SUBCONTRACT AGREEMENT

 

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                                                                  EXHIBIT 10.253

 

                              SUBCONTRACT AGREEMENT

 

Project No. 2303                                     Subcontract No.2303-1000-6

 

Prime Contract: DACW09-03-B-0005

 

PROJECT: UPPER BLUE DIAMOND DIVERSION CHANNEL

 

OWNER: UNITED STATES GOVERNMENT

 

PROJECT LOCATION: LAS VEGAS, NEVADA.

 

CONTRACT DOCUMENTS consist of this Subcontract, the Project Plans and

Specifications as set forth in the Special Provisions, including all amendments,

addendum and subsequent modifications issued thereto.

 

THIS AGREEMENT (hereinafter "the Subcontract") is entered into in consideration

of the mutual promises made this 23rd day of September, 2003 between Wiser

Construction, Limited-Liability Company, (hereinafter called the Contractor"),

and Meadow Valley Contractors, Inc.(hereinafter called the "Subcontractor"), who

is:

 

MEADOW VALLEY CONTRACTORS

 

ATTN: ROBERT TERRIL

 

4635 ANDREWS STREET, SUITE F

 

NORTH LAS VEGAS, NEVADA  89030

 

OFFICE PHONE: (702) 643-9472

 

OFFICE FAX: (702) 643-6953

 

MOBILE PHONE: (702) 493-6416_

 

DEREK HARE (P.M): (702) 491-3994; BUDDY HALL (SUPT.) (702)491-0270

 

CONTRACTOR AND SUBCONTRACTOR AGREE AS FOLLOWS:

 

1.       CONTRACT DOCUMENTS

 

         1.1 The Contract Documents of this Subcontract consist of this

         Agreement, including all exhibits and other documents attached hereto

         or made a part thereof by reference, and the Prime Contract between the

         Owner and Contractor (hereinafter "the Prime Contract"), including all

         exhibits and other documents attached thereto or made a part thereof by

         reference. (All Contract Documents identified herein shall be

         hereinafter collectively referred to as "the Contract Documents").

 

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         1.2      The Contract Documents are available in the Contractor's

                  office. Subcontractor acknowledges that it has carefully

                  examined the Contract Documents and fully understands them.

                  Printed copies of any of the Contract Documents will be

                  provided to Subcontractor, upon request, for a nominal fee. A

                  CD with the full contract specifications, drawings, and

                  addenda will be provided to the subcontractor at no charge.

                  The Contract Documents are also available for download on the

                  internet at WWW.spl.usace.army.mil/.

 

         1.3      Subcontractor is bound to the Contractor to the same extent

                  and duration that Contractor is bound to the Owner. In case of

                  conflicts or inconsistencies between this Subcontract and the

                  Contract Documents, the Subcontract shall control unless any

                  other Contract Document expressly provides otherwise.

                  Subcontractor shall bind lower tier subcontractors and

                  suppliers to full compliance with all Contract Documents,

                  including all performance obligations and responsibilities

                  which Subcontractor assumes toward Contractor.

 

2.       SCOPE of WORK

 

         2.1      Subcontractor agrees to furnish all labor, materials,

                  equipment and work required to fully complete all of the

                  following items of work ("the Subcontract work"):As per the

                  attachment 'A' bid line items from the contract documents

                  listed above. (as per attachment "B" of Subcontractor's quote)

 

         2.2      Subcontractor agrees to perform the Subcontract work, under

                  the direction of Contractor, in a good and workmanlike manner

                  to the satisfaction of the Contractor and the Owner.

                  Subcontractor agrees to provide and pay for all labor,

                  materials, tools, supplies and equipment, and all other

                  things, except as otherwise provided herein, to perform the

                  Subcontract work in strict conformance with the Contract

                  Documents.

 

         2.3      All work will be complete and include incidental items for

                  each feature of work as written in the contract plans and

                  specifications. Any additional testing required above and

                  beyond specifications will be responsibility of subcontractor.

 

         2.4      Placement of work will be accurately done by subcontractor

                  from survey stakes provided by Wiser Construction. Additional

                  survey work to replace markers will be at the subcontractors

                  cost. Subcontractor is responsible for survey stakes once the

                  areas have been staked.

 

3.       CONTRACT PRICE and PAYMENTS

 

         3.1      In reference to attachment 'A' bid item numbers;

                  14,15,16,17,18,19,21,24,25,26,27,28,29,30,31,32,33,34,35,36,3

                  741,42,43,44,45,46,47,48,56,58,86,90,91,92,93,94,95,96,97,98,

                  99100,102,104,105,107,111,112,114,118,119,120,121,122, and in

 

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                  consideration of the complete and timely performance of all

                  Subcontract work, Contractor agrees to pay Subcontractor the

                  sum of $9,492,800.00 (Nine Million Four Hundred Ninety-Two

                  Thousand Eight Hundred Dollars) subject to quantity

                  adjustments as per the contract specifications. (as per

                  attachment "B" of Subcontractor's quote)

 

         3.2      At this time the Government has not awarded the project. Until

                  such time as the Government awards the project, the

                  Subcontractor is not to execute any such work until the

                  Government and Wiser Construction, LLC issue an official

                  Notice to Proceed. If the Government never exercises its

                  option upon the project, then Wiser Construction, LLC. has no

                  obligation to Subcontractor for these items in any way.

 

         3.3      By the FOURTEENTH day of each month, Subcontractor shall

                  submit to Contractor a monthly billing showing the estimated

                  percentage of Subcontract work that has been satisfactorily

                  completed, in each bid line item, in the preceding month

                  together with the original executed Conditional Release

                  verifying payment of all lower tier subcontractors, laborers

                  and material suppliers. Subcontractor further agrees to

                  provide all EEO reports, certified payroll, and/or other

                  reports as may be required by the Contract Documents.

 

         3.4      Paid When Paid - Progress payments will be made by Contractor

                  to Subcontractor within 15 working days after Contractor

                  actually receives payment for Subcontractor's work from Owner.

                  The progress payment to Subcontractor shall be the value of

                  Subcontract work during the preceding month as determined by

                  Owner. The progress payment shall be conditional upon receipt

                  of a Conditional Release executed by Subcontractor, in a form

                  satisfactory to Contractor, and in favor of Contractor,

                  covering payment to be made by Contractor. Retainage will not

                  be withheld unless withheld or directed to be withheld by

                  Owner.

 

         3.5      Contractor shall have the right at all times to contact

                  Subcontractor's subcontractors and suppliers to verify that

                  they are being paid by Subcontractor for labor or materials

                  furnished for use in the Subcontract work, If it appears that

                  labor, material or other costs incurred in the performance of

                  the Subcontract Work are not being paid when due, Contractor

                  may take whatever steps it deems necessary to insure that the

                  progress payments will be utilized to pay such costs,

                  including, but not limited to, the issuance of joint checks

                  payable to the claimant and Subcontractor, or additionally,

                  making payment directly to claimant after notice to

                  Subcontractor. If such payment by Contractor exceeds the

                  balance of payments due or to become due to Subcontractor from

                  Contractor, then Subcontractor shall be liable to Contractor

                  for the difference, plus a not to exceed fee of 7%.

 

         3.6      Subcontractor shall furnish to Contractor a verified and

                  itemized statement showing the names and addresses of all

 

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                  entities who have furnished or may furnish labor, materials,

                  and/or equipment for the Subcontract work together with the

                  amount due or to become due for such work.

 

         3.7      The withheld retention, if withheld by Owner, or directed to

                  be withheld by Owner, shall be payable to Subcontractor upon,

                  and only upon, the occurrence of all of the following events,

                  each of which is a condition precedent to Subcontractor's

                  right to receive final payment hereunder and payment of such

                  retention: (a) Completion of the entire project described in

                  the Contract Documents; (b) The approval and final acceptance

                  of the project work by Owner; (c) Receipt of final payment by

                  Contractor from Owner; (d) Delivery to Contractor of a Release

                  and Waiver of Claims from all of Subcontractor's laborers,

                  material and equipment suppliers, and subcontractors providing

                  labor, materials or services to the Project; and (e)

                  Acceptance of final payment shall constitute a waiver of all

                  claims by Subcontractor relating to the Subcontract work

                  except as may be otherwise provided in the Final Release.

 

         3.8      Subcontractor agrees that Contractor shall have no obligation

                  to pay Subcontractor for any changed or extra work performed

                  by Subcontractor until or unless the Owner has actually paid

                  Contractor for such work, or unless extra work is directed by

                  Contractor in writing.

 

         3.9      Progress payments and Final Payment shall not be considered or

                  construed as evidence of acceptance of any part of

                  Subcontractor's work until final acceptance of the Project by

                  the Owner.

 

         3.10     Required warranty, guarantee, as built drawings, governing

                  body inspection records and such close out documentation shall

                  be promptly provided to Wiser Construction,LLC. for submission

                  and approval of owner prior to final payment releases.

 

4.       PROSECUTION of WORK

 

         4.1      TIME IS OF THE ESSENCE OF THIS SUBCONTRACT:

 

         (a) The required number of copies of all Subcontractor submittals per

         the specifications shall be received by Contractor within

         ______30_______ days of the date from Award letter to Contractor from

         Owner, unless otherwise agreed to in writing by the Contractor.

         Subcontractor agrees to provide plan sized sheets for all submittals of

         minimum size 8 1/2" by 11". Product specifications shall be provided in

         standard 8 1/2" by 11" paper, three hole punched for insertion into

         three ring binders. This is a Metric project. All data must be

         expressed in Metric units of measure. All submittals are to reference

         the specification number per the submittal log included in the

         specs.Submittals are to be originals, not photocopied, and must be

         submitted per the specs.

 

         (b) Any delays in the submittal process caused in whole or in

 

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         part by the Subcontractor may be grounds for immediate termination of

         this Subcontract Agreement and subject Subcontractor to damages as

         provided in Sections 8 and 9 below.

 

         Subcontractor agrees to commence the Subcontract work within 5 calendar

         days after receiving notification to proceed, and to proceed at such

         points as Contractor may designate, and to continue diligently in its

         performance in accordance with the Contractor's agreed upon project

         schedule and at a pace that will cause no delay in the progress of the

         Contractor's or any other Subcontractor's work. Subcontractor agrees to

         perform the work in accordance with the Contractor's schedule, in order

         to cause no delay or disruption to the Contractor or other

         Subcontractors.

 

         4.2      Upon request, Subcontractor shall promptly provide Contractor

                  with scheduling information or any other information relating

                  to the order or nature of the Subcontract work. Subcontractor

                  agrees that Contractor may revise the project schedule as work

                  progresses. Contractor may require Subcontractor to prosecute

                  segments of the Subcontract work in phases as Contractor may

                  specify. Subcontractor shall comply with instructions given by

                  Contractor, including any instructions to suspend, condense,

                  delay or accelerate the Subcontract work. Subcontractor shall

                  not be entitled to any extra compensation from Contractor for

                  any suspension, condensation, delay or acceleration unless

                  specifically agreed to in writing by Contractor and Owner and

                  paid for by Owner. The Owner's payment to Contractor of extra

                  compensation for any such suspension, delay, or acceleration

                  shall be a condition precedent to Subcontractor's right, if

                  any, to receive such extra compensation from Contractor.

 

         4.3      Subcontractor shall keep the building and Project Site

                  reasonably clean of debris resulting from the performance of

                  its work and shall remove from the Project Site all debris

                  generated by the execution of the Subcontract work.

 

         4.4      Subcontractor, in undertaking to complete the Subcontract work

                  within the time specified, avows that it has considered

                  ordinary delays incident to such work; including, but not

                  limited to, delays in securing material, equipment or workmen

                  and minor changes, omissions or alterations. Should

                  Subcontractor be substantially delayed by changes, omissions

                  or additions, by unavoidable casualty, severe weather

                  conditions, or by strikes or lockouts not caused by the acts

                  of Subcontractor, Subcontractor shall notify Contractor in

                  writing within forty-eight (48) hours after such occurrence,

                  and Subcontractor shall be allowed such time extension as

                  Owner and/or Contractor shall award. No time extension will be

                  allowed for delays or suspensions or work caused or

                  contributed to by Subcontractor, and no time extension will be

                  granted Subcontractor that will render Contractor liable for

                  liquidated damages or other loss under the Prime Contract.

 

         4.5      In addition to other damages and remedies provided in this

 

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                  Subcontract, Subcontractor agrees to pay any liquidated

                  damages that may be assessed against Contractor by the Owner,

                  as provided in the Prime Contract, for any project delays

                  caused by Subcontractor. Such damages shall be paid for each

                  working day the Subcontract work remains incomplete beyond the

                  time specified for subcontract completion plus any extension

                  thereof agreed to in writing by the Contractor.

 

         4.6      Contractor shall not be liable to Subcontractor for delay

                  caused by reason of fire or other casualty, or on account of

                  riots, strikes, labor trouble, acts of God, flood, cataclysmic

                  event, or by reason of any other event or cause beyond

                  Contractor's control, or contributed to by Subcontractor.

                  Subcontractor will be added to flood insurance (builders

                  risk). Cost of premium and deductible, if applicable, will be

                  split between Contractor and Subcontractor.

 

         4.7      All Subcontract work done and all Subcontract materials

                  delivered to the project site shall become Contractor's

                  property, and said material shall not be removed by

                  Subcontractor or any other party from the project site without

                  Contractor's consent. After completion and final acceptance of

                  the Subcontract work and final payment, Subcontractor shall

                  promptly remove all remaining materials, equipment and debris

                  of Subcontractor.

 

5.       CHANGES and CLAIMS

 

         5.1      Contractor may order or direct changes, additions, deletions

                  or other revisions in the Subcontract work without

                  invalidating the Subcontract. No changes, additions, deletions

                  or other revisions to the Subcontract shall be valid unless

                  made in writing.

 

         5.2      Subcontractor, prior to the commencement of such changed or

                  revised work, shall submit promptly to Contractor written

                  copies of the cost or credit proposal for changes, additions,

                  deletions or other revisions in a manner consistent with the

                  Contract Documents. Contractor shall not be liable to

                  Subcontractor for a greater sum than Contractor obtains from

                  Owner for such additional work, less reasonable overhead and

                  profit due to Contractor, and also less professional and

                  attorney's fees, costs, and other expenses incurred by

                  Contractor in the collection of any such sum. Payment to

                  Subcontractor for such work shall be conditioned upon

                  Contractor's actual receipt of payment from the Owner and such

                  payment by Owner to Contractor is a condition precedent to

                  Contractor's obligation, if any to make payment to

                  Subcontractor.

 

         5.3      In any dispute between Contractor and Owner as to amount,

                  classification, price, time or value of Subcontract Work, or

                  any Subcontract material or supplies, or any delay in the

                  prosecution of the Subcontract work caused by Owner, or any

                  other matter whatsoever pertaining to the Subcontract work,

                  Subcontractor agrees to promptly and adequately provide

 

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                  Contractor with whatever documentation or support as

                  Contractor may deem necessary to negotiate with Owner.

 

         5.4      Contractor may dispute, appeal, resist, litigate or arbitrate

                  any decision of Owner, without being deemed to have admitted

                  any obligation or liability to Subcontractor, and if the

                  decision shall be against Contractor, then Subcontractor shall

                  be bound thereby. Subcontractor may, at is own expense,

                  participate with Contractor in arbitration or legal

                  proceedings. Subcontractor shall bear part of all costs,

                  including attorneys' fees and legal expenses, incurred by

                  Contractor in any such proceedings involving a claim, which if

                  allowed, would result in one or more payments to

                  Subcontractor. Subcontractor's costs shall be in the same

                  proportion that