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HomeMy WebLinkAboutXcel Staffing, Inc. Staffing Agreement This Staffing Agreement (the "Agreement") is entered into this2/51—day of September, 2011 (the "Effective Date"), by and between Xcel Staffing, Inc. (herein referred to as "Xcel") located at 1833 Magnavox Way, Fort Wayne, IN 46804 a Maryland corporation, and City of Carmel Redevelopment Commission ("Client"), whose address is 30 W. Main St. Ste 220, Carmel,IN 46032. I. Term of Agreement: The initial term of the Agreement shall be one year from the Effective Date. This Agreement shall automatically renew for successive one year renewal periods unless either party gives sixty (60) days prior written notice to the other party that it will not renew the Agreement. Either party may terminate this Agreement upon the other party's material breach thereof by providing the breaching party with written notice specifying the material breach(es) and the breaching party's failure to cure the same within a thirty(30) day period beginning on the date of receipt of the written notice. Xcel may terminate this Agreement upon Client's failure to pay Xcel in a timely manner as provided herein after providing Client five (5) business days written notice and Client's failure to cure the material breach. II. Staffing: Upon request by Client, Xcel shall refer personnel to Client for temporary or long-term staffing assignments at locations specified by Client ("Employees"). All Employees assigned to Client pursuant to this Agreement shall, for all purposes under this Agreement, be considered employees of Xcel only. Xcel shall assume sole and exclusive responsibility for the payment of wages to Employees for services performed by them for Client. Xcel shall also assume sole and exclusive responsibility for the withholding reporting and paying all applicable federal, state,and local payroll taxes, including, without limitation, federal, state, and local income taxes, paying social security and medicare taxes, unemployment insurance and maintaining workers' compensation coverage as required by law. Xcel shall classify the Employees that it provides to Client in accordance with the Fair Labor Standards Act (exempt versus nonexempt status). Client may provide proposed FLSA classification status for the Employees to be provided to Client, and Xcel shall take Client's suggestions into account, but shall not be bound by the classifications suggested by Client. Nonexempt Employees shall be paid overtime as required by applicable law. III. Client Responsibilities: Xcel has not screened Employees for drug use, administered a medical exam, or conducted a criminal background check on Employees. Should Client desire Employees to be prescreened including drug, credit and criminal background checks, these services can be provided per fees 1 Staffing Agreement(08-08-11) established by Xcel. Client agrees that it will comply, at its sole cost and expense, with all applicable federal, state and local health and safety laws, regulations, rules, ordinances, and directives relating to the Client's workplace, provide and ensure use of all personal protective equipment, and follow all regulations concerning a safe work environment. Client shall immediately report to Xcel all work-related accidents and injuries involving Employees. Upon reasonable advance written notice, and during normal business hours, Xcel and Xcel's workers' compensation carrier, if applicable, shall have the right to inspect Client's workplace, including, but not limited to, any job sites at which Employees work. To the extent possible, such inspections shall be scheduled at mutually convenient times. Client and Xcel shall hold in confidence the social security number and other legally protected personal information of Employees and shall maintain reasonable security procedures and practices to protect such information from unauthorized use, access, modifications or disclosures. IV. Time Sheet and Payments: The Employees shall present a time sheet to Client for verification and signature at the end of each payroll period. Client shall provide Xcel with a list of its employees who are authorized to approve and sign time sheets, which list shall include their signatures. Client's signature on the time sheet indicates its acknowledgement and agreement that Employee worked such hours. Xcel shall invoice Client based on the time sheets and as specified in Exhibit A attached hereto and incorporated by reference herein. Notwithstanding anything contained herein to the contrary, Xcel agrees that during the initial one-year term of this Agreement the Service Fee Percentage shall not increase, but thereafter may modify such fees upon providing the Client with sixty (60) days prior written notice; provided that Client may terminate this Agreement upon written notice to Xcel within thirty (30) days after receipt of such notice from Xcel. Client shall pay Xcel's invoices no later than forty-eight hours prior to each payroll date. All such payments shall be made via electronic wire or ACH direct debit. Xcel may present the invoice to Client through facsimile, electronic transmission, U.S. mail, or overnight delivery. If Client fails to pay the invoice in a timely manner, then Xcel shall charge and the Client shall pay interest on the outstanding balance at the rate of 18% per annum. Post judgment interest on any outstanding balance shall also accrue at the rate of 18%per annum. V. Limitation of Liability: IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, 2 Staffing Agreement(08-08-11) INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VI. Relationship of Parties: Neither party is nor shall be a partner, joint venturer, agent or representative of the other party solely by virtue of this Agreement. Neither party has the right, power or authority to enter into any contract or incur any obligation, debt or liability on behalf of the other party. Nothing contained in this Agreement shall be construed to cause any employees or agents of either party to be deemed to be employees or agents of the other party for any reason. VII. Insurance: Both parties shall obtain and carry general liability insurance in the minimum amount of $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, umbrella coverage in the amount of$1,000,000.00 per occurrence and $2,000,000.00 in the aggregate. Prior to providing any personnel to CIient, both parties agree to provide the other party with a Certificate of Insurance reasonably satisfactory to the other party, naming the other party as an additional insured. VIII. Indemnification: Xcel shall indemnify, defend and hold harmless Client, its current and/or former board members, officers, directors, shareholders, members, employees and agents from and against any and all liability, expense (including cost of investigation, court costs and reasonable attorney's fees) and claims for damages of any nature whatsoever which Client may incur, suffer, become liable for, or which may be asserted or claimed against Client as a result of Xcel's gross negligence, willful misconduct, or breach of this Agreement. The parties agree, however, that Xcel shall not be obligated to defend or indemnify a Client party for any claims, demands, damages, losses, liabilities, expenses, etc. to the extent they arise out of the Client's negligence and/or willful misconduct. CIient shall indemnify, defend and hold harmless Xcel, its current and/or former officers, directors, shareholders, members, employees and agents from and against any and all liability, expense (including cost of investigation, court costs and reasonable attorney's fees) and claims for damages of any nature whatsoever which Xcel may incur, suffer, become liable for,or which may be asserted or claimed against Xcel as a result of Client's gross negligence, willful misconduct, or breach of this Agreement.. The parties agree, however, that Client shall not be obligated to defend or indemnify an Xcel party for any claims, demands, damages, losses, • liabilities, expenses, etc. to the extent they arise out of the Xcel's negligence and/or willful misconduct. This Section VIII shall survive termination of this Agreement. 3 Staffing Agreement(08-08-11) IX. Work Made for Hire: All work performed by Xcel Employees under this Agreement for Client shall be considered a "Work.Made for Hire" as that phrase is defined by the U.S. copyright laws and shall be owned by and for the express benefit of Client. In the event that it should be established that such work does not qualify as a Work Made for Hire, Xcel hereby irrevocably grants, transfers and assigns to Client all of its right, title, and interest in such work product including, but not limited to, all copyrights, patents, trademarks, and other proprietary rights. Client's ownership of any copyright shall cover not only the final version of the work, but shall cover as well all drafts, notes and other preparatory material created by the Xcel Employees, whether such drafts, notes and other preparatory material actually have been delivered to Client. Client shall have the sole and exclusive right to use,and to authorize others to use,such work in any and all manner and in all media and channels of distribution currently known or subsequently devised or created, throughout the world, in perpetuity, without any obligation,financial or otherwise to Xcel. X. Warrant of Authority: The individuals signing below warrant that they are authorized to sign contracts that are binding upon their respective organizations. XI. General Provisions: This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, executors, personal representative, successors, and permitted assigns. Xcel may assign any of its rights or obligations under this Agreement without the prior written consent of the Client. This Agreement is the entire agreement between the parties hereto with respect to the subject matter hereof, and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by an officer of each party. If any provision of this Agreement or application to any party or circumstance shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement, where the application of such provisions or circumstances other than those as to which it is determined to be invalid or unenforceable shall not be effected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law. Any failure to insist upon strict compliance with any of the terms or conditions of this Agreement shall not be deemed a waiver of such term or condition, nor shall any waiver or relinquishment of any right hereunder at any time or times be deemed a subsequent waiver or relinquishment of such right. Neither party shall be liable for any failure to perform its 4 Staffing Agreement(08-08-11) obligations under this Agreement when such failure is due to an act of God or any unforeseeable cause reasonably beyond the relevant party's control. This Agreement shall be construed and enforced in accordance with the laws of the State of Indiana. If either party shall bring an action under this Agreement regarding a breach,default,or to enforce the terms of this Agreement, the prevailing party in such action shall receive its reasonable attorney's fees and costs.The parties further agree that jurisdiction for any disputes arising out of this Agreement shall vest in either the courts of the State of Indiana having situs in Hamilton County,IN or the federal court nearest Hamilton County, IN. Except for disputes pertaining to the payment of money to Xcel on outstanding invoices,disputes or controversies of any other nature,including the arbitrability of any claim, shall be exclusively resolved by the parties in a mediation under the Mediation Rules of, administered by, and conducted by the American Arbitration Association, failing which, settlement of the dispute shall be by binding arbitration conducted under the rules of the American Arbitration Association. All notices hereunder shall be in writing and/or mailed by United States postal service, postage prepaid, registered, certified, or express mail and addressed to the other party's principal place of business as set forth in this Agreement. / / CLIEN Ce.- Q ( a.�s f'l RedPvP/a/s1')Prl n4'71l1.:SS/Gil By: dr Owner/Officer o'C ien f/�� //q,79,,,.„, Date: SA14-44.).- 21, 26,1/ mmpOO OO OOOm OO 13131111111 OOOO■OYtlmmmm OOOmmOmOmm O pppmmmmm isa mmm O9 CAOmmm OO■mmmOpO 130 111381 XCEL STA . t ; ,INC. (XCEL) By: —as SW Offi e Date: l . \„\ 5 Staffing Agreement(08-08-11) EXHIBIT A SERVICE FEES r State G iVame y IN8810� rn ; t,q _:a .,.t FICA Included FUTA Included SUTA Included WC Included TOTAL 13.97% ADMIN COST $16.45 PER EMPLOYEE PER WEEKLY CHECK 1. Non-Refundable Set up Fee: $750.00 due upon execution of this Agreement. 2. New Hire Set Up Fee: $15.00per new employee. The Xcel service fee percentage ("Xcel Service Fee Percentage") is established for each Employee based upon i) Employee workers' compensation classification codes, ii) federal and state statutory requirements including taxes and fees, and iii)the administrative fees. Any changes in Employee information including payroll amount, additions to Employees, or workers' compensation classification codes or location, and statutory changes required by law, during the term of the Agreement shall be reflected in the individual Xce] Service Fee Percentages as they occur. Each pay period Client shall pay Xcel the total service fee ("Total Service Fee") comprised of the actual gross payroll of Employees during such pay period, plus the applicable Xce] Service Fee Percentages multiplied by the gross payroll, plus any other charges related to services requested by and provided to Client. 6 Staffing Agreement(08-08-11)