MASTER SUBCONTRACT AGREEMENT
This Master Subcontract Agreement is made and entered this ____ day of __________________ by and between BluRoc Brothers, Inc. d/b/a Transblue Seattle, a Washington corporation (hereinafter called “WE,” “OUR,” or “US”) andSUBCONTRACTOR or SUPPLIER: Contact Person:
__________________________________________ Office Phone:
Address: Cell Phone:
Bond Registration # ___________________________
hereinafter called “YOU.”
We have or may utilize Your services for various projects. The parties desire to enter into a Master Subcontract Agreement (“MSA”) that applies to all projects We contract with You, including any current projects in process. The actual work (“Work”) for each project governed by this MSA will be specified and authorized pursuant to a separately executed Scope of Work (“SOW”) that specifies:(a) the project name and address,
(b) name of the project owner,
(c) work to be performed,
(d) contract price or rates, and
(e) other information and terms applicable to that particular project.(All work with a SOW is referred to herein as a “Project”). Unless the terms of the SOW expressly state otherwise, the terms of this MSA are binding and applicable to all Work or Project(s) You perform.In this MSA, and in addition to other obligations, You will agree to the following:1. You receive payment after we receive payment. (¶3.1)
2. All changes must be in writing signed by both parties. (¶4)
3. Time is of the essence. (¶5.3)
Now, therefore, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Purpose. Unless expressly agreed otherwise, this MSA governs all future contracts or agreements between the parties. By executing this MSA, We do not guarantee or represent We will contract with You for a project or any particular project(s). We reserve the right to competitively bid all projects.2. Rates and Scope of Work. We may, in our sole discretion, authorize You to perform Work on certain projects under a Scope of Work (“SOW”). Before authorization, the parties will agree on a contract rate or fixed price sum by Rate Confirmation Sheet substantially in the form of Exhibit A. Each SOW will be substantially in the form of Exhibit B attached hereto and incorporated by reference. We must approve, in writing, all work not included in a SOW or this MSA before you start any such work. Any work not so approved will not be paid for by Us or by the project owner.
3. Payment. You must submit payment applications per the terms of the SOW or within ten (10) days of completing the Work if no time period is stated. Within forty-five (45) days after We receive payment for Your Work, and except as otherwise set forth herein, We will pay You per the rates agreed in the applicable SOW.
3.1 Paid When Paid. We have no obligation to pay You for any Work performed, or materials or equipment furnished under this MSA or applicable SOW(s) until the project owner pays us the final payment for such Work, materials, or equipment. You expressly agree to bear the risk of project owner’s non-payment. If the project owner pays Us less than the full value of materials delivered to the site, or less than the full value of the Work performed, the amount You will be paid for such materials or Work will be proportionately reduced.
3.2 Progress Payments. All progress payments are considered advances and are subject to adjustment at any time prior to final payment for errors, overpayments, claims, damages, defective work, or to pay lien, retention, or bond claims. No payment constitutes an approval or acceptance of Your Work, the materials furnished, or Your compliance with the MSA or any applicable SOW. If you dispute the amount or timing of any progress payment, You must communicate this to Us, in writing, within fifteen (15) days after Your receipt of the progress payment, or it will be conclusively presumed that such progress payment was accurate and in full accordance with the MSA and all applicable SOWs. Further, You will be barred from making any claim against Us for additional amounts.
3.3 Offsets. If You are indebted to Us or anyone else for labor, benefits, taxes, supplies, materials, equipment, or other charges against the Work, We may deduct that amount from payments due and pay such amounts directly to whom You are indebted. We may from time to time require, and You will promptly provide, a written statement setting forth Your debts to third parties for labor, benefits, taxes, supplies, materials, equipment, or other charges against the Work. We may withhold from any payment, progress or final, any amount necessary to secure and protect Us or the project owner from third-party claims or liens for materials or labor related to Your Work. If a third-party files a lien against the Project on account of the Work, We may settle or otherwise resolve the lien claim directly and You will promptly reimburse us for any additional costs we incur.
3.4 Payment Conditions. No payment whatsoever, whether progress or final, will be paid to You unless the following conditions precedents are met: (a) We received payment from project owner; (b) MSA and any applicable SOW(s) are returned to Us fully executed; (c) You furnish Us with acceptable insurance certificates applicable to the Work evidencing all required coverage and additional insureds named; (d) You affirm that all obligations You incurred pursuant to this MSA and all applicable SOWs that may be the basis for a lien were paid in full; (e) You execute full release and lien waiver on behalf of Yourself and your lower-tier subcontractors and suppliers; (f) You furnish releases and/or certificates from such governmental agencies as may be required; (g) You are in compliance with the project schedule; and (h) You are not in material breach of any obligations under the MSA or applicable SOWs.
3.5 Final Payment. Final payment will be made within forty-five (45) days (or a shorter time period if required by law) if, and only if, the following three conditions are met: (1) project owner accepts the Work; (2) We receive final payment from the project owner; and (3) You provide all required job closeout documents as required by the MSA and all applicable SOWs, including releases and waivers of liens. Your acceptance of final payment constitutes Your release of all claims against Us.4. Changes. We may, without invalidating this MSA or applicable SOWs, add, deduct, delete, alter, or change the Work (a “Change Order”). Change Orders must be in writing and signed by both parties. You will not commence any extra work or make claims related to extra work unless We have executed a Change Order for that work. Any claim seeking adjustment of the SOW price or time due to a Change Order must be made in writing within forty-eight (48) hours from the Change Order date or the claim is waived. If a Change Order decreases the overall scope of the Work, You expressly acknowledge no claim for lost profits. You also acknowledge that, unless expressly stated otherwise within the Change Order, any change to the SOW by a Change Order constitutes the parties’ full and final agreement concerning all costs incurred, labor performed, materials and equipment furnished, and any delay, acceleration, or loss of efficiency associated with the change in the Work.4.1 Delays. In the event Your performance of the MSA or any SOW is delayed, extra costs are incurred, or the Work is interfered with, You may request an extension of the time but You will not be entitled to any additional compensation, except to the extent that We may, on behalf of You, recover from project owner for such delays less Our markups or costs. You will accept such recovery, if any, as fully discharging Us with respect to such claims. We are never liable for Your delays if the project owner or a third party caused the delay. You must prepare and present any claim against project owner through Us, and must bear all expenses thereof, including attorneys’ fees. This Section survives termination of the MSA and any SOW.5. Representations and Warranties. You will furnish all labor, material, tools, equipment, services, supplies, and supervision necessary to complete the Work in a proper and efficient manner per the drawings and specifications, all applicable building codes and all applicable federal, state, county, and city laws, ordinances, statutes, rules, and regulations, particularly those relating to wages, hours, fair employment practices, nondiscrimination, safety and working conditions required by any government authority for the Work. Your workmanship must be first class and represent the highest quality standards of the trade. Any material You furnish must be of good quality, new unless otherwise agreed in writing, and free from fault and defect.
5.1 Duty to Inspect. Prior to commencing the Work or any portion of it, You are responsible for thoroughly inspecting the work by others in the area where You will perform and must notify Us, in writing, of all deficiencies in others’ work and all conditions that might adversely affect the Work. If you fail to notify Us, in writing, of such deficiencies and conditions within forty-eight (48) hours after discovery, You waive Your right to additional compensation or extension of time due to such deficiencies or conditions and You admit the previous work was completed in a proper manner, and waive Your claims against Us for any costs, expenses, or damages resulting therefrom.5.2 Prime Contract. If there is a prime contract for the Work or Project, You acknowledge that copies of the prime contract are available, have been examined and accepted by You, and that the prime contract is incorporated in this MSA by reference. You agree to be bound to Us by the terms of the prime contract, and to assume all obligations and responsibilities that We assume toward the project owner in addition to the requirements of this MSA.5.3 Schedule. You will commence and perform the Work by the date identified in the applicable SOW and proceed in a prompt and diligent manner. You will not, by delay or otherwise, interfere or hinder Our work or the work of other subcontractor(s). You must furnish materials in sufficient time to perform and complete the work within the time required. You will cooperate and coordinate with Us and other subcontractors. Time is of the essence. If You seek an extension to finish the Work, You must secure our prior written approval which we may deny in our sole discretion.
5.4 Lower-Tier Subcontractors. If you wish to use subcontractors to perform the Work, You must get Our prior written permission which permission may be denied in Our sole discretion. If We do allow You to use a subcontractor, You will ensure each subcontractor is bound to You as You are bound to us by this MSA and the applicable SOW. You further agree to indemnify Us to the fullest extent possible due to the Work performed or any claims made by any such subcontractor.5.5 Permits, Licenses, Taxes, Fees. You will secure and pay for all permits, fees, licenses, tests, and inspections necessary to perform the Work pursuant to this MSA and all applicable SOWs and will pay any and all federal, state and local taxes applicable to the Work. You will abide by all local, state, and federal permit and regulatory requirements related to the performance of the Work, and will timely provide Us with all permit, license, and agency correspondence. If the Work does not comply with laws, statutes, ordinances, or regulations, You assume full responsibility for such Work and bear the attributable costs, including but not limited to, Our civil fines, court costs, and attorneys’ fees.5.6 Materials. Any materials delivered or intended for the project should remain on the job site and are the project owner’s when paid. You may, however, remove any surplus when the Work is completed, unless the prime contract states otherwise. It is Your responsibility to unload, store, secure, and protect the materials, and You bear the risk of loss thereof until the Work is accepted, except You will not bear any loss caused by Us or the project owner. All scaffolding, apparatus, ways, works, and machinery You bring to the project remain Your property, but if you cannot perform the Work as required and We complete the Work, We may use that scaffolding apparatus, ways, works, or machinery without cost or liability and without prejudice to Our other rights or remedies.5.7 Warranty. You hereby guarantee and warrant that all work and/or materials provided under this MSA and any SOW will be of first class quality and workmanship, free from faults and defects, and conforming to this MSA and applicable SOW(s). We rely upon Your special skill and judgment to furnish suitable materials and/or services. You further agree to make good, without cost to project owner or Us, any and all defects due to imperfect workmanship or materials that appear within one (1) year from the date of final acceptance of the Project by project owner, or within such additional warranty period as may be provided for in this MSA, any SOW, or in the prime contract, whichever is longer. This Section survives the completion or termination of this MSA and any applicable SOW. If by reasonable determination, the project owner or We reject any portion of the Work, whether or not the Work is defective, You will promptly correct the Work and are responsible for the cost of correcting such work, including any additional costs the project owner or We incur.5.8 Job Damage. If You or your subcontractor or supplier damage the Work or Project in any way, that damage must be reported immediately. In such case, You will be responsible for all repair and related costs. If we damage Your Work, we will immediately report this to You and We will be responsible for all repair and related costs.5.9 Project Site and Safety. You will take all safety precautions necessary to perform the Work in a safe manner and to protect persons from illness, injury, or property damage arising out of the Work, including all safety guidelines from OSHA, CDC, and related health agencies as a result of the COVID-19 and SARS-COV-2 pandemic. In the event You do not promptly correct a safety violation, We may order You to stop work until the violation is corrected, and may correct the violation and charge all costs of compliance to You. You must promptly provide Us with written notice of safety hazard(s) or violation(s) found on the jobsite or of any injuries to Your subcontractors or suppliers incurred on the jobsite.You agree to defend, indemnify, and hold Us and project owner harmless from all claims, demands, proceedings, violations, penalties, assessments, or fines that arise out of or relate to Your failure to comply with any safety-related laws, ordinances, rules, regulations, or orders. This indemnity obligation will include all costs, expenses, and attorneys’ fees We reasonably incur.6. Insurance. You will obtain and keep in force during the term of this MSA and any applicable SOW, Commercial General Liability Insurance with coverage equal to, or greater than, the minimum specified in the prime contract and not less than the amount noted in this MSA. You will provide insurance coverage in the amounts stated in the prime contract, but not less than the following, unless We otherwise agree in writing:
Statutory Bodily Injury by Accident or Disease
Employer’s Liability (when required)
$1,000,000 Bodily Injury by Accident – Each Accident
$1,000,000 Bodily Injury by Disease – Policy Limit
$1,000,000 Bodily Injury by Disease – Each EmployeeGeneral Liability – Bodily Injury, Personal Injury, and Property Damage
$2,000,000 General Aggregate
$2,000,000 Products and Completed Operations Aggregate
$1,000,000 Personal Injury/Advertising Injury
$1,000,000 Each OccurrenceExcess/Umbrella Liability Coverage
$5,000,000 Each Occurrence
$5,000,000 General AggregateAutomobile Liability
$1,000,000 Bodily Injury and Property Damage – Per Accident
6.1 Certificates. Certificates of Insurance naming Us, BluRoc Brothers, Inc. d/b/a Transblue Seattle 720 N. 10th Street Suite A394 Renton, Washington 98057, as additional insured on the General Liability Policy (and excess liability policy, if any), and that such policies provide primary coverage with respect to Us and project owner must be on file before commencing the Work. In addition, such Certificates will provide Us with forty-five (45) days’ notice in case of cancellation or non-renewal.6.2 Waiver of Subrogation. You will, at Your sole cost and expense, include appropriate clauses so the insurance companies: (a) waive all right of subrogation against Us with respect to losses payable under such policies; and (b) agree that such policies will not be invalidated if, prior to a loss, the insured waives, in writing, any or all rights of recovery against any party for losses covered by such policies.6.3 Bond & Regulations. You will furnish any bonds, security, or deposits required by such authority to permit performance of the Work. You and Your lower-tier subcontractors must be registered contractors, and licensed and bonded in the state where the Work is located and will maintain such registration, license and bond in full force and effect while contracted with Us or performing any Work. If applicable, You and all lower-tier subcontractors will file a Statement of Intent to pay Prevailing Wage form as required before receiving any payment. You and all lower-tier subcontractors will keep accurate payroll records as required by applicable law or regulation.7. Indemnification. In addition to Your obligation to provide insurance under the MSA, you agree to defend, indemnify, and hold Us and our officers, agents, employees, directors, successors, assigns, affiliates, subsidiaries, servants, and representatives (hereinafter “Indemnitees”) harmless from any and all claims for damages, demands, losses, expenses, and liabilities to or by third parties, including, but not limited to, attorneys’ fees and all costs of litigation arising from, resulting from, or connected with the Work. This duty extends to services performed or to be performed and materials and equipment furnished under the MSA and any applicable SOW by You or Your agents, employees, lower-tier subcontractors and suppliers, even though such claims may prove to be false, groundless, or fraudulent, to the fullest extent permitted by law and subject to the limitations provided below. Your duty to defend and indemnify Indemnitees will not apply to liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of any of the Indemnitees.You specifically and expressly waive any immunity that may be granted under the Washington State Industrial Insurance Act or any other applicable workers’ compensation act. Further, the indemnification obligation is not limited by amount or type of damages, compensation, or benefits payable to or for any third party under workers’ compensation acts, disability benefits acts, or other employee benefits acts.Your duty to defend is independent of Your duty to indemnify. You agree to defend Indemnitees regardless of whether its duty to indemnify is disputed. Your duty to defend, indemnify, and hold the Indemnitees harmless will include, as to all claims, demands, losses and liability to which it applies, Indemnitees personnel-related costs, in-house expenses (including materials and labor, all reasonable fees (of attorneys and experts), court costs, and all other claim-related expenses. If a Court or arbitrator of competent jurisdiction determines any indemnification provision is not enforceable, You agree to indemnify Indemnitees to the fullest extent permitted by law.8. Default and Termination. You will commence and at all times carry on, perform, and complete the Work to the full and complete satisfaction of the project owner and Us. In addition to the obligations set forth in this MSA and applicable SOW, certain actions will constitute events of default that You may not have opportunity to cure.8.1 Default with No Ability to Cure. Unless You have Our written approval, You will be in default if You (a) contact the project owner, or its agents regarding anything other than Your access to the Project site; or You (b) fail to be on the Project site and perform the Work when scheduled. In such instances, We may terminate you immediately upon written notice or, in the alternative, and because our actual damages are difficult if not prohibitive to calculate, We may charge you liquidated damages of $1,000.00 per day for any violation of this provision.8.2 Defaults with Ability to Cure. The following constitute events of default if not cured within three (3) days of written notice:(a) You refuse or fail to correct or replace faulty or defective work or materials furnished;
(b) You fail to promptly pay lower-tier subcontractors or material suppliers;
(c) Either You or Your lower-tier subcontractors or suppliers place a lien on the Project;
(d) You disregard the laws, ordinances, rules, regulations, or orders of any public authority having jurisdiction;
(e) You file for bankruptcy protection or are subject to a receivership; or
(f) You commit a material breach of this MSA or any SOW.8.3 Our Rights Upon Default. If You are in default, and in addition to the remedies in paragraph 8.1 above, we may, without prejudice to other rights or remedies:(1) supply the subcontractors, workers, materials, equipment, or facilities We deem necessary to complete the Work, or any part thereof, and to charge You our cost (including reasonable overhead and profit);
(2) withhold payment due You until We are satisfied You have corrected the Work; or
(3) terminate the SOW and charge you for our cost (including reasonable overhead and profit) to secure new subcontractor(s), workers, materials, equipment, or facilities We deem necessary to complete the Work.Further, if We deem there is an emergency involving risk of injury to person or property arising prior to an actual takeover, We may take appropriate action to mitigate such emergency without notice to You and may charge You for all costs incurred in such mitigation.8. Termination for Convenience. We may, at our option, and at any time and for any reason, terminate this MSA and any applicable SOW as to all or any portion of the uncompleted Work. Upon your receipt of such a termination notice, You will immediately cease performance of the Work or such portions of the Work as We direct. Once we receive payment from the project owner for Your Work, We will pay You for that portion of the Work actually performed prior to termination, less payments already made and claims We have against You under this MSA or any applicable SOW. In no event will We be liable to You for any other costs or amounts, including but not limited to, consequential damages, loss of anticipated profits, or unabsorbed overhead and You expressly waive any claims for such damages. Termination does not relieve You from Your obligations concerning Work performed prior to termination, nor does it waive any other post-termination obligations herein including those concerning disputes.9. Disputes. You explicitly agree that this MSA was entered into in King County, Washington and the King County Superior Court will have exclusive jurisdiction over all claims or disputes related to the Work, this MSA, or any SOW that are not pass-through claims to the project owner. In any dispute, the substantially prevailing party is entitled to its reasonable attorneys’ fees and costs incurred in the matter. This MSA, and all applicable SOWs will be governed by and construed in accordance with the laws of the State of Washington, notwithstanding any conflict of law, rule, or principle which might refer such construction to the laws of another state or country.10. Assignment. You will not assign any portion of this MSA, any SOW, or any of Your rights, causes of action, claims, or any other interest arising therefrom, including legal remedies or causes of action, without Our prior written consent. Any assignment or purported assignment without such written approval will be null and void.11. Prior Understandings or Representations. We assume no responsibility for any understanding or representation made prior to the execution of the MSA or any applicable SOW, unless expressly stated in this MSA or any applicable SOW. It is expressly agreed that this MSA and any applicable SOW is a total statement and integration of the agreement between the parties.12. Modifications. No modification of this MSA or any applicable SOW and no waiver of any rights under this MSA and any applicable SOW will be valid or binding on the parties unless in writing. Our failure to insist upon strict performance of the MSA or any applicable SOW, or to exercise any option herein will not waive any such rights, covenants, or agreements, but all will remain in full force and effect.13. Severability. If any paragraph, section, part, term, or provision of this MSA or any applicable SOW is construed or held to be unenforceable or void by order, decree, or judgment, the remaining paragraphs, sections, parts, terms, and provisions of this MSA and all applicable SOWs will not be affected thereby and will remain in full force and effect.14. Survival. All indemnity, warranty, or insurance obligations continue as valid and enforceable obligations of the parties, notwithstanding any termination, cancellation, completion, or expiration of this MSA or appliable SOW.15. Notice. Any notice required in this MSA must be hand-delivered, mailed or emailed to:
BluRoc Brothers, Inc.
720 N 10th St, Suite A394
Renton, Washington 98057
Attention: Clint Carr
Email: firstname.lastname@example.org a copy to:Miller Nash Graham & Dunn LLP
Pier 70 ~ 2801 Alaskan Way Suite 300
Seattle, Washington 98121
Attention: Tina Scott
Email: Tina.Scott@millernash.com16. Voluntary Agreement. You expressly acknowledge that You enter into this MSA by Your own free will, You read all terms herein, and You had the opportunity to consult with counsel. If You entered into this MSA through Our online subcontractor “portal,” You expressly acknowledge that We still provided You with a reasonable opportunity to review each and every term herein, and that You gave active consent to the MSA terms as stated herein.
In Witness Whereof, the parties have executed this MSA as of the day and year written above.BLUROC BROTHERS, INC., a Washington corporation
Authorized Agent Authorized Agent
Federal I.D. No.
MSA Date: _____________________________