CLIENT SERVICE AGREEMENT
THIS CLIENT SERVICE AGREEMENT (hereinafter referred to as "Agreement") is
executed April 23, 1997, by and between HOSPITALITY EMPLOYEE LEASING PROGRAM,
INC., an Ohio corporation, (hereinafter referred to as "HELP") with principal
offices located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and JANUS
INDUSTRIES, INC., a Delaware corporation (hereinafter referred to as "CLIENT").
In consideration of the mutual promises contained herein below, the parties
agree as follows:
1. PERSONNEL
(a) As used in this Agreement, the term "Job Function Positions" means the
personnel positions commonly associated with the administration and operation of
hotels, motels and related hospitality businesses including, without limitation,
those associated with housekeeping, maintenance, laundry, front desk and other
office personnel, restaurant/lounge and kitchen, room and other guest services
and general management.
(b) HELP hereby agrees to furnish to CLIENT and CLIENT hereby agrees to
engage from HELP, personnel for the Job Functions Positions of the hotels,
motels and related hospitality businesses owned and/or managed by Client as
listed on Exhibit A hereto, as the same may be amended from time to time, upon
the following terms and conditions.
(c) HELP acknowledges and agrees that CLIENT is relying exclusively upon
the services of HELP in filling CLIENT's personnel requirements at the hotel,
motel and other hospitality establishments presently owned and/or managed by
CLIENT, and that CLIENT will continue to rely on the expertise of HELP in the
hospitality employee leasing business, as CLIENT expands its business, for the
foreseeable future. HELP represents and warrants to CLIENT that it has the
resources and personnel contacts in each of the markets in which the
establishment identified in Exhibit A are located, in order to permit the
continued operation of such establishments, consistent with past practice.
2. TERM OF AGREEMENT
This Agreement shall have an initial term of one (1) year. This Agreement
shall automatically renew for additional one (1) year terms unless canceled by
either party at least three (3) months prior to the scheduled termination date.
Notwithstanding the foregoing, if CLIENT should sell or cease to have management
responsibility for any of the establishments listed in Exhibit A, or such
additional establishments that CLIENT may acquire or for which CLIENT may assume
management responsibility subsequent to the date hereof, CLIENT may terminate
the services of HELP as to such particular establishment or establishments
coincident with the date of sale by CLIENT or the date of cessation of its
management responsibility.
3. WORKING ENVIRONMENT
(a) CLIENT agrees that it will comply with all health and safety laws,
regulations, ordinances, directives, and rules imposed by controlling federal,
state and local government in all areas where HELP employees shall furnish
services and shall keep working premises so as not to be in violation of any
health or safety laws or ordinances, including without limitation, the Hazardous
Chemical Act.
(b) The premises shall be kept so that the working conditions are safe and
healthy for HELP employees. HELP agrees to advise CLIENT immediately of any
information of which it becomes aware in order to facilitate CLIENT's compliance
with the provisions of paragraph (a) above. HELP will immediately report all
accidents and injuries to CLIENT.
4. REPRESENTATIONS AND WARRANTIES OF HELP
HELP represents and warrants to CLIENT as follows:
(a) It is presently providing services for the Job Function Positions at
the establishments listed on Exhibit A and there presently exists no labor
dispute or claim of unfair labor practice at any of such establishments which
would impede HELP's ability to provide services pursuant to this Agreement.
(b) Wages and compensation to HELP employees is current and HELP has, to
date paid, and will continue to pay, on a timely basis all withholding tax and
other employment - related taxes due with respect to HELP employees to the
federal government and the taxing authorities of all applicable state and local
jurisdictions.
(c) The employee benefits provided by HELP to its employees are described
in Exhibit B hereto.
5. REPRESENTATIONS AND WARRANTIES OF CLIENT
CLIENT represents and warrants to HELP as follows:
(a) That no separate agreements or arrangements exist that would obligate
HELP except as set forth herein.
(b) That, in the opinion of CLIENT, all pension and profit sharing plans in
existence are current and in compliance with applicable law and this Agreement
shall not be deemed a breach under the terms of those plans.
(c) That CLIENT is not in default of the Management Agreement for any of
the properties managed by CLIENT which are listed on Exhibit A and the execution
of this Agreement shall not cause a default under any such Management Agreement.
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6. PAYMENT TERMS
(a) HELP will ▇▇▇▇ CLIENT and CLIENT agrees to pay for services performed
by HELP employees.
(b) CLIENT may submit and/or verify time records on said basis for HELP
employees assigned to CLIENT.
(c) All payments for services performed by HELP employees must be made by
CLIENT in the following form (1) wire transfer into HELP account; (2) cashier's
check; or (3) other form of payment pre-approved in writing by HELP.
(d) CLIENT agrees to pay HELP the amount due for that pay period within
twenty-four (24) hours after written notification.
(e) Any statutory or government body increase in local, state or federal
employment taxes, insurance, or any change in the Job Function Positions shall
be effective on the date of such increase or change.
(f) If CLIENT believes that any billing or other communication between the
parties is in error, CLIENT shall immediately notify HELP of such error.
7. ADMINISTRATIVE FEE
(a) CLIENT shall pay HELP reimbursable fees associated with payroll
processing per HELP employee per pay period. Pay period for purposes of this
Agreement shall mean every other Friday. Administrative fees, described in
Exhibit C hereto, are due with the regularly scheduled payment on the agreed
upon pay day.
(b) During the initial term of this Agreement, HELP may not adjust its
administrative fee. During any renewal term of this Agreement, upon thirty (30)
days written notice, HELP may adjust its fee rate, but in an amount no greater
than five percent (5%) over a twelve (12) month period.
8. INSURANCE
(a) If any HELP employee filling a JOB Function Position is to drive a
vehicle of any kind for CLIENT, CLIENT shall furnish automobile insurance.
CLIENT shall cause its insurance carrier to name HELP as an additional named
insured and issue a Certificate of Insurance to HELP allowing not less than
thirty (30) days advanced notice of cancellation or material change in the
nature or amounts of insurance coverage.
(b) HELP represents and warrants to CLIENT that it maintains worker's
compensation and general liability insurance with respect to its employees and
that its coverages are adequate in scope and amount. HELP has provided CLIENT
with a certificate of its present
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insurance coverage and agrees to provide CLIENT with evidence of coverage
annually on the policy renewal dates. HELP shall cause its insurance carriers to
name CLIENT as an additional named insured. Each certificate of insurance shall
provide that CLIENT will be given not less than thirty (30) days advanced notice
of cancellation or material change in the nature or amounts of insurance
coverage.
(c) CLIENT agrees to cause its insurance carrier to name HELP as an
additional named insured on CLIENT's General Liability Insurance policy and
issue a certificate of insurance allowing not less than thirty (30) days advance
notice of cancellation or material change in the nature or amounts of insurance
coverage.
9. ADMINISTRATION
(a) It is understood and agreed that all individuals assigned to CLIENT to
fill the Job Function Positions are employees of HELP. The CLIENT understands
and agrees that HELP reserves the exclusive rights to exercise all power and
control over its employees belonging to an employer at common law and by statute
including, without limitation, the rights to determine whether an employee is to
be hired or retained; to supervise through HELP personnel the performance by
criteria established by HELP; to reprimand, suspend, terminate or otherwise
discipline employees; to expand, reduce, alter, combine, transfer, assign or
otherwise change work assignments; and to determine and control such other
conditions as are incidental to employment. HELP represents and warrants to
CLIENT that its employees are employed "at will".
(b) HELP is responsible for such administrative employment matters as
payment of all federal, state and local employment taxes, providing workers'
compensation coverage, as well as nonobligatory fringe benefit programs for its
employees.
(c) If requested by HELP, CLIENT agrees to participate in the periodic
evaluation of HELP employees. HELP will use these evaluations to determine wage
and rate adjustments.
10. SUPERVISION
The HELP on-site supervisor or if none, the HELP regional manager, shall
determine the procedures to be followed by HELP employees regarding the time and
performance of their duties. If requested by HELP, CLIENT agrees to cooperate
with HELP in the formation of such policies and procedures relating to HELP
employees.
11. HOLIDAY AND VACATION PAY
(a) Each HELP employee receives paid holidays as set out in Exhibit D
hereto. CLIENT agrees that the cost of HELP employee holidays is included in the
fees paid to HELP by CLIENT.
(b) Each HELP employee receives a paid vacation in accordance with the
policy described in Exhibit D hereto. CLIENT agrees that the cost of HELP
employee vacations is included in the fees paid to HELP by CLIENT.
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12. INDEMNIFICATION AND ATTORNEY'S FEES
(a) HELP agrees to indemnify, defend and hold CLIENT harmless from any and
all claims, demands, obligations, losses, liabilities, damages, recoveries and
deficiencies (including interest, penalties and reasonable attorney's fees,
costs and expenses) which the CLIENT may suffer as a result of any claim
asserted against CLIENT: (i) for payroll or related tax payable by HELP in
connection the services of its employees pursuant to this Agreement; (ii)
arising out of the acts or omissions of HELP employees; or (iii) in respect of
any worker's compensation claims brought by HELP employees.
(b) CLIENT agrees to indemnify, defend and hold HELP harmless from any and
all claims, demands, obligations, losses, liabilities, damages, recoveries and
deficiencies (including interest, penalties and reasonable attorney's fees,
costs and expenses) which HELP may suffer as a result of any actions or
omissions by CLIENT.
(c) In the event that any action is brought by either party hereto as a
result of a breach or default in any provision of this Agreement or to enforce
the terms of this Agreement, the prevailing party in such action shall be
awarded reasonable attorney's fees and costs in addition to any other relief to
which the party may be entitled.
13. APPROVAL OF SUPPLIED STAFF
HELP shall provide employees which are duly qualified and skilled in the
area in which their services are to be utilized. HELP reserves the right to
determine which of HELP's employees shall be designated to fill CLIENT's Job
Function Positions provided, that, HELP will consult with CLIENT in this regard
as frequently as possible. HELP reserves the right to determine which of HELP's
employees shall be designated to fill CLIENT'S Job Function Positions, provided,
that CLIENT shall possess the right to reject any employee so furnished. If any
HELP employee is rejected, HELP agrees to furnish a suitable replacement within
a reasonable time and if one cannot be found within a reasonable time, HELP will
provide temporary personnel from a temporary help agency. The CLIENT agrees to
pay for temporary help costs directly at the prevailing rates for temporary
personnel.
14. ASSIGNMENT
Neither HELP nor CLIENT may assign any rights under this Agreement nor
transfer this Agreement in whole or part, without the express written consent of
the other party.
15. WAIVER
Failure by either party at any time to require 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, nor any part thereof nor prejudice either party as regards to
any subsequent action.
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16. NOTICES
Any notice or demand to be given hereunder by either party shall be
effected by personal delivery in writing or by certified mail, postage prepaid
return receipt requested or by overnight courier service and shall be deemed
communicated forty-eight (48) hours after mailing. Mailed notices shall be
addressed to the party's principal place of business, but each party may change
the address by written notice in accordance with this paragraph.
17. TERMINATION FOR DEFAULT
If the CLIENT fails to pay any sum due pursuant to this Agreement or
breaches any other term, condition or obligation of this Agreement, or if any
proceeding in bankruptcy, receivership or insolvency shall be instituted by or
against the CLIENT, or if the CLIENT's financial condition should otherwise be
materially impaired so as to put HELP at a substantial risk of nonpayment by the
CLIENT, then the CLIENT shall be and is in default under this Agreement. In the
event of default by the CLIENT, HELP may at its option terminate this Agreement
and terminate the employees provided under this Agreement upon such prior
written notice to the CLIENT as shall be reasonable under the circumstances.
18. CONSTRUCTION
(a) This Agreement shall be interpreted, construed and governed by and
under the laws of the State of Ohio.
(b) The paragraph headings of this Agreement are for reference only and
shall not be considered in the interpretation of this Agreement.
(c) Should any term, covenant, condition or provision of this Agreement be
held to be invalid or unenforceable, the balance of the Agreement shall remain
in full force and shall stand as if the unenforceable provision did not exist.
(d) 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
HOSPITALITY EMPLOYEE LEASING
PROGRAM, INC.
By:______________________________
Name:
Title:
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JANUS INDUSTRIES, INC.
By:_____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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Exhibit A
Locations Owned (Directly or Indirectly) by Client
Days Inn, Sharonville, Ohio
Knights Inn, Westerville, Ohio
Knights Inn, Michigan City, Indiana
Knights Inn, Lafayette, Indiana
Best Western, Doswell, Virginia
Days Inn, Raleigh, North Carolina
Days Inn RTP, Raleigh, North Carolina
Locations Managed by Client
Days Inn, Cincinnati, Ohio
Days Inn, Pompano Beach, Florida
Holiday Inn Express, Juno Beach, Florida
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Juno Beach, Florida
Holiday Inn Pompano, Pompano Beach, Florida
Comfort Suites, Blue Ash, Ohio
Exhibit B
Description of HELP Employee Benefits
See Employee Handbook attached hereto.
Exhibit C
Description of HELP Administrative Fees
$8.15 per pay period per employee. Pay periods are bi-monthly.
Exhibit D
List of Paid Holidays
See Employee Handbook attached hereto.
Vacation Policy
See Employee Handbook attached hereto.
