In consideration of the foregoing and the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, LAD (Aviation), Inc. d/b/a Charles Taylor Environmental Technical Services (“Contractor”) and Customer, intending to be legally bound, do hereby agree as follows:
1. Provision of Services
(a) Contractor agrees to provide services to Customer solely in accordance with and subject to the terms and conditions of this Agreement.
(b) Contractor is in the business of providing environmental specialty services including asbestos, lead, mold, bacteria, sewage and soot assessments, personalized indoor air quality testing and other pre and post-loss environmental services. The specific services to be provided by Contractor for Customer and the costs of those services are more particularly described in the Work Authorization Form, which has or have been prepared by Contractor and accepted by Customer.
(c) Contractor’s obligation to provide the services described in the Work Authorization Form is expressly conditioned upon the following:
(i) Contractor’s receipt from Customer of a complete and accurate Work Authorization Form for each job demonstrating that such services (1) are the same services as described and agreed to by the Customer and (2) may be performed by Contractor based on the permits, authorizations and the rules and regulations to which the Customer’s property may be subject; and
(ii) Customer’s execution of the Work Authorization Form confirming acceptance of all information contained therein, including the costs of the services described therein.
(d) The Work Authorization Form, including any documents attached thereto or referenced therein, are hereby expressly incorporated in and made a part of this Agreement.
(e) Customer shall comply with all applicable federal, state and local laws, ordinances, rules, and regulations with respect to providing accurate information and making the property ready for the performance of services and completing all necessary paperwork as directed by Contractor.
(f) In the event of a conflict between the terms and conditions of this Agreement and any applicable Work Authorization Form, the terms and conditions of this Agreement shall control unless the Parties expressly agree in writing to the contrary.
2. Customer Representations and Warranties
(a) Customer, through its undersigned representative, hereby represents and warrants that the information provided to Contractor related to the property and in conjunction with the work is true and accurate to the best of Customer’s knowledge and that all inspections of the property been performed in accordance with all applicable protocols and standards.
(b) Customer hereby represents and warrants that all information provided by Customer to Contractor shall be consistent with the information contained in the Work Authorization Form.
(c) Customer hereby represents and warrants that it is under no legal restraint, order, agreement, directive, or other limitation or constraint that would prevent or restrict Customer from using Contractor’s services pursuant to this Agreement.
3. Contractor Representations and Warranties
Contractor hereby represents and warrants that: (a) Contractor will perform the services in a safe and workmanlike manner in compliance with all valid and applicable federal, state and local laws, ordinances, rules, regulations, permits and orders; and (b) Contractor will use personnel that have been issued permits, licenses, certificates or approvals required by valid and applicable laws, ordinances, rules and regulations necessary to perform the services. Except as otherwise expressly provided herein, Contractor makes no other representations and warranties and hereby disclaims any other representation or warranty, whether express or implied.
4. Access to Premises
Customer grants to Contractor, its agents and employees reasonable access to the project site, rights-of-way and easements for purposes of providing the services, including but not limited to off-site lands and facilities as are reasonably necessary to conduct investigation or monitoring. Contractor agrees to comply with all applicable safety procedures, operational restrictions (if any) and scheduling limitations while at the project site, which, if applicable, have been reasonably provided in writing to Contractor in advance.
(a) Contractor hereby agrees to indemnify and hold Customer harmless from any losses, damages, suits, penalties, fines, costs, liabilities and expenses (including reasonable attorney's fees) arising out of any third party claim for (i) loss or damage to property or the environment, or (ii) injuries to or death of persons, including Customer’s employees and agents, caused by or arising from Contractor's gross negligence, willful misconduct, or material violations of laws, ordinances, rules, regulations, orders or permits by Contractor in effect at the time that the services at issue are provided pursuant to this Agreement.
(b) Customer hereby agrees to indemnify and hold Contractor harmless from any losses, damages, suits, penalties, fines, costs, liabilities and expenses (including reasonable attorney's fees) arising out of any third party claim for (i) loss or damage to property or the environment, or (ii) injuries to or death of persons, including Contractor's employees and agents, caused by or arising from Customer's gross negligence, willful misconduct, material breach of this Agreement (including the representations and warranties contained therein), material violations of laws, ordinances, rules, regulations, orders or permits, or the delivery to Contractor of Material that does not conform to the description of the Material set forth in this Agreement.
(c) Neither party shall be liable to the other for special, consequential, incidental or punitive damages arising out of the non-performance of this Agreement or a breach hereof.
6. Charges and Payments
(a) Customer agrees to pay for the services performed pursuant to this Agreement in accordance with the terms set forth herein (including, without limitation, the surcharges shown on the Work Authorization Form, if and to the extent applicable), unless such terms are specifically modified in writing by both Parties.
(b) Charges for services performed pursuant to this Agreement shall be in accordance with the applicable Work Authorization Form.
(c) Payment for services performed pursuant to this Agreement shall be made within thirty (30) days of the date Contractor renders its invoice; provided, however, that Contractor, on a project basis, may require that payment be made immediately or within less than thirty (30) days following the rendering of Contractor’s invoice. Failure to make payment within that applicable payment period shall cause interest to commence accruing at a rate of one and one-half percent (1 1/2%) per month from the due date of the invoice or the maximum interest rate permitted under applicable law, whichever is greater, until payment in full (plus interest) is made and, in addition, shall entitle Contractor to pursue any other remedies available to Contractor hereunder, or at law or in equity. Customer shall also be responsible for all costs of collection including, without limitation, court costs, attorney’s fees and lien fees.
(d) Customer shall be solely responsible for all federal, state and local excise taxes, occupational taxes, sales taxes, use of service fees, environmental fees, recycling fees, local municipality fees, surcharges, transportation cost increases, fuel surcharges, costs of handling material, and other similar taxes, fees and charges. Customer shall promptly reimburse the Contractor for any such costs, taxes, fees and surcharges, together with any interest and penalties assessed by any taxing authority. Customer shall also be solely responsible for any additional costs or charges caused by any delay (unless due to Contractor).
(e) Services required beyond the scope of the services described in the Work Authorization Form(s) will be invoiced at the price mutually agreed to in writing by Contractor and Customer.
(f) The costs of obtaining special permits, licenses, authorizations or approvals to allow Contractor to perform specific services will be charged to the Customer at the rate of cost, plus 10% unless otherwise specified in writing.
Contractor hereby agrees to furnish Customer, upon request, with a Certificate of Insurance attesting to the existence of Worker's Compensation insurance coverage providing statutory benefits, Pollution Liability insurance and Comprehensive Automobile and Commercial General Liability insurance coverage with policy limits of not less than those set forth on the Certificate of Insurance.
(a) Any dispute or controversy arising out of or relating to this Agreement, or any amendment or modification thereto, shall be determined by arbitration in the County of Riverside, State of California pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Parties agree that the arbitrator shall have the power to award specific performance or injunctive relief to in any such arbitration. The costs of arbitration, including each Party’s legal fees, shall be borne as directed by the arbitrator.
(b) The Parties consent to the jurisdiction of the Supreme Court of the State of California for all purposes ancillary to arbitration, including the enforcement of the arbitration agreement and the proceedings, and the entry of a judgment on any award, and further consent that any process or notice of motion or other application to a court or to a judge thereof may be served by registered or certified mail.
10. Independent Contractor
Contractor is and shall perform under this Agreement as an independent contractor. The employees, agents, methods, equipment and facilities of Contractor shall at all times be under Contractor's exclusive direction and control. Nothing in this Agreement shall be construed or interpreted so as to cause Customer or any of its employees, agents, officers or directors to be deemed an agent for, joint venture of, employee of or partner of Contractor.
11. Assignment and Termination
Neither Party hereto may assign or delegate the performance of any portion of this Agreement without the prior express written consent of the other, which consent shall not be unreasonably withheld, delayed or conditioned; provided however, Contractor may assign this Agreement to an affiliate of Contractor or an entity under the control or common control of Contractor, without the written consent of Customer. In the event of the filing of a petition by or against the Customer under any bankruptcy, insolvency or reorganization laws, or the appointment of a receiver or trustee or an assignment for the benefit of creditors, then Contractor, at its option, and in addition to any other remedies at law, in equity or hereunder, may forthwith terminate this Agreement without further obligation or liability by Contractor to Customer. Upon a breach of the terms of this Agreement by either party, the other party may give ten (10) days’ notice to cure and may terminate the agreement if the default is not cured within that period upon written notice.
13. Force Majeure
Contractor shall not be liable for any failure to provide services pursuant to this Agreement, including, but not limited to, removing, accepting, handling, processing, treating or disposing of Material, if such failure is caused directly or indirectly by acts of God; acts of war (including acts of terrorism); weather conditions; labor disputes or strikes; accidents; fires; explosions; floods; sabotage; fuel shortages; equipment malfunctions or failures; orders, filings, directives, laws, rules, regulations, ordinances, actions or inactions of any federal, state, or local governmental agency, department, court or body having jurisdiction over the activities of Customer or Contractor; changes in laws; inability to obtain the requisite licenses, approvals or permits; or any other matters beyond the reasonable control of Contractor.
(a) Except as otherwise specified in this Agreement, all notices pursuant to this Agreement shall be in writing, shall be directed to the attention of the respective representatives of Contractor or Customer listed below, and shall be deemed to have been sufficiently given (i) when delivered personally, (ii) when sent by verified email (with confirmation copy sent by overnight courier), (iii) when sent by overnight courier, or (iv) when sent by certified mail, return receipt requested to the respective representatives of Contractor and Customer at the addresses listed below:
To Contractor: Charles Taylor Environmental Technical Services 41880 Kalmia Street
Murrieta, CA 92562 Attn: Kellie Vasquez
(b) Notices pursuant to this Paragraph shall be deemed effective upon receipt.
(c) Either Party may designate a new representative to receive notices under this Agreement by notifying the other Party in writing of the name, address, telephone number and facsimile number of the new representative.
15. Entire Agreement
This Agreement supersedes any and all other agreements, either oral or in writing, between the Parties hereto with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect to this matter. Any previous warranties, representations, agreements, understandings, covenants, discussions, drafts and writings are specifically replaced and superseded by the terms and conditions contained in this Agreement. Each Party further agrees and acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party or anyone acting on behalf of any Party, which are not embodied herein and that no other agreement, statement, or promise not contained herein shall be valid or binding. It is specifically agreed between the Parties that no pre-printed language on any purchase order, work order or other similar instrument from either Party hereto shall alter, change, modify or amend the terms and conditions contained in this Agreement, and in particular, it is agreed that any such pre-printed language shall be deemed null and void. Any modification or amendment to this Agreement must be in writing and signed by both Parties.
16. Binding Agreement
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their heirs, executors, administrators, successors, and assigns. If any term, covenant or condition of this Agreement is determined to be illegal, invalid, void or unenforceable, such finding shall not affect the other provisions of this Agreement.
(a) In the event of a dispute under this Agreement, the prevailing party shall be entitled to recover reasonable fees and court costs, including attorney's fees, associated with interpreting or enforcing this Agreement. In the event Customer fails to pay Contractor all amounts due hereunder, Contractor shall be entitled to collect all reasonable collection costs or expenses, including reasonable attorneys’ fees, other costs or handling fees for returned checks from Customer.
(b) The validity, interpretation and performance of this Agreement shall be construed in accordance with the laws of the State of California.
(c) Customer’s payment obligation for services, the representations and warranties and the indemnity obligations set forth herein made by each Party shall survive termination of this Agreement.