SERVICE AGREEMENT
STAFF LEASING AGREEMENT
PARTIES
This Agreement is entered into this 16 day of December, 1999, by and
between Professional Employer Plans, Inc. a Florida corporation (hereafter
referred to as "Professional Employer Plans, Inc."), an Weststar Environmental
(hereafter referred to as "Client"), whose respective addresses are set forth on
the signature page of this Agreement.
I. TERM OF AGREEMENT
A. The initial term of this Agreement shall be one (1) year (the "Initial
Term"). Following the completion of the Initial Term, this Agreement shall
automatically renew and remain in effect until either party gives written notice
to the other party by delivering notice of termination of at least thirty days.
In addition, Professional Employer Plans, Inc. may at any time immediately
terminate this Agreement in the event of breach by Client of any of the terms of
this Agreement or upon the occurrence of any of the events set forth in Section
XI below.
II. SERVICES
A. Professional Employer Plans, Inc. agrees to furnish to Client employees
to perform job functions identified by workers' compensation code
classifications. Client warrants that the list of workers' compensation
classifications is accurate and complete; that employees performing these job
functions do so at the location specified in this Agreement as Client's address.
Client understands and agrees that prior written approval from Professional
Employer Plans Inc.'s workers' compensation carrier must be obtained prior to
the addition of any workers' compensation classification to this Agreement.
B. Client expressly agrees and understands that no employee shall become
employed by Professional Employer Plans, Inc., covered by Professional Employer
Plans, Inc.'s workers compensation insurance or any other benefit or term and
condition of employment or issued a payroll check, unless the individual has,
prior to commencing work for Professional Employer Plans, Inc., completed
Professional Employer plans, Inc.'s new hire booklet, W-4 withholding form, and
form I-9, all of which must be delivered to Professional Employer Plans, Inc.
before the employee commences employment. Professional Employer Plans, Inc. as a
leased employee. In addition, Professional Employer Plans, Inc. shall not be
considered to be an employer of any individual for whom payroll information is
not supplied during any payroll period (except as may be required by law).
Client assumes full responsibility for workers" compensation claims of
individuals paid directly by Client, as well as for other Parties hired by or
working for Client, whether as an employee, independent contractor, or in any
other status.
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C. Professional Employer Plans, Inc. shall maintain the minimum level of
authority required by state law so as to maintain a right of direction and
control over leased employees assigned to Client's location. Client shall,
however retain such sufficient direction and control over the leased employees
as is necessary to conduct Client's business and without which Client would be
unable to conduct its business, discharge any fiduciary responsibility that it
may have, or comply with any applicable licensure, regulatory, or statutory
requirement of Client. Additionally, Professional Employer Plans, Inc. assumes
responsibility for the payment of wages to the leased employees without regard
to payments by Client to Professional Employer Plans, Inc. and Professional
Employer Plans, Inc. assumes full responsibility for the payment of payroll
taxes and collection of taxes from payroll on leased employees. Professional
Employer Plans, Inc. will give written notice of the relationship between
Professional Employer Plans, Inc. and Client to each leased employee it assigns
to perform services for Client. Professional Employer Plans, Inc. does not
assume any responsibility for, and makes no assurances, warranties, or
guarantees as to the ability or competence of any leased employee.
D. Client agrees to provide all facilities, supplies, equipment, and all
other necessary items that may be required by employees to perform their
employee services.
III. WORKERS' COMPENSATION
A. Professional Employer Plans, Inc. shall secure workers' compensation
coverage in such amounts as is required by applicable law and shall be
responsible for the management of workers' compensation claims, claims filings
and related procedures for its leased employees for services, which they perform
as leased employees. (Should Client be allowed to maintain its own workers'
compensation policy, Professional Employer Plans, Inc. shall be named as an
additional insured on such policy or policies. In addition, in such situations
where Client maintains its own workers' compensation policy, Client shall at no
time directly pay any workers' compensation premiums but shall instead, at least
fourteen (14) days prior to the premium due date, remit to Professional Employer
Plans, Inc. by overnight mail, next day delivery service, a cashier's check
sufficient to cover the premium due from the Client in order for Professional
Employer Plans, Inc. to submit these funds to the carrier. Professional Employer
Plans, Inc. shall have no responsibility in such situations where Client retains
its own workers' compensation policy other than to remit to the carrier such
payments as Client forwards to Professional Employer Plans, Inc.)
B. While Professional Employer Plans, Inc. shall retain a right of
direction and control over the management of safety, risk and hazard control
involving leased employees performing work at Client work sites, as may be
required by applicable state and federal laws, compliance with all applicable
laws related to such matters is a responsibility of Client. Client acknowledges
that it is responsible to maintain a safe working environment, provide proper
training in compliance with state and federal OSHA standards, and establish and
maintain such safety programs, safety policies, and safety committees as may be
required by law. Professional Employer Plans, Inc. shall provide such assistance
and maintain such responsibility for performing safety inspections of Client
equipment and premises and assistance and responsibility for the promulgation
and administration of employment and safety policies as is required by
applicable law; however, Client acknowledges that Professional Employer Plans,
Inc. is either
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providing or not providing such assistance and responsibility and assumes no
liability. Client further agrees to comply with any Professional Employer Plans,
Inc. workers' compensation light duty requirements as directed by Professional
Employer Plans, Inc., including reinstatement of employees in a light duty
capacity, and shall comply with such Drug Free Workplace Act policies, if any,
as may be implemented by Professional Employer Plans, Inc. according to our
agreement.
C. Client represents that its working environment, equipment, machinery,
supplies and training for existing employees currently meet all state and
federal OSHA standards and that they will be maintained in compliance with such
standards during the duration of this Agreement. Client shall provide and ensure
use of all personal protection gear and equipment, as required by law, or as
deemed necessary by Professional employer Plans, Inc.'s workers' compensation
carrier.
IV. BENEFIT PLANS
A. Client acknowledges that Professional Employer Plans, Inc. has available
employee benefit plans for the possible application to employees. Any other
employee benefit plans maintained by Client, regardless of whether they provide
benefits to the employees, shall be the sole responsibility of Client.
B. Professional Employer Plans, Inc. agrees to assume responsibility for
the current COBRA participants on Client's group health and life insurance plan
in effect as of the effective date of this Agreement (current COBRA
participants), who have all been listed by Client on Exhibit B, provided such
current COBRA participants were eligible for coverage under Client's plan in
accordance with federal law. Client agrees that upon termination of this
Agreement client will immediately replace all group benefit plans offered by
Professional Employer Plans, Inc. Should client at any time obtain any form of
group employee benefit coverage from an insurance carrier, another employee
leasing company/professional employer or otherwise, which will provide group
health or life insurance coverage to any of the employees, Client will assume
full responsibility for the continuation of coverage under COBRA for the current
COBRA participants in addition to any employees who may elect COBRA coverage
under Professional Employer Plans, Inc.'s plans during the term of this
Agreement, for the remainder of their COBRA eligibility period. Should Client
not obtain such coverage, Client will pay to Professional Employer Plans, Inc.
each month the sum of $__________ per employee for each employee who continues
to be covered by a Professional Employer Plans, Inc. benefit plan. Such payment
shall be liquidated damages to compensate Professional Employer Plans, Inc. for
any additional expenses incurred by Professional Employer Plans, Inc. as a
result of Client not fulfilling its obligations as agreed to in this paragraph.
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C. To assure compliance with the Internal Revenue Code, the Employee
Retirement Income Security Act and other related federal regulations, Client
certifies that it has properly disclosed the following to Professional Employer
Plans, Inc. on the required Retirement Plan Questionnaire: (1) any retirement
plans currently or previously maintained by the adopting company or any related
entities (within the meaning of the Internal Revenue Code Section 414. including
414(c) and 414(h)): (2) listed all of the owners, officers and shareholders
(to identify those highly compensated and key employees for purpose of
discrimination and top heavy testing): (3) listed/entered any family
relationships for owners, officers and shareholders with co-employees. In the
event that Client had failed to properly identify and/or properly complete the
Retirement Plan Questionnaire, Client agrees to indemnify Professional Employer
Plans, Inc. Indemnified Parties for any and all liability associated therein.
Prior to Client merging its plan into the qualified Professional Employer
Plans, Inc. Retirement Plan, or prior to Client transferring assets from its
qualified plan into the Professional Employer Plans, Inc. Retirement Plan,
Client understands and agrees that Professional Employer Plans, Inc. shall have
the right to inspect all plan documents, records, IRS determinations, etc. for
compliance with the law.
Client agrees that if the Agreement is terminated between Client and
Professional Employer Plans, Inc., Client understands that in the event Client
does not adopt a successor plan and arrange for a transfer of assets from the
Professional Employer Plans, Inc. Retirement Plan to the successor plan within
six (6) months of the termination date, all employees covered under the
Professional Employer Plans, Inc. Retirement Plan will become fully vested in
their account balances.
If Client maintained a plan during the plan year (January 1 through
December 31) prior to contracting with Professional Employer Plans, Inc., Client
agrees to provide Professional Employer Plans, Inc. with all required
information (including but not limited to Box I wages and employee deferrals,
employer matches, and contributions, etc), prior to contracting with
Professional Employer Plans, Inc. so that Professional Employer Plans, Inc. may
conduct discrimination testing on a combined basis for the first plan year.
Client agrees that in the event the Professional Employer Plans, Inc.
Retirement Plan as adopted by the Client plan become top heavy as defined by the
prevailing Internal Revenue Code and/or regulations, Client will be solely
responsible for making a contribution to non-key employees assigned to it to
satisfy the top heavy test.
In addition, Client further warrants that no covered employee is receiving
compensation from it that will not be paid by Professional Employer Plans, Inc.
Client understands that any payment made to any leased employee outside this
Agreement may result in the Professional Employer Plans, Inc. Retirement Plan
being disqualified. Should the Professional Employer Plans, Inc. Retirement Plan
be disqualified as a result of the Client failing to report any compensation to
covered employees, Client will be solely liable for any damages of any nature
arising out of the failure to report such compensation to Professional Employer
Plans, Inc.
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V. SERVICE FEES
A. For services to be rendered under this Agreement, Professional Employer
Plans, Inc. shall be entitled to a set up fee and service fee as specified on
Exhibit A hereto titled "Fee Schedule". All funds due Professional Employer
Plans, Inc. are payable by wire transfer or certified check or as described in
"Exhibit A" prior to Professional Employer Plans, Inc.'s issuance of payroll
checks each pay period. As a condition of this agreement and as defined in
"Exhibit A", should Client and Professional Employer Plans, Inc. be agreeable to
allowing Client to reimburse Professional Employer Plans, Inc. by company check,
Client may be required to maintain a prepayment with Professional Employer
Plans, Inc. in an amount equal to the total payroll and any direct and indirect
costs related to that payroll for one average payroll period. These monies shall
be maintained by Professional Employer Plans, Inc. to help guarantee performance
of all terms, covenants, obligations of Client under this Agreement. If Client
should fail to pay Professional Employer Plans, Inc. any payment or any other
funds when due, Professional Employer Plans, Inc. may apply the prepayment to
the amount due. Professional Employer Plans, Inc. shall refund any remaining
prepayment within twenty (20) days after the termination of this Agreement
provided Client has fulfilled its obligations under this Agreement. A late
payment charge of one and one-half percent (1 1/2%) will be added to all
accounts not paid when due. Checks returned unpaid from Client's bank will be
subject to the late payment charge plus any additional costs incurred by
Professional Employer Plans, Inc. An unpaid balance will also be subject to
periodic charge of one and one-half percent (1 1/2%) per calendar month (or such
lesser interest amount if set by applicable law at a lower amount) until paid in
full. Professional Employer Plans, Inc. reserves the right to, at any time,
terminate this Agreement if full payment is not made when due.
B. Should Client require additional services not included in this
Agreement, the fee for any such additional services shall be negotiated and paid
separately. The fees set forth on Exhibit A are subject to adjustment by
Professional Employer Plans, Inc. based upon changes in local, state and/or
federal employment law, changes in insurance requirements or costs, costs
directly attributable to Client or to leased employees assigned to Client, or
changes in Client's payroll. Upon written notification to Client from
Professional Employer Plans, Inc. of a fee adjustment, Client shall have the
right to terminate this Agreement by giving notice of termination to
Professional Employer Plans, Inc. within fourteen days after receipt from
Professional Employer Plans, Inc. of a notice of a fee adjustment, and after
payment of all funds owed to Professional Employer Plans, Inc. by Client.
VI. LIMIT OF SERVICES
Professional Employer Plans, Inc. will only provide the above listed
services and no other services shall be provided or implied, including without
limitation any strategic, operational or other business related decisions with
regard to Client's business. Such decisions shall exclusively be the
responsibility of Client and Professional Employer Plans, Inc. shall bear no
responsibility nor liability for any actions or inaction by Client. When
implementing such decisions, whether or not the actions are implemented by
leased employees, Client shall be acting solely on its own volition and
responsibility. If Professional Employer Plans, Inc. is
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leasing any supervisory employees to Client; such supervisory employees' scope
of employment is strictly limited. Supervisors' actions which are in violation
of law or which result in liability will be outside the scope of their
responsibility as Professional Employer Plans, Inc. leased employees and in such
an event supervisory employees will be acting solely as the agents of Client.
VII. LIABILITY INSURANCE
A. Client will provide proof of comprehensive general liability insurance
coverage for its operation and all employees, with a minimum limit of liability
no less than one million ($1,000,000.00) dollars per occurrence. If any leased
employee will operate a vehicle owned or otherwise of any kind for Client,
Client shall furnish liability insurance therefor against liability for bodily
injury and property damage and against uninsured motorists, each with a minimum
limit of liability no less than one million ($1,000,000.00) dollars. Such
policies shall also include blanket collateral liability and personal injury
liability coverage. In addition, if professional employees are leased,
professional liability coverage will be secured and maintained by Client with a
limit of liability of no less than one million ($1,000,000.00) dollars. Client
agrees, at its own expense, to include Professional Employer Plans, Inc. as an
additonal named insured on all of Client's insurance policies, including without
limitation professional liability policies and fidelity bonds. Client shall at
the request of Professional Employer Plans, Inc. deliver to Professional
Employer Plans, Inc. a certificate evidencing such insurance and the
agreement(s) of the Insurer(s) that such insurance may not be cancelled without
twenty (20) days prior notice to Professional Employer Plans, Inc. Any
protection against the dishonest or criminal conduct or misappropriation of any
funds engaged in by any employee maintained hereunder, such as fidelity bonding,
shall be at Client's expense. Client's obligation under this Section shall
survive termination of this Agreement.
VIII. INDEMNIFICATIONS
A. Professional Employer Plans, Inc. agrees to indemnify and hold Client
harmless from any claims, expenses, damages, actions or liability arising out of
the failure of Professional Employer Plans, Inc. to perform its duties
hereunder. Client hereby agrees to indemnify and hold Professional Employer
Plans, Inc. harmless from any claims, expenses, damages, actions or liability
arising out of:
(i) worksite employment related matters related to the leased
employees such as local, state and/or federal right-to-know laws,
environmental laws, NLRB, OSHA, EEOC, ADA, WARN, FMLA, ERISA, all
laws governing race sex, sexual harassment, retaliation,
religion, veteran status, national origin, color, age, disability
and marital status, disclosed and undisclosed benefit plans, and
any other alleged violations of labor or employment laws which do
not arise directly out of the failure of Professional Employer
Plans, Inc. to perform its duties hereunder, it being understood
that Client is responsible for all obligations relating to the
leased employees, except those involving payroll, benefits
withholding taxes, unemployment taxes, workers compensation
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and other obligations expressly assumed by Professional Employer
Plans, Inc. hereunder, and
(ii) any actions taken by any employee leased hereunder on behalf of
Client, or within the course and scope of performing duties on
behalf of Client or any other person or firm while the leased
employee is assigned to Client.
B. All indemnification shall survive the termination of this Agreement.
IX. GOVERNMENT INVESTIGATIONS/LEGAL ACTIONS/INQUIRIES
A. Client acknowledges that it is essential to Professional Employer Plans,
Inc.'s performance under this Agreement that Professional Employer Plans, Inc.
have complete knowledge of any government investigation or inquiry or private
adversary action which could in any manner impact upon the types of duties
contemplated by this Agreement. For example, but not by limitation, and audit by
the Bureau of Workers' Compensation could affect the performance of functions
under this Agreement. Thus, Client has provided to Professional Employer Plans,
Inc., prior to entering into this agreement, full and complete disclosure, in
writing, of any such administrative proceeding (including but not limited to
EEOC, NLRB, OSHA, and Wage and Hour matters), investigation, lawsuit, or other
adversary proceeding, including those which are threatened as well as those not
yet asserted, in which Client has been involved during the last five (5) years.
B. Professional Employer Plans, Inc. shall not be considered to be an
employer of leased employees for purposes of claims of discrimination involving
disability, race, sex, sexual harassment, religion, color, age, national origin,
marital status, veteran status, retaliation, or for any other claim pursuant to
any local, state or federal law regulation, or ordinance unless the action is
taken by Client in compliance with a written corporate Professional Employer
Plans, Inc. policy, procedure, or corporate direction, which is illegal under
any applicable local, state or federal law.
X. CLIENT OBLIGATIONS AND RIGHTS
A. Client understands that pursuant to Florida law, it may not enter into
an employee leasing relationship with Professional Employer Plans, Inc. if
client owes a current or prior employee leasing company an undisputed debt
pursuant to any service agreement which existed between that other employee
leasing company and client, or if client owes a current or prior insurer any
undisputed amount representing premium for workers' compensation insurance.
Client represents that it has met any and all prior premium and fee obligations
with regard to worker' compensation premiums and employee leasing payments.
B. Client has the right to accept or cancel the assignment of any leased
employee. Client agrees that in making such decisions it will at all times
comply with all applicable laws governing worksite related matters including but
not limited to those described in Section VIII.
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C. Client agrees that it will obtain and provide to Professional Employer
Plans, Inc. at the end of each pay period, records of actual time worked by each
employee, verify their exempt or non-exempt status and that all hours worked by
employees that are reported to Professional Employer Plans, Inc. are accurate
and are in accordance with the requirements of the Fair Labor Standards Act and
other laws administered by the U.S. Department of Labor's Wage and Hour Division
and any applicable state law. These records submitted to Professional Employer
Plans, Inc. shall become the basis for Professional Employer Plans, Inc. to
issue all payroll checks. Professional Employer Plans, Inc. shall not be
responsible for incorrect, improper or fraudulent records of hours worked, or
for improper determination of exempt status. Should Client fail to meet the
processing payment schedule, the delivery of payroll checks by Professional
Employer Plans, Inc. will be delayed and an out of cycle processing charge could
be billed to Client at Professional Employer Plans, Inc.'s option. Similarly,
any changes to the hours reported to Professional Employer Plans, Inc. after the
reporting time could be subject to an out of cycle check charge at Professional
Employer Plans, Inc.'s option.
XI. EFFECT OF TERMINATION
A. If for any reason payment is not made when due, Client agrees that
Professional Employer Plans, Inc. will have the right to immediately terminate
its performance hereunder and bring suit-seeking damages. Upon termination of
this Agreement, for any reason, or should Client fail to timely pay Professional
Employer Plans, Inc. for its services, all of the employees shall be deemed to
have been laid off by Professional Employer Plans, Inc. and immediate
notification of this shall be proved by Client to employees who have been leased
pursuant to this Agreement. Client shall immediately assume all federal, state
and local obligations of an employer to the employees which are not in conflict
with state or federal law, and shall immediately assume full responsibility for
providing workers' compensation coverage. Professional Employer Plans, Inc.
shall immediately be released from such obligations as are permitted by law. It
is the internet of the parties that, where allowed by law, they be placed in
their respective positions immediately before their entry into this Agreement in
the event of a termination or Client's failure to pay Professional Employer
Plans, Inc. If for any reason Professional Employer Plans, Inc. makes any
payment to any of the employees after this Agreement has been terminated,
Professional Employer Plans, Inc. shall be entitled to full reimbursement for
such expenditures.
B. Professional Employer Plans, Inc. may also terminate this Agreement if,
at any time, Professional Employer Plans, Inc. in its sole discretion determines
that a material adverse change has occurred in the financial condition of
Client, or that Client is unable to pay its debts as they become due in the
ordinary course of business. This Agreement may also be terminated at any time
by Professional Employer Plans, Inc. in the event of any federal, state, or
local legislation, regulatory action, or judicial decision, which in the sole
discretion of Professional Employer Plans, Inc., adversely affects its interest
under this Agreement. Such termination shall not relieve Client of any
obligation set forth herein, including but not limited to its payment
obligations to Professional Employer Plans, Inc.
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XII. GENERAL PROVISIONS
A. Client acknowledges that it has not been induced to enter into this
Agreement by any representation or warranty not set forth in this Agreement
including but not limited to any statement made by any marketing agent of
Professional Employer Plans, Inc. Client acknowledges that Professional Employer
Plans, Inc. has made no representation concerning whether Professional Employer
Plans, Inc.'s services will improve the performance of Client's business.
B. Client acknowledges that Professional Employer Plans, Inc. shall not be
liable for any Client loss of business, goodwill, profits, or other damages.
C. Client specifically authorizes Professional Employer Plans, Inc. to
conduct a credit and background reference check on Client and such officers of
Client as Professional Employer Plans, Inc. deems appropriate to compliance with
the requirements of law when Client will be making payments with a company
check.
D. Client may not assign this Agreement nor its rights and duties
hereunder, nor any interest herein, without the prior written consent of
Professional Employer Plans, Inc.
E. Client acknowledges and agrees that Professional Employer Plans, Inc. is
not engaged in the practice of law or the provision of legal services, and that
Client alone is completely and independently responsible for its own legal
rights and obligations.
F. This Agreement constitutes the entire Agreement between the parties with
regard to this subject matter and no other agreement; statement, promise or
practice between the parties relating to the subject matter shall be binding on
the parties. This Agreement may be changed only by a written amendment signed by
both parties.
G. The failure by either party at any time to require strict performance by
the other party or to claim a breach of any provision of this Agreement will not
be construed as a waiver of any subsequent breach nor affect the effectiveness
of this Agreement, or any part thereof, or prejudice either party as regards to
any subsequent action.
H. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida and venue shall be in the applicable court in
Hillsborough County, Florida.
I. In the event of any lawsuit or other proceeding to enforce the
provisions of this Agreement, the prevailing party shall be entitled to an award
of its costs and reasonable attorney's fees incurred at all levels of
proceedings.
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J. All notices and other communications hereunder shall be in writing and
shall be deemed given on the day delivered personally, by facsimile
transmission, or on the second business day following the day on which mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to Client: 0000 Xxxxxxx Xx. Xxxx., Xxxxx 0000, Xxxxxxxxxxxx,
XX 00000
(b) Fax Number: 000-000-0000
(c) if to Company: 0000 X.X. Xxxxxxx 000 Xxxxx, Xxxxx 000, Xxxxx,
XX 00000
Fax Number: 000-000-0000
K. No rights of any third party are created by this Agreement and no person
not a party to this Agreement may rely on any aspect of this Agreement
notwithstanding any representation, written or oral, to the contrary.
L. In the event that any provision contained in this Agreement is held to
be unenforceable by a court of competent jurisdiction, the validity, legality,
or enforceability of the remainder of this Agreement shall in no way be affected
or impaired thereby.
M. Professional Employer Plans, Inc. will notify all employees of this
Agreement at inception and termination of Agreement. Client shall also
immediately upon termination of this Agreement notify all employees of the
termination of this Agreement and inform them that they are no longer covered by
Professional Employer Plans, Inc.'s workers' compensation policy.
N. This Agreement shall be valid and enforceable only upon signature by an
authorized Controlling Person of Professional Employer Plans, Inc.
AGREED TO:
PROFESSIONAL EMPLOYER PLANS, INC. WESTAR ENVIRONMENTAL
By: /S/ Signature illegible 12/27/99 By: /s/ XXXXXXX X. XXXXX 12/11/99
--------------------------------- -------------------------------
(Date) (Date)
0000 X.X. Xxxxxxx 301 North, 0000 Xxxxxxx Xxxxxx Xxxx.,
Xxxxx 000 Xxxxx 0000
Xxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
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