EXHIBIT 1: SAMPLE CONTRACT WITH REDLINE AND OVERSTRIKE

Deleted language is indicated by overstrike.
Added language is indicated by redline.

GIANT CONTRACTORS, INC.
SUBCONTRACT WITH

SUBCONTRACTOR  

Hey Wayne Construction, Inc.

Subcontract No.  
77-78789-001
ADDRESS  
One Wayne’s Way Cost Code 34341
CITY/STATE/ZIP  
Podunk, WV 25311
Requisition No.  
95-3055-001
TELEPHONE  
(304) 555-2525
FAX  
(304) 555-1212
CONTACT  
Wayne DeWit
PROJECT 
Podunk Syndrome, Podunk, WV
Job NoDOL #G-1234-5-66-77-89
AMOUNT $  
1,000,000.00 ( One Million and 00/100 Dollars )

THIS SUBCONTRACT AGREEMENT entered into this 1st day of April ,1999, by and between Giant Contractors, Inc. of Gotham City, New York, hereinafter called Contractor, and Hey Wayne Construction, Inc. , of Podunk,, West Virginia , hereinafter called Subcontractor.

WITNESSETH THAT:

WHEREAS Contractor has heretofore entered into an agreement dated April 1, 1999 (the "Contract"), with U. S. Department of Gridlock ofWashington, D C. , hereinafter called Owner, to furnish all labor and materials, and to perform all work required for the construction of a project (the "Project") known as Podunk Syndrome , located in Podunk, West Virginia , in strict accordance with the drawings, specifications, and schedules prepared by Geodesic Engineering, Inc. , of Podunk, West Virginia , the Architect and/or Engineer (hereinafter the "Design Professionals"), which have been made a part of the Contract, and which are now made a part of this Subcontract Agreement; and

WHEREAS the parties hereto expressly desire to contract with reference to a specific portion of the overall work for the Project.

NOW, THEREFORE, in consideration of the mutual promises herein contained and intending to be legally bound, the parties hereto agree as follows:

ARTICLE I:

Subcontractor shall furnish all labor, materials, project administration, supervision, scheduling, plant, equipment, appliances, tools, hoisting, scaffolds, and all other items necessary to perform the Work (as more fully described in Item B of Schedule "A" attached hereto) required to complete the following part or parts of the overall work under the Contract in all respects as required of the Contractor by the Owner's Contract Documents identified in exhibit "A" hereto, and all work incidental thereto, namely:

FURNISHING AND INSTALLATION OF Lexan and steel dome shell for 150,000 seat football stadium/NASCAR track facility .

ARTICLE II:

(a) Contractor shall have the same rights and privileges against the Subcontractor herein as the Owner has against Contractor. Subcontractor shall have the same rights and privileges against Contractor herein as the Contractor has against the Owner.

(b) Subcontractor acknowledges that it has carefully read and understands the Contract, the Contract Documents, this Subcontract Agreement and the Project Plans and Specifications and Drawings, and is familiar therewith, and agrees to comply with and perform all provisions thereof applicable to the Subcontractor. Subcontractor further represents to have fully investigated the nature and locality of the Work and the Project site and the conditions and difficulties under which the Work shall be performed, and that it enters into this Subcontract Agreement based on its own independent examination, investigation and evaluation of all relevant details of the Work, and not in reliance upon any opinions or representations of Contractor, Owner or the Design Professionals, or any of such parties' respective officers, agents, servants, or employees.

Subcontractor further acknowledges that it has checked the approaches and access to the Project site, nearby structures, telephone and power lines, and all governmental laws, ordinances and regulations relating to the use of streets, highways and alleyways, which may in any manner restrict, interfere with, delay or otherwise affect the delivery, storage, handling, hoisting and rigging of any and all materials and equipment, and the Subcontractor agrees that no additional charge shall be made by reason of any such conditions, laws, ordinances, regulations or restrictions.

This Subcontract Agreement, the provisions of the General Contract and the other Contract Documents are intended to supplement and complement each other and shall, where possible, be thus interpreted. If, however any provision of this Subcontract Agreement irreconcilably conflicts with a provision of the General Contract and the other Contract Documents, the provision imposing the greater duty or obligation on the Subcontractor or Contractor shall govern.

Although drawn by Giant, this Subcontract Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably and neither more strongly for nor against either party to it.

(c) All Work shall be performed to the satisfaction of the Design Professionals, Owner and Contractor in accordance with the contract plans and specifications. The decision of the Design Professionals as to the 
true construction and meaning of the Project Plans and Specifications and Drawings shall be final and binding upon Subcontractor followed by Contractor and Subcontractor. Subcontractor shall conform to and abide
by any additional specifications, drawings or explanations prepared by the Design Professionals in order to illustrate the Work to be done in greater detail.

(d) Subcontractor acknowledges its express duty to cooperate and actively coordinate its Work with that of others participating in the construction of the Project and that Subcontractor shall not directly or indirectly delay, impede, or otherwise impair the work of others or the timely progression of the overall Project.

(e) Subcontractor shall procure at its own expense all required permits and licenses as required for the Work.

ARTICLE III:

(a) Subcontractor shall begin its Work as soon as instructed by Contractor and shall carry on its Work promptly, efficiently, safely and at a speed that will not cause delay, disruption or interference in the progress of Contractor's overall work or other branches of the Project work carried on by other contractors or subcontractors. Contractor may require Subcontractor to prosecute in preference to other parts of the Work such part or parts as Contractor may from time to time specify. Subcontractor agrees that time is of the essence in the performance of the Work. The Subcontractor will supervise and direct Subcontractor's Work. Subcontractor will be solely responsible for the means, methods, techniques, sequences and procedures of construction in accordance with the schedule prepared by the Subcontractor and approved by the Contractor. If the Subcontractor's approved schedule of construction is changed by Contractor during construction, the parties will agree to an equitable adjustment in the Subcontract Agreement or an extension of the contract time as provided in the Contract Documents.

(b) Subcontractor, at Contractor's request and at the time specified in such request, shall submit to Contractor progress, procurement, and man-hour completion schedules, as well as detailed method statements, satisfactory in form and content to Contractor and, upon Contractor's review and comment, Subcontractor shall prosecute the Work in accordance therewith. Contractor's receipt and review of such data shall not preclude Contractor from otherwise adjusting such schedules and method statements from time to time, to comply with the overall needs of the Project.

(c) Contractor shall not be liable to Subcontractor for delay, disruption or interference to Subcontractor's Work caused by the act, omission, neglect or default of the Owner or its Design Professionals or their respective contractors, subcontractors, employees, servants, agents or consultants, or by reason of fire or other casualty, or on account of riots or of strikes, or other combined action of the workmen or others, or on account of any acts of God, or any other cause beyond the Contractor's direct control; provided, however, Contractor will cooperate with Subcontractor to submit any just claim against the Owner or Design Professionals for delay, disruption or interference directly attributable to their actions. Subcontractor shall reimburse Contractor for all reasonable expenses incurred by Contractor in submitting any such claims on behalf of Subcontractor. Subcontractor agrees that it shall not be entitled to nor claim any cost reimbursement, compensation or damages for any delay, disruption or interference to the Work except to the extent that contractor is entitled to corresponding cost reimbursement, compensation or damages from the Owner or Design Professionals for such delay, disruption or interference and then only to the extent of the amount, if any, which Contractor, on behalf of Subcontractor, actually receives from the Owner or the Design Professionals on account of such delay, disruption or interference. Payment by the Owner shall be by an express condition precedent to Contractor's duty of payment to Subcontractor. Subcontractor shall not be liable to Contractor for delay, disruption or interference to Contractor's Work caused by the act, omission, neglect or default of the Owner or its Design Professionals or their respective contractors, subcontractors, employees, servants, agents or consultants, or by reason of fire or other casualty, or on account of riots or of strikes, or other combined action of the workmen or others, or on account of any acts of God, or any cause beyond the Subcontractor's direct control.

(d) Should Subcontractor's Work be delayed, disrupted or interfered with solely as a result of acts or omissions of Contractor or anyone employed by Contractor on the Project, then Contractor shall owe Subcontractor therefore only an extension of time for completion equal to the delay, disruption or interference and then only if a written claim for delay by Contractor or anyone employed by Contractor on the Project is made to Contractor within forty-eight (48) hours from the time of the commencement of such delay, disruption or interference. Failure to provide such written claim within the prescribed time period shall result in an irrevocable waiver of any such claim. This is the sole and exclusive remedy that Subcontractor shall have against Contractor for delays, disruptions or interferences caused by the acts or omissions of Contractor or anyone employed by Contractor on the Project and Subcontractor shall have no right or entitlement to additional compensation, whether direct or indirect, for such delays, disruptions or interferences. Should Subcontractor's Work be delayed, disrupted or interfered with solely as a result of acts or omissions of Contractor or anyone employed by Contractor on the Project, then Contractor shall owe Subcontractor therefore a reasonable extension of time for completion equal to the delay, disruption or interference and an equitable adjustment to the subcontract amount shall be made but only if a written claim for delay, disruption, or interference by Subcontractor or anyone employed by Contractor on the Project is made to Contractor within five (5) working days from the time of the commencement of such delay, disruption or interference. Failure to provide such written claim within the prescribed time period shall result in an irrevocable waiver of any such claim.

(e) Subcontractor shall remove from the premises, as often as directed by the Contractor, all rubbish and surplus material which may accumulate from the prosecution of the Work and should Subcontractor fail to do so, Contractor may, at his option, remove same as Subcontractor's expense.

(f) Should Contractor's Work be delayed, disrupted, or interfered with solely as a result of the acts or omissions of Subcontractor or anyone employed by Subcontractor on project, then Subcontractor shall owe Contractor an equitable adjustment in the subcontract amount only if a written claim for delay, disruption, or interference is made by Contractor to Subcontractor within five (5) working days from the time of the commencement of such event. Any damages for delay, disruption or interference caused by Subcontractor shall be deducted by Contractor from the agreed price for the Work without in any way limiting the option of Contractor to terminate Subcontractor for default as herein elsewhere provided.

(g) On jobs where hoisting facilities are provided by others, should Subcontractor wish to make use of these facilities, when in the opinion of Contractor these facilities are available, then they will provided on the basis of $ N/A per hour during regular time and $ N/A per hour during overtime, or at such rates as are in effect at the time. This shall not be construed as imposing any obligation or duty on the Contractor to make such hoisting facilities available to Subcontractor at any time and Contractor assumes no responsibility for occasions when any such hoisting facilities may be unavailable as a result of normal repair and/or maintenance, or unforeseen downtime.

ARTICLE IV:

Should alterations or extra work hereunder be required by the Owner or Design Professionals, Subcontractor shall omit or incorporate such of the Work as the Owner or Design Professionals may from time to time direct. Should Subcontractor encounter during the progress of the Work subsurface and/or latent conditions at the site materially differing from those indicated on or reasonably inferable from the Project Plans and Specifications, or unknown conditions of any unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in the work of the character provided for in the Project Plans and Specifications, Contractor's attention shall be called to same in writing before such conditions are disturbed. If such changes or changed conditions cause an increase or decrease in the amount due to Contractor under the Contract, an equitable potion of such increase or decrease shall be added to or deducted from the Subcontract Agreement amount; and in no event shall such addition to or deduction from the Subcontract Agreement amount exceed an equitable portion of such increase or decrease in the amount due Contractor under the Contract. The amount of the increase or decrease in the amount due under the Contract shall be determined in accordance with procedures specified in the Contract and when finally so determined shall be binding upon Contractor and Subcontractor. To facilitate determination of such increase or decrease, Subcontractor will promptly submit to Contractor a firm proposal for the performance by Subcontractor of any alterations or extra work required by Contractor in such detail as Contractor and/or Owner may required; but the actual addition to or deduction from the Subcontract Agreement amount shall be fixed in accordance with the foregoing provisions of this paragraph after the increase or decrease in the amount due to the Contractor under the Contract shall have been finally determined. No changes are to be made however except upon a written order from Contractor's Project Manager, and Contractor shall not be held liable to Subcontractor for any extra labor, materials, or equipment furnished whatsoever without such written order. Nothing contained within this Article shall excuse Subcontractor from proceeding with the prosecution of the changed work when and as directed by Contractor.

(a) Should alterations or extra work hereunder be required by the Owner or Design Professionals, Subcontractor shall omit or incorporate such of the Work as the Owner or Design Professionals may from time to time direct. The Contractor may at any time, as the need arises, order changes within the scope of the Work without invalidating the Subcontract Agreement. If such changes increase or decrease the amount due Subcontractor under the Subcontract Agreement, or in the time required for performance of the Work, an equitable adjustment shall be authorized by Contractor Change Order. The Subcontract Agreement amount may be changed only by a Change Order. The value of any Work covered by a Change Order or of any claim for increase or decrease in the Subcontract Agreement amount shall be determined by one or more of the following methods in the order of precedence listed below:

     i. An agreed lump sum.

     ii. Unit prices previously approved.

     iii. Reimbursement of cost of labor, material, and equipment plus a           mark up of all costs for overhead and profit in accordance with the
          Contract Documents.

To facilitate determination of such increase or decrease, Subcontractor will promptly submit to Contractor a firm proposal for the performance by Subcontractor of any alterations or extra work required by Contractor in such detail as Contractor and/or Owner may require; but the actual addition to or deduction from the Subcontract Agreement amount shall be fixed in accordance with the foregoing provisions of this paragraph. No changes are to be made however except upon a written order from Contractor and Contractor shall not be held liable to Subcontractor for any extra labor, materials, or equipment furnished whatsoever without such written order.

(b) The Subcontractor shall promptly, and before such conditions are disturbed, except in the event of an emergency, notify the Contractor of:

     i. Subsurface or latent physical conditions at the site differing from those         indicated in the Project Plans and Specifications; or

     ii. Unknown physical conditions at the site, of an unusual nature,          differing materially from those ordinarily encountered and generally          recognized as inherent in Work of the character provided for in the          Project Plans and Specifications.

The Contractor shall promptly investigate the conditions, and if it is found that such conditions do so materially differ and cause an increase or decrease in the cost of, or in the time required for, performance of the Work, an equitable adjustment shall be made and the Subcontract Agreement amount and time shall be modified by a Change Order in accordance with the Contract Documents.

Nothing contained within this Article shall excuse Subcontractor from proceeding with the prosecution of the changed work when and as directed by Contractor.

ARTICLE V:

Subcontractor shall provide safe and sufficient facilities at all times for its workmen, and shall not perform, or fail to perform, any act which would cause the Project site to be unsafe. Subcontractor shall provide safe and sufficient facilities at all times for inspection of the Work by the Owner, Contractor, Design Professionals or their duly authorized representatives and shall within twenty-four (24) hours after receiving written notice from Contractor, proceed to promptly take down all portions of the Work and remove from the grounds and buildings all material, whether or not a part of the Work, which the Design Professional shall condemn, or fail to approve, and shall promptly make good at no additional cost to Contractor all such work, and all other work damaged or destroyed in removing or making good said condemned work.

ARTICLE VI:

(a) Subcontractor agrees that the prevention of accidents to workers engaged in the vicinity of the Work is its responsibility. The Subcontractor agrees to comply with all laws, ordinances, rules, regulations, codes, orders, notices and requirements concerning safety as shall be applicable to the Work, and with the safety standards established during the progress of the Work by the Contractor and the Occupational Safety and Health Administration (OSHA) or any other building inspector. When so ordered, the Subcontractor shall stop any part of the Work which the Contractor, OSHA, or any other building inspector, deems unsafe until corrective measures satisfactory to the Contractor have been taken, and the Subcontractor agrees that it shall not have nor make any claim for damages growing out of such stoppage. Should the Subcontractor neglect to take such corrective measures, the Contractor may do so at the cost and expense of the Subcontractor and may deduct the cost thereof from any payments due or to become due to the Subcontractor. Failure on the part of the Contractor to stop unsafe practices shall in no way relieve the Subcontractor of its responsibility therefor. All fines and costs incurred by the Contractor due to Safety Violations caused in who or in part by the actions of Subcontractor will be deducted from the Subcontract Agreement amount. Subcontractor is required to provide proof of Subcontractor's written Safety and Hazard Material Programs within ten (10) days of the date of this Subcontract Agreement.

(b) Subcontractor shall at all times supply adequate tools, appliances and equipment, a sufficient number of properly skilled workmen and a sufficient amount of materials and supplies of proper qualify to efficiently, safely and promptly prosecute the Work in accordance with Contractor's schedule, as the same may be adjusted from time to time, and shall promptly pay for all materials purchased and shall pay all workmen each week and obtain and furnish Contractor weekly with two (2) copies of payroll verified by affidavit as well as evidence to verify that all taxes and contributions to applicable employee benefit plans are current.

(c) Subcontractor shall exercise its personal supervision of the Work or have a competent foreman, superintendent, and Project Manager satisfactory to Contractor on the Work at all times during its progress, with authority to act for Subcontractor.

ARTICLE VII:

(a) Subcontractor shall turn the Work over to Contractor in good condition in strict accordance with the Contract Documents. Subcontractor warrants that title to all Work, materials and equipment covered by a payment application from Subcontractor shall pass to the Owner either upon incorporation in the Project or upon payment by Contractor, whichever occurs first, free and clear of all claims, liens, security interest or encumbrances, hereinafter collectively referred to as "liens". Subcontractor shall defend, indemnify and hold harmless Contractor and Owner from and against any and all liens and all costs of this Subcontract Agreement. Subcontractor shall at its own cost and expense, including attorney's fees and costs, defend all suits to establish such liens, and pay any such liens so established. Once Subcontractor becomes aware of any such liens, Subcontractor shall promptly communicate such information to Contractor. If deemed necessary to protect Owner and/or Contractor, funds sufficient to dispose of such liens may be withheld from funds otherwise due Subcontractor and, at Contractor's option, such funds may be paid out to discharge any such lien.

(b) Subcontractor shall, as often as required by the Owner or Contractor, furnish a sworn statement showing all parties who furnish labor or material to Subcontractor, with their names and addresses and the amount due or to become due each. Similar statements may be required from any subcontractor or supplier of any tier of the Subcontractor. Contractor may also require Subcontractor to provide Contractor with copies of all of its subcontractors and purchase orders, and Subcontractor shall promptly comply.

ARTICLE VIII:

(a) Subcontractor shall defend, indemnify and hold harmless Owner, Contractor and their respective officers, agents, servants and employees from and against any and all claims, suits or liability of any nature arising in whole or in part as a result of the acts or omissions of Subcontractor, its agents, employees, servants and subcontractors and suppliers of any tier, including without limitation claims, suits or liability relating to or arising out of or in connection with damage to property or injury (including death) to persons, whether an employee of Subcontractor or of any of its subcontractors or suppliers of any tier or otherwise; provided, however, Subcontractor's duty hereunder shall not arise if such claims, suits or liability are caused by the sole negligence of Contractor or Owner. Subcontractor shall assume the defense of all suits brought against Owner, Contractor and their respective offers, agents, servants and employees on account of any such claims, suits or liability, and shall reimburse Owner, Contractor and their respective officers, agents, servants and employees for any expense, including attorney's fees and costs, sustained by Owner, Contractor and their respective officers, agents, servants and employees by reason of such claims suits or liability. Subcontractor's obligation hereunder shall not be limited by any Workers' Compensation Act or similar statute.

(b) Subcontractor shall carry public liability insurance and also such employer's liability and/or workmen's compensation insurance as required by the Contract Documents to insure the liability of the parties hereto for any injuries to Subcontractor's employees, and all insurance required by the law of the place where the Work is to be done and shall furnish Contractor with satisfactory evidence that such insurance has been obtained and paid for and will continue in force until the completion of the Project, and if Subcontractor shall sublet any of this work to a third party, Subcontractor shall ensure that said third party shall do likewise.

(c) Subcontractor accepts exclusive liability for all taxes and contributions required of Contractor or Subcontractor by the Federal Social Security Act and the Unemployment Compensation Law or similar law in any State with respect to the employees of Subcontractor in the performance of the Work herein provided for, and agrees to furnish Contractor with suitable written evidence that he has been authorized to accept such liability. Subcontractor further agrees that if it cannot furnish said evidence, or should fail to do so prior to beginning work, Contractor may, at its option, pay or establish a reserve for payment of said taxes and contributions and deduct the amount paid or reserved from payments due, or to become due Subcontractor. Subcontractor agrees to defend, indemnify and hold harmless Contractor against all liability, including attorney's fees and costs. Subcontractor agrees to defend, indemnify and hold harmless Contractor against all liability, including attorney's fees and costs, with respect to said employees under said Acts, Laws, or the provisions of any applicable collective bargaining agreements.

(d) Subcontractor accepts exclusive liability for any and all sales tax, use tax, or local taxes which may be assessed against materials, equipment or labor used in the Work.

ARTICLE IX:

As consideration for the performance of the Work called for under this Subcontract Agreement, Subcontractor shall receive $1,000,000.00 (One Million and 00/100 Dollars ) subject to additions and deductions as herein before provided , payable as the Work progresses, on estimates made and approved by the Owner, Contractor and Design Professionals. Such payment shall only be made seven days after payment is first received by Contractor from the Owner is due 30 days after approved invoice from Contractor. Subcontractor expressly acknowledges that payments for Work performed and accepted will be paid for exclusively by Owner, which may elect to route such payments through Contractor. Payment by the Owner is an express condition precedent to Contractor's duty to make payment to Subcontractor Owner or Contractor may retain 0% of each progress estimate until final payment and may withhold payment of any estimate until Subcontractor has furnished Contractor with suitable evidence that it has paid in full for all labor, materials and supplies, taxes, and applicable fringe benefits used in the Work through the date of the estimate. Partial Lien Releases and Waivers of Claim are to be submitted by Subcontractor with each Progress Payment Application on forms supplied by Contractor. A final Release of Liens and Waiver of Claims will likewise be executed by Subcontractor on forms provided by Contractor prior to the Owner's Release of Subcontractor's final payment. Final payment shall be made within 30 days after the completion of the Project, written acceptance by the Design Professionals, the resolution of all backcharges and change orders and full payment therefore by Owner; except that Contractor may deduct from such final payment any sums due to Contractor from subcontractor under this Subcontract Agreement or otherwise. Subcontractor agrees to provide Contractor with a final release before final payment and further agrees that payment by the Owner is an express condition precedent to Contractor's duty to make final payment to Subcontractor. Acceptance of final payment shall constitute a waiver and full and final release of any and all claims of Subcontractor and its subcontractors and suppliers of any tier.

Retainage shall be paid as outlined in the Contract Documents. Should the Contract Documents provide for a reduction of retainage, the reduction will be made only if (i) backcharges between Contractor and Subcontractor have been resolved; (ii) Subcontractor's Work is on schedule; (iii) Subcontractor will have waived any and all claims for direct and/or indirect additional costs not contained in approved change orders to the date of this retainage reduction and released all lien claims associated with the Work; (iv) the property remains free of liens by Subcontractor any anyone under agreement to Subcontractor; and (v) Owner's consent is granted. The continuing reduction of retainage will be subject to the reaffirmation of these conditions with each future application for payment.

Payment made under this Subcontract Agreement shall not constitute acceptance of defective, faulty of improper Work nor shall payment release Subcontractor from any of its obligations under this Subcontract Agreement.

As consideration for the performance of the Work called for under this Subcontract Agreement, Subcontractor shall receive $1,000,000 (One Million and 00/100 Dollars), as shown on the schedule of value attached as Exhibit G attached hereto, subject to additions and deductions on estimates made and approved by the Contractor as herein before provided, payable as the Work progresses. Contractor agrees to make payment of the approved portion of the pay estimate to Subcontractor within forty four (44) days of submission of partial pay estimates to Contractor. Subcontractor shall submit pay estimates bi-weekly. If the Contractor fails to make timely payment, in addition to other remedies available to the Contractor, there shall be added to each such payment, interest at the maximum legal rate commencing on the first day after said payment is due and continuing until the payment is received by the Subcontractor.

Contractor may retain 0% of each progress estimate until final payment and may withhold payment of any estimate until Subcontractor has furnished Contractor with suitable evidence that it has paid in full for all labor, materials and supplies, taxes, and applicable fringe benefits used in the Work through the date of the estimate. Partial Lien Releases and Waivers of Claim are to be submitted by Subcontractor with each Progress Payment Application on forms supplied by Contractor. A final Release of Liens and Waiver of Claims will likewise be executed by Subcontractor on forms provided by Contractor prior to the estimated Release of Subcontractor's final payment. Final payment shall be made within 30 days after the completion of the Work, the resolution of all backcharges and change orders, except that contractor may deduct from such final payment any sums due to Contractor from Subcontractor under this Subcontract Agreement. Subcontractor agrees to provide Contractor with a final release before final payment. Acceptance of final payments shall constitute a waiver and full and final release of any and all claims of Subcontractor and its subcontractors and suppliers of any tier.

Payment made under this Subcontract Agreement shall not constitute acceptance of defective, faulty or improper Work nor shall payment release Subcontractor from any of its obligations under this Subcontract Agreement.

ARTICLE X:

If the Subcontractor has a dispute with the Contractor regarding the application or interpretation of any provision of this Subcontract Agreement, or the breach thereof, the Subcontractor shall, within ten (10) days after such dispute arises, submit its claim, in writing, to the Contractor attaching all supporting documentation. Should additional documentation or information be requested by the Contractor, the Subcontractor shall provide such documentation and/or information promptly. Within thirty (30) days after receiving the Subcontractor's written claim and all requested documentation and information, the Contractor will respond with its position and proposed resolution of the dispute. Should the Subcontractor reject the Contractor's proposed resolution, the Subcontractor shall proceed as described below. The Subcontractor expressly agrees that as a condition precedent to initiating any court or arbitration proceeding as provided for below, it must first comply fully with the provisions set forth herein.

The Subcontractor agrees that the Contractor has the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to this Subcontract Agreement, or breach thereof, shall be submitted to a court or arbitration before the American Arbitration Association in accordance with its Construction Industry Arbitration Rules. The venue of such court or arbitration proceeding shall be in the jurisdiction in which the Project is located or in Pittsburgh, Pennsylvania as the Contractor, at its sole discretion, may elect to the exclusion of all other jurisdictions. The Subcontractor must make a written request to the Contractor to determine whether the dispute shall be submitted to a court or arbitration proceeding. The Contractor shall respond to the Subcontractor's request within ten (10) business days after receipt thereof. The Contractor's response shall identify whether the matter will be submitted to court or arbitration proceedings and the Subcontractor irrevocably agrees to submit itself to their personal jurisdiction and venue of the court or arbitration proceeding elected by the Contractor, to the exclusion of all other forums and jurisdictions. The Subcontractor waives any and all rights to contest the Contractor's selection of forum, including but no limited to, any rights based upon forum non conveniens. In the event the Contractor selects arbitration, the award of the arbitrators shall be final and binding, and judgment upon the award may be entered in any court having jurisdiction thereof.

The Subcontractor agrees that should a dispute proceed pursuant to this Article, then the only issues that the Subcontractor may raise in the proceedings are those that were specifically described in its written claim submitted in accordance herewith. Failure to specifically describe an issue in the written claim within the time limits provided constitutes a waiver of that claim and shall preclude the Subcontractor from raising such claim in any court or arbitration proceeding. Should any dispute between the Contractor and the Subcontractor proceed to arbitration or to court, that forum shall award to the prevailing party all of its attorney's fee, filing fees, costs, expenses and disbursements incurred in connection with the prosecution or defense of the dispute. Pending final resolution of any dispute, the Subcontractor shall continue to fulfill all of its obligations under this Subcontract Agreement. Within the period of time allowed by the F.A.R. clauses in the Contract Documents less five (5) working days.

ARTICLE XI:

Subcontractor shall provide bonds or an irrevocable letter of credit payable to Contractor in the sum of $1,000,000.00 on forms acceptable to Contractor, with a surety or bank satisfactory to Contractor for the faithful performance of this Subcontract Agreement, including changes or modifications thereto without consent of surety or bank, and for the payment of all labor, services, materials, and supplies used in the prosecution of the Work.

ARTICLE XII:

(a) Should Subcontractor at any time breach this Subcontract Agreement, or fail to prosecute the Work with promptness, diligence and efficiency or fail to perform any of the requirements hereof, or should there be filed by or against the Subcontractor a petition in bankruptcy or for an arrangement or reorganization, or should Subcontractor become insolvent or be adjudicated as bankrupt or go into liquidation or dissolution, either voluntarily or involuntarily or under a court order, or make a general assignment for the benefit of creditors, or otherwise acknowledge insolvency, then in any of such events, each of which shall constitute a material default on the Subcontractor's party, Contractor may, upon 24 hours advance written notice either by registered mail addressed to Subcontractor at One Wayne’s Way, Podunk, WV 25555 or by posting such notice in a conspicuous place on the Project site, proceed as follows:

(1) Provide such materials, supplies, equipment and labor as may be necessary to complete the Work, pay for same and deduct the amount so paid from any money then due Subcontractor;

(2) Withhold payment of any estimate in the event Subcontractor be in default under this Subcontract Agreement or any provision hereof, other provisions of this Subcontract Agreement notwithstanding; and/or

(3) Terminate the employment of Subcontractor, enter upon the premises and take possession, for sue in completion of the Work, of all their materials, supplies, tools, equipment and appliances of Subcontractor thereon and complete the Work, or have same completed by others on terms deemed by Contractor in its judgment to be expedient, including costs plus a fee payment terms, and be liable to Subcontractor for no further payment under this Subcontract Agreement until final payment is due from Owner, and then only if and to the extent that the unpaid balance of the amount to be paid under this Subcontract Agreement exceeds the expenses of Contractor in finishing the Work.

Which shall not be unreasonably withheld provided Contractor receives consent of Subcontractors Surety.

(b) If the amount expended by Contractor under (a)(1) above or the cost of completing the Work under (a)(3) above, including all resulting losses, damages, costs and expenses to Contractor, exceeds the unpaid balance of the Subcontract Agreement amount, Subcontractor shall pay Contractor such excess.

(c) Should Subcontractor at any time fail to pay for all labor, materials or supplies used by Subcontractor in the Work when due, Contractor, at its option, may pay for same out of funds advanced to Contractor by Owner for Subcontractor and debit Subcontractor's account; or may, at its discretion, pay at any time claims for labor, materials and supplies used in the Work and Subcontractor shall pay Contractor the amount of any such payments upon demand.

(d) Should Subcontractor default in any of the provisions of this Subcontract Agreement and should Contractor employ an attorney to enforce any provision hereof, or to collect damages for breach of the Subcontract Agreement, or to recover on the bonds or letter of credit mentioned above, then Subcontractor and its surety, if applicable, agree to pay Contractor such attorney's fees and costs as it may expend therein. As against the obligations herein contained, Subcontractor and its surety waive all rights of exemption.

(e) The rights and remedies granted to Contractor under this Article and pursuant to the other provisions of this Subcontract Agreement shall be cumulative and are not intended to be in lieu of any legal right or remedy which Contractor may have against Subcontractor for breach of this Subcontract Agreement or default hereunder, afforded by state or federal law.

ARTICLE XIII:

(a) Subcontractor shall not sublet, assign or transfer this Subcontract Agreement, or any part thereof, without the written consent of Contractor.

(b) This Contract contains the entire agreement between the parties and all additions thereto or changes therein shall be in writing and shall not be binding unless same are in writing and executed by the parties.

ARTICLE XIV:

This Subcontract is awarded subject to the written approval of Subcontractor by Owner and/or its representative.

ARTICLE XV:

Subcontractor hereby unconditionally guarantees that the Work will be performed in strict accordance with all the requirements of this Subcontract Agreement, the Contract, the Contract Documents and the Project Plans and Specifications, and further guarantees the Work to be and remain free of defects in workmanship and materials for one (1) year after acceptance of the Project as a whole by the Owner and the Design Professionals, or from any such longer period specifically set forth in the Contract Documents. Subcontractor hereby agrees to repair or replace any and all Work, together with any other adjacent work which may be displaced in so doing, that may prove not to be in accordance with the requirements of the Contract Documents or that may be defective in its workmanship or material within the guarantee period specified, without any expense whatsoever to Owner or Contractor, ordinary wear and tear and unusual abuse or neglect excepted. All Work so repaired or replaced will be further unconditionally guaranteed free from defects in workmanship and materials from one (1) year after said Work has been accepted by Owner. The bonds and/or letters of credit provided hereunder are to remain in full force and effect during the guarantee period and the time for filing a claim against such bonds or letters or credit shall likewise be extended.

(a) Subcontractor agrees to include an identical guarantee provision in all subcontracts or purchase orders relating to the Work hereunder.

(b) Subcontractor further agrees that after being notified in writing by Contractor or Owner of any Work not in accordance with the requirements of the Contract Documents, or any defects in the Work, it will promptly commence and prosecute with due diligence all work necessary to fulfill the terms of this guarantee, and to complete the work within a reasonable period of time, and in the event Subcontractor fails to so comply, Subcontractor does hereby authorize Contractor or Owner to proceed to have such work done at Subcontractor's expense, and Subcontractor will pay the cost hereof upon demand. Contractor or Owner shall be entitled to all costs, including attorney's fees and costs, necessarily incurred upon Subcontractor's refusal to pay the above costs.

(c) The obligations of Subcontractor set forth above shall survive their termination of this Subcontract Agreement.

ARTICLE XVI:

The provisions of the attached Schedules and Exhibits complement and are part of the printed Subcontract Agreement: "Amendments To" pages 1 through 6, Schedule A, Exhibits A through F, Standard Forms, Pay Application Form, Release of Lien and Compliance Statement.

ARTICLE XVII:

Venue/Attorney Fees. The parties agree that in the event of a dispute arising out of or related to the parties' Subcontract Agreement, that any and all disputes shall be resolved in a court of competent jurisdiction for the locale of situs of the Work being performed under and pursuant to the parties' Subcontract Agreement, and that the losing party to any such dispute shall pay the prevailing party's attorney fees and court costs related to or arising out of any such dispute.

IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written.

WITNESSES:

___________________________

HEY WAYNE CONSTRUCTION, INC.
(Subcontractor)

___________________________
(Address)

BY:___________________________
  TITLE:                                                        
 
___________________________
GIANT CONTRACTORS, INC.
___________________________
(Address)
BY:___________________________

 

TITLE: