SERVICE AGREEMENT
This Service Agreement is made as of the 1st day of January, 2000,
by and between PeopLease Corporation, a South Carolina corporation qualified
and licensed to do business in South Carolina (hereinafter referred to as
"PLC") and Gasel Transportation, Inc. (hereinafter referred to as "Customer")
and whose Federal Tax Identification No. is: 00-0000000.
WITNESSETH:
A. PLC is in the business of leasing its employees to various
businesses.
B. Customer desires to lease employees of PLC to assist Customer in the
operation of its business on the terms and conditions herein contained.
C. PLC desires to lease its employees to Customer on the terms and
conditions herein contained.
NOW, THEREFORE, PLC and Customer agree as follows:
1. Lease of Employees
1.1 Term of Lease Period
Commencing on the 1st day of January, 2000 Customer shall lease from
PLC, PLC's employees in accordance with the terms and conditions set forth
herein. This Agreement shall continue in full force and effect for successive
one year terms until terminated by either party, subject to the provisions of
Section 6.8 herein.
2. Obligations of PLC
2.1 Supplying and Supervising of Personnel
PLC shall lease personnel to Customer in accordance with Customer's
expressed needs. PLC reserves its right to hire or refuse to hire any person
making application to PLC for employment, whether or not referred by Customer,
provided such refusal does not violate Sections 4.1 and 4.4 of this Agreement,
and Customer acknowledges PLC's status as employer of the employees leased by
Customer.
2.2
PLC shall be responsible for the payment, processing and issuance of the
employees' paychecks.
2.3 Payroll Taxes
PLC shall be responsible for withholding and payment of all payroll
taxes including income tax, social security tax, unemployment contribution
and other payroll taxes as may be required under State and Federal laws with
respect to employees leased to Customer. As to such payroll taxes, PLC shall
prepare and timely file with the proper governmental agencies or authorities,
all required returns and reports. PLC hereby agrees to indemnify Customer for
payments directly resulting from or incurred due to PLC's failure to comply
with its obligations stated herein, provided reasonable prior written notice
of such failure and request for payment is given to PLC by Customer.
2.4 Worker's Compensation Insurance
PLC shall obtain and pay the costs of providing all necessary and
legally required Worker's Compensation insurance and shall manage worker's
compensation claims. PLC shall furnish to Customer a Certificate of Insurance
evidencing the issuance to PLC and maintenance of PLC policies providing such
coverage. PLC hereby agrees to indemnify and save Customer harmless from and
against all worker's compensation claims brought against Customer by any
employee(s) leased by Customer from PLC.
Customer shall notify PLC immediately upon becoming aware of any
injury that may result in a worker's compensation claim, and shall be
prohibited from administering or otherwise managing such claim. Claim
management and administration shall be the sole responsibility of PLC, with
Customer providing assistance as requested by PLC.
2.5 Medical Insurance
All PLC employees leased to Customer shall be eligible to procure
medical insurance through a group plan provided by PLC unless disqualified by
the insurer or unless insurance is otherwise made unavailable. The allocation
of the cost of said plan shall be in accordance with Schedule B attached
hereto. The provisions of this schedule will be reviewed and may be changed
following changes in insurance requirements or costs.
3. Obligations of Customer
3.1 Employee Information
For all former employees of Customer that Customer refers to PLC for
possible employment, Customer shall allow PLC to obtain information and
documentation regarding such former employees, including, but not limited to,
applications, W-4 forms, 1-9 forms, cafeteria plan election forms, and
information regarding each employee's job class, rate of pay, legally
required withholdings and deductions.
3.2 Payment
At the end of each work week, but in no event less than forty-eight
(48) hours prior to the date upon which PLC is obligated to issue payroll to
the employees covered hereby, Customer shall fax to PLC data which PLC
intends to use as a base for each employee's compensation. PLC shall then
send to Customer an invoice for payment of an amount calculated by
multiplying the total gross wages each classification of employee has earned
by the applicable factor set forth in Schedule A attached hereto. Within
twenty-four (24) hours of the telefax transmission of such invoice to
Customer, but in no event later than the time required for PeopLease to
receive funds by 4:00 P.M. Eastern time of the day the payroll is to be sent
to Customer, Customer shall, by wire transfer, pay the amount billed to PLC's
designated bank.
Payment of fees set forth in Schedule B will be payable on the first
day of each month for all eligible employees on the payroll and leased to
customer as of that date.
The factors set forth in Schedules A and B are subject to adjustment
by PLC, following notice thereof to Customer, based upon changes in local,
State and/or Federal employment laws or changes in insurance requirements or
costs.
3.3 Liability Insurance
Customer shall obtain and maintain in full force and effect during
the term of the Agreement, in limits of not less than $1,000,000 per
occurrence, comprehensive general liability and property damage insurance
with respect to the use or operation of equipment or property owned,
possessed, transported or leased by Customer, and Customer shall assume full
liability to the public for the use or operation thereof. If operating motor
vehicles, Customer shall maintain all such insurance, as well as property
damage/auto liability coverage, at limits as required by the Interstate
Commerce Commission. Customer shall have PLC named as an additional insured
on all general liability and auto liability policies.
3.4 Costs of Regulatory Compliance
Except as otherwise specified herein, as between PLC and Customer,
Customer shall bear the costs and expenses relating to keeping the work
environment and equipment in compliance with any and all federal, state and
local laws and regulations.
3.5 Employee Wages
Customer warrants that it will gather and accurately report to PLC
data, including wage rates, hours worked or miles driven, bonuses, vacation
entitlement, etc., which forms the basis of each employee's compensation.
Customer further agrees to maintain such records for the periods of time
required by law.
3.6 Collective Bargaining
Customer and PLC shall agree as to each other's responsibility for
negotiating the terms of any necessary collective bargaining agreement with
bargaining representatives of employees and will handle any and all
administration or labor-related matters pursuant to such agreements
including, but not limited to, grievances, wages, benefits, hours, working
conditions and other related items. Customer shall immediately (within one
day whenever possible) notify PLC of all organizing and collective bargaining
matters.
4. Obligations of Both Parties
4.1 Regulatory Compliance
PLC and Customer shall comply with all federal, state and local
employment laws and regulations.
4.2 Unlawful Acts
Neither party hereto shall require any employee leased hereunder to
do any unlawful act.
4.3 Withholdings Not Permitted
Neither party shall make or effect any deduction or withholding from
the pay of any employee leased hereunder except for deduction or withholdings
required or permitted by law and except for any deduction or withholding to
which the employee consents by a signed writing which specifies the reason
for, date of, and amount of such deduction or withholding. This provision
shall not apply to any applicable per diem related adjustments.
4.4 Discrimination
The parties agree that as to employment covered by this Agreement,
there will be no unlawful discrimination against any employee or applicant on
the basis of age, race, creed, religion, sex, color, national origin,
handicap, veteran status, union affiliation, actual or perceived disability
of employee or applicant or family member thereof or any other similar
legally protected status.
4.5 Cooperation in Defense
To the extent that their interests do not conflict, the parties
agree to cooperate in the defense of any claim brought against either or both
of the parties on the basis of the relationship created by the parties
hereunder. However, this provision shall in no way alter the responsibilities
of each party as otherwise set forth herein.
4.6 Employee Notification
Upon inception or termination of this Agreement, PLC and Customer
shall immediately inform the employees leased hereunder of the status of the
relationship of the parties hereto.
4.7 Termination of a Specific Employee Lease
PLC shall have the exclusive right to terminate employees covered by
this Agreement. Immediately upon notice from Customer of its decision to no
longer lease any specific PLC employee, Customer shall provide fax notice to
PLC's operations department, listing the name, social security number and
reason for its decision. Immediately upon termination of any Employee by PLC,
for any reason, PLC shall provide fax notice to Customer's operations
department listing the name, social security number and reason for
termination of such employee.
5. Indemnifications
5.1 Indemnification for Matters Relating to Persons who are not Employees
of Customer
PLC shall assume complete and exclusive responsibility for all
matters pertaining to all persons hired by PLC including, but not limited to,
those leased to Customer. PLC shall indemnify Customer from and against
damages directly resulting from claims or demands of such persons.
5.2 Indemnification for matters relating to Persons who are not Employees
of PLC
Customer shall assume complete and exclusive responsibility for all
matters pertaining to the following categories of persons: all persons (a)
hired by Customer and (b) on Customer's payroll. Customer shall
unconditionally indemnify PLC, its agents, shareholders, officers, directors,
assigns, and representatives, for and hold them harmless from and against any
costs, expenses, fees, settlements, judgments, losses or damages of
whatsoever nature incurred as a result of or arising from claims or demands
relating to such persons.
5.3 Indemnifications for Employee Benefit Matters.
Each party shall assume complete and exclusive responsibility for
all matters including, but not limited to, ERISA, tax and COBRA matters,
pertaining to employee welfare or benefit plans sponsored, offered, or
administered by such party. Each party shall unconditionally indemnify the
other party, its agents, shareholders, officers, directors assigns and
representatives for and hold them harmless from and against any and all
costs, expenses, fees, settlements, judgments, losses or damages of
whatsoever nature, incurred as a result of or arising from claims or demands
relating to such plans.
5.4 Indemnification of Certain Payroll Deductions
Customer acknowledges and agrees that certain non-tax related
deductions recorded on employee check stubs, including deductions for
Customer sponsored benefit plans, or certain advances, are for monies due
from the employee to Customer. Such deductions will be noted on the invoice
submitted by PLC to Customer and will be reimbursed to Customer by deducting
them from the gross amount due PLC by Customer. Customer is solely and
exclusively responsible for such monies. Customer further agrees to provide
certified proof to PLC upon request by PLC that such monies are properly
maintained and remitted to the appropriate persons or entities at the
appropriate times or otherwise demonstrated to the satisfaction of PLC that
Customer has maintained, deposited or remitted said monies to the appropriate
persons or entities at the appropriate times. Customer shall unconditionally
indemnify PLC, its agents, shareholders, nonleased employees, officers,
directors, assigns, insurers and representative for and hold them harmless
from and against any costs, expenses, fees, settlements, judgments, losses or
damages or whatever nature incurred as a result of or arising from claims or
demands relating to such monies.
5.5 Indemnification for Acts or Omissions of Customer
Customer agrees that it shall indemnify PLC for any of Customer's,
or its agent's, acts or omissions that result in damages, costs or expenses
for which PLC is or may be held liable. Such indemnification shall include
reimbursement to PLC of all PLC's expenditures and prepayment of all
expenditures reasonably expected to be incurred by PLC.
6. General Provisions
6.1 Independent Contractor Relationship
PLC shall be an independent contractor of Customer and shall not be
its principal, director, agent, master, servant, employer or employee.
6.2 Third Party Beneficiaries
The parties acknowledge and agree that no parties other than the
parties hereto are intended to benefit hereunder.
6.3 Direction and Control of Employees
PLC shall have the right to direct, control, discipline, terminate,
promote, set wages for, reassign and reward each of the employees it leases
to Customer. Such actions will be governed by PLC's employee handbook. PLC
shall have at least one supervisor at the customer's principal place of
business who shall be responsible for the day to day direction, control and
supervision of all leased employees.
6.4 Condition for Becoming an Employee of PLC
No person shall become an employee of PLC until PLC's corporate
headquarters has received such person's signed and completed application, 1-9
and W-4 forms, payroll data and payment according to the rate assigned to
such person as provided on Schedule A.
6.5 Benefit or Welfare Plans
Customer acknowledges that PLC has an employee welfare plan
available for its employees. If Customer does not desire the employees leased
hereunder to enroll in such plan, it acknowledges that PLC will not offer
enrollment to any of the employees leased hereunder.
6.6 Limitation of Services
PLC will only provide those services specified herein and no other
services shall be provided or implied, including without limitation, any
strategic, operational or other business-related decisions with regard to
Customer business. PLC will provide no equipment to the employees.
6.7 Right to Inspect Premises
PLC or agents of PLC shall have the right but not the obligation to
inspect the premises of Customer at mutually agreeable times (but in any
event within three business days of such request) to make recommendations
pertaining to job safety. It is agreed and understood that PLC, in either
inspecting or not inspecting the Customer premises for safety purposes,
assumes neither liability nor responsibility for any unsafe working condition
which may exist. Should Customer fail to comply with any recommendations
pertaining to job safety made by PLC, such failure shall constitute grounds
for immediate termination of this Agreement.
6.8 Termination
Either PLC or Customer may immediately terminate this Agreement in
the event of breach by the other of any of the terms of this Agreement. In
addition, PLC may immediately terminate this Agreement if it, in its sole
discretion, determines that a material adverse change has occurred in the
financial condition of Customer, or that Customer is unable to pay its debts
as they become due in the ordinary course of business. Customer agrees to
notify PLC of its insolvency or its intention to file bankruptcy or close its
business.
Either party may terminate this Agreement without cause upon thirty
(30) days written notice.
The obligation of either party to notify, defend and save harmless
the other under the terms of this Agreement shall continue after the
termination hereof with respect to events occurring prior to such termination.
Upon the voiding of this Agreement or the termination hereof by
either party, both parties agree to promptly surrender and return to the
other party any and all certificates or binders of insurance previously
received from the other party.
6.9 Notices
All notices which are required or may be given with respect to this
Agreement shall be properly made if delivered in writing personally, or sent
by facsimile transmission with a hard copy to also be sent by US Mail, or
sent by US Mail addressed to the party at its address shown below:
PLC
PeopLease Corporation Suite 7 0000 Xxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx, XX
00000
Customer
Gasel Transportation, Inc. P. 0. Box 0000 Xxxxx 0, Xxx 000-X Xxxxxxxx. XX 00000
6.10 Assignability
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto, but may not be assigned by
either party until such assignment shall have been consented to in writing
signed by the parties.
6.11 No Waiver of Rights
The failure of either party strictly to enforce any provision hereof
shall not be construed as a waiver thereof or as excusing either party from
future performances in strict accordance with the provisions of this
Agreement.
6.12 Applicable Law
This Agreement shall be determined to be a contract made within the
State of South Carolina and for all purposes shall be governed and construed
under and in accordance with the laws of the State of South Carolina.
6.13 Business Interruption
Neither party shall be liable to the other for any loss of business
or any other damage, including but not limited to, profits, goodwill,
special, incidental or consequential damage, which results from performance
of each party's obligations hereunder.
6.14 Time of Performance
Time is of the essence with respect to performance of all
obligations set forth herein.
6.15 Integration
This document, together with the schedules attached hereto,
constitutes the full, complete, absolute and entire agreement between the
parties. There are no oral representations, agreements or understandings
affecting the same and any further such representations, agreements,
understandings or waivers, in order to be binding upon the parties thereto,
must be reduced to writing and signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year set forth above.
PeopLease Corporation
Attest:
Xxxxxxx X. Xxxxxxxxxxx, President X.X. Xxxxx, Secretary
Gasel Transportation, Inc.
Attest:
President Secretary or Witness
[Print name of President] [Print name of Secretary or Witness]
[SCHEDULE "A") VARIABLE COST
The following formula shall be used in calculating the Variable Cost of
employment services on a weekly basis:
Total employees' gross payroll multiplied by a factor of:
Factor Description
1.1758 (7219) Local Drivers (No Per Diem)
1.1323 (7219) OTR Drivers (With Per Diem)
1.1546 (8380) Shop
1.1149 (8810) Clerical
N/A Other
PeopLease Corporation
Attest:
Xxxxxxx X. Xxxxxxxxxxx, President X.X. Xxxxx, Secretary
Gasel Transportation, Inc.
Attest:
President Secretary or Witness
{Print name of President] [Print name of Secretary or Witness]
