DESCRIPTION OF WORK: Tri-Tech Surveying Company, L.P. (Tri-Tech) will provide all tools, labor, material and supervision necessary to perform and provide the services and/or materials identified in the description of work which is attached hereto as Exhibit “A” and made a part hereof for all purposes (the “Work”). The Work shall be performed with the standard of care which governs professionals in the Professional Land Surveying industry, the level of skill and care will be equal or similar to other similar consultants in this general location. Tri-Tech will complete the Work in a timely manner so as to not unduly compromise Owner’s schedule.
PAYMENT SCHEDULE: The Owner will pay Tri-Tech Surveying in accordance with the rates and terms shown in Exhibit “A”. By accepting each payment and negotiating each check received from the Owner, Tri-Tech Surveying represents and warrants that: (a) all of the labor, materials and supervision relating to the payment have been completed; and (b) all suppliers, laborers, artisans, mechanics and material men have been paid. Failure to comply with the representation in the foregoing sentence shall constitute a fraudulent act by Tri-Tech Surveying. The amount paid by the Owner to Tri-Tech Surveying includes all applicable sales taxes (Texas or otherwise) and the stated price on any invoice of Tri-Tech Surveying to the Owner shall include all applicable sales taxes (Texas or otherwise).
INDEPENDENT CONTRACTOR STATUS: All tools and equipment will be provided by Tri-Tech. Tri- Tech represents to the Owner that this Agreement establishes an independent contractor relationship between the parties and absolutely excludes any employer-employee relationship. Tri-Tech is available to the general public as an independent consultant for other work, contracts or services as Tri-Tech desires to offer. Tri-Tech carries business cards and maintains an office and principal place of business. This is not an exclusive Agreement. The Owner has no right to and expressly disclaims any intent or desire to encourage, discourage or inhibit Tri-Tech’s rights to enter into any other contracts or agreements as Tri- Tech deems appropriate. Any provision in this Agreement that may appear to give Owner the right to direct Tri-Tech as to the details of the Work or to exercise a measure of control over the Work shall be deemed to mean that Tri-Tech shall follow the desires of Owner in the results of the Work only. All workers assigned by Tri-Tech to perform the Work, whether Tri-Tech’s employees or its own subcontractors, are within the exclusive control of Tri-Tech regarding the assignment and performance of the Work. Tri-Tech agrees that Owner has no control over the working conditions, wage rates, equipment or methods employed by Tri-Tech in the performance of the Work.
TERM: Consultant recognizes timing is important and we will do our best to meet the client’s time schedule. This Agreement may be terminated by Owner at any time for any reason without prior notice. Owner does however agree to pay for services rendered under Exhibit “A” based on the fee structure called out in Exhibit “A” in the event consultant is not allowed to produce the final survey under the fee structure. Unless terminated by Owner, this Agreement shall run from day to day, or until the Work has been completed. The representations in this Agreement will survive for four years past the termination of this Agreement. In any action arising from a breach of this Agreement, the prevailing party shall be entitled to recover its attorney fees from the other party. To the extent of any conflict, this Agreement supersedes any invoice or purchase order issued by Tri-Tech to Owner. No limitations or different or additional terms contained on any invoice, purchase order, or non-Owner document issued by Tri-Tech shall have any force or effect as to Owner. The descriptive headings for the sections of this Agreement are for convenience only and shall not affect the construction of any of the provisions hereof. If any provision of this Agreement is held unenforceable, such provision will be modified to reflect the parties’ intent, and all remaining provisions shall remain in full force and effect. Owner’s failure to require performance of any provision as to any address or addresses shall not affect Owner’s right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default or a waiver of the provision.
INSURANCE: Prior to providing any Professional Services, Tri-Tech shall provide the following types of insurance coverage and limits of liability:
- Commercial General Liability
- Workers Compensation
- Employer’s Liability
- Professional Liability / E&O
- Business Automobile Liability
Please refer to the current Certificate of Liability for limits.
To the extent allowed by the respective insurance policy, the insurance coverage above shall not contain the following exclusions: contractual liability exclusion, exclusion for “your work” (unless a subcontractor exception applies), exclusion for Tri-Tech or subcontractors (unless an endorsement makes this exclusion inapplicable to this Agreement), and exclusion for bodily injury to Tri-Tech to the coverage provided by ISO forms CG 20 10 10 01 (or CG 20 33 10 01) and CG 20 37 10 01 (stating “all work performed in all locations for the additional insured” for location and description of completed operations). Tri-Tech shall furnish to the Owner, to the extent allowed by the respective insurance policy, a Certificate of Insurance in a form issued by a company or companies reasonably acceptable to the Owner, that contains: (a) a waiver of subrogation; (b) confirmation that the Owner is named as an additional insured on a primary & non-contributory basis, on all policies required hereunder; and (c) a provision that the policy cannot be cancelled without providing a thirty (30) day written notice of cancellation to Owner. The (b) in foregoing sentence shall not be required for the Worker’s Compensation coverage. Tri-Tech agrees to indemnify Owner for any claims and damages to Owner arising from any failure by Tri-Tech to comply with the provisions of this Paragraph 5.
INDEMNIFICATION: TRI-TECH AGREES TO INDEMNIFY THE OWNER, ITS AFFILIATES, AND EACH OF THEIR OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, COSTS, DEMANDS, CAUSES OF ACTION, LAWSUITS, LIABILITIES, ADMINISTRATIVE PENALTIES, FINES, OR EXPENSES OF EVERY KIND AND CHARACTER (INCLUDING BUT NOT LIMITED TO ITS PRO-RATA SHARE OF LEGAL FEES, COURT COSTS AND THE COSTS OF LITIGATION INCURRED BY OWNER, IF ANY), FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY, OR FOR CITATIONS ISSUED FOR VIOLATIONS OF THE OCCUPATIONAL SAFETY & HEALTH ACT (“OSHA”) (INCLUDING CITATIONS FOR REPEAT VIOLATIONS EVEN IF TRI-TECH DID NOT COMMIT THE PRIOR VIOLATION THAT RESULTS IN THE VIOLATION BEING CHARACTERIZED AS A REPEAT VIOLATION);ARISING FROM OR IN ANY WAY RELATED TO THE WORK OR ANY BREACH OF THIS AGREEMENT BY TRI-TECH, INCLUDING THOSE CLAIMS RELATING TO TRI-TECH’ EMPLOYEES, SUPPLIERS, LABORERS, ARTISANS, MECHANICS OR MATERIALMEN (COLLECTIVELY, “COVERED CLAIMS”), TO THE EXTENT CAUSED, WHETHER IN WHOLE OR IN PART, BY NEGLIGENT ACTS OR OMISSIONS OF TRI- TECH’ EMPLOYEES, SUPPLIERS, LABORERS, ARTISANS, MECHANICS, OR MATERIALMEN. IF THE OWNER PAYS FOR ANY AMOUNTS ARISING FROM COVERED CLAIMS.HOWEVER, THE DEFENSE AND INDEMNITY PROVIDED FOR IN THIS PARAGRAPH DOES NOT APPLY TO THAT PERCENTAGE OF ANY COVERED CLAIM ARISING FROM THE NEGLIGENCE OF THE OWNER.
TAXES: Tri-Tech agrees to accept full responsibility for, and agrees to defend and indemnify the Owner from, the payment of any and all taxes that may be lawfully due from Tri-Tech to any governmental entity including, but not limited to, income taxes, FICA, or other withholding taxes, franchise tax, sales tax, etc.
COMPLIANCE WITH LAWS: At no additional cost to the Owner, Tri-Tech shall obtain all permits necessary to conform strictly to the ordinances and regulations of the governmental authority having jurisdiction in the area where the Work is to be performed.Tri-Tech agrees to comply with all laws both State and Federal as those laws relate to the Work.Tri-Tech further acknowledges its duty to assure that all its employees are authorized to work in the United States and to complete all paperwork required by and otherwise comply with the Immigration Nationality Act as amended (“INA”) and the Immigration Reform and Control Act (“IRCA”). Owner expressly reserves the right to terminate this Agreement for Tri-Tech’s failure to comply with any laws, including INA and IRCA. Tri-Tech agrees to DEFEND AND indemnify Owner for ALL LIABILITY, INCLUDING LIABILITY FOR FINES, INTEREST,PENALTIES, AND legal fees, ARISING FROM Tri-Tech’s failure to comply with the INA AND/OR IRCA.
SAFETY: Tri-Tech recognizes the importance of and agrees to comply with all state and federal safety and health standards applicable to the performance of the Work, including but not limited to those issued by or under OSHA. Tri-Tech also agrees to (a) have a safety program for all workers it assigns to perform the Work, (b) assign a competent person to conduct frequent and regular safety inspections of the Work,(c) provide all personal protective equipment required for the Work to be performed, (d) notify Owner before any Work proceeds or continues if any unsafe condition exists, and (e) not commence or continue any Work in an area which Tri-Tech or any of the employees of Tri-Tech considers to be unsafe. Tri-Tech agrees that Owner may reasonably rely on these representations and assurances from Tri-Tech. Tri-Tech will advise Owner if Tri-Tech is inspected or contacted by any safety monitoring agency while performing the Work. Any safety policies or other safety-related materials received from the Owner are merely provided to assist or supplement Contractor’s own safety program and are not to be considered directions from Owner. Tri-Tech acknowledges that neither Tri-Tech nor its workers shall rely on any action of the Owner in complying with this provision regardless of whether or not the Owner may, or may not, from time to time notify Tri-Tech or its workers of a possible safety concern. Tri-Tech recognizes and agrees Owner is not an expert in the areas of safety and that Owner will not inspect the Work with a view towards determining compliance with OSHA or other regulations that may constitute a standard of care applicable to any person. Tri-Tech acknowledges and agrees that even if the Owner provides materials for the Work, Tri-Tech shall educate and train its workers concerning Material Safety Data Sheets and Tri- Tech’s Hazard Communication Program.