TERMS AND CONDITIONS OF CONTRACT

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This document is a contract between SCHEIB CORPORATION dba BURT CRANE & RIGGING, hereinafter referred to as Lessor, and Customer, hereinafter referred to as Customer or Lessee, for service and/or equipment for a project in common.  The term "LESSOR" shall include the Lessor, its parent, subsidiaries, affiliates, partners, joint interest owners, members, shareholders, co-owners, and joint ventures, if any, and the agents, officers, directors, employees and representatives of these other persons. The term “LESSEE” shall include the Lessee, its parent, subsidiaries, affiliates, and joint ventures, if any, as well as its subcontractors, and the agents, officers, directors, employees and representatives of these other persons.

 

1.  DEFENSE, INDEMNIFICATION AND HOLD HARMLESS:   TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LESSEE SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS LESSOR AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES AND AGENTS (THE “INDEMNITEES”) FROM ANY AND ALL ACTIONS, CAUSES OFACTION, CLAIMS, SUITS, DEMAND INVESTIGATIONS, OBLIGATIONS, JUDGMENTS, LOSSES, COSTS, LIABILITIES, DAMAGES, FINES, PENALTIES AND EXPENSES, INCLUDING ATTORNEY’S FEES, WHICH ARE INCURRED BY, ACCRUED, ASSERTED, MADE OR BROUGHT AGAINST, OR RECOVERABLE FROM ANY OF THE INDEMNITEES ARISING FROM OR OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THE LESSEE’S ACCEPTANCE, POSSESSION, TRANSPORT, USE, OPERATION, CONTROL OF THE EQUIPMENT, OR RETURN OF THE EQUIPMENT WHETHER OR NOT THE SAME ARISES FROM DAMAGE TO PROPERTY (REAL OR PERSONAL), INJURY OR DEATH TO PERSONS (INCLUDING BUT NOT LIMITED TO LESSEE’S EMPLOYEES, AGENTS AND REPRESENTATIVES), FAILURE TO COMPLY WITH APPLICABLE LAWS, REGULATIONS OR ORDINANCES, THE EQUIPMENT CONDITION, THE LOSS OF USE OR SEIZURE OF THE EQUIPMENT, OR OTHERWISE OR ANY OTHER ACTION OR FAILURE TO ACT BY THE LESSEE, THEIR AGENTS, CONTRACTORS, AFFILIATES, OR EMPLOYEES; AND/OR) ANY CLAIMS OF THIRD PARTIES AGAINST LESSEE, THEIR AGENTS, CONTRACTORS, AFFILIATES. LESSEE EXPRESSLY AGREES TO WAIVE ANY WORKERS’ COMPENSATION IMMUNITY IT MAY OTHERWISE HAVE.  LESSEE’S OBLIGATION TO INDEMNIFY THE INDEMNITEES SHALL SURVIVE THE TERMINATION OF THIS LEASE.  IN JURISDICTIONS IN WHICH THE INDEMNIFICATION PROVIDED FOR IN THIS SECTION IS BROADER THAN THAT ALLOWED BY APPLICABLE LAW, THIS SECTION SHOULD BE INTERPRETED AS PROVIDING THE BROADEST INDEMNIFICATION PERMITTED AND SHOULD BE LIMITED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH SAID LAW. THIS INDEMNIFICATION PROVISION DOES NOT NEGATE, ABRIDGE OR REDUCE ANY OTHER RIGHTS.

 

2.  INSURANCE – The Lessee at its expense agrees to carry, maintain and provide the following insurance coverages prior to the Equipment’s arrival on the job site; a) worker's compensation and employer's liability insurance applicable to Lessee’s employees, with limits of at least the statutory minimum or $1,000,000, whichever is greater; b) primary non-contributory commercial general liability insurance on an occurrence basis, including bodily injury and property damage coverages with minimum limits of $1,000,000 per occurrence and $2,000,000, in the aggregate; c) follow form excess/umbrella non-contributory insurance in the amount of at least $5,000,000; said primary and excess/umbrella policies must be endorsed so that they are primary and non-contributory to all of Lessor policies; d) inland marine/all-risk physical damage insurance, on a primary non-contributory basis, to cover the full replacement cost of the Equipment, including any boom or jib, for its loss or damage from any and all causes of loss; said insurance policy shall include loss of use coverage for Contractor’s Equipment, Leased, Rent, Borrowed, including Continued Rental Expenses coverage for at least $500,000; e) riggers liability insurance with minimum limits of $1,000,000 per occurrence and $2,000,000, in the aggregate;  f) the Lessor and all affiliated partnerships, joint ventures, corporations and anyone else who Lessor is required to name as an additional insured, are to be included as additional insureds on all liability insurance policies, including excess/umbrella policies on ISO endorsement forms CG 20 10 10 01, CG 20 37 10 01, CG 20 28 07 04, and CG 20 34 03 97. Lessee shall name Lessor as a Loss Payee and Additional Insured on all insurance policies, and Lessee shall provide all insurance certificates and/or insurance policies to Lessor when requested; g) all Lessee's policies must remove any exclusion for explosion, collapse and underground operations (XCU); h) all Lessee's policies must remove the "employer's liability exclusion" for all additional insureds; i) all of Lessor’s policies and the policies of anyone Lessor is required to insure, are excess over all of Lessee’s policies. To the extent that the Lessee may perform under this agreement without obtaining the above coverages, such an occurrence shall not operate, in any way, as a waiver of the Lessor's right to maintain any breach of contract action against Lessee. Lessee hereby agrees to waive any and all rights of subrogation and any and all lien rights which may accrue to it or its insurers.  Lessee understands that this waiver shall bind its insurers of all levels and agree to put these insurers on notice of this waiver and to have any necessary endorsements added to the insurance policies applicable to this agreement. To the extent that the Lessor may perform under this Agreement without obtaining the above coverage, such an occurrence shall not operate, in any way, as a waiver of Lessor’s right to maintain any breach of contract action against the Lessee.

 

3. COMPETENT OPERATION BY LESSEE
Lessee shall provide qualified, competent, and experienced personnel to direct and control all lifting operations involving the equipment. All signaling and communication shall conform to the current standards set forth in ANSI/ASME B30.5 (latest edition) and applicable OSHA regulations. Where required, a qualified signal person and/or lift director shall be designated by the Lessee.

Lessee acknowledges responsibility for all site conditions, including but not limited to ground stability, underground hazards, overhead obstructions, and safe access/egress. Lessee shall ensure that all lifts are properly planned and executed in accordance with applicable regulations and industry best practices.

Lessor shall operate the equipment strictly in accordance with the manufacturer’s instructions, load charts, and operational guidelines. Under no circumstances shall the equipment be operated beyond its rated capacity or in an unsafe manner. Lessee assumes full responsibility for any loss, damage, or liability arising from improper operation, signaling, or site conditions under its control.

 

3.  OPERATION OF EQUIPMENT - It is expressly agreed by and between the parties hereto that the Equipment and all persons operating the Equipment are under the supervision and control of Lessee under this lease. In the absence of Lessee’s presence at the jobsite, the parties expressly agree that all persons operating the Equipment are under the direct supervision and control of Subcontractor hired by Lessee. In the event that Lessee assigns the task of supervision to Subcontractor then all persons operating the Equipment are under the supervision and control of Subcontractor. In any case it shall be the duty of Lessee to give specific instructions and directions to all persons operating the leased Equipment. Lessee agrees to provide or otherwise select competent and experienced personnel to direct the operation of the equipment, in accordance with OSHA 29 CFR 1926.1428 signal person qualifications and both Lessee and Subcontractor further agree that the standard of care and responsibilities will be in accordance with all American National Standards Institute (ANSI) and that ASME B30.5-2018 (and as amended) shall be used when operating the equipment, specifically Chapter 5-3 Operation, as well as the OSHA 29 CFR Subpart CC Cranes and Derricks in Construction sections 1926.1400 – 1926.1442.  The Lessee acknowledges and agrees that it is the responsibility of the Lessee to independently determine the weight of every load to be lifted to prevent compromising all or any portion of the Equipment. Any load measuring device used by the Crane Operator shall be used as an operator-aide only.  If any Equipment has been fitted with a load measuring device, the Lessee hereby acknowledges and agrees that the Lessor has made no warranties or representations whatsoever with respect to the ability of the said load measuring device to accurately or consistently measure the weight of loads being lifted by such Equipment.

 

4.  ENTIRE AGREEMENT - The parties agree that the terms of this agreement are the sole and exclusive agreement between the parties, intended by the parties to be the only and final terms and agreements between them, superseding any and all oral or written understandings as otherwise might have been claimed to have existed, the assertion of which the parties hereby waive.  This agreement shall be interpreted fairly and reasonably and neither more strongly for nor against either party.

 

5.  CONDITIONS –GROUND/POWERLINES/RIGGING—The Lessee hereby agrees that Lessee will assume all responsibility for the ground or soil conditions in the area where the Equipment is to be stored, parked or operated.   All power lines in the work area shall be identified prior to the work’s beginning. All power lines are to be de-energized prior to the Equipment’s being operated in or around such power lines. Lessee shall contact the local electric utility or other such authorized entity to arrange to have the power lines de-energized prior to beginning work. Even if power lines are de-energized, Lessee shall ensure the Equipment is kept clear of such power lines at the distances required by OSHA, ANSI and any other safety regulations or standards. If it is not possible to de-energize power lines, then the Lessee shall be responsible for the insulating of any power lines, the grounding of all equipment, and they will use rigging or other equipment designed to prevent electrocution. Lessee is required to provide any and all rigging to be used with the Equipment. If chokers, slings, straps, chains, hooks, spreaders, fittings, rope or wire, etcetera; are loaned to the Lessee by the Lessor for the Lessee’s convenience, such property is solely the Lessee’s responsibility. Lessee assumes responsibility for any defects in any rigging, whether the property of Lessee or otherwise. Lessee assumes all liability for the adequacy of, design of, or the strength of, any lifting lug or device embedded in or attached to any object to be lifted. Lessee assumes the responsibility for damage to any load on hook due to a failure of the rigging. Lessee assumes the responsibility for the method of rigging and agree that all persons involved in the rigging process are qualified according to OSHA’s definition 1926.1401 under Lessee’s direct supervision and control.

 

6. TERMS OF PAYMENT – Full payment for all charges is due upon billing.  Interest is charged at 1 ½% per month (18% per annum) on all charges not paid in full within 30 days of invoice, plus all cost of collection.  COD payment at the site.  Rental will terminate at completion of work on site, crane ready to travel or when cash or good check is received, whichever is later.  Return travel to be estimated.

 

7.  DAMAGE TO GROUNDS OR STRUCTURES: If it is required that the equipment leave the public highway, Lessor shall not be responsible for damage to any surface or underground structures, nor shall Lessor be responsible for damage by outriggers or equipment to the ground or underground or adjacent structures when setting up the crane.  The Lessee agrees that Lessee will assume all responsibility for the ground or soil conditions in the area where the Equipment is to be stored, parked or operated.  The Lessee shall perform or have performed all necessary inspections or testing to determine the nature of the ground or soil and its ability to support the Equipment while in operation or otherwise. Specifically, the Lessee agrees to observe and at all times comply with the required ground bearing pressure for the Equipment specified by the Equipment manufacturer and/or set forth above.

 

8. FORCE MAJEURE; LIMITATION OF LIABILITY:  Lessor shall not be responsible or liable for any delays or its failure to perform the terms and conditions of this Agreement if such delay or failure is caused by events or circumstances beyond the control of Lessor, including without limitation, acts of God, fire, catastrophe, weather conditions, strikes, lockouts, labor shortages, unavailability of parts, war, riots, civil commotion, confiscation, or governmental action or restriction, including frost law restrictions.

 

9.  PORTAL TO PORTAL CUSTOMERS: Time starts when equipment leaves the yard or previous jobsite and ends when returned to the yard or jobsite. For cranes up to and including 110 ton configurations, rates are based on 4, 6 or 8 hour minimums plus overtime after eight hours on equipment and crew.   Rates are based on 8-hour minimum plus overtime over eight hours for cranes larger than 110 ton capacity.

 

10. AUTHORIZED SIGNATURE - In the event this agreement has been executed on the reverse side by an individual on behalf of a corporation or other business entity, the person(s) whose signature is affixed hereto and the party for which those individual(s) have signed this agreement represent to Lessor that the individual signing has full authority to execute this agreement on behalf of said corporation or other business entity. 

 

11. NO CONFLICT:  If any provisions hereof conflict with any statute or rule of law of any jurisdiction wherein it may be sought to be enforced, then such provisions shall be deemed null and void to the extent that they may conflict therewith, but without invalidating the remaining provisions of the Agreement.

 

4.  PERSONAL PROTECTIVE EQUIPMENT (PPE)
Lessee shall ensure that all personnel on the jobsite, including those directing or involved in crane operations, are provided with and properly utilize all required personal protective equipment in accordance with applicable OSHA standards, including but not limited to high-visibility apparel, hard hats, safety footwear, gloves, and eye/face protection, as appropriate to the work being performed. Lessee shall be solely responsible for enforcing PPE compliance and for any violations, injuries, or claims arising from failure to properly provide or use such equipment.

Lessee further agrees to comply with all applicable provisions of 29 CFR 1926 Subpart CC – Cranes and Derricks in Construction, as well as any other applicable federal, state, and local regulations.

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CONFORMANCE TO ALL LAWS
Lessee shall, at its sole cost and expense, comply with all applicable federal, state, and local laws, regulations, ordinances, and codes, including but not limited to OSHA requirements, governing the use, operation, and worksite conditions of the equipment. Lessee shall obtain and maintain all necessary permits, approvals, and inspections required for the safe and lawful use of the equipment.