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EXHIBIT 10.18
MANAGEMENT CONTRACT
THIS CONTRACT made this 1st day of October 1997, between FHF
Transportation, Inc., a California Corporation (FHF), and UTE Trucking and
Leasing Company, L.L.C., a Utah Limited liability Company, (the Owner).
WITNESSETH that,
WHEREAS, the Owner has owned and operated certain Motor Truck Equipment
personally or has had others manage such Equipment on his behalf as more
specifically described in Exhibit A, and by reference made a part hereof, (the
Equipment); and
Whereas, the Owner is desirous of availing itself of the benefits and
advantages of FHF's experience and services;
NOW THEREFORE, in consideration of the mutual covenants and promises of
the parties hereto, it is mutually agreed as follows:
1. Upon inspection and acceptance of Equipment by FHF pursuant to the
attached Exhibit A, the Owner does hereby engage FHF and FHF does
hereby agree to manage and the operate the Equipment on behalf of
the Owner upon the terms and conditions hereinafter set forth.
2. The Equipment shall be operated by FHF exclusively with the Owner
unless specifically agreed otherwise in writing by the Owner.
FHF shall act as agent for the Owner for the purpose of operating
the Equipment with the Owner and managing the Equipment within the
cost provisions described below. FHF shall not authorize the
Equipment to be used for any illegal purposes. The Equipment shall
not be put to any improper usage's or any application for which it
was not designed. FHF shall observe in the use of the Equipment all
municipal, county, state and federal regulations, ordinances and
statutes now in force or which may hereafter be in force. In
managing the Equipment, FHF shall use its best efforts to keep said
Equipment under optimum employment to obtain the highest feasible
revenues, having regard for proper repairs and maintenance of said
Equipment which shall be performed at the expense of the Owner.
3. The term of this Contract shall be until September 30, 1999 unless
terminated earlier as provided elsewhere in this Contract.
4. FHF shall be compensated for performance of its services at the rate
of fifty seven cents ($.57) per mile point to point as dispatched by
owner for solo and fifty eight
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cents ($.58) for sleeper team trips. FHF shall submit all necessary
trip documents to the Owner and the Owner shall pay the compensation
to FHF Transportation Inc.
The construction of FHF's compensation for services as described
hereunder is meant to provide an incentive to FHF to economically operate the
Equipment. It should not be construed to mean the FHF assumes risk of loss as to
the operation or maintence of the Equipment. All such risk of loss remains with
the Owner except as provided elsewhere in this contract.
5. All Taxes, Licenses, and Registration; federal, state or local, are
the responsibility of the Owner.
6. Motor Cargo Shall obtain a written insurance policy in the Owner's
name covering said equipment for fire, theft, collision and
liability. However, FHF will be responsible to Motor Cargo or Owner
for the first one thousand ($1,000). Per occurrence to any
equipment and the first one thousand ($1,000) Per occurence for
damage to third parties resulting from FHF's negligence.
7. During the term of this Contract, the Owner shall keep said
Equipment in good mechanical condition and be responsible for all
maintenance and repairs. The Equipment shall pass all federal, state
and local inspections. The Owner shall have a right to inspect the
Equipment to assure proper maintenance. FHF must keep the Equipment
in good appearance during the duration of the Contract. All oil
filters and replacement parts shall be of a good quality that meets
or exceeds the manufacture's specifications.
8. All drivers hired by FHF must be licensed by required federal,
state, and local licensing agencies. All salaries and employee tax
and insurance will be paid by and shall be the responsibility of
FHF. FHF shall be responsible for correct filing of payroll reports
and other documents and payments of all payroll taxes. Such
employees shall be deemed to be the employees of FHF for all legal
purposes. FHF agrees to hold Motor Cargo harmless from any
liability, cost and expenses arising from any contract or relation
between FHF and the driver. FHF shall use its best efforts to see
that drivers hired by FHF operated the Equipment in a pursuant to
the rules and regulations of the Department of Transportation.
9. In the event FHF shall take any action set forth below, the FHF
shall be deemed to be in default under its contract. Those events
are defined as:
(1) Any act of insolvency on the part of FHF.
(2) Any material act or omission on the part of FHF which
constitutes failure to perform its services in a
reasonable and prudent fashion.
Failure to reform pursuant to Owner or its lessee's operation and
procedures policies shall be deemed to be material if evidenced by at least two
written notices of such failure to perform.
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In the event of default by FHF as set forth above, the owner may upon
ten (10) days written notice request return of the Equipment and FHF shall
deliver to the owner at an address to be specified by Owner.
The remedies set forth above are in addition to any other remedies the
Owner has or may have as defined by the laws of the State of Utah. An election
by the Owner to retake possession of the Equipment and to receive any or all
accounts receivable shall not be deemed to waive any other rights the Owner may
have in the event of default. Further any action by the Owner to assert any of
his remedies shall not release the Owner from any obligation or liability
incurred pursuant to the terms of the contract prior to its termination.
10. Owner warrants to FHF that there are no past due amounts owned to
any lending institution, management group or any claims or liens
form any third party arising from the prior use of the Equipment by
Owner including, but not limited to, amounts due prior drivers,
repair work, insurance or suppliers. Owner agrees to hold FHF
harmless from any such claims.
11. This Contract may not be assigned by either party without the
written consent of the other party, with such permission not to be
unreasonably withheld.
12. The waiver of any single breach of any terms, conditions or
provisions of this Contract by any party shall not be deemed a
waiver of such terms in respect to further breaches or violations.
13. FHF and the Owner specifically agree this Contract shall be binding
upon FHF, its successors and assigns, and the Owner, his heirs,
successors, agents, guardian or personal representatives.
14. Should any section, sentence, clause or phrase of this Contract be
held to be illegal, such determination of illegality as to such
section, sentence, clause or phrase shall not affect the validity
or binding force and effect of the remaining portions of this
contract.
15. This Contract and the Exhibits hereto constitute the entire
agreement and understanding between the parties and shall not be
modified, altered, changed or amended in any respect unless in
writing and signed by both parties.
16. This Contract is intended by the parties to create the relationship
of the Owner and Independent Contractor and not an
Employer-Employee relationship. Neither FHF nor its employees are
to be considered employees of the Owner at any time under any
circumstances or for any purposes.
17. In the event of default of either party hereto in the performance
of the provisions of this Contract, such defaulting party agrees to
pay all cost incurred, including reasonable attorney's fees
incurred in the enforcement of the terms of this Contract
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or the correction of any condition caused by the breach of any
provision or obligation herein contained and set forth. The
provisions hereof shall be construed under the laws of the State of
Utah, and any actions hereunder shall be brought in the courts of
said State.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
set forth above.
FHF Transportation Inc. UTE Trucking and Leasing Company, L.L.C.
/s/ /s/
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Xxxxx Xxxxxxx Xxxxxx X. Xxxx
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(Printed Name) (Printed Name)
10/2/97 10/1/97
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Date Date
