Xcel 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)