Exhibit 10.28
Consulting Agreement between the Registrant and Pacific
Consulting Group dated September 1, 1995.
INDEPENDENT CONTRACTOR AGREEMENT
THE AGREEMENT is made and entered into as of this lst day of September,
1995 by and between Xxxxxx Xxxxxxxx Hotel & Casino, Inc. (Client), with its
principal place of business in Las Vegas, Nevada, and Pacific Consulting Group,
Inc., a Nevada corporation ("PC"), an independent contractor, with its place of
business at 1821 WCR27 Xxxxxxxx, Xxxxxxxx 00000.
RECITALS
WHEREAS, Client is engaged in the Timeshare, Hotel Industry.
WHEREAS, PC is in the business of providing general business consulting
services, including strategic business planning services, to companies.
WHEREAS, in the operation of Client's business, Client is in need of the
services which PC provides and wishes to enter into a business arrangement with
PC to provide such services.
IN CONSIDERATION of the promises and mutual covenants hereby contained, it
is hereby agreed as follows:
AGREEMENTS
1. Terms of Contract
This Agreement will become effective on September 1, 1995 and will continue
in effect for a period of six (6) months unless earlier terminated pursuant to
Section 5 of this Agreement.
2. Services to be Performed by Contractor
2.1 Specific Services PC agrees to provide general business consulting
services, including strategic business planning services, to Client.
2.2 Independent Contractor Status. It is the express intention of the
parties that PC be an independent contractor and not an employee, agent, joint
venturer or partner of Client. Client shall have no right to and shall not
control the manner or prescribe the method by which PC performs the
above-described services. PC shall be entirely and solely responsible for its
own actions and the actions of its agents, employees or partners while
engaged in the performance of services required by this Agreement. Nothing in
this Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between Client and PC or any employee or
agent of PC. Both parties acknowledge that PC is not an employee for state or
federal income tax purposes and PC specifically agrees that it shall be
exclusively liable for the payment of all income taxes, or other state or
federal charges, that are due as a result of receipt of any consideration for
the performance of services required by this Agreement. PC agrees that any such
consideration is not subject to withholding by the Client for payment of any
taxes and PC directs Client not to withhold any sums for the consideration paid
to PC for the services provided hereunder. PC shall retain the right to perform
services for others during the term of this Agreement.
2.3 Use of Employees of Contractor, PC may, at PC's own expense, use any
employees or subcontractors as PC deems necessary to perform the services
required of PC by this Agreement. Client may not control, direct or supervise
PC's employees or subcontractors in the performance of those services.
2.4 Expense, PC shall be responsible for all costs and expenses incident to
the performance of services required by this Agreement, including but not
limited to, the cost of materials used by PC, travel, fees, fines, licenses,
bonds and taxes required of, or imposed against PC, and all other of PC's costs
of doing business.
3. Compensation
3.1 Stock, Client and PC agree that PC shall receive fifty thousand shares
of Client's tradable common stock to be delivered to PC after this agreement has
been executed.
4. Obligations of Client
4.1 Cooperation, Client shall comply with all reasonable requirements of PC
and provide access to all documents reasonably necessary to the performance of
PC's duties under this Agreement.
5. Termination of Agreement
5.1 Termination on Notice, Notwithstanding any other provision of this
Agreement, the client may terminate this Agreement at any time by giving thirty
(30) days written notice to the other party. Unless otherwise terminated as
provided in this Agreement, this Agreement will continue in force for a period
of six (6) months.
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5.2 Termination on Occurrence of Stated Event, This Agreement will
terminate automatically on the occurrence of the following event:
(a) bankruptcy or insolvency of either party.
6. General Provisions
6.1 Further Acts, Each party agrees to perform any further acts and execute
and deliver any further documents that may be reasonably necessary to carry out
the provisions and intent of this Agreement.
6.2 Entire Agreement, This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter contained herein and may
be amended only by a written instrument signed by the parties affected thereby,
or their respective successors or assigns. This Agreement cancels and supersedes
all prior agreements, if any, oral or written, among Client and PC.
6.3 Severability, If any provision of this Agreement shall be held invalid
such invalidity shall not affect the other provisions hereof, and to this extent
the provisions of this Agreement are intended to be and shall be deemed
severable.
6.4 Counterparts, This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6.5 Notices. Any notice or other communication required or permitted under
this Agreement shall be sufficiently given if delivered personally or sent by
registered or certified mail, postage prepaid and return receipt requested, to
the address of the parties set forth in the first paragraph of this Agreement or
at such address as may have been provided in like manner in writing to both of
the parties to this Agreement. Any notice that is sent by mail under this
Agreement shall be considered received on the date on which it is actually
delivered to the premises of the party of whom it is properly addressed, such
date to be conclusively evidenced by the date of the return receipt.
6.6 Governing Law, This Agreement shall be construed in accordance with,
and governed by the laws of the State of Nevada.
6.7 Assignment, No party to this Agreement may assign this Agreement or its
right or obligations hereunder without the written consent of the others.
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6.8 Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
6.9 Pronouns, All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
6.10 Waiver, No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
6.11 Acknowledgment Concerning Counsel, Each party acknowledges that it had
the opportunity to employ separate and independent counsel of its own choosing
in connection with this Agreement.
6.12 Arbitration, Any controversy, claim, misunderstanding, course of
action, matter in question, breach, disagreement, dispute, or other related
matter arising out of, or relating to this Agreement, or the relationship
between the parties, shall be decided by mandatory binding arbitration before
the American Arbitration Association in Las Vegas, Nevada. In such arbitration,
the parties shall be entitled to the full discovery rights accorded to litigants
under the Laws of Nevada. The prevailing party shall be entitled to recover all
costs and expenses incurred, including its reasonable attorney's fees, related
costs, and any advanced arbitration expenses.
6.13 Indemnification, PC and its principle, Messrs. Xxxxx Xxxxxx, will
indemnify and hold harmless Client and its officers, directors, agents and
employees against any and all losses, or liabilities, including reasonable
attorneys fees and costs and expenses, which may be incurred by Client as a
result of statements made by PC which are inaccurate or misleading or the
failure by PC to state facts, which are necessary to be stated in order to make
statements made not misleading.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CLIENT: XXXXXX XXXXXXXX HOTEL & CASINO, INC.
By: /s/ Xxxx Xxxxxx
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Its: CEO
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PACIFIC CONSULTING GROUP
By: /s/ Xxxxx Xxxxxx
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