Ross Builders Co. Inc.
MASTER SUBCONTRACT TERMS AND CONDITIONS (rev. March 2025)
1) In General and Acceptance. Subject to these terms and conditions, Ross Builders Co. Inc. ("Ross Builders")agrees to pay the subcontractor, vendor, supplier or other sub-tier contractor (collectively, "Subcontractor") the sum on the face of theSubcontract Order ("Order") for furnishing the labor, equipment, material, and/or services generally described on the Order (the "Work") for the indicated Project ("Project"), provided that such Work (a) complies with all requirements of the Subcontract (defined below), (b) is timely furnished in a good, workmanlike manner and in accordance with the highest of applicable industry standards, and (c) issatisfactory to Ross Builders, Ross Builders 's customer, the owner of the Project (the "Owner"), and/or the Architect or Engineer ("AE").This Subcontract consists of, and incorporates by reference, any contract between Ross Builders and Ross Builders ’s customer, the Order, these Master Terms and Conditions (which Subcontractor agrees shall apply to every subcontract from Ross Builders going forward), andany Project general/special conditions, plans, drawings, specifications, schedules, and/or the building code provisions applicable to Subcontractor's Work, all of which have been or will be made available to Subcontractor (all such documents collectively referred to as "the Subcontract"). It is Subcontractor's responsibility to verify it has the most current Project documents. To the extent of any conflict between this Subcontract and Subcontractor’s quote or proposal, the Subcontract shall supersede the same and shall control. Either Subcontractor's signature on the Order, or any other written/electronic notification to Ross Builders of acceptance, or Subcontractor's commencement of Work, will constitute Subcontractor's irrevocable acceptance of the Subcontract. Time is of the essence with respect toSubcontractor's obligations under this Subcontract.
2) Payment. Payments will be made to Subcontractor each month pursuant to its timely submitted invoice(s) (in a form required by the Project) in an amount equal to the value of Work actually performed, but not exceeding the amount paid to Ross Builders by its customer or the Owner for the Work on the previous invoice, less any amount of retainage indicated on the face of the Order or otherwise required by the Project documents. Each invoice shall be submitted by Subcontractor by the first day of each month and supported with all relevant documentation. Payments will be due and payable to Subcontractor within ten (10) days after, but only after, Ross Builders 's receipt of payments from its customer for the Work. Subcontractor understands and agrees that Ross Builders 's receipt of payment from Ross Builders ’s customer for Subcontractor’s Work is an express condition precedent to Ross Builders ’s obligation to pay Subcontractor. Subcontractor assumes the risk of default or nonpayment by Ross Builders ’s customer and/or the Owner, for whatever reason. Subcontractor understands that it may also be required to provide lien waivers with invoices as an express condition precedent to receiving payment. Payment to the Subcontractor shall not be construed as approval or acceptance of any part ofthe Subcontractor's Work.
If final acceptance of the Subcontractor's Work can be obtained prior to final acceptance of the entire Project by the Owner, all monies due the Subcontractor will be paid within ten (10) days after (a) receipt of the same by Ross Builders from its customer and/or the Owner, and (b) Subcontractor's submittal of as-built drawings, signed-off punch lists and warranties; otherwise, said payment will bemade within 10 days after Ross Builders 's receipt of its final payment (e.g., retainage) from its customer and/or Owner. Subcontractor shall also furnish any lien waivers, other warranty documents, guarantees, affidavits, or any other documents required by Ross Builders 's customer and/or the Owner within 10 days of notice from Ross Builders; otherwise, Ross Builders may withhold payments currently due until such time as the documents are received. Ross Builders may deduct from any amount due or to become due any sums owing Ross Builders by the Subcontractor, in the event of any breach by the Subcontractor of any provision or obligation of this Subcontract, or in the event of the assertion of any claim or lien against Ross Builders, the Owner or the Project arising out of the Subcontractor's performance. Ross Builders shall have the right to retain out of any payments due or to become due to the Subcontractor, an amount reasonably sufficient to completely protect Ross Builders, the Owner, and/or the Project from any and all losses, damages or expenses therefrom, until the Subcontractor has remedied the issue to the satisfaction of Ross Builders and its customer.
3) Schedule and Delays. Time is of the essence with respect to all times and dates relating to the Subcontract. Subcontractor shall commence the Work when notified by Ross Builders, and shall at all times furnish sufficient manpower and equipment, and shall diligently prosecute and complete the Work (and coordinate the Work with Ross Builders 's supervisor and the other work being performed on the Project) in accordance with the Project schedule, completion dates and any other scheduling requirements in the Subcontract, so as not to delay the progress or completion of the Work, Ross Builders 's work scope, or other work on the Project. Without limiting Ross Builders 's right to cancel the Subcontract due to the Subcontractor's delays, Subcontractor shall be liable for all delays, interferences, and hindrances caused in any way by its acts or omissions and those of its subs or suppliers, and all resulting damages, expenses, and impacts. Subcontractor is responsible for daily cleanup and removal of all debris associated with itsWork.
4) Indemnity. Subcontractor shall indemnify, defend and hold Ross Builders harmless from any loss, damage, claims, suits, demands, tenders, liability, costs of litigation, attorney's fees and any other expenses arising out of Subcontractor's performance hereunder, any Subcontractor breach of this Subcontract, Subcontractor's negligent or wrongful acts or omissions, any liensor claims by Subcontractor or any of its subcontractors or suppliers, relating to the Work; provided however, that Subcontractor shall not indemnify or defend Ross Builders for such claims, liabilities and/or damages resulting solely from Ross Builders 's own negligence (the burden of which to prove shall be Subcontractor's). As part of its indemnity obligations, Subcontractor shall assume the cost of and either settle or defend any resulting lawsuits or other actions and pay any and all costs relating to the same. In satisfying these indemnity obligations, Subcontractor waives its immunity provided under the Ohio Constitution and/or workers' compensation laws relating toclaims by its employees.
5) Insurance. Prior to its start of the Work, Subcontractor shall procure and maintain in force for the duration of theWork insurance coverages as detailed on the attached Exhibit A, and any other insurance required of Ross Builders under the Projectdocuments. Subcontractor shall immediately provide certificates of insurance for the required coverages and will be responsible for any resulting Project delay. Subcontractor waives all rights and claims for subrogation against Ross Builders and its other subcontractors, ifany.
6) Warranty. Subcontractor warrants and guarantees that all Work furnished under this Subcontract will conform to the Subcontract documents, and all items will be first class quality, in accordance with the highest of applicable industry standards, free from defect and suitable for its intended purpose, and Subcontractor shall honor any specific warranty applicable to the Work as set forth in the Project documents. Without waiving rights with respect to latent defects in the Work, where the Work is found not to be not in accordance with the Subcontract documents within one year of final completion of the entire Project, Subcontractor shall perform allrequired corrective action at no cost to Ross Builders, Ross Builders's customer, the Owner or the AE.
7) Submittals and As-Built Drawings. Any and all drawing submittals and/or shop drawings must be provided in the number of copies indicated in the Subcontract documents. All transmittals must carry the specification paragraph number of the item being submitted, if any, or other reference information. Initial submittal of drawings must be made within two (2) weeks of Subcontractor's receipt of drawings or the date of this Subcontract. All transmittals must be sent to Ross Builders 's office via 1st Class Mail or approved parcel service, and Subcontractor bears all risk of loss for lost, stolen, damaged, or undelivered transmittals.Additionally, Subcontractor shall keep accurate as-built drawings on site and submit the same to Ross Builders upon Project completion.
8) Recordkeeping. Subcontractor shall keep full and detailed records and accounts related to the Work, includingprogress or observations at the site, the cost of the Work and to substantiate all costs incurred. Ross Builders shall be afforded reasonable access to and shall be permitted to audit and copy such records and accounts. Subcontractor shall preserve such records and accounts for a period of 3 years after final payment or longer as may be required by law.
9) Change Orders. Subcontractor agrees that the prices for the Work under this Subcontract are firm for the life of the Subcontract and not subject to escalation and may be amended only by a properly executed Change Order. Only Ross Builders may amend and/or modify the scope, time, price, or terms of this Subcontract and only by means of its signature on a Change Order andacknowledged by an authorized agent of the Subcontractor -all which shall occur before commencement of the additional or changedwork item(s) at issue. Should any change increase or decrease the price or time required for performance of the Subcontract,Subcontractor may request an equitable adjustment in or before the Change Order with all relevant documentation. If the parties fail to agree upon the equitable adjustment to be made, and the changes were initiated by Ross Builders 's customer or the Owner, then the decision of Ross Builders 's customer, the Owner, and/or the AE will be binding on both parties; if the changes originated from Ross Builders, the matter shall be subject to arbitration as set forth below. In any case, the Subcontractor shall proceed with the Work. Nothing provided in this clause shall excuse the Subcontractor from complying with the change or further performance, and no instance of Ross Builders allowing for amendment or payment for additional or changed work after said work is performed will constitute waiver ofthis provision generally.
10) Arbitration. The parties shall discuss and negotiate all disputed matters in good faith. At the sole option of Ross Builders, any and all claims, disputes, controversies, demands, and causes of action of whatever nature, kind or description arising from or relating to this Subcontract that are not resolved by the parties, but where no party’s claim exceeds $150,000 in principal value, shall be submitted to mandatory and binding arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association ("AAA") and administered by the AAA. The location of the arbitration hearing shall be in Lorain County Ohio. Ross Builders shall have the right to join to the arbitration any consultants, contractors, subcontractors, suppliers, vendors or other third parties in connection with the Project, with whom Ross Builders has an agreement to arbitrate. Ross Builders hall also have the right, at its soleoption, to join Subcontractor in any arbitration proceeding between Ross Builders and Ross Builders 's customer, or Project owner. The decision and award of the Arbitrator(s) shall be final and binding on Ross Builders and Subcontractor, and the decision and award may be reduced to judgment and enforced in court. Subcontractor agrees that it will be bound by any decision rendered in arbitration or by a court in which Ross Builders is obligated to be in pursuant to the terms of the contract with its customer or the Owner. In cases in which a party’s claim exceeds $150,000, the dispute will be resolved through litigation in Lorain County, Ohio.
11) Cancellation; Force Majeure. Ross Builders shall have the right in its sole discretion to cancel this Subcontract or to reduce the quantities of the Work in the event of, among other things: any proceedings by or against the Subcontractor, voluntarily or otherwise, in bankruptcy, insolvency, or due to the appointment of a receiver or trustee, or an assignment for the benefit of creditors of the property of the Subcontractor; or delay or interference, default, or breach by the Subcontractor of any terms hereof. Wherepractical/appropriate, Ross Builders will provide Subcontractor with notice and an opportunity to cure any breach or default within 48 hours of notice. This Subcontract is also subject to modification and/or cancellation at the convenience of Ross Builders or at itsdiscretion, in the event of fire, earthquake, flood, strikes, act of God and/or any other cause beyond the reasonable control of the Ross Builders
12) Labor Disputes. If ever any labor dispute or unrest will delay, or threaten to delay, the timely performance of theSubcontract, Subcontractor shall immediately give detailed notice to Ross Builders and shall continue working without interruption at theProject, and Ross Builders will attempt union and non-union entrances for employees and deliveries. Failure to provide such notice whenSubcontractor has or should have had knowledge of such labor dispute will be considered a material breach of this Subcontract.
13) Adherence to Laws and Project-Specific Rules; Safety. Subcontractor agrees to obey to all applicable federal, state, and local laws, regulations, and ordinances, including, but not limited to, those regulations and laws pertaining to safety, equalemployment opportunity, non-discrimination, as well as any and all Project-specific rules and regulations relating to safety, access or any other matters implemented or imposed by Ross Builders, Ross Builders 's customer, the Owner, or the AE – all of which Subcontractor agrees are material to this Subcontract. This Subcontract is subject to cancellation due to any safety violations or incidents.
14) Entire Agreement; Controlling Law; Non-Assignment. It is agreed that the terms and conditions of this Subcontract are fully covered in the foregoing and any oral or written statements made by either party or their agents, which are not setforth herein, are not binding on either party and are not to be considered as part of this Subcontract. This Subcontract is governed by the laws of the State of Ohio. Subcontractor shall not reassign, subcontract, or substitute any part of this Subcontract without writtenconsent of Ross Builders.
EXHIBIT A
INSURANCE REQUIREMENTS
The Subcontractor -at its own expense, in its own name and with Ross Builders and Ross Builders 's customer and/or the Project owner named as Additional Insureds, as their interest may appear- shall purchase at its own cost and maintain in a company lawfully authorized to do business in the jurisdiction in which the Project is located, insurance coverage for protection from claims (i) under workers' or workmen's compensation acts and other employee benefit acts, (ii) for damages because of bodily injury, including death, and (iii) for damages (other than to the Work itself) to property that may arise out of or result from the Subcontractor's operations under the Subcontract, whether such operations be by Subcontractor or its lower-tier subs or suppliers, or anyone directly or indirectly employed by any of them. This insurance shall be written for not less than limits of liability specified below, or higher limits if required in the Project's contract documents, and shall include contractual liability insurance applicable to the Subcontractor's obligations:
A. Commercial General Liability. This insurance shall be written on a comprehensive general liability policy form, to provide coverage on a blanket and automatic basis for legal liability arising out of any and all Work or operations under this Subcontract with limits not less than $1,000,000.00 per occurrence for bodily injury and/or property damage and $2,000,000.00 annual per project aggregate. The policy shall include coverage for Premises/Operations, Independent Contractors, Contractual Liability (sufficient to cover the liability assumed by the Subcontractor under the Subcontract), Property Damage, Completed Operations, Products Liability, and Personal Injury. The Completed Operations coverageshall be maintained for at least three (3) years after the final completion of the entire Project. If the policy contains a general aggregate limitation, then the policy shall be endorsed to provide a $2,000,000.00 specific aggregate for the Work under this Subcontract. A "Claims Made" policy is not acceptable, and there cannot be an exclusion forunderground, explosion or collapse. Subcontractor shall secure an endorsement, amendment or additional coverage (including under a separate E&O policy, if needed) to modify the definition of occurrence and/or to otherwise ensure that property damage resulting from defective or nonconforming Work is covered.
B. Automobile Liability. The policy shall contain limits of not less than $1,000,000.00 per occurrence and for a Combined Single Limit, and include coverage for all Owned, Hired and Non-owned automobiles.
C. Excess/Umbrella Liability. The policy(ies) shall be written with limits of not less than $1,000,000.00 Combined Single Limit and shall be endorsed in the same form and manner as the Commercial General Liability, Business Automobile Liability, and Employer's Liability coverages.
D. Professional Liability. If Subcontractor is performing design services, then Subcontractor shall carry professionalliability coverage with a minimum limit of $1,000,000.00 for each claim and $2,000,000.00 annual aggregate. If theprofessional liability/errors and omissions insurance is written on a claims-made basis, then such insurance shall have a retroactive date no later than the date of the Subcontract and shall include a supplemental extended reporting period provision to provide coverage for at least 3 years after final completion of the Project.
E. Workers Compensation. Workers compensation insurance shall be provided at statutory limits to cover its employeesand individuals found to be employees through joint employment or control by Subcontractor. Employers Liabilityinsurance (or Stopgap) shall be at least $500,000.00.
Without invalidating the other provisions in this Exhibit, Subcontractor shall be responsible for insuring its work for all risk of lossfor the full value of the Subcontract until final acceptance, unless a Project Specific Builders Risk Policy is purchased for this project. Subcontractors' coverages shall include current and completed operations, and the insurance provided by the additional insured endorsement shall be primary to any insurance carried by Ross Builders, which shall be excess to any coverage provided by the additional insured coverage. The insurance coverage required to be maintained by the Subcontractor hereunder shall be kept in full force and effect for not less than three (3) years after the date of final completion of the entire Project. Certificates of such insurance shall provide that the insurance coverage shall not be canceled, materially changed or allowed to expire without at least 30 days’ prior writtennotice to Ross Builders
Ross Builders and Subcontractor waive all rights against each other for damages caused by fire or other perils to the extentcovered by property insurance furnished by the Owner, if any, except such rights as they may have to the proceeds of such insurance held by the Owner, as fiduciary. In doing so, Subcontractor waives such claims and the Architect/Engineer, Architect/Engineer's consultants, Ross Builders, Ross Builders' customer, separate Subcontractors, if any, against the Architect/Engineer, Architect/Engineer's consultants, Ross Builders, Ross Builders 's customer, separate Subcontractors, if any.