by the Owner constitute acceptance of any of the work under this Subcontract.

11. Extra Work

A. Subcontractor shall not be entitled to receive any extra compensation for extra or additional work of any kind, regardless of whether the work was ordered by Contractor or any of its representatives, unless such extra order is given in writing and signed by the authorized representative of Contractor. Subcontractor specifically agrees that it will make no claim that it was authorized to do any extra work or make any modification in the work by Contractor, or any representative, at the site or elsewhere, in the absence of such written order. If such work was so ordered and Subcontractor has performed the work but has received no written order for it, then Subcontractor shall waive any claim for extra compensation for such work, except as otherwise provided in this Subcontract.

B. Should Contractor direct Subcontractor in writing to perform any extra or additional work, at the direction, request, or instance of the Owner, then Subcontractor shall promptly perform extra or additional work and shall receive in payment for such work such amount as Contractor and Subcontractor mutually agree upon. If Contractor and Subcontractor are unable to agree as to the amount to be paid to Subcontractor for such extra or additional work, then Subcontractor shall, nevertheless, promptly perform such extra or additional work and shall receive in payment such amount as Contractor may receive from the Owner for the extra or additional work, less the amount of Contractor's mark-up on such work.

C. Should Contractor order or direct Subcontractor in writing to perform any extra or additional work for Contractor's convenience, and not as a result of the direction, request, or instance of the Owner, Subcontractor shall promptly perform such extra or additional work and shall receive in payment such amount as may be mutually agreed upon between Contractor and Subcontractor. If Contractor and Subcontractor are unable to agree on the amount to be paid for such extra or additional work, Contractor shall pay to Subcontractor for such work the following amounts:

1. The actual cost of all materials purchased and equipment use by Subcontractor and incorporated in such extra or additional work;

2. The actual direct cost of all labor supplied by Subcontractor in connection with the performance of the extra or additional work, excluding, however, any cost of supervision which is deemed to be included in the % mark-up;

3. Any state taxes or unemployment insurance and federal social security taxes applicable to the extra or additional work and expended by Subcontractor;

4. Any accrued premiums for compensation and liability insurance applicable to the extra or additional work and incurred by Subcontractor; and

5. A sum equal to % of the above costs to cover all overhead expenses and profit in connection with the extra or additional work.

12. Indemnification

A. Subcontractor assumes the entire responsibility and liability for and agrees to hold Contractor and the Owner harmless from any and all damage or injury of any kind or nature whatsoever (including death resulting from such damage or injury) to all persons, whether employees of Subcontractor or otherwise, and to all property (including loss of use of such property) caused by, resulting from, arising out of, or occurring in connection with the execution of its work under this Subcontract. If any person shall make a claim for any damage or injury (including death resulting from such damage or injury) as described above, then Subcontractor shall indemnify and save harmless Contractor and the Owner from and against such claim and all loss, expense, and damage or injury that Contractor or the Owner may sustain as a result of such claim. Subcontractor agrees to assume on behalf of Contractor and the Owner the defense through counsel of any action at law or equity which may be brought against Contractor or the Owner upon such claim and to pay on behalf of Contractor and the Owner upon Contractor's demand the amount of any judgment which may be entered against Contractor and the Owner in any such action. The obligation under this section shall be continuing and shall not be diminished by any approval or acceptance of or payment for work by Contractor.

B. If at any time claim shall be made against Contractor or the Owner against which Subcontractor has so indemnified them, then Contractor may withhold from any payment otherwise due to Subcontractor an amount sufficient in Contractor's discretion to protect Contractor and the Owner against the cost of such claims and any costs involved in connection with such claims until the cause for withholding is removed by Subcontractor and evidence to that effect satisfactory to Contractor is furnished to Contractor.

13. Insurance

Subcontractor shall take out and maintain in full force and effect during the performance of the work insurance policies insuring against any liability under the worker's compensation and disability benefits law, and shall also provide, maintain, and pay for insurance against liability for damages on account of injuries, death, or damages to or of persons (including Contractor's employees) and injuries to Subcontractor's employees and against liability for damages to property whether resulting from Subcontractor's negligence, fault or default, or by reason of the provisions of this Subcontract or of the Principal Contract. The carrying of such insurance shall not be deemed to release or relieve Subcontractor from or in any way diminish its liability by way of indemnity or otherwise, as assumed by it under the provisions of this Subcontract. The limits of the required insurance policies shall be: (minimum limits of insurance policies) . Certificates evidencing the taking out of such policies shall be furnished to Contractor and shall provide that such policies may not be changed or cancelled until after days' prior written notice to Contractor.

14. Compliance with Laws

Subcontractor agrees to comply with all federal and state laws, codes, and regulations and all municipal laws, ordinances and regulations, present or future, applicable to the work to be performed under this Subcontract and to obtain at its own expense all licenses and permits necessary for the performance of the work under this Subcontract. Subcontractor shall pay all taxes, assessments, and premiums under the federal Social Security Act, any applicable unemployment insurance, worker's compensation, disability benefits, sales tax, use tax, personal property tax laws, or other applicable laws now or later in effect payable by reason of or in connection with any part of Subcontractor's work.

15. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

16. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

17. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

18. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

19. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

20. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

21. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

22. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

23. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

24. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

25. In this contract, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.

For Exhibit A see the following forms:

http://www.uslegalforms.com/us/US-02509BG

http://www.uslegalforms.com/us/US-01305BG