THIS FIELD REPRESENTATIVE / SUBCONTRACTOR AGREEMENT (the “Agreement”) is made as of
Asphalt Asset Management LLC (“Asphalt Asset Management LLC”), a NY Limited Liability Company, and;
with its main office located at:
This Agreement supersedes and replaces any and all prior agreements between the Asphalt Asset Management LLC and Field Representative/Subcontractor.
WHEREAS Asphalt Asset Management LLC desires to retain Field Representative/Subcontractor to perform certain contract work in accordance with various contract documents and specifications and this Agreement;
WHEREAS Field Representative/Subcontractor desires to be retained for such services (“Services”) under the terms and conditions herein;
NOW THEREFORE Asphalt Asset Management LLC and Field Representative/Subcontractor agree as follows:
1. Engagement of Services
Field Representative/Subcontractor agrees to perform services relating to property maintenance, lawn care, and property improvements/repairs as set forth on work orders Asphalt Asset Management LLC submits to Field Representative/Subcontractor (collectively, the “Services”). Field Representative/Subcontractor shall determine the method, details, and means of performing the Services. Asphalt Asset Management LLC may specify only the results desired in regard to the specified services. During the term of this Agreement, Field Representative/Subcontractor may not subcontract or otherwise delegate his or her obligations under this Agreement without the Asphalt Asset Management LLC’s prior written consent.
2. Compensation
As sole compensation for the performance of the Services rendered to date and to be rendered during the Term, Asphalt Asset Management LLC shall provide the consideration as described in the applicable Work Order.
3. Independent Field Representative/Subcontractor Relationship
Field Representative/Subcontractor is considered a self‑employed, independent contractor for all purposes. As such, Field Representative/Subcontractor is solely responsible for paying Field Representative/Subcontractor’s own taxes. Asphalt Asset Management LLC will submit a 1099 to the IRS reporting how much Field Representative/Subcontractor made in a given year, however Asphalt Asset Management LLC will not withhold or deduct any taxes from payments made to the Field Representative/Subcontractor. Any persons Field Representative/Subcontractor employs in connection with the performance of its services will be Field Representative/Subcontractor’s employees and Field Representative/Subcontractor will be fully responsible for them. Field Representative/Subcontractor will be responsible for all acts of its employees and Field Representative/Subcontractor will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by Asphalt Asset Management LLC.
Field Representative/Subcontractor has no authority (and shall not hold itself out as having authority) to bind Asphalt Asset Management LLC and Field Representative/Subcontractor shall not make any agreements or representations on Asphalt Asset Management LLC’s behalf without Asphalt Asset Management LLC’s prior written consent.
Non-Exclusive. Asphalt Asset Management LLC’s purchase of Services under this Agreement is on a non‑exclusive basis. Asphalt Asset Management LLC reserves the right to engage the services of other independent contractors to provide similar services.
No Assurances by Asphalt Asset Management LLC. Field Representative/Subcontractor acknowledges that by entering into this Agreement Asphalt Asset Management LLC is not making any guaranty or assurances that Asphalt Asset Management LLC will utilize Field Representative/Subcontractor’s Services.
Workman’s Compensation / Employer Liability. Field Representative/Subcontractor acknowledges and agrees it will never rely on or look to Asphalt Asset Management LLC for coverage for Workman’s Compensation or Employer liability coverage, payment or recourse for itself, its employees, Field Representative/Subcontractor’s affiliates and hereby expressly waives any claim against Asphalt Asset Management LLC for any employee‑related claim or cost.
4. Work Orders
Field Representative/Subcontractor will be given a Work Order for each project which will set forth the deadline for each project. Project specific requests/instructions may be included in the project Work Order. Failure to follow/perform all project unique requests/instructions included in each project Work Order shall be considered a major infraction. It is the responsibility of the Field Representative/Subcontractor to know all specifications to which Asphalt Asset Management LLC expects each work order to be completed even if they are not listed on the work order itself. Any Field Representative/Subcontractor suggested amendments to any work order must be approved in writing by Asphalt Asset Management LLC before Field Representative/Subcontractor is authorized to perform any additional work.
5. Quality Control
For each visit, Asphalt Asset Management LLC will charge Field Representative/Subcontractor a $50.00 penalty, which may be deducted from amounts owed to Field Representative/Subcontractor. Regardless of whether Asphalt Asset Management LLC requests a revisit, Asphalt Asset Management LLC may deduct such amounts it reasonably determines are appropriate to compensate Asphalt Asset Management LLC for any deficiencies or infractions in the work performed and may charge Asphalt Asset Management LLC for expenses incurred as a result of any deficiencies or infractions, including costs Asphalt Asset Management LLC incurs to correct the infractions and/or deficiencies. In the event of inconsistencies between this Agreement and the Work Order, the provisions of the Work Order shall control.
6. Labor Supervision / Management
Field Representative/Subcontractor will supply all labor, tools and equipment required to perform the services under this Agreement. Field Representative/Subcontractor has the sole obligation and responsibility to supervise, manage, direct, and perform the projects specified in the Work Orders. Asphalt Asset Management LLC is committed to comply with the Immigration and Reform Control Act. Field Representative/Subcontractor and all members of Field Representative/Subcontractor’s crew must be lawfully permitted to work in the United States. Field Representative/Subcontractor shall indemnify, defend and hold Asphalt Asset Management LLC harmless for any violations relating to immigration and work residency violations.
7. Time
Time is of the essence of this Subcontract. Field Representative/Subcontractor agrees to keep itself thoroughly informed as to the overall progress of the Project and to commence and to prosecute the Work in a prompt and diligent manner at such time or times as Field Representative/Subcontractor may direct and in accordance with the schedule prepared by Asphalt Asset Management LLC from time to time for the commencement and prosecution of the Work, or if Asphalt Asset Management LLC has not so directed Field Representative/Subcontractor or provided Field Representative/Subcontractor with such a schedule then at the earliest time the Work, or any part of it may be commenced or prosecuted, but in all cases so as to promote the general progress of the Project. Field Representative/Subcontractor further agrees that Field Representative/Subcontractor shall not, by delay or otherwise, interfere with, hinder, or delay the work or progress of Asphalt Asset Management LLC or any other subcontractor on the Project.
8. Overtime
If ordered by Asphalt Asset Management LLC in writing, Field Representative/Subcontractor shall work overtime and/or provide additional manpower or shifts:
If Field Representative/Subcontractor is not behind schedule, Asphalt Asset Management LLC shall pay the additional premium portion of wages for overtime or additional shift work not then included in the Statement of Work.
If Field Representative/Subcontractor, through its own sole or partial fault or neglect, is behind schedule or impacting others’ Work to the detriment of the schedule, Asphalt Asset Management LLC may order Field Representative/Subcontractor to increase its manpower or to work, at Field Representative/Subcontractor’s expense, any overtime or additional shifts or take any other action necessary to expedite the Work to resolve the delay.
9. Field Representative/Subcontractor Payment Failure
In the event Asphalt Asset Management LLC has reason to believe that Field Representative/Subcontractor is not making timely payment for labor, material or other obligations incurred in the performance of Field Representative/Subcontractor’s Work, Asphalt Asset Management LLC shall give notice of such claim to Field Representative/Subcontractor and may immediately take any steps deemed necessary to insure that any invoice payment shall be utilized to pay such obligations, including, but not limited to issuing joint checks to Field Representative/Subcontractor and any of Field Representative/Subcontractor’s subcontractors or suppliers, or temporarily withholding any invoice payments due to Field Representative/Subcontractor. Each joint check will be subject to a $25 processing fee.
If within three calendar days (or minimum allowed by law) from the date Asphalt Asset Management LLC gives such notice to Field Representative/Subcontractor, Field Representative/Subcontractor does not supply evidence to the satisfaction of Asphalt Asset Management LLC that either no monies are owing to the claimant or that all monies owing to the claimant have been paid, then Asphalt Asset Management LLC shall have the right at Asphalt Asset Management LLC’s sole option, to do any one or more of the following: (i) terminate this Subcontract, (ii) retain out of any payments due or to become due to Field Representative/Subcontractor a reasonable amount to protect Asphalt Asset Management LLC from any and all loss, damage or expense including attorney’s fees arising out of or relating to the claim, until the claim has been fully satisfied by Field Representative/Subcontractor or (iii) pay all sums necessary to satisfy the claim and deduct from any payments due to or to become due to Field Representative/Subcontractor the cost of such satisfaction plus all loss, damage and other expense including attorney’s fees suffered by Asphalt Asset Management LLC arising out of or related to the claim.
10. Field Representative/Subcontractor Performance Failure
If Field Representative/Subcontractor refuses or fails to supply sufficient properly skilled workers, or proper materials, or fails to prosecute the Work according to the schedule prepared by Asphalt Asset Management LLC, or disregards the laws, ordinances, rules regulations or orders of any public authority having jurisdiction, and fails within three calendar days or minimum time allowed by law, from the date Asphalt Asset Management LLC gives notice to Field Representative/Subcontractor of such default, to commence and continue to cure such default, Asphalt Asset Management LLC shall have the right, at Asphalt Asset Management LLC’s sole option, to do any one or more of the following: (i) terminate this Subcontract; (ii) supply such number of workers and quantity of materials, equipment and other facilities as Asphalt Asset Management LLC deems necessary to maintain the orderly progress of Field Representative/Subcontractor’s Work, or for the completion of Field Representative/Subcontractor’s Work, or any part thereof which Field Representative/Subcontractor has failed to complete or perform after the aforesaid notice, and to deduct the cost thereof, including but not limited to reasonable overhead, profit and attorney’s fees, from any payments due or to become due to Field Representative/Subcontractor and to charge any excess cost thereof to Field Representative/Subcontractor, who shall be liable for the payment of the same; (iii) to contract with one or more additional subcontractors to perform such part of Field Representative/Subcontractor’s Work as Asphalt Asset Management LLC shall determine will provide the most expeditious completion of the Work and to deduct the cost thereof, including but not limited to reasonable overhead, profit and attorney’s fees, from any payments due or to become due to Field Representative/Subcontractor and to charge any excess cost thereof to Field Representative/Subcontractor, who shall be liable for the payment of same; (iv) to withhold payment of any monies due Field Representative/Subcontractor pending corrective action to the extent required by and to the satisfaction of the Asphalt Asset Management LLC and owner; and (v) in the event of any emergency affecting the safety of persons or property, Asphalt Asset Management LLC may proceed as above without notice.
11. Liens
Subcontractor shall not permit any laborers’, material men’s, mechanics’ or other similar liens to be filed or otherwise imposed on any part of the Project or the property on which the Project is located. If any such lien or claim thereof is filed, then, Asphalt Asset Management LLC in its sole discretion may require, Subcontractor shall either (i) cause such lien to be released and discharged within three calendar days after Asphalt Asset Management LLC gives Subcontractor notice to do so, or (ii) within such three calendar day period deliver to Asphalt Asset Management LLC a payment bond, in form and substance satisfactory to Asphalt Asset Management LLC, covering the claim. If Subcontractor fails to cause such lien to be released and discharged within such three calendar day period or fails to deliver such bond to Asphalt Asset Management LLC within such three day period, whichever Asphalt Asset Management LLC may require, then Asphalt Asset Management LLC shall have the right to do any one or more of the following: (a) terminate this Subcontract, (b) retain out of any payments due or to become due to Subcontractor a reasonable amount to protect Asphalt Asset Management LLC from any and all loss, damage, or expense including attorney’s fees arising out of or relating to such lien, until Subcontractor has obtained the release and discharge of such lien, or (c) pay all sums necessary to obtain the release and discharge of such lien and deduct from any payments due or to become due to Subcontractor all amounts so paid plus all loss, damage and other expense including attorney’s fees suffered by Subcontractor arising out of or relating to such lien.
12. Additional Damages
In the event of any failure of Field Representative/Subcontractor to complete the Work within the required time or upon the dates established as provided hereinabove, Field Representative/Subcontractor hereby agrees to be liable to and to reimburse Asphalt Asset Management LLC for any and all damages incurred by Asphalt Asset Management LLC as a result of such failure, including but not limited to liquidated damages, if any, assessed against Asphalt Asset Management LLC by Owner, extended job and home office overhead of Asphalt Asset Management LLC, interest on delayed payments as a result of such failure and lost profits. Field Representative/Subcontractor further agrees that neither the payment of such damages nor any liability incurred for the payment for such damages shall release Field Representative/Subcontractor from his obligation to otherwise fully perform this Agreement.
13. Conduct & Safety
The Field Representative/Subcontractor and all crew members shall wear appropriate, non‑offensive clothing while performing all work and services. No member of the crew is permitted to be shirtless at any time. All members of the Field Representative/Subcontractor crew shall act professionally and courteously at all times and especially when interacting with a property owner or client of Asphalt Asset Management LLC. The members of the Field Representative/Subcontractor crew shall refrain from any profanity while on the job site. The members of the Field Representative/Subcontractor crew shall not enter or request permission to enter a client residence unless there is prior written approval from Asphalt Asset Management LLC. Field Representative/Subcontractor shall not solicit any additional work of any kind or any additional payment for work performed from any Asphalt Asset Management LLC client. Smoking of any kind, alcohol consumption, and/or the use of any illegal/controlled substance is strictly prohibited while members of the Field Representative/Subcontractor crew are on the job site. Field Representative/Subcontractor shall adhere to the latest Occupational Safety & Health Administration guidelines, including, but not limited to, the use of any required safety gear, helmets, goggles, harnesses, etc. Field Representative/Subcontractor shall be responsible for payment of any fine or penalties relating to worksite safety. All crew members must be at least 16 years of age. Children are not allowed to be on site even if a parent is present.
14. Completion, Photos and Payment
A Work Order is not considered complete until all specified work is completed, all tools belonging to the Field Representative/Subcontractor are removed, and the job site is cleared of all work‑related waste. Field Representative/Subcontractor is not entitled to any payment unless the Work Order is viewed as fully complete by Asphalt Asset Management LLC and its clients. Field Representative/Subcontractor is not entitled to partial payment if work was partially complete.
Although most Work Orders have specifically required photos, Field Representative/Subcontractor should at minimum take before, during, and after photos of each task completed and the aforementioned photos if applicable. Photos shall be sent by Field Representative/Subcontractor to Asphalt Asset Management LLC via PPW. The Field Representative/Subcontractor shall have no right to payment unless adequate photos have been received by Asphalt Asset Management LLC via PPW and approved by Asphalt Asset Management LLC and its clients. It is the Field Representative/Subcontractor’s responsibility to house all data, including but not limited to; invoice amounts, addresses, work order numbers, photos of work completed, and dates completed. Asphalt Asset Management LLC is not liable for any lost data submitted by Field Representative/Subcontractor and Field Representative/Subcontractor may be required to resubmit invoices at no additional cost to Asphalt Asset Management LLC.
15. Late Fee Pay Deduction Scale
A late work pay scale has been implemented by Asphalt Asset Management LLC and will be placed on all work turned in late to Asphalt Asset Management LLC. If a work is not completed and submitted by 12:00 AM on the due date specified in the Work Order, the work is considered late and subject to the late fee pay scale.
If a Work Order that is already past due is assigned to another Field Representative/Subcontractor, Asphalt Asset Management LLC will assign a new due date for the Work Order and the foregoing penalty scale will take effect once the work is past the new due date.
16. Payment Terms
Asphalt Asset Management LLC agrees to pay Field Representative/Subcontractor for services rendered and determined complete within 15 days of submission into PPW. Field Representative/Subcontractor may be on a pay schedule (weekly, monthly or otherwise) to be paid much sooner. Asphalt Asset Management LLC may establish a course of dealing with Field Representative/Subcontractor for payment on a weekly basis or otherwise however in no event shall any course of dealing establish an obligation for Asphalt Asset Management LLC to pay Field Representative/Subcontractor for services rendered and determined complete any sooner than within 15 days of submission into PPW.
17. Payment Disputes and Remedies
If Field Representative/Subcontractor has not received payment on an order or “short paid” (paid less than the total believed), Field Representative/Subcontractor shall create a dispute in PPW under the “Form & Docs” Tab by completing the Pay Dispute Form (if PPW was the issuing system). If Field Representative/Subcontractor no longer has access to PPW, due to termination of business relationship or otherwise, Field Representative/Subcontractor must send an email to their account manager stating the Work Order numbers and street addresses for each individual order that was short paid or not.
It is the Field Representative/Subcontractor’s responsibility to keep track of the Work Order numbers for each Work Order completed. Any type of payment dispute is evaluated on an individual Work Order basis. Example: If Field Representative/Subcontractor believes it completed 50 Work Orders in a given week, but only received payment for 40 Work Orders, it is the Field Representative/Subcontractor’s responsibility to let Asphalt Asset Management LLC know the Work Order numbers for each order it believes it was paid for.
In the event of a dispute as to payment or completion of a Work Order the Field Representative/Subcontractor agrees as follows: 1) Field Representative/Subcontractor shall not contact the property owner or client of Asphalt Asset Management LLC, 2) Field Representative/Subcontractor shall not file any liens against the property and although Field Representative/Subcontractor may have rights under state law to execute and file liens for non‑payment of invoices the undersigned Field Representative/Subcontractor does hereby waive and release any and all lien rights in connection with any work performed or claimed to have been performed on behalf of Asphalt Asset Management LLC and Field Representative/Subcontractor agrees to indemnify Asphalt Asset Management LLC from any lower‑tier Field Representative/Subcontractor’s liens for non‑payment of invoices and Field Representative/Subcontractor agrees that any lower tier Field Representative/Subcontractor’s of Field Representative/Subcontractor shall waive and release their lien rights by executing the lien waiver form/link posted on the Asphalt Asset Management LLC website, 3) Field Representative/Subcontractor agrees that all payment disputes shall be settled directly with Asphalt Asset Management LLC and that there shall be no posted complaints by Field Representative/Subcontractor about Asphalt Asset Management LLC on the internet or any other type of message board, and 4) Field Representative/Subcontractor agrees that any disputes pertaining to invoices shall be first submitted to mediation before Field Representative/Subcontractor initiates any action in a court of law and in which case Field Representative/Subcontractor consents and agrees that any and all litigation shall be filed in Dallas, Texas. In the event of any court action the Field Representative/Subcontractor hereby irrevocably waives to the fullest extent permitted by law all rights to a jury in any action, proceeding or counter‑claim including but not limited to actions founded in contract, statute, tort, negligence, or otherwise relating to this Agreement.
18. Insurance
Field Representative/Subcontractor shall maintain at its own expense during the term of this Agreement such insurance policies covering the product and services to be provided as Asphalt Asset Management LLC reasonably requests, but regardless of whether Asphalt Asset Management LLC so requests, Field Representative/Subcontractor will maintain the following insurance:
Commercial General Liability (“CGL”). If coverage is provided under a claim made form, any retro date on such coverage shall be no later than the date Field Representative/Subcontractor first provides services to Asphalt Asset Management LLC.CGL with limits of insurance of not less than $1,000,000 each occurrence and $2,000,000 annual aggregate.
If the CGL coverage contains a general aggregate limit, such general aggregate shall apply separately to each.
CGL coverage shall be written on ISO Occurrence form CG 1001 1093 or a substitute providing equivalent coverage and shall cover liability arising from premises, operations, independent contractors products‑completed operations and personal advertising injury.
Field Representative/Subcontractor, Owner and all other parties required by the General Field Representative/Subcontractor shall be included as additional insureds on the CGL, using ISO Additional Insured Endorsement CG 20 10 07 04 (Ongoing Operations) and CG 20 37 07 04 (Products/Completed Operations) or an endorsement providing equivalent coverage to the additional insureds. This insurance for the additional insureds shall be as broad as the coverage provided for the named insured Field Representative/Subcontractor. Coverage shall apply as Primary and non‑contributory to any other insurance or self‑insurance, including any deductible, maintained by, or provided to the additional insureds.
Field Representative/Subcontractor shall maintain CGL coverage for itself and all additional insureds for the duration of the project and maintain Completed Operations coverage for itself and each additional insured for at least 3 years after completion of the Project.
Workers Compensation and Employer’s Liability
Statutory Workers Compensation whether compulsory or not (specifically including South Carolina).
Employer’s Liability Insurance limits of at least $500,000 each accident for bodily injury by accident.
Employer’s Liability Insurance limits of at least $500,000 each employee for injury by disease.
Shall include a Waiver of Subrogation in favor of Field Representative/Subcontractor, Owner and General Field Representative/Subcontractor.
Certificates of Insurance: Prior to commencing work under this agreement and within 10 days of each subsequent policy renewal, Field Representative/Subcontractor’s insurers or their authorized representatives shall provide Asphalt Asset Management LLC with Certificates of Insurance evidencing that all coverage and policy endorsements required under this agreement are maintained in force. With respect to any E&O coverage, the certificates must indicate that the coverage applies to Mortgage Field Services operations and also show any policy retroactive date. Asphalt Asset Management LLC has the right, but not the duty to receive certified copies of any required insurance policy and to verify that the coverage provided meets the standards set forth herein.
Field Representative/Subcontractor must ensure that all lower tier Field Representative/Subcontractor’s meet the insurance requirement minimums as specified in this Agreement. Nothing in the insurance requirements section will be construed as limiting the Field Representative/Subcontractor’s (or any lower tier Field Representative/Subcontractor’s) liability to Asphalt Asset Management LLC or a third party.
Indemnity. Field Representative/Subcontractor agrees to hold Asphalt Asset Management LLC harmless and defend and indemnify Asphalt Asset Management LLC for any and all claims arising out of Field Representative/Subcontractor’s performance under this Agreement or any Work Order, including any claims for injury, disability, or death of Field Representative/Subcontractor or Field Representative/Subcontractor’s employees or lower tier Field Representative/Subcontractor’s.
Field Representative/Subcontractor further agrees to indemnify, defend and hold Asphalt Asset Management LLC harmless from any and all claims arising from any negligent act or omission by Field Representative/Subcontractor or Field Representative/Subcontractor’s employees or lower tier Field Representative/Subcontractor’s including claims of third parties. The Field Representative/Subcontractor will submit to the Field Representative/Subcontractor a copy of certificate showing verification of insurance, which certify that the insurance policies carried were in force before the work started, during the work and for the 3 years following completion.
Certificates must also certify that these policies will not be cancelled, by adding the endorsement to the policies and certificates which reads substantially as follows: “The policies herein referred to are not cancelable or subject to a material reduction of coverage by the Insurer unless Field Representative/Subcontractor has received 30 days written notice, as evidenced by return receipt of registered or certified letter.”
By execution of this Agreement, Field Representative/Subcontractor agrees that all costs to provide the above insurance minimums are included in the Cost of the Work unless specifically stated in writing to the Field Representative/Subcontractor.
19. Warranty
Field Representative/Subcontractor warrants its work and all labor furnished by him to be free of defect for a period of at least one (1) year from the date of completion of the Project and final acceptance by the Owner. The Field Representative/Subcontractor agrees to make all repairs and correct any defects under this warranty within twenty‑four hours of notice of such defect, on a non‑emergency basis without cost to the Owner or Asphalt Asset Management LLC. Asphalt Asset Management LLC shall reasonably determine whether the situation is an emergency. If no guarantee or warranty is required of Asphalt Asset Management LLC in the Agreement, the Field Representative/Subcontractor shall guarantee or warranty its work as described above for a period of one year from the date of substantial completion of the Project, or acceptance or use by Owner of the Project, whichever is sooner. Field Representative/Subcontractor further agrees to execute, prior to final payment to Field Representative/Subcontractor, any special guarantees or warranties that may be required by the Contract or Asphalt Asset Management LLC for Field Representative/Subcontractor’s Work.
Field Representative/Subcontractor further agrees that Field Representative/Subcontractor shall, at Field Representative/Subcontractor’s sole expense, properly amend and make good any defective materials and/or workmanship to the entire approval and acceptance of Asphalt Asset Management LLC and Owner, and their authorized representatives. Should Field Representative/Subcontractor refuse or neglect to proceed at once with the correction of rejected or defective materials and/or workmanship after receiving notice to do so, it is agreed that Asphalt Asset Management LLC shall have the defects remedied or changes made at the expense of Field Representative/Subcontractor, and Field Representative/Subcontractor agrees to pay to Asphalt Asset Management LLC on demand any and all loss and/or expense paid or incurred by Asphalt Asset Management LLC remedying such defects and/or making such changes, together with interest thereon, at the rate of 10% per annum, until paid, in addition to all other losses, damages and extra expense which Field Representative/Subcontractor may become liable for under this Agreement.
20. Changes
Asphalt Asset Management LLC from time to time shall have the right to make changes in the Work, either to decrease, increase, or modify the Work. Upon receipt of a verbal or written request by Asphalt Asset Management LLC for a change in the work, Subcontractor shall immediately furnish to Asphalt Asset Management LLC a statement setting forth in detail the requested changes in the Work and Subcontractors proposal of the price, if any, to be paid to Subcontractor for the requested changes in the work and the changes, if any, in the amount of time to be allowed Subcontractor to complete all or any portion of the Work resulting from the requested changes in the Work. Subcontractor shall be entitled to receive no extra compensation for extra work or material or changes of any kind regardless of whether the same was ordered by Asphalt Asset Management LLC or any of his representatives unless a Change Order has been issued in writing by one of the Asphalt Asset Management LLC’s Superintendents or Construction Managers. If extra work was ordered by Asphalt Asset Management LLC and Subcontractor performed same but did not receive a written Change Order therefore, Subcontractor shall be deemed to have waived any claim for extra compensation therefore, regardless of any written or verbal protests or claims by Subcontractor. Subcontractor shall be responsible for any costs incurred by Asphalt Asset Management LLC for changes of any kind made by Subcontractor that increases the cost of the Work for either Subcontractor or other Subcontractors when Subcontractor proceeds with such changes without written Change Order.
21. Cleanup
Subcontractor shall follow the Asphalt Asset Management LLC’s clean‑up and safety directions, and: (i) at all times keep the Project free from debris and unsafe conditions resulting from Subcontractors Work, (ii) remove from the project location, as often as directed by Asphalt Asset Management LLC, any rubbish and surplus material which may accumulate from Subcontractor’s work, and (iii) broom clean each work area and remove all spots and stains from each work area prior to discontinuing work in the same. If Subcontractor fails to immediately commence compliance with such safety duties or commence clean‑up duties within 24 hours after Asphalt Asset Management LLC gives Subcontractor oral or written notice of noncompliance, Subcontractor may implement such safety or clean‑up measures without further notice and deduct 110% of the cost thereof from any amounts due or to become due Subcontractor.
22. Indemnity
TO THE FULLEST EXTENT PERMITTED BY LAW, SUBCONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS OWNER, ASPHALT ASSET MANAGEMENT LLC (INCLUDING ITS AFFILIATES, PARENTS AND SUBSIDIARIES) AND OTHER CONTRACTORS AND SUBCONTRACTORS AND ALL OF THEIR AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSS AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES, ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OF THE SUBCONTRACTOR’S WORK (OR FAILURE TO PERFORM SUCH WORK), WHETHER SUCH ARE CAUSED IN PART OR IN WHOLE BY A PARTY INDEMNIFIED HEREUNDER.
IF ANY AND ALL CLAIMS AGAINST OWNER, ASPHALT ASSET MANAGEMENT LLC (INCLUDING ITS AFFILIATES, PARENTS AND SUBSIDIARIES) AND OTHER CONTRACTORS OR SUBCONTRACTORS, OR ANY OF THEIR AGENTS OR EMPLOYEES, BY ANY EMPLOYEE OF SUBCONTRACTOR, ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY SUBCONTRACTOR OR ANYONE FOR WHOSE ACTS SUBCONTRACTOR MAY BE LIABLE, THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR SUBCONTRACTOR UNDER WORKER’S OR WORKMEN’S COMPENSATION ACTS, DISABILITY BENEFITS ACTS OR OTHER EMPLOYEE BENEFIT ACTS.
23. Waiver of Subrogation
Field Representative/Subcontractor agrees to waive any and all rights of subrogation against Owner and Asphalt Asset Management LLC for injury to Field Representative/Subcontractor’s employees or sole proprietor, and for damage or loss to any of Field Representative/Subcontractor’s personal property or equipment, regardless of fault of Owner or Asphalt Asset Management LLC.
24. Intellectual Property Rights
Asphalt Asset Management LLC is and shall be, the sole and exclusive owner of all right, title and interest throughout the world in and to all the results and proceeds of the services performed under this Agreement (collectively, the “Deliverables”), including all patents, copyrights, trademarks, trade secrets and other intellectual property rights therein. Field Representative/Subcontractor agrees that the Deliverables are hereby deemed a “work made for hire” as defined in 17 U.S.C. § 101 for Asphalt Asset Management LLC. If, for any reason, any of the Deliverables do not constitute a “work made for hire,” Field Representative/Subcontractor hereby irrevocably assigns to Asphalt Asset Management LLC, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. Upon Asphalt Asset Management LLC’s request, Field Representative/Subcontractor shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Asphalt Asset Management LLC to prosecute, register, perfect, record or enforce its rights in any Deliverables. If Asphalt Asset Management LLC is unable, after reasonable effort, to obtain Field Representative/Subcontractor’s signature on any such documents, Field Representative/Subcontractor hereby irrevocably designates and appoints Asphalt Asset Management LLC as Field Representative/Subcontractor’s agent and attorney‑in‑fact, to act for and on Field Representative/Subcontractor’s behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other intellectual property protected related to the Deliverables with the same legal force and effect as if Field Representative/Subcontractor had executed them. Field Representative/Subcontractor agrees that this power of attorney is coupled with an interest.
25. Confidentiality
To the extent that, in connection with this agreement, Field Representative/Subcontractor comes into possession of any proprietary or confidential information of Asphalt Asset Management LLC or of Asphalt Asset Management LLC’s client or Asphalt Asset Management LLC discloses any other proprietary or confidential information of a third party to Field Representative/Subcontractor (collectively, the “Confidential Information”), Field Representative/Subcontractor agrees to use such Confidential Information solely for the purposes of the applicable Work Order and not to disclose such Confidential Information to any third party without the prior written consent of Asphalt Asset Management LLC. The terms of this Agreement, the Asphalt Asset Management LLC software system, client information and lists, information about the properties serviced by Asphalt Asset Management LLC, and all information pertaining to Asphalt Asset Management LLC’s business operations and strategies, pricing, marketing, finances, sourcing, personnel or operations, shall all be considered Confidential Information. Confidential Information does not include any information that is or becomes generally available to the public other than as a result of a disclosure by Field Representative/Subcontractor in violation of this Agreement.
26. Assignment
Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Field Representative/Subcontractor without prior written consent of Asphalt Asset Management LLC. Asphalt Asset Management LLC agrees to comply with all reasonable requests of Field Representative/Subcontractor necessary for the performance of Field Representative/Subcontractor’s services to be performed under this Agreement. Asphalt Asset Management LLC agrees to pay Field Representative/Subcontractor for services in accordance with the description of services and compensation schedule established by the parties incorporated herein by reference.
27. Background Checks
Field Representative/Subcontractor will be required to have an annual background screening by Aspen Grove Background check (ABC) an independent third‑party agency specializing in both social and criminal reporting. Failure to submit the background screen will result in immediate termination of the subcontract agreement. Further, Field Representative/Subcontractor is responsible to obtain background checks on all of its employees and Field Representative/Subcontractor’s and maintain up to date files with this.
28. Arbitration
Any and all disputes or claims between Asphalt Asset Management LLC and the Field Representative/Subcontractor arising out of this Subcontract shall be resolved by binding arbitration according to applicable Rules of Arbitration in California. In so agreeing the parties expressly waive their right to a jury trial, if any, on these issues and further agree that the award of the arbitrator shall be final and binding upon them as though rendered by a court of law and shall be enforceable in any court having jurisdiction over the parties.
29. Termination
Termination by Field Representative/Subcontractor. Either party may terminate this Agreement at any time upon 30 days prior written notice to the Asphalt Asset Management LLC.Termination for Cause. Asphalt Asset Management LLC may terminate the Agreement and shall be entitled to exercise any remedies available to it at law or in equity if the Field Representative/Subcontractor breaches this Agreement for any of the following reasons:
Material breach of any term or condition of this Agreement or any other good cause for termination, including without limitation any act or omission contrary to Law or constituting fraud, financial dishonesty or moral turpitude.
Failure by Field Representative/Subcontractor / Field Representative/Subcontractor’s Personnel to perform its Services in a safe and workmanlike manner free from any defects and deficiencies.
Failure by Field Representative/Subcontractor / Field Representative/Subcontractor’s Personnel to maintain all licensure required under this Agreement, or by law.
Failure by Field Representative/Subcontractor / Field Representative/Subcontractor’s Personnel to abide by the terms of this Agreement pertaining to background checks.
Return of the Asphalt Asset Management LLC Property. Upon termination of the Agreement or earlier as requested by the Asphalt Asset Management LLC, Field Representative/Subcontractor will deliver to the Asphalt Asset Management LLC any and all drawings, notes, memoranda, specifications, devices, formulas, passwords and documents, together with all copies thereof, and any other material containing or disclosing any Asphalt Asset Management LLC Work Product, Third Party Information, or Proprietary Information of the Asphalt Asset Management LLC.
Pending Work Orders Accepted Prior to Expiration or Termination. Upon expiration or termination of this Agreement, Field Representative/Subcontractor will remain liable for completing all Work Orders it accepted prior to the expiration or termination. However, upon termination of this Agreement, Asphalt Asset Management LLC has the discretion to cancel any Work Orders that have been accepted by Field Representative/Subcontractor.
Survival Terms. Those provisions of this Agreement that would require that they survive the expiration or termination of this Agreement in order to give them full force and effect will survive the expiration or termination of this Agreement for any reason, regardless of the date, cause or manner of such termination, and said provisions include:
Invoicing and Documentation
Compensation and Chargebacks
Non‑Solicitation and Non‑Disparagement
Confidentiality and Non‑Disclosure
Indemnification
Lien Waiver
Dispute Resolution and Binding Arbitration
Invoicing and Documentation
The following provisions shall also survive termination of this Agreement: Section 2,3,12, 18, 19, 22, 23, 24, 25, 28, 30.
30. General Provisions
Construction. This agreement shall be construed as if prepared with equal input by both parties and shall not be construed more strongly against either party regardless of who is more responsible for its preparation.Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California. The Parties agree venue and jurisdiction for this agreement will be in the county of Dallas in the State of Texas.Legal Authorization to Complete Services. Field Representative/Subcontractor represents and warrants that Field Representative/Subcontractor’s personnel providing Services under this Agreement are legally authorized to provide said Services, including working in the country in which the Services are being provided, and being in compliance with all applicable requirements, licenses, certificates, and permits.In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalidity, illegality, or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity, or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
No Assignment. This Agreement may not be assigned by Field Representative/Subcontractor without the Asphalt Asset Management LLC’s consent, and any such attempted assignment shall be void and of no effect.Notices. All notices, requests, and other communications under this Agreement must be in writing and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section. For a notice to be valid, an email copy shall accompany each of the foregoing modes of noticing a party. An email notice, by itself, shall suffice as notice at such time as the sender receives a receipt acknowledgment or the recipient replies, directly or indirectly, to such notice.Legal Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out‑of‑pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to the Asphalt Asset Management LLC for which there may be no adequate remedy at law, and the Asphalt Asset Management LLC is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.No waiver by the Asphalt Asset Management LLC of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Asphalt Asset Management LLC of any right under this Agreement shall be construed as a waiver of any other right. Asphalt Asset Management LLC shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
Asphalt Asset Management LLC shall be free to advertise and publicize the existence of this Agreement and the general nature of the parties’ relationship with the prior approval of Field Representative/Subcontractor.
Force Majeure. The Parties will not be liable for any failure of or delay in their performance under this Agreement for the period that such failure or delay is due to causes beyond their reasonable control, including but not limited to, acts of God, war, terrorism, riots, strikes, labor disputes, government orders, explosions, fires, or floods. Nonetheless, as reasonably possible, Field Representative/Subcontractor must notify Asphalt Asset Management LLC as soon as Field Representative/Subcontractor anticipates a delay or inability to follow this Agreement.Non‑Disparagement. Field Representative/Subcontractor agrees not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of Asphalt Asset Management LLC, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. This provision shall not extend to pleadings or documents filed or created in connection with any dispute between the parties.
The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.
31. Dispute Resolution
The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
32. Entire Agreement
This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior discussions between the parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Services undertaken by Field Representative/Subcontractor for the Asphalt Asset Management LLC.
IN WITNESS WHEREOF, the parties have caused this Independent Contractor Agreement to be executed by their duly authorized representative as of the date first set forth above.
