Subcontract Agreement

S THIS AGREEMENT made as of the day of, 2012 BETWEEN the Contractor: TCL Partners 5212 123 rd Place SE Everett, WA 98208 and the For the Following Project: The Architect for the Project: The Contractor and the Subcontractor agree as follows. 1.1 The Subcontract Documents consist of (1) this Agreement; (2) the Prime Contract, consisting of the Agreement between the General Contractor and Owner and the other Contract Documents enumerated therein, including Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Agreement between the General Contractor and Contractor and Modifications issued subsequent to the execution of the Agreement the General Contractor and Contractor, whether before or after the execution of this Agreement, and other Contract Documents, if any, listed in the General Contractor- Contractor Agreement; (3) other documents listed in Article 15 of this Agreement; (4) Modifications to this Subcontract issued after execution of this Agreement. These form the Subcontract, and are as fully a part of the Subcontract as if attached to this agreement or repeated herein. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. 1.2 The Contractor shall make available the Subcontract Documents upon request, but the Contractor may charge the Subcontractor for the cost of reproduction. 2.1 The Contractor and Subcontractor shall be mutually bound by the terms of this Agreement and, to the extent that provisions of the Prime Contract apply to the Work of the Subcontractor, the Contractor shall assume toward the Subcontractor all obligations and responsibilities that the Owner, under the Prime Contract, assumes toward the Contractor, and the Subcontractor shall assume toward the Contractor all obligation and responsibilities which the Contractor, under the Prime Contract, assumes toward the Owner and the Architect. The Contractor shall have the benefit of all rights, remedies and redress against the Subcontractor that the Owner, under the Prime Contract, has against the Contractor, and the Subcontractor shall have the benefit of all rights, remedies and redress against the Contractor that the Contractor, under the Prime Contract, has against the Owner, insofar as applicable to this Subcontract. Where a provision of the Prime Contract is inconsistent with a provision of this Agreement, this Agreement shall govern. 3.1.1 The Contractor shall cooperate with the Subcontractor in scheduling and performing the Contractor s Work to avoid conflicts or interference in the Subcontractor s Work and shall expedite written responses to submittals made by the Subcontractor. Promptly after execution of this Agreement, the Contractor shall provide the Subcontractor copies of the Contractor s construction schedule and schedule of submittals, together with such additional scheduling details as will enable the Subcontractor to plan and perform the Subcontractor s Work properly. The Subcontractor shall be notified promptly of subsequent changes in the construction and submittal schedule and additional scheduling details. Subcontract will be held to Contractor s written schedule to include overtime at subcontractor expense. 3.2.4 If hazardous substances of a type which an employer is required by law to notify its employees are being used on the site by the Contractor, a subcontractor or anyone directly or indirectly employed by them (other than the Subcontractor), the Contractor shall, prior to harmful exposure of the Subcontractor s employees to such substance, given written notice of the chemical composition thereof to the Subcontractor in sufficient detail and time to permit the Subcontractor s compliance with such laws. 3.4.1 If the Subcontractor defaults or neglects to carry out the Work in accordance with this Agreement and fails within three working days after receipt of written notice from the Contractor to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, by appropriate Modification, and without prejudice to any other remedy the Contractor may have, make good such deficiencies and may deduct the cost thereof from the payments then or thereafter due the Subcontractor, provided, however, that if such action based upon faulty workmanship or materials and equipment, the Contractor shall first have determination that the workmanship or materials and equipment are not in accordance with requirements of the Prime Contract. 4.1.1. For all work the Subcontractor intends to subcontract, the Subcontractor shall enter into agreements with Sub-subcontractors performing portions of the Work of this Subcontract by which the Subcontractor and the Sub-subcontractor are mutually bound, to the extent of the Work to be performed by the Sub-subcontractor, assuming toward each other all obligations and responsibilities which the Contractor and Subcontractor assume toward each other and having the benefit of all rights, remedies and redress each against the other which the Contractor and Subcontractor have by virtue of the provisions of this Agreement. 4.1.2 The Subcontractor shall promptly submit Shop Drawings, Product Data, Samples and similar submittals required by the Subcontract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Contractor or other subcontractors. 4.1.3 The Subcontractor shall furnish to the Contractor periodic progress reports on the Work of this Subcontract as mutually agreed, including information on the status of materials and equipment which may be in the course of preparation or manufacture. 4.1.4 The Subcontractor agrees that the Contractor will have the authority to reject Work which does not conform to the Prime Contract. 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S 4.1.6 The Subcontractor shall pay for all labor, materials, and equipment used in connection with the performance of this Subcontract through the period covered by previous payments received from the Contractor, and should furnish satisfactory evidence, when requested by the Contractor, to verify compliance with the above requirements. 4.1.7 The Subcontractor shall take necessary precautions to protect properly the Work of other subcontractors from damage caused by operations under this subcontract. 4.1.8 The Subcontractor shall cooperate with the Contractor, other subcontractors, the Owner, and separate contractors whose Work might interfere with the Subcontractor s Work. The Subcontractor shall participate in the preparation of coordinated drawings in areas of congestion, if required by the Prime Contract, specifically noting and advising the Contractor of potential conflicts between the Work of the Subcontractor and that of the Contractor, other subcontractors, the Owner, or separate contractors. 4.1.9 The Subcontractor shall cooperate with the Contractor in scheduling and performing the Subcontractor s Work to avoid conflict, delay in or interference with the Work of the Contractor, other subcontractors or General Contractor s own forces. In case of difference between building codes, specifications State Laws and local ordinance, regulations and the contract documents, the most stringent shall govern. The Contractor shall promptly notify the General Contractor in writing of such differences. 4.2.1 The Subcontractor shall give notices and comply with laws, statutes, ordinances, codes, rules and regulations, and orders of public authorities bearing on performance of the work of this Subcontract. The Subcontractor shall secure and pay for permits, fees, licenses and inspections necessary for proper execution and completion of the Subcontractor s work, the furnishing of which is required of the Contractor by the Prime Contract. 4.2.2 The Subcontractor shall comply with Federal, State and local tax laws, social security acts, unemployment compensation acts and workers or workmen s compensation acts insofar as applicable to the performance of this Subcontract. 4.3.1 The Subcontractor shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply with safety measures initiated by the Contractor and with applicable laws, statutes, ordinances, codes, rules and regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract. The Subcontractor shall report to the Contractor the same day of the incident any injury to an employee or agent of the Subcontractor which occurred at the site. 4.3.2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the Subcontractor, the Subcontractor s Sub-subcontractor or anyone directly or indirectly employed by them, the Subcontractor shall, prior to harmful exposure of any employees on the site to such substance, give written notice of the chemical composition thereof to the Contractor in sufficient detail and time to permit compliance with such laws by the Contractor, other subcontractors and other employers on the site. 4.3.3 The Subcontractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations performed under this Subcontract every day. The Subcontractor shall not be held responsible for conditions caused by other contractors or subcontractors. 4.3.4 If the Subcontractor fails to clean up as provided in the Subcontract Documents, the Contractor may charge the Subcontractor for the Subcontractor s share of cleanup costs. 4.4.1 The Subcontractor warrants to the Owner, Architect, and Contractor that materials and equipment furnished under this Subcontract will be of good quality and new unless the Subcontract Documents require or permit otherwise. The Subcontractor further warrants that the Work of this Subcontract will be free from defects not inherent in the quality required or permitted, and that the work will conform with the requirements of the Subcontract Documents. Work, materials or equipment not conforming to these requirements may be considered defective. The Subcontractor s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Subcontractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. 4.5.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architect s consultants, and agents and employees of any of them from and against any and all claims, damages, losses and expenses, including but not limited to attorney s fees, arising out of or resulting from or attributable in any way to any aspect of the performance of the Subcontractor s Work under this Subcontract, regardless of whether or not such claim, damage, loss or expense is caused in whole or in part by the negligence of any Indemnity hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person. 4.5.2 In claims against any person or entity indemnified by an employee of the Subcontractor, the Subcontractor s Sub-subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Subcontractor or the Subcontractor s Sub-subcontractors under worker s or workman s compensation acts, disability benefit acts or other employee benefit acts. 5.1 The Owner may make changes in the work by issuing Modifications to the Prime Contract. Upon receipt of such a Modification issued subsequent to the execution of the Subcontract Agreement, the Contractor shall promptly notify the Subcontractor of the Modification. Unless otherwise directed by the Contractor, the Subcontractor shall not thereafter order materials or perform work which would be inconsistent with the changes made by such Modifications to the Prime Contract. 5.2 The Subcontractor may be ordered in writing by the Contractor, without invalidating this Subcontract, to make changes in the work within the general scope of this Subcontract consisting of additions, deletions or other revisions, including those required by Modifications to the Prime Contract issued subsequent to the execution of this Agreement, the Subcontract Sum and the Subcontract Time being adjusted accordingly. The Subcontractor, prior to the commencement of such changes or revised work, shall submit promptly to the Contractor written copies of a claim for adjustment to the Subcontract Sum and Subcontract Time for such revised work in a manner consistent with requirements of the Subcontract Documents. Any change in scope or costs to subcontractor will need written approval by Contractor prior to work being commenced. Any work completed without prior approval by Contractor will not be paid. 5.3 The Subcontractor shall make claims promptly to the Contractor for additional cost, extensions of time and damages for delays or other causes in accordance with the Subcontract Documents. A claim which will affect or become part of a claim which the Contractor is required to make under the Prime Contract within a specified time period Page 2

S or in a specified manner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Prime Contract. Such claims shall be received by the Contractor not less than two working days preceding the time by which the Contractor s claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences as those to which the Contractor is bound. 6.1 Any claim arising out of or related to this Subcontract, shall be settled by arbitration, which shall be conducted in the same manner and under the same procedure as provided in the Prime Contract with respect to claims between the Owner and the Contractor. 7.2. If the Subcontractor repeatedly fails or neglects to carry out the work in accordance with the Subcontract Documents or otherwise to perform this Agreement in a safe and workmanlike manner and fails within three days after receipt of written notice to commence and continue correction of such default of neglect with diligence and promptness, the Contractor may, by written notice to Subcontractor and without prejudice to any other remedy the Contractor may have, terminate the Subcontract and finish the Subcontractor s work by whatever method the Contractor may deem expedient. If the unpaid balance of the Subcontract Sum exceeds the expense of finishing the Subcontractor s work and other damages incurred by the Contractor, such excess shall be paid by the Subcontractor. If such expense and damages exceed such unpaid balance, the Subcontractor shall pay the difference to the Contractor. 7.3.1 In the event the Owner terminates the Prime Contract for cause, this Subcontract can be assigned to the Owner with written permission from Contractor. 7.3.2 Without written consent of the Contractor, the Subcontractor shall not assign the work of this Subcontract, nor subcontract the whole of this Subcontract, nor further subcontract portions of this Subcontract. 8.1 The Subcontractor shall execute the following portion of the work described in the Subcontract Documents, including all labor, materials, equipment, services and other items required to complete its Work, except to the extent specifically indicated in the Subcontract Documents to be the responsibility of others. The Scope of work shall consist of but not be limited to: SCOPE OF WORK 9.1 The Work of this Subcontract shall be substantially completed no later than the schedule set by the job superintendent, subject to adjustments of this Subcontract Time as provided in the Subcontract Documents. Any overtime required to meet this completion date will be the responsibility of the subcontractor and any additional cost incurred for such overtime will not be passed on to the Contractor. 9.2 Time is of the essence of this Subcontract. 9.3 No extension of time will be valid without the Contractor s written consent after claim made by the Subcontractor. 10.1 The Contractor for performance of the Subcontract agrees to pay Lump Sum of $ XXX,XXX.00 (XXXX Thousand XXXX Hundred and XXXX Dollars) 11.1 Based upon application for payment submitted to the Contractor by the Subcontractor, corresponding to Application for Payment submitted by the Contractor to the Owner, the Contractor shall make progress payments on account of the Subcontract Sum to the Subcontractor as provided below and elsewhere in the Subcontract Documents. 11.2 Subcontractor shall submit draw requests for according to Contractor's specifications. Subcontractor, by signing this Subcontract, acknowledges that Contractor shall be entitled to withhold Subcontractor's monthly draw request until such time as said draw request is submitted according to Contractor's specifications. 11.3 Contractor shall be entitled to withhold any and all payments due to Subcontractor for Subcontractor's failure to comply with the terms of this Subcontract and/or the failure to submit the Contractor's Invoice and lien release forms. Contractor shall also be entitled to withhold earned payments as security for incomplete or defective work by Subcontractor. Contractor shall also be entitled to withhold payments as security for pending claims by Subcontractor's sub-tier contractors and/or suppliers or third parties asserting claims in connection with Subcontractor's work. 11.4 Each application for payment shall be based upon the most recent schedule of values submitted by the Subcontractor in accordance with the Subcontract Documents. The schedule of values shall allocate the entire Subcontract Sum among the various portions of the Subcontractor s Work and be prepared in such form and supported by such data to substantiate its accuracy to the Contractor, shall be used as a basis for reviewing the Subcontractor s applications for payment. 11.5 Application for payment submitted by the Subcontractor shall indicate the percentage of completion of each portion of the Subcontractor s Work as of the end of the period by the application for payment. 11.7 Retainage to be 10% and is to be released within thirty (30) days after receiving same from the Owner. 11.8 When the Subcontractor s work or a designated portion thereof is substantially complete in accordance with the requirements of the Prime Contract, the Contractor shall, upon application by the Subcontractor, make prompt application for payment for such work. Within 30 days following issuance by the Owner of payment covering such substantially completed work, the Contractor shall, to the full extent allowed in the Prime Contract, make payment to the Subcontractor. It is expressly agreed that payment by Owner to Contractor shall be a condition precedent to Contractor s payment to Subcontractor on any progress or final payments. 12.1 Final payment, constituting the entire unpaid balance of the Subcontract Sum, shall be made by the Contractor to the Subcontractor when Subcontractor s Work is fully performed in accordance with the requirements of the Contract Documents and approved by the Owner. Subcontractor must submit application for final payment within 30 days of completion of their work for it to be considered for payment. Page 3

S 12.2 Before issuance of the final payment, the Subcontractor, if required, shall submit evidence satisfactory to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor s Work have been satisfied. 13.1 Subcontractor shall provide the Contractor with insurance coverage without interruption during the course of Subcontractor's work, which insurance coverage shall be at the sole cost and expense of Subcontractor. Subcontractor shall provide and maintain all coverage required for its work under the Prime Contract and in Schedule "D" to this Subcontract, including without limitation products and completed operations liability insurance that remains in full force and effect for at least one (1) year after acceptance of the Project by Owner. 13.2 Subcontractor shall provide Contractor with proof of the required coverage in a current Certificate of Insurance in the form in Schedule "D". Said insurance coverage must name Contractor as an additional insured. Subcontractor's insurance coverage shall be primary as compared with any similar coverage that may be provided by Contractor or Owner. Subcontractor's insurance shall include a waiver of subrogation rights against Contractor or Owner on the Project. Subcontractor's insurance shall provide that it may not be canceled or reduced below contractual minimum coverage without at least 30 days prior written notice to Contractor. Contractor may withhold any and all payments due Subcontractor during any time when Subcontractor is in material default of these insurance provisions. 14.1 Subcontractor shall take all reasonable safety precautions with respect to performance of this Subcontract, shall comply with all safety measures initiated by Contractor and applicable laws, codes, ordinances, rules, regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract and with Schedule "C" attached. Subcontractor shall report in writing to Contractor immediately (less than 4 hours) any and all injuries to employees or agents of Subcontractor that may occur at the job site. Subcontractor shall require its employees to attend all safety meetings conducted at the job site by Contractor. 15.1 Other Documents, if any, forming part of the Subcontract Documents are as follows: 1) Schedule C Safety Addendum 2) Schedule D Insurance Requirements 3) Schedule E Indemnity Addendum This Agreement entered into as of the day and year first written above. CONTRACTOR TCL Partners 5212 123rd PL SE Everett, WA 98208 SUBCONTRACTOR (Signature) Brian Merisko, President TCL Partners (Print Name & Title) (Signature) (Print Name & Title) Federal ID # Contractor Registration # Page 4

S Schedule C Safety Addendum Subcontractor and its sub-tier subcontractors shall take all reasonably necessary safety precautions pertaining to their work, including compliance with applicable laws, ordinances, regulations and orders issued by a public authority, whether federal, state, local, OSHA/WISHA or other, and any safety measures required under the Prime Contract or reasonably requested by Contractor. Subcontractor shall at all times be responsible for providing a safe job site and be responsible for the safety of all employees, invitees, equipment and materials that are within the control of Subcontractor or its sub-tier contractors and/or suppliers. Subcontractor and its sub-tier contractors shall furnish all required safety equipment for their work and ensure that all of their employees have and wear personal protective clothing in compliance with applicable OSHA/WISHA requirements and Project safety rules. Subcontractor shall promptly provide Contractor with written notice of any safety hazard or violation found anywhere on the job site, and of any injury which occurs on the job site. Subcontractor shall have in place on this jobsite all safety items required, including but not limited to the Fall Protection Plan, Company Safety Plan, and MSDS sheets for all products which shall be in place prior to commencement of the Subcontractor's work. Subcontractor shall also adhere to TCL Partner s safety policy, which is on-site, and includes but is not limited to safety hardhats and safety glasses at all times. Subcontractor certifies that it and its sub-tier contractors are registered contractors in the state where the Project site is located, and that they maintain a written Accident Prevention Plan and a site specific safety plan in compliance with applicable government regulations. Subcontractor's Accident Prevention Plan should address Subcontractor's role and responsibilities pertaining to safety on the job site, training, and corrective action and be tailored to safety and health requirements for the work involved. Subcontractor shall have and enforce a disciplinary action schedule in the event any safety violations are discovered, which should vary depending upon the severity of the violations. When requested by Contractor, Subcontractor shall provide information regarding any and all safety matters to Contractor. Contractor's supervisor may direct Subcontractor's superintendent to remove employees not in compliance with the above. In the event Subcontractor does not promptly correct any safety violations, Contractor may order Subcontractor to stop work until the violation is corrected, and may correct the violation and charge all costs of compliance to Subcontractor. Subcontractor agrees to defend, indemnify and hold Contractor harmless from all government claims, demands, proceedings, violations, penalties, assessments or fines that arise out of or relate to Subcontractor's failure to comply with any safety related laws, ordinances, rules, regulations, orders, or obligations hereunder. Contractor may deduct from Subcontractor's payments the amounts of any fines, fees, costs, and expenses incurred by Contractor due to claims, citations or fines assessed against Subcontractor or its sub-tier contractors. Page 5

S Schedule D SCHEDULE OF SUBCONTRACTOR MINIMUM INSURANCE REQUIREMENTS Each Subcontractor shall obtain and maintain at its own cost and expense throughout the construction period the following coverage and limits: 1. PROPERTY INSURANCE All material, equipment and tools (owned, borrowed or leased) of the applicable Subcontractor or its employees will be covered for one hundred percent (100%) of the full replacement value thereof. The insurance policy shall be written under a standard Special Causes of Loss ( All Risk ) perils insurance policy. Each Subcontractor shall agree to waive any and all rights of subrogation against TCL Partners and for loss or damage to any property required to be covered under this provision. 2. WORKERS COMPENSATION AND EMPLOYERS LIABILITY COVERAGE A statutory Workers Compensation policy covering employees in the State of WA and Employers Liability coverage subject to a limit of no less than One Million Dollars ($1,000,000) each employee, One Million Dollars ($1,000,000) each accident, One Million Dollars ($1,000,000) policy limit. 3. COMMERCIAL GENERAL LIABILITY (1998 Form or Equivalent) The policy shall provide a Two Million Dollar ($2,000,000) combined single limit for Bodily Injury and Property Damage including Products Liability, Contractual Liability, Broad Form Property Damage and all standard policy form extensions. The policy must provide a Two Million Dollar ($2,000,000) general aggregate ( per project ) and be written on an occurrence form. The policy will include an endorsement extending Completed Operations coverage for three (3) years after the acceptance of all work by owner. The policy shall be endorsed to include TCL Partners, and any affiliates and subsidiaries to be named as Additional Insured. Definition of Additional Insured shall include all Officers, Employees of TCL Partners, and any affiliates and subsidiaries to be named as Additional Insured. The coverage for an additional insured shall apply on a Primary basis irrespective of any other insurance whether collectable or not. 4. AUTOMOBILE LIABILITY INSURANCE (if applicable) The policy shall provide Liability Insurance under coverage Symbol 1 providing a One Million Dollar ($1,000,000) combined single limit for Bodily Injury and Property Damage covering all owned, non-owned and hired vehicles of the applicable Subcontractor. 5. UMBRELLA LIABILITY An Umbrella policy must be purchased with a limit of not less than One Million Dollar ($1,000,000) providing excess coverage over all limits and coverage indicated in paragraphs 2, 3 and 4 above. The limits can be obtained by a combination of Primary and Excess Umbrella policies, provided that all layers follow form with the underlying policies. The policy shall be endorsed to TCL Partners and and any affiliates and subsidiaries to be named as Additional Insured as Additional insured as defined under Paragraph 3 above. All policies discussed above shall be written with insurance companies licensed and admitted to do business in the State of WA and rated no lower than a VIII in the most current edition of A.M. Best s Rating Guide and A in Standard & Poor s. All policies discussed above shall be endorsed to provide that in the event of a cancellation, non-renewal or material modification, TCL Partners and and any affiliates and subsidiaries to be named as Additional Insured shall receive thirty (30) days prior written notice by certified mail, return receipt requested. COMPLIANCE DOCUMENTATION Each Subcontractor shall furnish TCL Partners with Certificates of Insurance evidencing compliance with all insurance provisions noted above. HOLD HARMLESS/INDEMNIFICATION PROVISION Subcontractors shall, to the fullest extent permitted by law and its own cost and expense, defend, indemnify TCL Partners, and any affiliates and subsidiaries to be named as Additional Insured, its Directors, Officers, Employees, Agents and Representatives harmless from and against any and all claims, loss (including attorney fees, witness fees and all court cost), damages, expense and liability resulting from injury and/or death of any person, or damage to or loss of any property arising out of any negligent or wrongful act, error, omission or breach of this agreement in connection with the operations of the Subcontractor, and its Employees, Agents and Representatives. FAILURE TO COMPLY WITH ANY OF THE INSURANCE PROVISIONS NOTED ABOVE WILL RESULT IN A BREACH OF THIS AGREEMENT BY THE SUBCONTRACTOR. Page 6

S Schedule E SUBCONTRACTOR INDEMNITY ADDENDUM To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless the Owner, Contractor, their officers, agents and employees from and against any and all suits, claims, demands, losses, costs, penalties, and/or liabilities to or by third parties, of whatsoever kind or nature, including, but not limited to attorney fees, arising out of, in connection with, or incident to, the work performed or to be performed under this Subcontract, even though such claims may prove to be without merit, subject to the limitations provided below. This agreement to defend and indemnify shall apply, but is not limited to, all claims against the Owner and/or Contractor 1) by any employee or former employee of Subcontractor or its sub-tier contractors and/or suppliers; 2) by any other person present on the job site in connection with Subcontractor's work, and/or 3) by any person alleging personal injury, death, or property damage as a result of Subcontractor's actions or circumstances within Subcontractor's control and responsibility. For the limited purpose of this duty to defend and indemnify, Subcontractor specifically and expressly waives any and all immunity and limitation that may be granted it on liability under the Washington Industrial Insurance Act (Title 51, RCW), and any other worker's compensation act, disability benefit act, and/or claim. Subcontractor agrees to defend Owner and Contractor in any litigation or claim brought against either of them by Subcontractor's employees or former employees, and Subcontractor agrees to pay the cost of such defense and hold Owner and Contractor harmless from any obligation thereon, to the extent of negligence of Subcontractor, its agents, employees and sub-tier contractors and/or suppliers. Further, the indemnification obligation under this Subcontract shall not be limited to the 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; provided Subcontractors' waiver of immunity by the provisions of this paragraph extends only to claims against Subcontractor by Contractor and/or Owner, and does not include, or extend to, any claims by Subcontractors' employees directly against Subcontractor. Subcontractor's duty to indemnify Contractor for liabilities or losses, other than for bodily injury to persons or damage to property caused by or resulting from negligence of Subcontractor, its agents, employees and sub-tier contractors and/or suppliers, except in situations where fault is not a requirement for liability in which case indemnity will be provided to the extent the liability or loss was caused by Subcontractor or its agents, employees, sub-tier contractors and/or suppliers. Subcontractor's duty to defend, indemnify and hold Contractor and/or Owner harmless shall include, as to all claims, demands, losses and liability to which it applies, Contractors' and Owners' personnel related costs, all attorney fees, expert witness fees, court costs, and all other reasonable claim related expenses. BY SIGNING THIS ADDENDUM, CONTRACTOR AND SUBCONTRACTOR CERTIFY THAT THIS INDEMNIFICATION PROVISION WAS MUTUALLY NEGOTIATED. CONTRACTOR SIGNATURE SUBCONTRACTOR SIGNATURE Page 7