INDEPENDENT SUBCONTRACTOR AGREEMENT
This agreement for independent subcontract services (“Agreement”) is entered into on the________day of ___________by and between ____________________________, whose offices are located at ________________________, hereinafter called “Contractor“, and HY-TECH ROOFING LLC. whose address is 2612 4St Lake Charles LA 70615 hereinafter called “Company“.
ARTICLE 1: PURPOSE OF THE AGREEMENT
1.1 This Agreement is entered into between the Company and the Contractor in order to set forth the terms under which Contractor will provide services to the Company and to define the independent contractor relationship that will exist between the Company and the Contractor.
ARTICLE 2: SERVICES
- The contractor will perform services (“Services”) as needed on a project-by-project basis. The scope of Services to be provided by the contractor on each project will be described on a PROJECT MEMORANDUM (that will be completed and initialed by the parties for each “Project” in which the Contractor is to provide Services), a blank copy of which is attached hereto as Exhibit “A”. Any changes to the Services indicated in the Project Memorandum shall be mutually agreed upon in writing by the Parties (“Change Order”). The Company shall not be obligated to pay for any additional Services that have not been agreed to in a valid and correct Change Order. Subject to the provisions of Article 9 herein, the parties agree that the Contractor shall not be restricted from working for other persons or entities when Contractor is not otherwise performing Services for the Company.
- The Company does not intend to control or direct in any manner the conduct of Contractor’s work but is interested solely in the results of the product, which is obtained. The manner and means by which the Contractor carries out the terms of this Agreement are within the Contractor’s sole discretion, and Contractor has complete and total authority to control and direct the performance of the work, subject only to Company’s right of inspection and supervision, to secure satisfactory completion of the terms of this Agreement.
- The contractor shall perform all Services in a workmanlike manner and in strict compliance with (i) this Agreement, (ii) all applicable federal, state, and local laws, ordinances, and regulations, and (iii) standard industry practice. The contractor shall secure and pay for, at its sole cost, all permits, and licenses required or necessary to perform the Services. The contractor shall immediately discharge or bond around all liens or attachments filed in liability, claims, and costs (including attorney’s fees) arising out of such liens or attachments. The contractor represents via this Agreement and the execution of the attached Exhibit “B”, that it and all entities and persons providing work under it are competent persons as described under OSHA regulations for any and all work being performed.
- The contractor will comply with the Immigration Reform and Control Act (IRCA) and the enacted I-9 employment verification requirements when supplying labor. Only those individuals who are able to provide employment eligibility will be utilized for this Project.
ARTICLE 3: AUTHORITY TO BIND
- Without the express written consent of the Company, Contractor and Contractor’s employees and agents shall have no right or authority, actual or apparent, to make any contract in the name of the Company or otherwise bind the Company or transact any business in Company’s name. The contractor will have an affirmative duty to prevent any employee or agent of the Contractor from making representations to anyone as having such right or authority.
ARTICLE 4: TERM
- This Agreement shall begin on _______________(“Effective Date”). The Company may terminate this Agreement at any time, for any reason, with or without cause, upon thirty (30) days prior written notice to Contractor. Notwithstanding, the Company may terminate this Agreement immediately upon the breach by the Contractor of any of the terms and conditions contained herein or upon Company’s determination that the Contractor is not performing the Services in a good and workman-like fashion. In the event of termination, whether for cause or convenience, Company’s sole obligation to the Contractor will be to pay for Services rendered prior to the effective date of termination less any offset as allowed under the terms of this Agreement. Upon receiving notice of termination, the Contractor will have an affirmative duty to preserve and protect the Services and any equipment and supplies owned by the Company from damage and waste.
ARTICLE 5: COMPENSATION
- In exchange for the timely and satisfactory performance of the Services, the Company agrees to pay the Contractor (subject to the Company’s right to withhold amounts for improperly performed Services) the sum for each Project as described in the relevant Project Memorandum initialed by the parties. Payment to the Contractor will be made after the Company receives payment in full for the Project as described in the relevant Project Memorandum and the Contractor has provided an invoice in detail sufficient to permit the Company to verify the performance of the Services (“Compensation”).
- Upon payment of any invoice, the Contractor’s acceptance of payment shall act as Contractor’s release and waiver of all liens by affidavit or otherwise with respect to the Project (or the portion thereof) which is the subject of the invoice. The contractor agrees to provide written releases as requested by the Company for any Project (or portion thereof) in which payment has been made to the Contractor.
- As an independent contractor, the Contractor is not entitled to unemployment compensation from the Company. The Contractor understands that in the event of injury or death to Contractor and/or Contractor’s agents and/or employees during the course of this Agreement that Contractor or Contractor’s agents or employees are not entitled to worker’s compensation or other benefits for work-related injuries from the Company.
- The Contractor understands that no deduction will be made from the compensation paid to the Contractor for the payment of federal or state income taxes, Social Security tax or Medicare tax, or any other governmental assessment levied on employers and their employees. The contractor is solely responsible for the payment of all taxes, including, without limitation, any and all sales taxes due on the compensation paid herein.
ARTICLE 6: EQUIPMENT AND SUPPLIES
- The Contractor shall provide and maintain at the Contractor’s sole expense all vehicles, equipment, and supplies necessary for the performance of the Services. All vehicles and equipment shall be maintained in good operating condition in complete compliance with all state, federal, and municipal laws and regulations. In the event that the Company allows the Contractor access to or use of any equipment (“Loaned Equipment”) under the custody and control of the Company or Company’s customer, the Contractor agrees to return such Loaned Equipment in the same condition, less ordinary wear and tear, as when provided to the Contractor. THE CONTRACTOR WILL BE SOLELY LIABLE FOR DAMAGE TO ANY LOANED EQUIPMENT AND WILL BE SOLELY LIABLE FOR ALL PROPERTY DAMAGE AND PERSONAL INJURIES ARISING DIRECTLY OR INDIRECTLY FROM THE CONTRACTOR’S USE OF THE LOANED EQUIPMENT EVEN IF ARISING IN WHOLE OR IN PART OUT OF THE NEGLIGENCE OF THE COMPANY OR THE COMPANY’S CUSTOMER OR THE AGENTS, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES OR EMPLOYEES OF THE COMPANY OR COMPANY’S CUSTOMER.
ARTICLE 7: INSURANCE
- Prior to starting work, the Contractor shall obtain insurance of the type and in the amounts as are indicated in Article 7.2 of the Agreement. The contractor acknowledges that this document declares the minimum insurance coverages, which the Contractor must maintain under this Agreement. Prior to starting work hereunder, the Contractor shall obtain the required insurance from an insurer, which shall be first approved by and satisfactory to the Company. The Contractor shall furnish Certificates of Insurance showing that the Contractor has insurance in the amounts and of the type required by Article 7.2 of the Agreement, each naming the Company and Company’s customer as additional insureds (except worker’s compensation) as per the below requirements, each including a Waiver of Subrogation in favor of the Company and Company’s customer and each indicating that at least thirty (30) days’ notice must be given to the Company, before such policy may be cancelled. The contractor expressly understands and agrees that no payment of any sort whatsoever under Article 5 above will be paid by the Company to the Contractor unless and until the Contractor has complied with these requirements.
- The Contractor shall at all times maintain insurance in the following amounts for occurrences which might arise from the performance of or failure to perform the Contractor’s duties under this Agreement:
- Commercial General Liability Insurance with limits of liability not less than the following:
- Bodily Injury Any one occurrence $ 1,000,000
- Property Damage Any one occurrence $ 1,000,000
- Aggregate $ 2,000,000
Such insurance shall include the Company and Company’s customer as Additional Insured’s using forms CG 2010 1010 and CG 2037 1010 or equivalent coverage. All such coverage provided to the Additional Insured’s shall be a primary basis. The policy shall include a Waiver of Subrogation in favor of the Company and Company’s customer.
- Commercial Automobile Liability Insurance with limits of liability not less than the following:
- Bodily Injury Any one occurrence $ 1,000,000
- Property Damage Any one occurrence $ 1,000,000
Such coverage shall include owned, hired, and non-owned vehicles and shall include the Company and Company’s customer as Additional Insured’s and include a Waiver of Subrogation in favor of the Company and Company’s customer. The Contractor shall maintain worker’s compensation insurance on all of the Contractor’s employees in compliance with the laws of the state in which services are performed. Such insurance shall include a Waiver of Subrogation in favor of the Company and Company’s customer where allowed by State Law. In the event that the Company’s customer requires insurance coverage in excess of the minimum insurance limits listed above, the Contractor shall obtain insurance that meets the Company’s customer’s requirements for such projects.
- Prior to commencing work Contractor must provide the Company with a Certificate of Insurance evidencing the required coverage. The Certificate must be sent to the address contained in Article 11. A copy of the certificate must also be sent to:
- No modification or waiver of the insurance requirements herein will be valid unless made in writing and executed by the Company.
ARTICLE 8: INDEMNIFICATION
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT TO THE OBLIGATIONS OF ARTICLE 6 HEREIN, THE CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY, THE COMPANY’S CUSTOMER FOR WHICH SERVICES ARE PERFORMED, THEIR SUCCESSORS AND ASSIGNEES, AS WELL AS EACH AGENT, OFFICER, DIRECTOR, SHAREHOLDER, AFFILIATE, AND EMPLOYEE OF THE COMPANY AND THE COMPANY’S CUSTOMER FOR WHICH SERVICES ARE PERFORMED (COLLECTIVELY, THE “INDEMNIFIED PARTIES”), AGAINST ANY AND ALL LOSSES, DAMAGE CLAIMS, LIABILITIES, AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES AND OTHER COSTS OF DEFENSE, EVEN IF ARISING OUT OF THE NEGLIGENCE (OTHER THAN THE SOLE OR GROSS NEGLIGENCE) OF ANY INDEMNIFIED PARTY, CAUSED BY OR ARISING OUT OF:
- any breach or default in the performance by the Contractor of any obligation contained in this Agreement;
- any personal injury or property damage suffered by any person, firm, association or corporation, including the Indemnified Parties and employees of Contractor, arising directly or indirectly out of the acts or omissions of the Contractor or any agent or employee of the Contractor, whether in connection with the performance by the Contractor of this Agreement or otherwise;
- the failure by the Contractor to withhold employment taxes and related amounts from the Contractor’s employees and remit same to the applicable governmental authority;
- the hiring, compensation, or termination of any agent or employee of the Contractor;
- any violation of any applicable law, rule, or regulation by the Contractor or any agent or employee of the Contractor, or;
- any action, suit, proceeding, claim, demand, judgment, incident to any of the foregoing.
ARTICLE 9: NON-SOLICITATION
- During the term of this Agreement and for one year after termination of the Agreement, regardless of the reason for termination, the Contractor and those under the control of Contractor shall not directly or indirectly solicit or perform work as a general contractor to any Customer of the Company. For purposes of Article 9, “Customer of the Company” shall mean each person or entity with whom the Company has an agreement to provide services, which are wholly or in part subcontracted to Contractor to provide under this Agreement. A person or entity that is a Customer of the Company shall remain a Customer of the Company for purposes of Article 9 even if the company terminates its relationship with the Company during the one-year period following termination of this Agreement.
- Furthermore, during the term of this Agreement and for a period of one year after the termination of the Agreement, regardless of the reason for termination, Contractor may not directly or indirectly hire or attempt to hire any employee of the Company even if the Company or employee terminates the employment relationship during the term of this Agreement or during the one-year period following the termination of this Agreement.
- The provisions of Article 9 shall not be held invalid or unenforceable because of the geographic scope, actions restricted, or the duration of the restriction but shall instead be reformed by the judgment of a court of competent jurisdiction to define the maximum territory, actions, and duration permitted by law.
- The Contractor acknowledges that a remedy at law for any breach or attempted breach of Article 9 will be inadequate and agrees that the Company shall be entitled to specific performance and injunctive and other equitable relief in case of any such breach or attempted breach, and further agrees to waive any requirement for the security or posting of any bond in connection with the obtaining of any such injunctive or any other equitable relief.
ARTICLE 10: NON-DISCLOSURE
- As used herein “Proprietary Information” means all business and technical information learned or made available, directly or indirectly, to Contractor or its employees by the Company or the Company’s customer and all reports, drawings, and other information rightfully acquired or developed by the Contractor or its employees in connection with Contractor’s performance of the Services under this Agreement. Proprietary Information does include (i) information rightfully in the public domain, (ii) information legally derived or received by Contractor independently of this Agreement.
- The contractor and its employees will only use Proprietary Information as required for the performance of the Services pursuant to this Agreement and will not disclose Proprietary Information for any other reason or to any other party. Contractor certifies that all employees and agents provided under this Agreement have read the provisions set forth herein and have agreed to abide by these provisions and that Contractor shall provide the Company with written certifications from its relevant employees to that effect upon request by the Company.
- Upon termination of this Agreement, or sooner upon written request of the Company, Contractor shall return to all documents, drawings, specifications, technical information, calculations, or other such documents, including copies and excerpts thereof, which contain Proprietary Information.
- Contractor acknowledges that irreparable injury will result to the Company, Company’s customer and their business and property in the event the Proprietary Information is disclosed, and that the Company shall be entitled, in addition to any other remedies and damages available at law or in equity, to an injunction prohibiting Contractor from disclosing the Proprietary Information, without the necessity of posting a bond. In the event that the Company brings an action to enforce the provisions of this subsection and the Company is granted temporary or permanent injunctive relief, the Contractor will pay all costs, expenses, and attorney’s fees incurred by the Company in obtaining the relief.
ARTICLE 11: NOTICE
- The Company and Contractor agree that any notice which may be given under the terms of this Agreement will be addressed as follows:
Any notice will be deemed given when delivered in person; when sent by facsimile transmission with a confirming copy sent by regular mail; or upon deposited in the US mail with the correct address and full postage sent by Certified or Registered Mail Return Receipt Requested.
ARTICLE 12: ARBITRATION
- In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The requirement of arbitration will not limit or inhibit the right of the Company to enforce the provisions of Article 9.
ARTICLE 13: GOVERNING LAW
- This Agreement shall be governed by the laws of the State of Louisiana
- Unless otherwise provided by Louisiana law, the Company and the Contractor agree that in the event any legal proceeding concerning this Agreement is instituted, jurisdiction and venue of such proceeding shall be in a court of competent jurisdiction in Louisiana.
ARTICLE 14: GENERAL PROVISIONS
- This Agreement comprises the entire agreement between the parties. All prior negotiations and dealings between them are merged in, integrated, and superseded by this Agreement, which is binding upon and inures to the benefit of the parties and their successors, legal representatives and assigns.
- This Agreement is not assignable in whole or in part by Contractor but may be assigned by the Company to an affiliated company of the Company or directly to Company’s customer without the necessity of consent from Contractor.
- The contractor agrees to comply, and cause its agents and employees to comply, with all federal, state, and municipal laws, rules, and regulations that may now be in effect or which may be in effect in the future. If Contractor performs services at the location of a customer of Company, then Contractor agrees to abide by all terms and conditions of customer applicable to the Company or other vendors operating within customers’ facilities.
- In case any term, phrase, clause, paragraph, article, restriction, or covenant contained in this Agreement shall be held to be invalid or unenforceable, the same shall be deemed, and it is hereby agreed that the same is meant to be several, and shall not defeat or impair the remaining provisions hereof.
- Time is of the essence for the completion of the Services described in this Agreement. Any delay in the completion of the Services described herein shall constitute a material breach of this Agreement.
ARTICLE 15: SAFETY
- The following SAFETY regulations must be obeyed by contractors and their employees. In addition, each contractor is required to take any and all precautions deemed necessary to minimize the potential for personal injury to employees. It is Company`s policy that all injuries resulting from Physical, Biological, Chemical, and Environmental Hazards can be avoided by using Safe Work Practices to maintain a safe workplace. Company`s Safety Department will be conducting safety inspections, audits, accident investigations on projects, and revise specific requirements as necessary. In event that these or any safety regulations are violated Company reserves the right to impose a fine and/or remove the Contractor from the noted project.
- Employees & contractors must wear appropriate PPE for the tasks they are performing at all times in work areas. A minimum of safety glasses, hardhats, steel-toed work boots, leather gloves, earplugs, back braces, nitrile gloves, will be required. N-95`s (will be optional). Shirts must have at least a tee sleeve. Shirts with sleeves and long pants will be worn at all times. No shorts are to be worn on projects. All employees and contractors, except welders and burners, must tuck shirt tails inside trousers. Burners and welders will not be permitted to wear polyester or nylon clothing.
- A Site-Specific Safety Plan must be designed prior to the commencement of work.
- Tool Box Safety Topic Meeting must be performed daily and documented.
- All workers will be trained for the task they will perform.
- Workers must only smoke in designated smoking areas or as assigned by Management.
- Keep work area and surrounding areas clean from trash and debris.
- All areas must be properly illuminated.
- Post-construction barricade, and/or caution, a warning sign in conspicuous areas within the work area.
- The buddy system will be implemented and utilize proper lifting techniques when handling heavy loads. (Lift with your legs and knees keep back strait).
- Workers must wear fall arrest systems (body harness, lanyard, vertical lines, anchors) when in elevation of 6 feet or higher.
- Make drinking water, temporary toilets and hand wash stations available to workers onsite.
- Damage to containers or spillage of chemicals must be reported immediately to the supervisor and/or the Project Manager.
- Every chemical, spray bottle, pump sprayer must be properly labeled and identified as to its contents and accompanied by a Material Data Safety Sheet. All gasoline products must be in class I metal spill-proof containers. No plastic gas, kerosene, or diesel containers are permitted.
- Scissor lift, boom lift, forklift, and bobcat (skid steer) operators must be trained and licensed. Workers in mechanical lifts, including scissor lifts, boom trucks, suspended or supported personnel baskets, articulating lifts, and other similar devices must use fall protection equipment at all times. Handrails on lifts may only be used for fall protection anchor points if approved by a Qualified Person. Such devices shall not be used as elevators to transport workers to different work locations.
- All equipment shall be inspected daily, inspections will be documented. Any equipment found defective will be tagged as out of service until repairs are completed.
- Every incident and near misses must be reported to management immediately and appropriate forms need to be filled out completely (every accident/incident must be reported to Company PM and within 24 hours).
- Extension ladders must be properly positioned, follow the 4 to 1 rule (for every 4 feet in height the ladder must be one foot out). Workers must work within the confines of the ladder. Must have 3 points of contact at all times when going up and down ladders. When workers are on ladders above 10 feet they must have a spotter or must use fall arrest systems. No one is to work off of the top rung of a ladder.
- When ascending or descending a portable ladder, three-point contact is considered acceptable fall protection for fall exposures of less than 20 feet. When potential fall exposure exceeds 20 feet, personnel on ladders must be protected with a personal fall arrest system.
- All portable ladders must be clearly marked with the ladder owner’s name.
- The safest means of worker access for overhead work (e.g., rolling scaffolds, mechanical lifts, platform ladders, etc.) shall be considered as alternatives to the use of portable ladders. If ladders are used, then the top of all straight and extension ladders shall be tied to a substantial anchor point before use; a second worker must hold the ladder until the tie-off is secure. And, if a worker’s feet are on or above the fifth rung of a stepladder, the top of the ladder must be tied to a substantial anchor or a second worker must hold the ladder throughout the task.
- All electrical equipment and 120-volt single phase extension cords need to be connected to a GFCI.
- Extension cords and power tools cords must be inspected prior to use for slices, cuts, etc., and ensure that it has a three-prong plug.
- Erect and use scaffolds as per manufacturer instructions and must conform to OSHA standards and requirements. All scaffolding must be inspected and tagged by a Competent Person prior to initial use, before each work shift, and after any event that could affect its structural integrity. Suspended scaffolds must receive documented daily pre-use inspections. Untagged scaffolds must not be used.
- Lock-out/tag-out procedures shall be followed to minimize the potential exposure of workers to hazardous energy. Hazardous pipelines or vessels will be isolated by using a double block and bleed system or by blanking. Every effort must be made to de-energize electrical equipment to be worked on and other electrical equipment in the area that may affect the work. If the equipment cannot be isolated or de-energized, written approval must be obtained from the Project Manager and/or Safety Officer before work proceeds. Only “Qualified Electricians” may work on energized or potentially energized circuits. The Company considers equipment rated at 480 volts and above as “high voltage.”
- Malfunctioning or broken equipment must be immediately taken out of service.
- A 10-pound ABC Fire extinguisher as a minimum must be present within 75 feet of the immediate work area (must be in good working condition and have current inspection tag).
- At least one First Aid kit for 25 persons minimum must be available at the work site.
- No employees or contractors shall enter a confined space (tank, vessel, vault, pit, sewer, or enclosed structure with restricted means of escape) until authorized by the Company`s safety department and a confine space permit is issued and signed by PM/SSO.
- No employees or contractors shall perform any welding or cutting within the Company controlled site until a Hot Work permit is issued to contractor performing work and signed by PM/SSO.
- All construction trash and debris must be taken to a designated onsite dumpster(s), to await proper disposal.
EXECUTED ON THIS ________ DAY OF ____________,20___
EXHIBIT A – PROJECT MEMORANDUM
COMPENSATION / DRAW SCHEDULE / PAYMENT TERMS:
SCOPE OF CONTRACTOR’S SERVICES:
IN ADDITION TO THE ABOVE THE SUBCONTRACTOR AGREES TO THE FOLLOWING TIME REQUIREMENTS:
Start Date Estimated Completion Date
COMPETENT PERSON REPRESENTATION
Subcontractor Name: (“Subcontractor”)
General Work Performed: (“Work”)
The Occupational Safety and Health Administration (“OSHA”) sets forth guidelines that work must be performed by a “competent person.” OSHA defines a competent person as:
One who is capable of identifying existing and predictable hazards in the surroundings or working conditions that are unsanitary, hazardous, or dangerous to employees, and who has the authorization to take prompt corrective measures to eliminate them.
Further, the Company requires any and all Subcontractors as well as all tiers of workers (a contract or otherwise) under each Subcontractor to be qualified for the work they are performing, and they must further meet the definition of a competent person for such Work being performed.
On behalf of the Subcontractor and any and all workers, subcontractors, or people performing work on the Subcontractor’s behalf, I represent that all people performing Work will be and are qualified and trained to perform such Work and meet the OSHA definition of a competent person to perform such Work.
On behalf of the Subcontractor and any and all workers, subcontractors, or people performing work on the Subcontractor’s behalf, I represent that all people performing Work are aware of the Company’s requirement that no worker or person should access the roof of any job site without following Company’s roofing start protocol, which includes but is not limited to securing the approval of a Health and Safety Officer, working under the presence of a Company representative (Project Manager, Assistant Project Manager and/or Project Coordinator), and providing a Competent Person on-site during the duration of the work. The subcontractor understands that these requirements must be met prior to any roofing work being started and must be maintained for the continuance of any roofing work.
Printed Name Title
A COPY OF THIS REPRESENTATION WILL BE PLACED INTO THE JOB SAFETY BINDER
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