WHEREAS, the Company is in the business of soliciting landscape maintenance, landscape, snow and ice clearing, and irrigation installation and services customers throughout the United States, and Subcontractor is in the business of .
WHEREAS, any and all obligations, conditions, terms, including but not limited to payment terms, job specifications, drawings, addenda, other documents set forth in the Primary Contract, and any modifications issued after execution of the Primary Contract are hereby incorporated into this Subcontractor Agreement by reference and made a part hereof as set forth herein.
WHEREAS, the Company desires to engage the services of Subcontractor to perform the services described in the attached Exhibit A for Company’s customers.
NOW, THEREFORE, in exchange for mutual consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
1. Acknowledgment of Primary Contract. Subcontractor acknowledges and agrees that Company is bound to certain obligations as set forth in the Primary Contract, to provide certain landscaping services to Company’s customer and that Subcontractor is a subcontractor of Company under the Main Contract. Subcontractor acknowledges that the services, payment of invoices, and other terms of this Agreement are as required for Company to be in compliance under the Main Contract, and that Company may amend and modify this Agreement at any time in order to remain in compliance with the Main Contract, and that this Agreement may be terminated immediately by Company upon the request of Company’s customer.
2. Subcontractor’s Work. Company shall subcontract to Subcontractor and Subcontractor shall perform certain services to be provided to Company’s customers. All of Subcontractor’s services shall be completed in a timely manner and to the satisfaction of the Company and the Company’s customers.
3. Compensation. Company shall pay Subcontractor when Subcontractor satisfactorily completes, in Company’s sole discretion, a service assigned to it, and Company has received payment, as provided in the Payment Agreement attached hereto as Exhibit A, less any applicable deductions as set forth herein. Subcontractor shall submit a payment invoice within ninety (90) days from completion of the work (“Project Completion”). Pricing of services to be provided shall be agreed upon by the parties prior to commencement of such service(s). The parties agree and acknowledge that such pricing is intended to cover, in addition to compensation for the services provided, any and all taxes, fees charges, or other costs incurred by Subcontractor associated with the services to be provided. Should Subcontractor not submit a payment invoice within ninety (90) days from Project Completion, Subcontractor releases Company from all liability in paying invoice.
4. Subcontractor of Subcontractor. Neither Company nor Company’s customers shall have any obligation to pay any amount to a subcontractor of Subcontractor.
5. Records. Subcontractor shall maintain accurate records of all Work performed, which shall be subject to inspection by the Company at all reasonable hours.
6. Subcontractor Insurance Requirements. Prior to the start of any Work described by this Subcontract, Subcontractor shall procure and shall maintain in force for the duration of any activities by Subcontractor with regard to the Project, Workers' Compensation Insurance, Employer's Liability Insurance, Commercial General Liability Insurance, and Automobile Liability Insurance on all owned, non-owned and hired vehicles. Failure by Subcontractor to obtain or maintain any insurance coverage(s) as required by this Subcontract shall constitute a material default of Subcontractor's obligations and shall, notwithstanding any contract provisions to the contrary entitle Contractor at its option to immediately (i) stop all work by Subcontractor pending adequate proof of the existence of proper coverage (no such stop work order shall entitle Subcontractor to additional time or money), (ii) terminate the Subcontract for default, (iii) purchase proper coverage(s) and charge all costs thereof to Subcontractor, and/or (iv) withhold any further payments to Subcontractor until arrangements for the required coverage(s) are made.
Subcontractor’s Commercial General Liability, Automobile Liability, and Umbrella Liability coverages shall be primary and non-contributory, and any applicable insurance carried by the Contractor shall be excess over Subcontractor's insurance regarding claims caused in whole or in part by the subcontractor’s operations. To the fullest extent permitted by law, a Waiver of Subrogation in favor of the Contractor must be included on the Commercial General Liability, Business Automobile, Workers’ Compensation and Umbrella Liability policies. The policies shall be written with limits of liability not less than the following:
(a) Commercial General Liability insurance shall be written on ISO occurrence form (CG 0001) or a substitute form providing equivalent coverage and shall cover liability arising from premises, operations, products, completed operations, personal and advertising injury, and liability assumed under an insured contract including the tort liability of another assumed in a business contract at limits of liability for bodily injury and property damage liability combined (shown below). Unacceptable exclusions/endorsements include the following or their equivalent: CG2294 o CG2295 (damage to work performed by Subcontractors on your behalf), CG2139 (contractual liability limitation). Aggregate limit shall apply specifically to this project.
Commercial General Liability:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products and Completed Operations
Additional insured status to the Contractor, Owner, and all other parties required of the contract on subcontractors CGL policy using ISO Additional Insured Endorsements CG2010 (10/01 or 04/13) and CG2037 (10/01 or 04/13) or CG2033 (10/01 or 04/13), or an endorsement providing equivalent coverage to the additional insureds should be maintained for applicable statute of limitations and statute of repose and should apply to ongoing operations and completed operations and shall be primary and non-contributory.
(b) Automobile Liability should be written for Bodily Injury and Property Damage on all Owned, Non-Owned and Hired Vehicles. If no owned vehicles, then Hired and Non-owned coverage is acceptable. Additional insured status to the Contractor should apply on a primary, non-contributory basis.
$1,000,000 Combined Single Limit Each Accident
(c) Workers’ Compensation: Statutory coverage in accordance with the laws of the state and/or states in which the Work is to be performed. The certificate must show the state where the Project is located as a covered state for the statutory benefits of that state. Any applicable Federal or Maritime coverage (e.g. Longshoremen’s and Jones Act) that may be required due to Subcontractor’s Work shall be included in Subcontractor’s coverage. Certificate must show waiver of subrogation in favor of Contractor from Workers’ Compensation carrier. Workers’ Compensation coverage will apply to all employees, including executive officers.
$1,000,000 Per Accident
$1,000,000 Disease Policy Limit
$1,000,000 Disease Each Employee
(d) Umbrella/Excess Liability Policy — $2,000,000 Excess/following form coverage over General Liability, Auto Liability and Employer’s Liability. Coverage should include all entities that are additional insureds on the Commercial General Liability and shall be primary and non-contributory. Higher limits may be required depending on subcontractor’s scope of work.
(e) Contractors Pollution Liability coverage with limits of $1,000,000 written on an occurrence form basis. Coverage to include job site, transportation and disposal site coverage for any and all hazardous materials and waste brought on to the job site, disturbed or generated by Subcontractor. If coverage is written on claims made form, retro date must be no later than the start of the project. Policy to remain in force or include Extended Reporting Period of no less than three years from completion of project. Additional insured status to the Contractor and Owner.
(f) To the extent Subcontractor’s work includes design services, assistance in design services or any professional services, subcontractor will be required to carry Professional Errors and Omissions coverage with limits of $1,000,000 combined single limit.
Subcontractor shall maintain in effect all insurance coverage required at Subcontractor’s sole expense and with insurance companies acceptable to Contractor and with at least "A- VII" A.M. Best rating. All policies shall provide provisions that give 30 days’ written notice of cancellation.
Certificates of Insurance with copies of applicable endorsements (and copies of such insurance policies shall be made available to the certificate holder upon request) shall be provided by Subcontractor to Contractor prior to start of the Subcontractor’s Work.
7. Taxes. Subcontractor shall pay promptly when due any and all taxes imposed on Subcontractor as a result of this Agreement. Further, Subcontractor shall indemnify and hold Company harmless from any and all claims arising out of Subcontractor’s failure to comply with this paragraph 7.
8. Independent Subcontractor Status; No Agency. Subcontractor acknowledges and agrees that the relationship between the parties arising from this Agreement is that of an Independent Contractor. Subcontractor is not an agent or employee of the Company, shall not obligate the Company to any contract or obligation, and shall hold Company harmless and indemnify Company against all obligations incurred without express written authority. The contractor further acknowledges that Company shall not exercise daily or continuous control of Subcontractor’s activities such that Company could be held liable for the negligent or other wrongful acts of Subcontractor, under any circumstances.
9. Confidentiality. Subcontractor agrees to keep strictly confidential at all times during the Term of this Agreement and thereafter, all non-public business information which may be provided to Subcontractor or Subcontractor’s employees, shareholders, directors, officers, or agents (the “Subcontractor Representatives”) in the course of performance of this Agreement. This restriction includes, but is not limited to, the terms and conditions of this Agreement, business plans, prices, product/service specifications, prototypes, computer programs, sales data, models, marketing plans, financial data, personnel statistics and the like, as well as confidential specifications, drawings, sketches, data or technical business information (“Confidential Information”). Notwithstanding the above or any language to the contrary contained in this Agreement, the term “Confidential Information” shall specifically exclude information (i) which is generally known at the time Subcontractor receives it; (ii) which after Subcontractor receives such information, it becomes generally known through no act or omission of Subcontractor or Subcontractor’s Representatives; (iii) which was lawfully within Subcontractor’s possession prior to the commencement of its relationship with Company; or (iv) is furnished to Subcontractor by a third-party, as a matter of right and without restriction of disclosure. Any Confidential Information is to be used by Subcontractor solely in the performance of Subcontractor’s obligations and duties hereunder, and all copies are to be returned to Company upon the termination of this Agreement. Subcontractor agrees not to reveal, divulge, make known, sell, exchange, lease or in any other way disclose any Confidential Information to any third-party or to utilize such information in direct or indirect competition with Company or any of Company’s other agents. Subcontractor acknowledges the competitive and commercial value and confidential and proprietary nature of the Confidential Information and the irreparable damage that could result to Company if any part of the Confidential Information were disclosed to any third-party without Company’s prior written permission. Subcontractor further agrees to limit the disclosure of Confidential Information to only those employees or independent agents as are necessary to provide the services hereunder. Subcontractor shall be required to advise all of the Subcontractor’s Representatives of the obligations contained herein and shall ensure Subcontractor’s Representatives’ compliance with such obligations. Subcontractor shall be responsible for any breach of this Agreement by Subcontractor or Subcontractor’s Representatives and shall indemnify and hold Company harmless from any such breach including Company’s attorneys’ fees and costs arising from any such breach.
10. No Competition. During the term of this Agreement and any extension or renewal terms and for two (2) years thereafter, Subcontractor and Subcontractor’s Representatives shall not, directly or indirectly, either for Subcontractor or any other person or entity, divert or take away or attempt to divert or take away (and during the two (2) year period following the Term, call on, or solicit or attempt to call on or solicit) any of Company’s customers, including without limitation those on whom Subcontractor called or solicited or with whom Subcontractor became acquainted with as a result of performing the services hereunder. Subcontractor shall not at any time during and for a period of two (2) years following the termination of this Agreement, directly or indirectly solicit, induce, or influence any person employee by Company to terminate his or her employment or engagement. Subcontractor acknowledges and agrees that the restrictions contained in this Agreement will not prevent or hinder Subcontractor from obtaining gainful employment or cause Subcontractor undue hardship, and are reasonable and necessary in order to protect Company’s legitimate business interests, and that any violation thereof would result in irreparable injury to Company. Subcontractor therefore acknowledges and agrees that in the event of any violation hereof, Company shall be authorized and entitled to obtain from any court of competent jurisdiction temporary, preliminary and permanent injunctive relief as well as other equitable relief, which rights and remedies shall be cumulative and in addition to any other rights or remedies to which Company may be entitled, including the right to damages directly or indirectly sustained by Company. IN the event of any breach or violation of the restrictions contained in this Agreement, the period therein specified shall abate during the time of any violation thereof and that portion remaining at the time of commencement of any violation shall begin to run until such violation has been fully and finally cured. Subcontractor covenants and agrees that Company’s costs of enforcement of this Agreement, including attorneys’ fees and litigation expenses, shall be borne entirely by Subcontractor.
11. Indemnification. Subcontractor agrees to indemnify and hold Company’s customers, Company, its affiliates, executives and staff harmless from and against any and all liability (including workers compensation), damage, expense or loss of service (including litigation costs and attorneys’ fees) arising out of or relating to acts or omissions of Subcontractor and/or Subcontractor’s representatives in connection with Subcontractor’s duties and/or obligations under this Agreement or incurred by Company in successfully enforcing any provisions of this Agreement.
12. No Assignment. No party to this Agreement shall assign its rights or obligations hereunder to any other person without the express written consent of the other party.
13. No Oral Modifications. This Agreement supersedes any and all prior agreements oral and/or otherwise, and may be altered only in writing, executed by the parties hereto.
14. Follow-Up Services. Company intends to closely monitor Subcontractor’s final work product after services have been completed. These inspections may reveal the need for follow-up services to be provided. Company reserves the right to perform or authorize Subcontractor to perform these follow-up services. In addition, Company shall determine whether the follow-up services will be provided at no cost, at the expense of the customer, or at the expense of the Subcontractor. All decisions to be made pursuant to this paragraph 9 shall be made by Company, in Company’s sole discretion.
15. Extreme Circumstances. Due to the unpredictable nature of weather, Company may assist Subcontractor with a service in order to meet customer demand. Where the service performed by Company exceeds 25% of the total service assigned to Subcontractor, Subcontractor shall adequately compensate Company for the work performed. A $50.00 fee shall be charged to Subcontractor for each circumstance where Company assists Subcontractor.
16. Term. The term of this Agreement (the “Term”) shall commence on the day of , (the “Effective Date”) and shall continue for one (1) year with an option to renew for additional one (1) year terms until either party provides notice of its desire to not renew as set forth herein. Upon expiration of the first one-year term, this Agreement shall automatically renew for additional one (1) year terms until such time as a party provides written notice to the other party of its desire to not renew this Agreement. Notice to not renew this Agreement must be delivered to the other party sixty (60) days prior to the expiration of the then current term.
17. Dress Code. While performing the obligations hereunder, Subcontractor acknowledges that the following is required with respect to attire: First, Subcontractor and Subcontractor’s Representatives shall not wear tank tops OR camouflage clothing of any kind; second, a shirt MUST be worn at all times while performing an obligation of this Agreement.
18. Manners. Subcontractor and Subcontractor’s Representatives must behave in a business-like manner and be respectful of Company’s customers and their property.
19. Accidents. Any and all accidents resulting in personal or property damages must be reported to Company immediately.
20. Termination. A party may terminate this Agreement as set forth in paragraph 20. In the event of termination, Company will pay Subcontractor for all authorized work in progress and Work completed in accordance with the terms of this Agreement prior to the effective date of termination, less damages where the termination is the result of a breach by Subcontractor.
(a) Company may terminate this Agreement at any time, with or without cause, upon 90 days’ prior written notice to the subcontractor.
(b) Company may terminate this Agreement upon breach of the Agreement by Subcontractor upon 30 days written notice to Subcontractor at Company’s sole discretion.
(c) Subcontractor may terminate this Agreement if Company does not pay invoiced amounts when due by providing Company with 30 days written notice detailing the breach, provided that Company has not cured or taken reasonable steps to cure the breach within 30 days from the date notice is received by Company.
(d) Subcontractor may terminate this Agreement, effective upon delivery of written notice of termination to Company, (i) upon the institution of insolvency, receivership, bankruptcy proceedings, or any other proceedings for the settlement of debts of Company; (ii) upon the making of an assignment for the benefit of creditors by Company; or (iii) upon the dissolution of Company.
21. Compliance with Laws. Subcontractor shall be responsible at all times for Subcontractor’s safety and the safety of Subcontractor’s Representatives. The work site in general shall comply with all applicable provisions of local, state and federal laws, regulations and orders affecting safety and health, including, but not limited to the Occupational Safety and Health Act of 1970, as may be amended from time to time (“OSHA”). Subcontractor shall be solely responsible for any violation of OSHA by Subcontractor or Subcontractor’s Representatives, and shall immediately remedy any conditions giving rise to such violations. Subcontractor shall indemnify and hold Company harmless from and against any and all penalties, fines, or liabilities in connection with any OSHA violations. Subcontractor is required to correct any known OSHA violations where said violations are within the scope of Subcontractor’s obligations hereunder. Upon Company’s request, Subcontractor shall provide Company with written assurance that Subcontractor and Subcontractor’s Representatives have a written safety plan in effect and Subcontractor and Subcontractor’s Representatives have completed applicable OSHA training. Subcontractor is prohibited from bringing any dangerous or damaging chemicals on any work site or Company facility without Company’s express written consent, which consent may be withheld at Company’s sole discretion. Subcontractor shall indemnify and hold Company harmless from and against any and all claims, liabilities, and damages (including, but not limited to attorneys’ fees and costs), costs of defense, clean-up costs, response costs, costs of corrective action, costs of financial assurance, and/or natural resource damages, that may arise, be imposed on, be incurred by, be asserted against, or be sustained by Company or Company’s customers arising out of Subcontractor’s failure to comply with this Agreement. Subcontractor shall comply with all federal, state and local laws, ordinances, orders and regulations applicable to the performance of the obligations set forth in this Agreement. All terms in this paragraph 17 shall be included in any agreement by and between Subcontractor and a subcontractor thereof to perform services for which Subcontractor is responsible hereunder.
22. Venue and Jurisdiction.
(a) Jurisdiction. This agreement is made pursuant to the requirements of applicable state and federal statutes and regulations and otherwise subject to the laws of the State of Tennessee.
(b) Venue. The parties agree that Venue and Jurisdiction over all disputes shall be any court of competent jurisdiction situated in Davidson County, Tennessee.
(c) Costs. If any lawsuit or other legal proceeding arises in connection with the interpretation or enforcement of this Agreement, the Subcontractor shall be responsible for the Company’s costs and expenses, including reasonable attorney fees incurred in connection therewith, in preparation therefor and on appeal therefrom, which amounts shall be included in any judgment therein.
23. Governing Law. This Agreement shall be governed by the internal substantive law and the choice of law rules of the State of Tennessee.
24. Attorney’s Fees. In the event that a suit is instituted under or in relation to this Agreement by Subcontractor, including without limitation to enforce any provision in this Agreement, and Company is the prevailing party in such dispute, Company shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys, which shall include, without limitation, all fees, costs and expenses of appeals.
25. Miscellaneous. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. This Agreement shall be construed under the laws of the State of Tennessee, without regard to any conflicts of law doctrine. Venue for any legal proceedings related to this Agreement shall be a court of competent jurisdiction situated in Nashville, Davidson County, Tennessee. All notices given pursuant to this Agreement or otherwise shall be in writing and shall be delivered to the respective business addresses of the parties to this Agreement provided above. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings related to the subject matter hereof. Failure of either party to insist upon strict compliance with any of the terms and provisions of this Agreement at any one time shall not be deemed a waiver of such terms or provisions at any other time nor shall any waiver or relinquishment of any right or power herein at any time be deemed a waiver or relinquishment of the same or any other right or power at any other time. This Agreement may be signed in one or more counterparts, each of which will be deemed an original, and all of which when taken together shall constitute one and the same document. Facsimile signatures shall evidence the binding agreement of the parties hereto and, for all purposes, shall be the equivalent of manual signatures.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives effective as of the Effective Date.
Landscape Services, Inc.