Agreement Addendum
This Agreement Addendum (the “Addendum”) shall be a part of any purchase order, agreement, contract, subcontract or other similar document (“Agreement”) between Penhall Company (“Subcontractor”) and its customer (“Customer”), regardless of whether this Addendum is referenced on any purchase order, agreement or other similar document so long as the web address herein (www.penhall.com/agmt/) is referenced. To the extent of any conflict between the provisions of this Addendum, and the provisions in the remainder of the Agreement, or any agreements incorporated therein, the provisions of this Addendum shall prevail. Capitalized terms used herein shall have the same meaning given to them in the Agreement. If the Customer and Subcontractor have not entered into an agreement as defined above, then this Addendum shall be the Agreement with respect to the matters covered herein.
- Work. The Customer has engaged Subcontractor to perform concrete and related services (“Work”). Subcontractor’s scope of work shall only include work and materials specifically agreed upon in writing, which shall not include anything claimed as “incidental” unless agreed by the parties. Any changes to the Work must be reduced to writing and signed by Subcontractor and Customer prior to Subcontractor’s performance. Customer acknowledges that it has inspected and accepted any work-in-place that affects Subcontractor’s Work and Subcontractor shall not be responsible for any errors or defects in such work-in-place, the pulling of any permits, or performance of any layout. Subcontractor shall report any known or discovered discrepancies in the plans and specifications, as provided to Subcontractor, but shall not be responsible for any other errors or omissions contained therein. Customer agrees that the construction schedule and any changes thereto shall be as agreed upon by the parties. Subcontractor shall not be responsible for any subsurface and/or differing site conditions and Customer agrees to compensate Subcontractor for additional work or delay expenses related to such conditions. Responsibility for offsite transportation and disposal of any materials resulting from Subcontractor’s demolition or hydro demolition services shall remain with Customer, unless otherwise specifically agreed to in writing. In no event shall Subcontractor retain title to nor be considered the generator of waste or owner of any materials resulting from its services.
- Price and Payment Terms. Any price quotation from Subcontractor to the Customer for Work is a good faith estimate of final charges. All charges for Work shall be on a time and material basis, unless otherwise mutually agreed. Actual charges may be more or less than the estimate. Subcontractor’s proposal shall be incorporated into this Addendum. Customer and Subcontractor agree that the contract price shall only be changed by a mutually agreeable written change order prior to any commitment by Subcontractor to perform any changed or extra Work. Subcontractor shall not be bound to provide any pricing warranty or guarantee. Payment by Customer to Subcontractor shall not be contingent upon payment from any other party. Customer shall not issue joint checks or direct payment to any sub-subcontractor and may only withhold payments owed to Subcontractor in an amount agreed upon by the parties in writing. Bonds shall not be required. All lien waivers shall be conditioned upon payment. In no event shall Customer’s payment to Subcontractor extend beyond thirty (30) days from the date of Subcontractor’s acceptable invoice. Retainage shall not be withheld. Any requirements in the Agreement for Subcontractor to provide personal guarantees are deleted.
- Audit. Subcontractor shall not be required to provide any financial information or participate in any plan or process designed to ascertain the prices charged for products or services by Subcontractor.
- Damages. Customer agrees that Subcontractor shall not be liable for consequential, incidental, delay or liquidated damages.
- Default. Subcontractor shall have at least two (2) business days from receipt of written notice of any alleged default, warranty claim or clean up violation to commence curing such alleged default, warranty claim or clean up violation; Subcontractor shall cure such alleged default, warranty claim, or clean up violation in a commercially reasonable period. All references to rights or remedies available to Customer on a cross-default basis are hereby deleted. Attorney’s fees and court costs shall only be paid to the prevailing party to the extent awarded by a mediator, arbitrator, or court with competent jurisdiction. Under no circumstances, including default hereunder by Subcontractor, shall Customer, or any other party, be allowed to use or in any way exercise control over Subcontractor’s equipment or tools.
- Termination. Should the Agreement be terminated or suspended, Subcontractor shall be entitled to payment for work completed or materials delivered at the agreed rates prior to such termination. Either party may terminate the Agreement without penalty by providing thirty days written notice to the other party.
- Insurance. Subcontractor agrees to maintain insurance coverage at reasonable limits, as they relate to the Work, stated in the Agreement with per policy aggregates. If any additional insured coverage is requested in writing or required under the Agreement, such additional insured status shall only cover Customer, and any reasonably required parties, for claims to the extent caused by Subcontractor regardless of the version of the endorsement forms. Subcontractor shall issue the endorsement on ISO Accord forms CG 2010 0413 and CG 2037 0413, or their equivalent. Such additional insured status shall end when Subcontractor’s ongoing operations for Customer on each applicable project are concluded. Subcontractor may maintain deductibles in a commercially reasonable manner. Subcontractor shall not be required to provide professional liability/errors and omissions, elevator, Rigger’s Liability, Builders Risk or property for work-in-place insurance coverages or its insurance policies.
- Indemnity. Notwithstanding anything to the contrary contained in the Agreement or otherwise, Subcontractor shall only be required to indemnify, defend, reimburse, or hold Customer, Owner, or any other reasonably required party, harmless for claims to the extent they result from the negligence or willful misconduct of Subcontractor and its subcontractors and/or material suppliers. Except as set forth in the preceding sentence, Subcontractor shall have no obligation to indemnify, defend, reimburse, or hold harmless Customer, Owner, or any other person. All indemnification and defense obligations shall expire one (1) year following the completion of Subcontractor’s portion of the Work.
- Guarantee/Warranty. Subcontractor warrants that the Work shall be of industry standard quality and completed in a workmanlike manner in material conformance with specific requirements set forth in the Agreement or related documents which are provided to Subcontractor and customary industry standards for a period of not more than one (1) year from the date of completion of Subcontractor’s Work. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES BY SUBCONTRACTOR, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR USE OR PURPOSE. With respect to services that include ground penetrating radar (GPR) or x-ray scanning services, scan markings act as a guide and must be used in conjunction with other site-specific evidence. Results cannot be guaranteed or considered certain. While scanning can significantly reduce the possibility of striking embedments, technical limitations, environmental conditions, and interpretive analysis of complex data can lead to inconclusive results and false negatives or false positives. As a result, in no event shall any warranty obligation of Subcontractor extend to the portion of the Work related to scanning services.
- Contract Documents. Subcontractor shall only be bound by documents specifically acknowledged by Subcontractor in writing. and in no event shall Subcontractor have any liability in conflict with, or greater obligations than those contained herein.