20600

W. Beloat Road Buckeye, Arizona An Equal Opportunity Employer 85326 Phone: 623.521.5071 (KB-01) ROC 268304 (C-9) ROC 268306 bshockey@micaz.us ___________________________________________________________________________________________

Merchant Industrial Contracting

MASTER SUBCONTRACT AGREEMENT THIS MASTER SUBCONTRACT AGREEMENT (this Agreement) is entered into effective as of the ____ day of __________________, 20___ (the Effective Date) by and between US CONSTRUCTION COMPANY, dba MERCHANT INDUSTRIAL CONTRACTING, an Arizona Corporation (the Contractor), and COMPANY, ADDRESS, CITY, STATE, ZIP, PHONE (the Subcontractor). RECITALS A. Contractor from time to time undertakes construction projects for various owners and requires the services qualified subcontractors to construct and install specified parts of such projects in accordance with the contract documents related to project. B. Subcontractor has extensive experience in the business of constructing, building, and installing projects including, but not limited to, the construction, installation and improvement of facilities and systems on regular, fast track, and/or designbuild schedules, and has the expertise and know-how required for Subcontractor Work, as hereinafter defined, to be successfully performed as provided herein. Contractor and Subcontractor desire to enter into an agreement pursuant to which Contractor may issue, and Subcontractor may accept, Work Authorization Notices, hereinafter defined, to perform certain work pursuant to the terms and conditions set forth in such Work Authorization Notices and this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the covenants, conditions and undertakings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor and Subcontractor agree as follows: SECTION 1 NATURE OF THE AGREEMENT This Agreement is a master agreement providing the basis for Subcontractor Work on a number of separate projects to be authorized with the issuance of a Work Authorization Notice for each such Project (as defined below). This Agreement, including, Work Authorization Notices and change orders issued pursuant to the terms of this Agreement, shall remain in full force and effect until terminated as set forth herein. A default or breach of a Work Authorization Notice with respect to a Project shall not constitute a default or breach with respect to any other Project, each such Work Authorization Notice to be considered as a separate contract. SECTION 2 TERM The term of this Agreement (the Term) shall commence as of the Effective Date and expire thirty (30) days after the giving of written notice of termination by Contractor or Subcontractor to the other party. Unless expressly agreed to the contrary by the parties hereto, this Agreement shall govern all Subcontract Documents (as defined below) and other agreements and understandings between the parties hereto entered into during the Term of this Agreement with respect to a Project that is subject to a Work Authorization Notice. The termination of this Agreement shall not extinguish, modify or affect in any way the rights and obligations of the parties with respect to any Subcontract Document issued or entered into by the parties prior to the date of such expiration or termination.
_____________ Merchant Industrial Contracting Initials _____________ Subcontractor Initials

C.

20600 W. Beloat Road Buckeye, Arizona An Equal Opportunity Employer 85326 Phone: 623.521.5071 (KB-01) ROC 268304 (C-9) ROC 268306 bshockey@micaz.us ___________________________________________________________________________________________

Merchant Industrial Contracting

SECTION 3 WORK AUTHORIZATION NOTICE From time to time, Contractor may issue to Subcontractor a Work Authorization Notice (each, a Work Authorization Notice) with respect to specified work (the Subcontractor Work) on a particular project (each, a Project). The Work Authorization Notice shall be substantially in the form of Attachment A hereto, modified only to reflect the information called for in the Work Authorization Notice and such other changes as Contractor and Subcontractor may agree upon. If Subcontractor is in agreement with the terms and conditions set forth in the Work Authorization Notice, Subcontractor shall promptly sign and deliver the Work Authorization Notice to Contractor. Upon timely recept of such signed Work Authorization Notice and the signing of the Work Authorization Notice by Contractor, such Work Authorization Notice shall constitute a contract for the performance of the Subcontractor Work called for therein, subject to all of the terms, conditions and provisions of this Agreement. SECTION 4 SUBCONTRACT DOCUMENTS Upon the signing of the Work Authorization Notice by Contractor and Subcontractor for a Project as identified in such Work Authorization Notice, unless otherwise specifically set forth in the Work Authorization Notice, Subcontractor and Contractor agree that the contract documents (the Subcontract Documents) for such Project shall consist of, and Subcontractor and Contractor shall be bound by, the following documents, which documents are hereby incorporated herein by reference: a) b) c) d) e) The Work Authorization Notice and all attachments and exhibits thereto; The General Terms and Conditions set for on Attachment B hereto, including Exhibits A and B thereto; The Contract between Contractor and the Owner of the Project as identified in the Work Authorization Notice (the Prime Contract); All addenda issued prior to and all modifications issued after execution of the Prime Contract and/or the Work Authorization Notice; and All technical and special terms and conditions and all other documents listed, or referred to, in the foregoing documents, if any.

The foregoing shall form the subcontract and are as fully a part of the Work Authorization Notice as if attached to or repeated therein. SECTION 5 MISCELLANEOUS PROVISIONS 5.1 Entire Agreement This Agreement (including the attachments and documents referenced herein) constitutes the entire agreement and understanding between the parties hereto and supersedes and/or merges all prior agreements, understandings, representations, or conditions between Contractor and Subcontractor regarding the subject matter hereof, whether written, oral, or implied; provided that this Agreement shall not supersede any existing contracts entered into prior to the Effective Date between Contractor and Subcontractor relating to specific projects. The parties agree that the terms and conditions of this Agreement shall prevail, notwithstanding any contrary or additional terms in any of the parties preprinted documents. This Agreement may be amended only by written instrument signed by both Contractor and Subcontractor. 5.2 Governing Law, Jurisdiction The validity, interpretation, and performance of this Agreement, including any breach hereof, shall be governed by and construed under the laws of the State of Arizona, without regard to the
_____________ Merchant Industrial Contracting Initials _____________ Subcontractor Initials

20600 W. Beloat Road Buckeye, Arizona An Equal Opportunity Employer 85326 Phone: 623.521.5071 (KB-01) ROC 268304 (C-9) ROC 268306 bshockey@micaz.us ___________________________________________________________________________________________

Merchant Industrial Contracting

conflicts or choice of law principles thereof. Subject to the arbitration provisions of the Subcontract Documents, Subcontractor hereby consents to the personal jurisdiction of the courts of the State of Arizona for any dispute involving this Agreement, and subject to the provisions of the General Terms and Conditions set forth on Attachment B hereto, any action arising out of this Agreement shall be commenced and maintained exclusively in the courts of the State of Arizona. 5.3 Assignment This Agreement shall inure to the benefit of and shall be binding upon Contractor and Subcontractor and their respective successors and assigns. Subcontractor shall not delegate, transfer, pledge or assign its rights or obligations under this Agreement or any part thereof without the written consent of the Contractor in each instance. Contractor may assign this Agreement at any time in its sole discretion. 5.4 Waiver Neither written acceptance of the Subcontractor Work, assent, or acquiescence by Contractor to Subcontractors late performance, or review, consent, approval, inspection, or notice on the part of Contractor given or required to be given by this Agreement, shall be deemed to diminish or extinguish, or operate as relieving Subcontractor from any covenant, obligation, or liability of Subcontractor to be performed or fulfilled, all of which covenants, obligations, and liabilities shall continue to be binding upon Subcontractor until the same have been fulfilled or fully discharged by Subcontractor as provided in this Agreement. Either party may, by notice delivered in the manner provided in this Agreement, but shall be under no obligation to, waive any of its rights or conditions to its rights hereunder, or any duty, obligation, or covenant of the other party. Such waiver shall not affect or alter the other provisions of this Agreement. 5.5 Third Party Agreement Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of a third party against either Contractor or Subcontractor. 5.6 Independent Contractor The relationship of the parties to this Agreement is that of contractor and independent contractor and not that of principal and agent, employer and employee, partners, or joint venturers. 5.7 Written Notice All correspondence, change orders, and other communications in the ordinary course of performance shall be sent to Subcontractor and Contractor at their respective addresses noted below. Ordinary course communication forwarded to Contractor shall be personally delivered or sent by mail, first-class postage prepaid, to the attention of Contractors project manager or his designee. All other notices, claims, demands, and other communications of similar import to be given by any party to this Agreement or to any other party hereto shall be in writing, and shall be given by personal delivery, facsimile transmission, receipted delivery service or by registered or certified mail, first-class postage prepaid, return receipt requested, and shall be delivered or addressed as follows: TO CONTRACTOR AT: Merchant Industrial Contracting 20600 W. Beloat Road Buckeye, AZ 85326 Phone: (623) 688-4864 Facsimile: (623) 251-6820 TO SUBCONTRACTOR AT:

Phone: Facsimile:

5.8 Change of Address The above addresses may be changed by giving written notice of such change to the other party. 5.9 Effective Date Notice for all purposes under this Agreement, regardless of the form in which given, shall be deemed given when received by the addressee thereof.
_____________ Merchant Industrial Contracting Initials _____________ Subcontractor Initials

20600 W. Beloat Road Buckeye, Arizona An Equal Opportunity Employer 85326 Phone: 623.521.5071 (KB-01) ROC 268304 (C-9) ROC 268306 bshockey@micaz.us ___________________________________________________________________________________________

Merchant Industrial Contracting

5.10 Survival Any obligations and duties, which by their nature extend beyond the expiration or earlier termination of this agreement and/or the completion of each Project shall survive any such expiration or termination and remain in effect. SECTION 6 PROMPT PAY STATUTE AND PRELIMINARY LIEN NOTICES 6.1 Separate Construction Contracts Subcontractor acknowledges that each contract created by the execution of a Work Authorization (a) is separate and exclusive from any contract created by the execution of another Work Authorization or any other Project or any other agreement entered into between Subcontractor and Contractor, and (b) constitutes only one Construction Contract under A.R.S. 32-1129 et seq. (the Prompt Pay Statute). Any violation or alleged violation of the Prompt Pay Statute by Contractor under any contract created by the execution of a Work Authorization will in no way effect or provide the Subcontractor or Sub-subcontractor the right to suspend or terminate any other contract created by the execution of a Work Authorization, any other Project, or any other agreement entered into between Contractor and Subcontractor. 6.2 Notices Under the Prompt Pay Statute In addition to all notice requirements under this Agreement, Subcontractor must deliver all notices required to be given to the intended persons under the Prompt Pay Statute to the Contractors project manager as one of the intended persons. Any such notice shall be either (a) hand delivered or (b) delivered by means that provide written, third party verification of such delivery. In addition, Subcontractor will not shorten any notice period under the Prompt Pay Statute, in their subcontracts, or otherwise. 6.3 Demobilization and Remobilization Costs To the extent required by the Arizona Prompt Payment Act and in accordance with the terms and conditions of this contract, Contractor shall pay demobilization and remobilization costs. Contractor and Subcontractor agree that these costs will only be those directly attributable to the demobilization and remobilization caused by the Owners inability to pay in accordance with the Arizona Prompt Payment Act. Costs must be verified daily by Contractor and presented formally within 7 days of demobilization or remobilization and shall be for Subcontractors actual costs of equipment, material and labor as represented by actual invoices and time cards and such costs shall not include any markup by Subcontractor. 6.4 Lifting of Suspension Upon payment to the Subcontractor of Sub-subcontractor of the amount certified and approved pursuant to the Contract, the Subcontractor and Sub-subcontractor are required to immediately continue the Subcontractor Work pursuant to the Subcontract Documents, without any additional payment. 6.5 Subcontractor Provisions Subcontractor will include provisions in every Subcontractors subcontract requiring (a) notices to be either hand delivered or delivered by means that provide written, third party verification of such delivery pursuant to Section 6.2, (b) a waiver of mobilization and remobilization costs pursuant to Section 6.3, (c) a lifting of suspension pursuant to Section 6.4 and (d) the opt out notices as provided in the Contract be incorporated by reference in each subcontract or sub-subcontract. 6.6 Indemnification for Claims Arising from the Prompt Pay Statute To the fullest extent permitted by law, and without limiting any indemnification otherwise provided under the Subcontract Documents or at law, Subcontractor fully protects, indemnifies, defends, and holds harmless the Contractor for, from and against all demands, claims, actions, liabilities, damages, losses, costs and expenses (including, but not limited to attorneys fees) arising out of or resulting from, either directly or indirectly, a violation of the Prompt Pay Statute, provided that any such demand, claim, action, liability, damage, loss, cost or expense is caused in whole or in part by an act or omission of Subcontractor, and Sub-subcontractor, anyone directly or indirectly employed by any of them, or anyone, directly or
_____________ Merchant Industrial Contracting Initials _____________ Subcontractor Initials

20600 W. Beloat Road Buckeye, Arizona An Equal Opportunity Employer 85326 Phone: 623.521.5071 (KB-01) ROC 268304 (C-9) ROC 268306 bshockey@micaz.us ___________________________________________________________________________________________

Merchant Industrial Contracting

indirectly, for whose acts any of them may be liable. Subcontractors obligations under this Section 6.7 will survive the termination, rescission, expiration, or completion of the Subcontract Documents.

WHEREFORE the parties have entered into this Agreement as of the day and year first written above. CONTRACTOR: US CONSTRUCTION COMPANY, dba MERCHANT INDUSTRIAL CONTRACTING, an Arizona Corporation SUBCONTRACTOR: _______________________________________________ a ______________________________________________

Signed: ______________________________________ Printed Name: ________________________________ Title: Date: ______________________________________ ______________________________________

Signed: ________________________________________ Printed Name: __________________________________ Title: ___________________________________________ Date: __________________________________________

Contractors License Information State Arizona Arizona Number (KB-01) ROC 268304 (C-9) ROC 268306

Subcontractors License Information State Number

_____________ Merchant Industrial Contracting Initials

_____________ Subcontractor Initials