Exhibit 10.11
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Technical Services Agreement dated December 18, 2001
between Tonkin Springs Holding Inc., Tonkin
Springs Venture Limited Partnership and Tonkin
Springs LLC, and Xxxxxxx Xxxxxxxxx & Xxxxxxx (U.S.), Inc.
TECHNICAL SERVICES AGREEMENT
THIS TECHNICAL SERVICES AGREEMENT (this Agreement) is made and entered into
effective as of December 18, 2001, by and between TONKIN SPRINGS HOLDINGS, INC.,
whose address is 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx X0X 0X0, XXXXXX
(TSHI), TONKIN SPRINGS LLC, whose address is 0000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000 (Tonkin Springs LLC) and XXXXXXX XXXXXXXXX & XXXXXXX
(U.S.), INC., whose address is 0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx,
Xxxxxxxx 00000 (SRK).
RECITALS
WHEREAS, TSHI and the Nevada Division of Environmental Protection (NDEP) entered
into that certain TSP-1 WORK PLAN AGREEMENT dated as of November 30, 2001 (the
NDEP Agreement), which contemplates a work program to locate, plug and properly
abandon specific, historic, i.e. pre-1990, boreholes at the TSP-1 area of the
Tonkin Springs project in Eureka County, Nevada. A copy of the NDEP Agreement is
appended to this Agreement as Exhibit A. A copy of the work program approved by
the NDEP (the Work Plan), including a list of the specific boreholes covered by
the Work Plan, is appended to the NDEP Agreement;
WHEREAS, TSHI and Tonkin Springs LLC (the owner of the Tonkin Springs project)
and Tonkin Springs Venture Limited Partnership (TSVLP, the Manager of Tonkin
Springs LLC) entered into a Settlement Agreement dated as of October 31, 2001
(the Settlement Agreement), which also contemplates the performance of the Work
Plan and other matters. A copy of the Settlement Agreement is appended to this
Agreement as Exhibit B;
WHEREAS, pursuant to the NDEP Agreement and the Settlement Agreement: (i) the
Work Plan is to be conducted on behalf of Tonkin Springs LLC but administered by
and conducted under the direction of SRK; and (ii) the Work Plan is to be paid
for out of the sum of $250,000 which TSHI has placed in escrow (the Escrow) with
the Xxxxx Fargo Bank Arizona, N.A. (the Escrow Agent). A copy of the Escrow
Instructions from TSHI to the Escrow Agent are appended to this Agreement as
Exhibit C; and
WHEREAS, TSHI, Tonkin Springs LLC and SRK desire to enter into this Agreement in
order to provide for the performance of the Work Plan on behalf of Tonkin
Springs LLC under the direction and control of SRK, for payment for such
services and for certain related matters.
NOW, THEREFORE, in consideration of the covenants, obligations, terms and
conditions set forth in this Agreement, TSHI, Tonkin Springs LLC and SRK agree
as follows:
Scope of Services.
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SRK shall implement, carry out, control, direct and make best efforts to
complete the Work Plan. In accordance with Section 6.1 of this Agreement, SRK
will, as agent on behalf of Tonkin Springs LLC, hire contractors (Contractors)
to perform earth moving, surveying and drilling in connection with performance
of the Work Plan. SRK shall supervise, control and direct all work conducted
under this Agreement (the Work), including without limitation all Work performed
by the Contractors. SRK shall perform all Work, and shall ensure that the
Contractors perform all Work, in strict accordance with the Work Plan. SRK shall
ensure that all Work is conducted in a good, workmanlike and safe manner, in as
expeditious a manner as reasonably practicable and in accordance with all
requirements of applicable law and regulations. Additionally, SRK shall ensure
that the total cost of all Work does not exceed the sum of $250,000. Not more
than $250,000 will be expended upon the Work Plan, regardless of results. TSHI
and Tonkin Springs LLC acknowledge that the implementation of the Work Plan may
not result in the elimination of acid generation in full and that additional
mitigation steps outside the scope of the Work Plan may be necessary to
eliminate acid generation to achieve full compliance with the regulatory
requirements of the NDEP.
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Upon contract execution, SRK shall provide twice monthly written progress
reports to the NDEP, with copies to TSHI and Tonkin Springs LLC, concerning
implementation of the Work Plan. In the event that SRK determines that it cannot
complete the Work Plan by June 30, 2002, SRK shall immediately provide the NDEP,
TSHI and Tonkin Springs LLC with written notification of such determination,
together with SRK's best estimate as to the completion date. Within 30 days
after completion of the Work Plan, SRK shall provide to TSHI and Tonkin Springs
LLC, for their review and comment, a written draft of a summary completion
report. The summary completion report shall include, at a minimum, the
following: (i) a certification that the Work Plan has been completed; (ii) a
summary of all activities included in the Work Plan; (iii) a summary of holes
staked out, located and not located; (iv) a list of and supporting abandonment
reports for all holes abandoned; (v) a map graphically depicting the holes that
were staked out, located, not located, and abandoned; (vi) supporting
documentation for holes not located, including a photographic record of the
excavation bottom or a signed geotechnical log of the excavation; and (vii) any
deviations from the Work Plan and rationale for such deviations, provided that
SRK shall not deviate from the Work Plan except with specific, prior written
consent of each of TSHI and Tonkin Springs LLC, which consent shall not be
unreasonably withheld. Within 45 days after completion of the Work Plan, SRK
shall submit the finalized summary completion report to the NDEP, with copies of
that report to both TSHI and Tonkin Springs LLC. With respect to all reports to
be provided by SRK to TSHI and Tonkin Springs LLC pursuant to this Agreement,
SRK shall transmit those reports to those parties simultaneously. Each of TSHI
and Tonkin Springs LLC will have the right to have a representative on-site to
observe the conduct and performance of all or any portion of the Work and to
provide any comments or suggestions with respect thereto to SRK, provided that:
(i) comments and suggestions will be provided only to the designated
representative of SRK and not to any of the Contractors or any other employees
of SRK; and (ii) it is understood by all parties that the Work Plan will be
carried out under the exclusive direction and control of SRK and that SRK shall
make all final decisions as to the manner of performance and implementation of
the Work Plan. For purposes of this Section 1.3: (i) Tonkin Springs LLC
designates Mr. Xxxxx Xxxx as its designated representative; (ii) TSHI designates
Xxxxxxx Xxxxxxxx as its designated representative; and (iii) SRK designates
Xxxxx Xxxxx as its designated representative.
Compensation and Terms of Payment.
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SRK will submit monthly invoices to the Escrow Agent for Work that has been
conducted pursuant to the Work Plan, with reasonable documentation evidencing
the performance of the Work. SRK will approve and forward invoices of any
Contractors hired by SRK on behalf of Tonkin Springs LLC to the Escrow Agent.
SRK will simultaneously provide copies of their own and Contractors' invoices
and supporting documentation to each of TSHI and Tonkin Springs LLC. SRK will
not submit to the Escrow Agent invoices covering Work performed by it or by
Contractors, nor shall the Escrow Agent pay such invoices, unless and until SRK
has obtained and provided to TSHI and Tonkin Springs LLC lien releases or
waivers from SRK and/or the Contractors who performed such Work, as well as
written releases of Tonkin Springs LLC and TSHI from any contractual or any
other liability for payment with respect to such Work. In accordance with the
Escrow Instructions, the Escrow Agent will pay SRK's and Contractors' invoices
on the eleventh day after its receipt thereof from SRK, unless TSHI first
provides the Escrow Agent with a written objection instructing the Escrow Agent
not to pay such invoice. In that event, TSHI and SRK shall promptly consult in
order to resolve any problems or discrepancies with respect to the invoice and,
upon reaching such a resolution, TSHI shall instruct the Escrow Agent to pay the
invoice, as the same may have been corrected or modified. Upon completion of the
Work Plan, SRK shall submit its final invoice, clearly marked as such, to the
Escrow Agent, with copies to TSHI and Tonkin Springs LLC as set forth in Section
2.1 above. Such invoice shall not be paid by the Escrow Agent unless and until
SRK has provided TSHI and Tonkin Springs LLC with lien releases or waivers, and
contractual and other payment liability releases of Tonkin Springs LLC and TSHI
from SRK and all Contractors involved in the performance of the Work.
SRK shall charge for Work performed by it in accordance with the attached SRK
Standard Schedule of Fees.
Invoices shall be organized on an item-by-item basis and shall itemize the
charges for each item or portion of the Work performed. SRK shall include a
summary of actual hours worked on the project by SRK's professional and
technical employees, by classification and hourly rate. Direct, nonsalary,
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reimbursable expenses, and other direct costs and expenses, shall be itemized
separately in each invoice. SRK shall furnish copies of time sheets, expense
reports, vendor invoices, and other documentation necessary to substantiate each
invoice, at the request of either TSHI or Tonkin Springs LLC.
SRK, TSHI and Tonkin Springs LLC acknowledge, agree and understand that,
notwithstanding anything in this Agreement to the contrary: (i) there is only
the Escrow sum of $250,000 available for payment for the Work (the Budget); (ii)
part of the services being provided by SRK is to ensure that performance of the
Work Plan does not exceed this Budget; (iii) SRK will not perform any Work, or
contract for the performance of any Work by Contractors, if the performance of
such Work would result in cost overruns in excess of the Budget, except with the
express and specific prior written authorization of TSHI; and (iv) under no
circumstances will TSHI be obligated under this Agreement to fund any amount in
excess of the sum of $250,000 which it has already placed in Escrow, unless TSHI
has provided the authorization described in (iii) above. The parties further
acknowledge, agree and understand that TSHI's role under this Agreement and in
connection with the Work Plan is purely financial (i.e. in connection with the
funding and administration of the Escrow) and that it shall not direct or
control the performance of the Work Plan, it being understood that it shall be
SRK's exclusive responsibility to direct and control the performance of the Work
Plan.
Confidential Information.
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SRK recognizes and acknowledges that it will have access to and may develop or
become aware of certain information of Tonkin Springs LLC, TSHI or their
respective affiliates (collectively, Tonkin Entities) and that such information
constitutes confidential information of the Tonkin Entities. SRK shall not,
during or after the term of this Agreement, use or disclose directly or
indirectly any such confidential information to any person, firm, corporation,
association, or other entity, except to Contractors engaged by SRK and to
authorized representatives of the Tonkin Entities, for any reason or purpose
whatsoever without the Tonkin Entities' prior written approval. SRK represents
that it has entered into agreements with all of its employees requiring them not
to disclose any such information. Only employees with a demonstrable need to
know will be given access to information collected or developed under this
Agreement. In the event of a breach or threatened breach by SRK of the
provisions of this Section 3, the Tonkin Entities shall be entitled to a
temporary restraining order or a preliminary injunction restraining SRK from
using or disclosing, in whole or in part, such confidential information, and SRK
consents to the entry of such a temporary restraining order or preliminary
injunction without the necessity of the Tonkin Entities posting any bond in
connection therewith and agrees that it shall not assert any defenses to any
petition filed by the Tonkin Entities in a court of competent jurisdiction
requesting such temporary restraining order and/or preliminary injunction, as
the case may be. Nothing herein shall be construed as prohibiting the Tonkin
Entities and its affiliates from pursuing any other remedies available to them
for such breach or threatened breach, including the recovery of damages from
SRK. The provision of this Section 3 shall survive the dissolution or
termination of this Agreement.
The obligations of this Section 3 do not apply to information which: (a) is or
becomes part of the public domain without the breach of any obligation of
confidentiality owed to the Tonkin Entities; or (b) is lawfully in the
possession of SRK at the time it was acquired hereunder without the breach of
any obligation of confidentiality owned to the Tonkin Entities; or (c) is
required by law to be disclosed.
In the event SRK receives any legal process purporting to require the production
of confidential information to any court, agency, other tribunal, person, or
entity, SRK shall immediately notify the Tonkin Entities, provide the Tonkin
Entities with a copy of such legal process, and cooperate with the Tonkin
Entities in any legal proceeding arising therefrom.
Except for the reports and documents expressly required to be provided to the
NDEP pursuant to Section 1 of this Agreement, SRK shall not communicate with
governmental agencies concerning the Work or concerning SRK's or Contractors'
performance of the Work without obtaining the prior approval of TSHI and Tonkin
Springs LLC. Any reports, documents, or other information, regardless of form,
that is collected or developed by SRK pursuant to this Agreement shall be
exclusively the property of TSHI and Tonkin Springs LLC and all such reports,
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documents, or information, and any copies thereof shall be turned over to TSHI
and Tonkin Springs LLC at the conclusion of the Work, unless TSHI and Tonkin
Springs LLC shall sooner request same. SRK may retain one hard copy of such
documents for record purposes. Reuse of such documents by TSHI or Tonkin Springs
LLC for other than the project covered by this Agreement shall be without
liability to SRK.
Termination.
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The Agreement may be terminated at any time for good cause by mutual written
notice of termination from TSHI and Tonkin Springs LLC to SRK. Such termination
shall be effective in the manner specified in the notice, shall be without
prejudice to any claims which TSHI or Tonkin Springs LLC may have against SRK,
and shall be subject to the other provisions of this Agreement. On receipt of
such notice, except to the extent otherwise directed, SRK shall immediately
discontinue the Work and the placing of Contractor orders for materials,
facilities, services and supplies in connection with the performance of the
services and shall, if requested, make every reasonable effort to procure
termination of existing contracts with Contractors upon terms satisfactory to
TSHI and Tonkin Springs LLC. Thereafter, SRK shall be authorized to do only such
Work as may be necessary to preserve and protect the services already in
progress and as otherwise requested by TSHI and Tonkin Springs LLC. A complete
settlement of all claims of SRK upon termination of the Agreement, as provided
in the preceding paragraph, shall be made as follows: SRK shall within ten (10)
days invoice the Escrow Agent for all obligations and commitments that SRK may
have in good faith undertaken or incurred in connection with the services which
have not been included in prior payments; for the reasonable cost of terminating
existing contracts; for preserving, protecting, or disposing of property and
performing any other necessary services after the notice of termination has been
received; and for all services performed prior to the date of termination, in
accordance with this Agreement. SRK shall simultaneously provide copies of such
invoices, together with all supporting documents evidencing the performance of
the Work at issue, to TSHI and Tonkin Springs LLC in accordance with the
provisions of Section 2 above.
The Escrow Agent shall pay SRK in accordance with and subject to the provisions
of Section 2 above. Upon final settlement, SRK shall deliver to TSHI and Tonkin
Springs LLC all reports, documents, drafts, notes, and all other information and
data collected or prepared by SRK under this Agreement and deliver to TSHI and
Tonkin Springs LLC lien releases or waivers, and contractual and other payment
liability releases of Tonkin Springs LLC and TSHI, from SRK and all Contractors
involved in the performance of the Work.
Parties' Representations, Warranties, and Responsibilities.
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SRK represents and warrants to TSHI and Tonkin Springs LLC that it has the
authority to enter into this Agreement and to perform the Work and that it is
licensed, certified and/or otherwise authorized to practice in the area of
engineering and so licensed and certified to conduct business in the State of
Nevada. SRK further represents and warrants that all Work performed by it
hereunder will be: (a) in conformance with the terms of this Agreement; (b)
performed in a skillful and workmanlike manner in accordance with appropriate
industry standards; (c) performed by the proper number of experienced, skilled,
and/or licensed personnel, qualified by education and experience to perform
their assigned tasks; and (d) performed in accordance with the standards
customarily provided by an experienced and competent professional technical
consulting organization rendering the same or similar services. SRK covenants
that the Contractors shall meet these standards and that the contracts with the
Contractors shall contain these representations and warranties.
SRK agrees to indemnify and hold TSHI, TSVLP and Tonkin Springs LLC (and their
shareholders, members, managers, officers, principles, employees and agents)
harmless from and against any and all losses, damages, costs, penalties,
expenses (including, but not limited to, reasonable costs of investigation and
legal expenses), liabilities, judgments, liens, suits, claims or demands arising
out of any actual or threatened damage to property, including property of TSHI,
TSVLP or Tonkin Springs LLC or injuries to or death of persons, including
employees of TSHI, TSVLP or Tonkin Springs LLC arising from SRK's willful
misconduct or negligent acts or omissions in connection with the Work, or any
breach or threatened breach of this Agreement by SRK, excluding and to the
extent of, the negligence or willful misconduct of TSHI, TSVLP or Tonkin Springs
LLC. SRK shall require that all contracts with Contractors provide the
indemnifications provided by SRK in this Section 5.2.
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TSHI agrees to indemnify, defend and hold harmless SRK (and its officers,
employees, and agents) against any and all claims, demands, suits, judgments,
expenses, losses and damages, or injury to, or death of persons and for
destruction of or damages to any property of SRK resulting directly from TSHI's
(or its employees or agents) negligence or willful misconduct, except to the
extent that any such expenses, losses or damages are attributable to the
negligence or willful misconduct of SRK, its employees, agents, or the
Contractors.
Tonkin Springs LLC agrees to indemnify, defend and hold harmless SRK (and its
officers, employees, and agents) against any and all claims, demands, suits,
judgments, expenses, losses and damages, or injury to, or death of persons and
for destruction of or damages to any property of SRK resulting directly from
Tonkin Springs LLC's (or its employees or agents) negligence or willful
misconduct, except to the extent that any such expenses, losses or damages are
attributable to the negligence or willful misconduct of SRK, its employees,
agents, or the Contractors.
Notwithstanding paragraph 5.2, SRK shall assume all responsibility for and shall
indemnify and hold harmless TSHI, TSVLP and Tonkin Springs LLC and each of their
affiliates, against, and shall assume the defense of any claims, suits, or
judgment brought against any of them under the Federal Employers Liability Act
whenever employees of SRK or any of the Contractors claim or allege that they
are employees of TSHI, TSVLP or Tonkin Springs LLC or their affiliates, within
the meaning of said act, or that they are furthering operational activities of
TSHI, TSVLP or Tonkin Springs LLC or their affiliates.
In no event shall SRK, TSHI or Tonkin Springs LLC be liable to each other for
lost revenues, lost profits, cost of capital, claims of instances or any
special, indirect, incidental, or consequential or punitive damages pursuant to
this Agreement. SRK promptly shall pay all wages due its workmen and employees
required for the Work. SRK shall defend and protect Tonkin Springs LLC and TSHI
from and against all claims, liens and liabilities which may arise as a result
of SRK's failure to do so or the failure of any of the Contractors to pay their
workmen or employees. If at any time there should be evidence of any lien, claim
or encumbrance for which, or to which, Tonkin Springs LLC, TSHI, the Tonkin
Springs project property or the production therefrom, is or might become subject
or liable and which are: (i) attributable to labor, materials, supplies,
equipment or services furnished to or required by any of the Contractors or SRK
or any of their suppliers or vendors, or any other persons or entity for use on
or in conjunction with those properties or SRK's or the Contractors' activities
thereon; or (ii) attributable to payroll, withholding or other taxes or other
indebtedness, resulting from or in connection with SRK's or any of the
Contractors' work or operations in connection with the Work, SRK shall, upon
demand by Tonkin Springs LLC or TSHI, immediately cause the release of such lien
or pay such claim and deliver to Tonkin Springs LLC and TSHI a complete release
or receipt satisfactory to Tonkin Springs LLC and TSHI discharging such lien,
claim or encumbrance. Tonkin Springs LLC and/or TSHI at any time may pay and
discharge such liens, claims and encumbrances, in which event SRK shall be
obligated to immediately reimburse the paying party or parties in the amount so
paid, together with reasonable costs and attorneys fees incurred by the paying
party or parties.
If TSHI instructs the Escrow Agent pursuant to paragraph 2.1 above not to pay an
invoice submitted by SRK or a Contractor for Work performed under this Agreement
when there are sufficient funds in the Escrow Account to pay that invoice, and
SRK or the Contractor files a lien against any part of the Tonkin Springs
project property with respect to Work covered by that invoice, TSHI shall have
no liability to Tonkin Springs LLC to secure the release of that lien unless
TSHI acted unreasonably in so instructing the Escrow Agent. If TSHI acted
unreasonably in so instructing the Escrow Agent, it shall be obligated to secure
the release of that lien, provided, however, that (a) TSHI's liability to Tonkin
Springs LLC and the lien holder (whether SRK or a Contractor) with respect to
the lien shall be limited to the amount of the lien, (b) the amount of the lien
shall be paid, upon a determination that TSHI acted unreasonably or upon TSHI's
subsequent election (in its sole discretion) to authorize the Escrow Agent pay
the lien, solely from the Escrow Account, and (c) TSHI shall have no liability
to Tonkin Springs LLC and the lien holder (whether SRK or a Contractor) for the
payment of all or any portion of the lien once all funds in the Escrow Account
have been disbursed, it being expressly understood and agreed that TSHI's
liability under this Agreement is limited to the $250,000 previously deposited
by it into the Escrow Account. If the parties do not resolve the issue of
whether TSHI acted unreasonably in instructing the Escrow Agent not to pay an
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invoice, the issue of whether TSHI acted unreasonably shall be resolved by
binding arbitration in Denver, Colorado pursuant to the commercial arbitration
rules of the American Arbitration Association. No other disputes under this
Agreement shall be required to be resolved by arbitration, unless the parties to
the dispute so agree in writing.
Contractors.
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In accordance with this Section 6.1, SRK will, as agent on behalf of Tonkin
Springs LLC, hire Contractors to perform earth moving, surveying and drilling in
connection with performance of the Work Plan. SRK shall supervise, control and
direct all Work performed by Contractors and ensure that such Work is performed
in strict accordance with the Work Plan, in a good, workmanlike and safe manner,
in as expeditious a manner as reasonably practicable and in accordance with all
requirements of applicable law and regulations. SRK shall not hire or enter into
any contract with any Contractor without a written agreement between such
Contractor and SRK (acting as the agent of Tonkin Springs LLC), and without the
prior written approval of that agreement by both TSHI and Tonkin Springs LLC,
which approval shall not be unreasonably withheld or delayed. Neither SRK nor
any other party to this Agreement shall terminate any contract with a Contractor
without the prior written consent of each of TSHI and Tonkin Springs LL C, which
consent shall not be unreasonably withheld or delayed. Neither TSHI nor Tonkin
Springs LLC shall provide instructions to any of the Contractors with respect to
the Work, it being understood that the provision of such instructions is the
responsibility of SRK and that any suggestions or requests from TSHI or Tonkin
Springs LLC must instead be provided to SRK's representative in accordance with
Section 1.3 of this Agreement. As between TSHI, SRK and Tonkin Springs LLC, SRK
shall be responsible for the willful misconduct and negligent acts and omissions
of any of the Contractors. TSHI and Tonkin Springs LLC may make reasonable
requests for information and data concerning any and all Contractors under this
Agreement, and SRK hereby agrees to submit such information and data promptly
upon request. Each of TSHI and Tonkin Springs LLC shall pay their own costs and
expenses in connection with heir respective reviews of proposed contracts and
Contractors.
Protection of Persons and Property.
-----------------------------------
SRK acknowledges and is aware, and hereby represents that it has made and will
make the Contractors aware, that the Tonkin Springs property may contain
hazardous substances, constituents, or contaminants, and subject to Section 5,
SRK knowingly and voluntarily assumes all risk of injury and damages to SRK,
SRK's personnel, and SRK's property and to the Contractors, Contractors'
personnel, and Contractors' property, caused by exposure to such materials. SRK
agrees to advise fully all of its employees and agents working for SRK at the
property, as well as the Contractors, of the associated risks and of all
necessary environmental, safety, and health procedures required by applicable
state or federal law, regulation, or order. SRK covenants and warrants that all
personnel, including SRK's employees, have been fully trained in accordance with
applicable laws, rules or regulations.
SRK agrees that it will report to TSHI and Tonkin Springs LLC, in writing, any
personal injury of SRK's or Contractors' employees, within 24 hours of the
injury or as soon as practicable. SRK shall have the right to use the office
facility of Tonkin Springs LLC at the Tonkin Springs project, but no other
facilities or equipment of Tonkin Springs LLC. Any long distance telephone
charges, or any other incremental operating costs associated with SRK's work at
the office facility, shall be borne solely by SRK. SRK agrees to maintain that
office in a neat and clean manner.
Insurance.
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SRK agrees at all times during the term of this Agreement to maintain in full
force and effect:(a) Worker's Compensation Insurance, including occupational
disease in accordance with applicable statutory and regulatory requirements; (b)
Employer's Liability Insurance, including coverage on all of SRK's employees
engaged in the performance of the Work; (c) Commercial General Liability
Insurance, including protective liability covering death or bodily injury and
contractual liability; and (d) Professional Liability Insurance. SRK agrees to
furnish to TSHI and Tonkin Springs LLC its certificates of insurance or other
evidence satisfactory to TSHI and Tonkin Springs LLC to the effect that such
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commercial general liability insurance has been procured, names TSHI, TSVLP and
Tonkin Springs LLC as additional insureds, and is in force except for primary
errors and omissions insurance, the certificates shall state that the policies
of insurance are in force and cannot be canceled or otherwise terminated without
thirty (30) days advance written notice.
For the purpose of this Agreement, SRK shall carry the following types of
insurance in the limits (which may be a combination of primary and excess
coverage) specified below:
Coverages Limits of Liability
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Worker's compensation Statutory
Employer's liability $1,000,000
Commercial general liability $1,000,000 per
Occurrence,
$1,000,000 aggregate
Umbrella Liability $4,000,000
Automobile $1,000,000 combined
single limit
Professional liability $2,000,000 per
occurrence and aggregate
TSHI, Tonkin Springs LLC and SRK will require all Contractors to maintain in
full force and effect: (a) Worker's Compensation Insurance, including
occupational disease in accordance with applicable statutory and regulatory
requirements; (b) Employer's Liability Insurance, including coverage on all of
SRK's employees engaged in the performance of the Work; and (c) Commercial
General Liability Insurance, including protective liability covering death or
bodily injury and contractual liability. Contractors will agree to furnish to
TSHI, Tonkin Springs LLC and SRK its certificates of insurance or other evidence
satisfactory to TSHI, Tonkin Springs LLC and SRK to the effect that such
commercial general liability insurance (a) has been procured, (b) names TSHI,
TSVLP, Tonkin Springs LLC and SRK as additional insureds, and (c) is in force.
The certificates shall state that the policies of insurance are in force and
cannot be canceled or otherwise terminated without thirty (30) days advance
written notice. For the purpose of this Agreement, Contractors shall carry the
following types of insurance in the limits (which may be a combination of
primary and excess coverage) specified below:
Coverages Limits of Liability
--------- -------------------
Worker's compensation Statutory
Employer's liability $1,000,000
Commercial general liability $1,000,000 per
occurrence,
$2,000,000 aggregate
Automobile $1,000,000 combined
single limit
Independent Contractor.
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In the performance of the services under this Agreement, SRK shall be an
independent contractor, maintaining complete control of SRK's personnel and
operations and the implementation of the Work Plan. As such, SRK shall pay all
salaries, wages, expenses, social security taxes, federal and state unemployment
taxes, and any similar taxes relating to the performance of this Agreement. SRK
and its employees shall in no way be regarded as or act as agents or employees
of TSHI or Tonkin Springs LLC. This Agreement does not and shall not be
construed to create any partnership, joint venture or agency whatsoever.
Notices.
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Any notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given when hand delivered or deposited
in the United States mail, certified or registered, return receipt requested,
postage prepaid, addressed to the respective address of SRK, TSHI or Tonkin
Springs LLC, as appropriate, set forth at the top of this Agreement or such
other address(es) as either party shall designate by written notice to the
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other. In addition, pursuant to this Agreement, any notice, report or other
communication to TSHI shall also be provided to TSHI by facsimile to Xx. Xxxxx
Xxxxxxx at (000) 000-0000 and any notice, report or other communication to
Tonkin Springs LLC shall also be provided to Tonkin Springs LLC by facsimile to
(000) 000-0000.
Nonassignment.
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TSHI and Tonkin Springs LLC have entered into this Agreement in order to receive
the professional services of SRK. SRK will not make any assignment, by operation
of law or otherwise, of all or any portion of the Work required under this
Agreement without first obtaining the written consent of TSHI and Tonkin Springs
LLC. However, the respective rights and obligations of TSHI and Tonkin Springs
LLC hereunder shall inure to the benefit of and shall be binding upon the
successors and assigns of TSHI and Tonkin Springs LLC, respectively.
Miscellaneous.
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The terms and provisions of Section 3, entitled Confidential Information,
Section 5, entitled SRK's Representations, Warranties, and Responsibilities,
Section 7, entitled Protection of Persons and Property, and Section 9, entitled
Independent Contractor, shall survive the termination of this Agreement,
howsoever brought about.
SRK shall not be responsible hereunder for any delay, default or nonperformance
of this agreement, if and to the extent that such delay or nonperformance is
caused by an act of God, weather, accident, labor strike, fire, explosion, riot,
rebellion, terrorist activity, sabotage, flood, epidemic, act of government
authority or any other cause beyond the reasonable control of SRK.TSHI and
Tonkin Springs LLC shall have the right to inspect and audit SRK's books,
records and all associated documents relating to such costs. SRK agrees to
maintain records and associated documents for a period of two years from the end
of the calendar year in which such costs were incurred and to make such books
and records available to TSHI and Tonkin Springs LLC at all reasonable times
within the two-year period and for so long thereafter as any dispute remains
unresolved. TSHI and Tonkin Springs LLC may photocopy any such books and records
at their own expense.
This Agreement shall be subject to and governed by the laws of the state of
Colorado. The Work and performance of same shall comply with all applicable
city, county, state, and federal codes, rules, regulations, and orders.
Failure of any party to exercise any option, right, or privilege under this
Agreement or to demand compliance as to any obligation or covenant of the other
party shall not constitute a waiver of any such right, privilege, option, or
performance, unless waiver is expressly required by this Agreement or is
evidenced by a properly executed instrument.
This Agreement may not be modified except by written amendment executed by the
parties hereto. The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other provision.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, and such counterparts shall together constitute and
be one and the same agreement.
This Agreement, together with the attachment and all documents, drawings,
specifications, and instruments specifically referred to in the Agreement shall
constitute the entire agreement between the parties, and no other proposals,
conversations, bids, memoranda, or other matter shall vary, alter, or interpret
its terms. The captions in this Agreement are for the convenience of the parties
in identification of the several provisions and shall not constitute a part of
this Agreement or be considered interpretative. In the event of any conflict or
inconsistency between the terms and conditions of this Agreement and those of
the Work Plan, the terms and conditions of this Agreement shall in all instances
prevail and govern.
8
Dated as of the 18th day of December 2001.
XXXXXXX XXXXXXXXX & XXXXXXX
(U.S.),INC.
By: /s/ Xxxxxx X. Xxxxxx
Its: Controller
TONKIN SPRINGS HOLDINGS NC.
By: /s/ Ebe Scherkus
Its: Executive Vice
President, Chief Operating Officer
TONKIN SPRINGS LLC
By: /s/ Xxxxxxx X. Pass
Its: Vice President
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