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Exhibit 10.6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into as of the 30th day
of July, 1996, by and between TALQUIN DEVELOPMENT COMPANY, a Florida
corporation (the "Corporation"), and MISSION DEVELOPMENT COMPANY, a Texas
corporation (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Consultant (through its employees and personnel) has
significant background and experience in the planning, designing and
preliminary development of real estate projects; and
WHEREAS, the Corporation would like to avail itself of the services of
the Consultant during the next several months, and the Consultant is willing to
provide services to the Corporation, all in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
1. Engagement. The Corporation hereby engages the Consultant to
provide certain real estate related consulting services as described in more
detail in Section 3, and the Consultant hereby accepts such engagement, upon
the terms and subject to the conditions set forth in this Agreement. Such
engagement shall be for the Term (as herein defined).
2. Term. The term of this Agreement (the "Term") shall begin as of
the date first above written (the "Effective Date"), and it shall terminate on
the date eight months from the Effective Date, unless sooner terminated as
provided in this Agreement.
3. Duties.
(a) The scope of the services to be provided by the
Consultant shall be subject to the mutual agreement of the parties, but in all
events shall include the following (but only to the extent that the Corporation
has not previously completed or arranged for the completion of the particular
service);
(i) identification, negotiation and other
assistance to the Corporation with respect to the selection and retention of
MPF Research or a comparable company to conduct a complete market study of the
St. Petersburg area, and coordination and supervision of such study;
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(ii) formulation of a conceptual development program for each of the
0xx Xxxxxx and Carillon sites, including the timing and phasing of development,
proposed unit mix and floor plan, proposed amenity package and projected rental
rates;
(iii) with respect to the 0xx Xxxxxx property, working with the
existing, permitted site plan to accommodate the desired unit plans and amenity
package; identification, negotiation and other assistance to the Corporation
with respect to the selection and retention of third party consultants to
provide environmental soils, sound, wetlands and other required reports;
identification, negotiation and other assistance to the Corporation with respect
to the selection and retention of architect, civil engineer, MEP, landscape
architect and interior designer for Phase I of the project; coordination and
supervision of the activities of all such professionals; assistance in
preparation of a Phase II Feasibility Package; and assistance in the
preliminary coordination of Phase III working drawings;
(iv) with respect to Phase II of the Carillon project, working with
the existing, permitted site plan to accommodate the desired unit plans and
amenity package; working with sound consultant, land planner and architect to
provide a preliminary site plan and a conceptual development plan;
identification, negotiation and other assistance to the Corporation with
respect to the selection and retention of third party consultants to provide
environmental, soils, sound, wetlands and other required reports; and
coordination and supervision of the activities of all such professionals;
(v) assisting the Corporation in identifying and developing offsite
amenities to the 0xx Xxxxxx and Carillon projects, including without limitation
a health and/or fitness center; and
(vi) assisting the Corporation in connection with the formulation of
the organizational structure of its development activities, the interviewing of
candidates for the position of Vice President of Development, the formulation of
proposed operating budgets, and the formulation of capital expenditures budgets
and project capitalization structure.
(b) In performing its duties, the Consultant shall have no authority to
enter into contracts on behalf of the Corporation, to establish the terms and
conditions by which a third party is to provide services to the Corporation,
or otherwise to bind the Corporation, in each instance without the prior
express consent and authorization of the Corporation.
(c) The Consultant is retained by the Corporation only for the purposes of
and to the extent set forth in this Agreement, and its relationship with the
Corporation shall, during the Term of this Agreement, be that of an independent
contractor.
(d) The Consultant's obligation under this Agreement shall be to use its
best judgments and efforts in furthering the interests of the Corporation. The
Consultant's responsibilities will be limited to the duties specifically
provided herein, and no additional duties or responsibilities will be implied.
The Consultant will have no obligation for failure or inadequacy of
performance, except in the case of the Consultant's gross negligence, fraud or
bad faith or the breach by the Consultant of an express undertaking contained
in this Agreement, even if the Consultant otherwise would be liable because of
negligence or strict liability. The Consultant will have no liability for
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performance by other persons, even if such other persons are recommended by the
Consultant, or for any recommendation made by the Consultant in good faith.
(e) The Corporation hereby agrees to indemnify, defend and hold harmless
the Consultant and its officers, directors, shareholders, employees and agents
from and against any and all claims or actions or proceedings against any one or
more of them arising out of or related to the performance by the Consultant of
its duties and responsibilities under this Agreement and all related losses,
liabilities, damages, judgments, settlements and costs and expenses ( including
court costs and fees and disbursements of attorneys and other professionals),
except to the extent such claims, actions or other proceedings result from the
gross negligence, fraud or bad faith of the Consultant or the breach by the
Consultant of an express undertaking contained in this Agreement. The Consultant
hereby agrees to indemnify, defend and hold harmless the Corporation and its
officers, directors, shareholders, employees and agents from and against any and
all claims or actions or proceedings against any one or more of them arising out
of or related to the performance by the Consultant of its duties and
responsibilities under this Agreement and all related losses, liabilities,
damages, judgments, settlements and costs and expenses (including court costs
and fees and disbursements of attorneys and other professionals), but only to
the extent such claims, actions or other proceedings result from the gross
negligence, fraud or bad faith of the Consultant or the breach by the Consultant
of an express undertaking contained in this Agreement.
4. EXTENT OF SERVICES. During the Term, the Consultant shall devote such of
its time, energy and attention to the benefit and business of the Corporation as
shall be necessary to fulfill its duties and responsibilities under this
Agreement. Subject to the limitations contained in Section 9, the Consultant may
undertake outside business activities so long as such business activities do not
in any manner violate any of the other provisions of this Agreement, or
otherwise materially impair the ability of the Consultant to fulfill its duties
and responsibilities under this Agreement.
5. COMPENSATION.
(a) The Corporation shall pay to the Consultant, as compensation for all
services rendered by the Consultant under this Agreement, an aggregate amount of
$400,000 payable as follows: $200,000 upon execution of this Agreement; $100,000
on September 1, 1996; and $100,000 on October 1, 1996.
(b) In addition to the compensation provided under paragraph (a) of this
Section 5, the Corporation shall reimburse the Consultant for its direct
out-of-pocket expenses for travel, long distance telephone, Federal Express and
similar services incurred in the performance by the Consultant of its duties and
responsibilities under this Agreement, provided in all instances that the
Consultant complies with the Corporation's expense accounting procedures as from
time to time in effect.
(c) Because the Consultant is being engaged as an independent
contractor, the Corporation shall not withhold from the compensation paid
hereunder to the Consultant any amount in respect of income taxes, employment
and self employment taxes, FICA, and similarities. The Consultant shall be
responsible for the payment of all such amounts for itself and its employees.
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(d) Neither the Consultant nor any of its employees shall not be
considered by reason of the provisions of this Agreement or otherwise as being
an employee of the Corporation or as being entitled to participate in the
plans, arrangements or distributions by the Corporation pertaining to or in
connection with any pension, stock, bonus, profit sharing or similar plans or
benefits for the Corporation's employees.
(e) The Corporation shall provide the Consultant with one furnished
office and/or conference room at the Corporation's principal place of business
in St. Petersburg for use by the Consultant's personnel. The Corporation shall
have no obligation to provide the Consultant with office personnel, equipment
or other items, or any other office space.
6. TERMINATION ON DEATH OR PERMANENT DISABILITY OF PRINCIPAL.
(a) The Term of this Agreement shall terminate upon the death of W.
Xxxxxxx Xxxxxxx ("Xxxxxxx") or upon any other termination of the employment
arrangement between the Consultant and Xxxxxxx. In such event, the Consultant
shall be entitled to an equitable portion of the compensation provided under
Section 5(a) and reimbursement of previously incurred expenses as provided in
Section 5(b).
(b) (i) The Term of this Agreement shall terminate upon the permanent
disability of Xxxxxxx. In such event, the Consultant shall be entitled to an
equitable portion of the compensation provided under Section 5(a) and
reimbursement of previously incurred expenses as provided in Section 5(b).
(ii) The term "permanent disability" as used in this Agreement
shall mean the inability of Xxxxxxx, as determined by the Board of Directors of
the Corporation or as certified by Xxxxxxx' physician, by reason of physical or
mental disability to perform the duties required of the Consultant under this
Agreement during a period of at least thirty (30) consecutive days. Upon the
determination of permanent disability, the Board of Directors of the
Corporation or Doramas (or his guardian or other similar representative) may
terminate the Consultant's engagement under this Agreement upon ten (10) days'
prior written notice.
7. OTHER TERMINATIONS.
(a) The Corporation may terminate the engagement of the Consultant
hereunder and the Term of this Agreement, without notice, (i) upon the
Consultant's failure to exercise reasonable judgment and efforts in carrying
out its duties hereunder or (ii) upon the Consultant's breach of any material
provision of this Agreement.
(b) The Corporation also may terminate the engagement of the
Consultant hereunder and the Term of this Agreement, without notice, upon the
occurrence of any of the following events:
(i) the liquidation or dissolution of the Consultant; the
suspension of the business of the Consultant; the filing by the Consultant of a
voluntary petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United States
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Bankruptcy Code, as amended, or under any other insolvency act or law, state or
federal, now or hereafter existing, or any other action of the Consultant
indicating its consent to, approval of or acquiescence in, any such petition or
proceeding; the application by the Consultant for the appointment, or the
appointment by consent or acquiescence of the Consultant of, a receiver, a
trustee or a custodian of the Consultant for all or a substantial part of its
property; the making by the Consultant of any assignment for the benefit of
creditors; the admission by the Consultant in writing of its inability to pay
its debts as they mature; or the Consultant taking any corporate action to
authorize any of the foregoing;
(ii) the filing of an involuntary petition against
the Consultant in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United States
Bankruptcy Code, as amended, or under any other insolvency act or law, state or
federal, now or hereafter existing; the involuntary appointment of a receiver, a
trustee or a custodian of the Consultant for all or a substantial part of its
property; or the issuance of a warrant of attachment or execution or similar
process against any substantial part of the property of the Consultant, and the
continuance of any of such events for thirty (30) days undismissed or
undischarged;
(iii) the adjudication of the Consultant as bankrupt
or insolvent; or
(iv) the entering of any order in any proceedings
against the Consultant decreeing the dissolution, divestiture or split-up of the
Consultant.
(c) If the engagement of the Consultant is terminated
pursuant to this Section 7, the Consultant shall be entitled to an equitable
portion of the compensation provided under Section 5(a) and reimbursement of
previously incurred expenses as provided in Section 5(b); provided, however,
nothing contained in this Section 7 shall limit the Corporation's right to xxx
for, or obtain damages caused by, the Consultant's breach, and the Corporation
shall be entitled to set off against any fee and other amounts owed to the
Consultant the amount of any such damages (whether or not suit has been
brought).
8. Confidentiality. The Consultant agrees to keep, and to cause
its employees and agents to keep, in strict secrecy and confidence any and all
information concerning the Corporation the Consultant assimilates or to which it
has access during its engagement by the Corporation and that is not a matter of
common knowledge in the fields of work of the Corporation. The Consultant agrees
that both during and after the Term, it will not, and it will not permit its
employees and agents to, without the prior written consent of the Corporation,
directly or indirectly use any such confidential information or disclose any
such confidential information to any person, except in each case in the direct
performance of services under this Agreement or as required by law or order of a
court or governmental authority.
9. Restrictive Covenants. For a period of two (2) years (with
respect to the provisions of paragraph (a) below) or one (1) year (with respect
to the provisions of paragraph (b) below), in each such case commencing on the
Effective Date of this Agreement, the Consultant:
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(a) shall not induce or attempt to induce any employee of
the Corporation to leave the employ of the Corporation; and
(b) within the State of Florida (or from outside of the
State of Florida with respect to any project located in the State of Florida)
shall not, directly or indirectly, own, operate, manage, have a proprietary
interest of any kind in, extend financial assistance to, solicit, encourage or
handle patronage for, be employed by or serve as a consultant, or serve in any
other capacity, for any person engaged in business the same as, or
substantially similar to, the business of the Corporation, except that the
Consultant may own stock in such a corporation so long as such stock is
publicly traded and the Consultant does not own more than five percent (5%) of
the outstanding stock of said corporation.
10. ENFORCEMENT
(a) It is understood by and between the parties hereto that
the covenants set forth in Sections 8 and 9 are essential elements of this
Agreement, and that, but for the agreement of the Consultant to comply with
such covenants, the Corporation would not have agreed to enter into this
Agreement. Such covenants by the Consultant shall be construed as agreements
independent of any other provision in this Agreement. The existence of any
claim or cause of action of the Consultant against the Corporation, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Corporation of such covenants, or any of them.
(b) The Consultant agrees that damages at law will be an
insufficient remedy to the Corporation if the Consultant violates the terms of
Sections 8 and 9 and that the Corporation would suffer irreparable damage as a
result of any such violation. Accordingly, it is agreed that the Corporation
shall be entitled, upon application to a court of competent jurisdiction, to
obtain injunctive relief to enforce the provisions of Sections 8 and 9, which
injunctive relief shall be in addition to any other rights or remedies
available to the Corporation.
(c) The restrictions of Sections 8 and 9 shall extend to
all activities of Consultant, whether as a sole proprietor, an independent
contractor, partner or joint venturer, or as an officer, director, stockholder
(except as otherwise specified in Section 9(b) above with respect to the
provisions thereof), agent, employee or salesman for any individual firm,
partnership, corporation or other entity, or otherwise.
(d) It is agreed by the Corporation and the Consultant that
if any portion of the covenants set forth in Section 9 are held to be invalid,
unreasonable, arbitrary or against public policy, then such portion of such
covenants shall be considered divisible both as to time and geographical area.
The Corporation and the Consultant agree that, if any court of competent
jurisdiction determines the specified time period or the specified geographical
area applicable to this Section 9 to be invalid, unreasonable, arbitrary or
against public policy, a lesser time period or geographical area that is
determined to be reasonable, non-arbitrary and not against public policy may be
enforced against the Consultant. The Corporation and the Consultant agree that
the foregoing covenants are appropriate and reasonable when considered in light
of the nature and extent of the business conducted by the Corporation.
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(e) The Consultant agrees that it will cause Xxxxxxx to comply with all
of the terms of Sections 8 and 9 and this Section 10 to the same extent as if
Xxxxxxx were a party to this Agreement and made the same agreements as those of
the Consultant contained in Sections 8 and 9 and this Section 10.
11. XXXXXXX XXXXXXX RESTRICTIONS. The Consultant acknowledges and is
aware that applicable state and federal securities laws prohibit any person who
has material non-public information about a corporation from purchasing or
selling the securities of that corporation. The Consultant further acknowledges
that during the course the Consultant's engagement by the Corporation, the
Consultant may become privy to material non-public information regarding the
Corporation or other related companies. The Consultant agrees and acknowledges
that such material non-public information will be the property of the
Corporation and such other companies. The Consultant covenants and agrees that
it will not, and it will not permit its employees and agents to, disclose to
any third person or make use of any material non-public information about the
Corporation or any such related companies in connection with the purchase or
sale of any securities, including securities of the Corporation or any such
related companies. The foregoing covenants regarding material non-public
information shall not apply to the extent that such information is publicly
disclosed by the Corporation or any such related companies or otherwise
publicly disclosed by a person other than the Consultant, its employees and
agents, or disclosure is required by law or order of a court or governmental
authority. The Consultant agrees that it will cause Xxxxxxx to comply with all
of the terms of this Section 11 to the same extent as if Xxxxxxx were a party
to this Agreement and made the same agreements as those of the Consultant
contained in this Section 11.
12. COMPLIANCE WITH OTHER AGREEMENTS. The Consultant represents and
warrants that the execution of this Agreement by it and its performance of its
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any agreement
to which the Consultant or Xxxxxxx is a party or by which the Consultant or
Xxxxxxx is or may be bound. The Corporation represents and warrants that the
execution of this Agreement by it and its performance of its obligations
hereunder will not conflict with, result in the breach of any of the provisions
of or the termination of or constitute a default under any agreement to which
the Corporation is a party or by which the Corporation is or may be bound. Each
party represents and warrants to the other party that this Agreement has been
duly authorized, executed and delivered by such party and constitutes a valid,
binding and enforceable obligation of such party.
13. DISPUTES. The prevailing party in any action or arbitration between
the parties relating to this Agreement shall be entitled to recover all
reasonable costs and expenses (including fees and disbursements of counsel,
whether incurred before trial, at trial, in appellate proceedings, or
otherwise) incurred with respect to such action.
14. WAIVER OF BREACH. The waiver of a breach of any of the provisions
of this Agreement shall not be construed as a waiver of any subsequent breach
by such party.
15. NOTICE. All notices, requests, demands and other communications
that are required or that may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when received, if personally
delivered; when transmitted, if transmitted by electronic fax, telecopy or
similar electronic transmission method (provided customary evidence of receipt
is
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obtained); the day after it is sent, if sent by recognized overnight delivery
service; and three days after it is sent, if mailed, first class certified
mail, return receipt requested, postage prepaid. In each case notice shall be
sent to the parties at the following addresses:
To the Corporation at: Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
To the Consultant at: 0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Either party may change its address to which notice is to be sent pursuant
hereto by sending a notice of such change in conformity with the foregoing
requirements to the other party.
16. BINDING EFFECT: ASSIGNMENT. The rights and obligations of the
Corporation under this agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of the Corporation. This Agreement is a
personal contract and the rights, obligations and interests of the Consultant
hereunder may not be sold, assigned, transferred, pledged or hypothecated.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to its subject matter and supersedes all prior
agreements and understandings, oral or written between the parties, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge is sought.
18. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida.
19. DEFINITION OF "PERSON". For all purposes of this Agreement; the
word "person" shall refer not only to a natural person but also to any
corporation, partnership, joint venture, trust or other entity or business
arrangement.
20. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach hereof, or regarding the failure or refusal to
perform the whole or any part of this Agreement, except in each instance the
enforcement by the Corporation of any of the provisions contained in Sections 8
through 10, inclusive, shall be settled by arbitration in Pinellas County,
Florida, in accordance with the rules of the American Arbitration Association,
and judgment upon the award rendered may be entered in any court having
jurisdiction hereof. Any decision made by an arbitrator or by arbitrators under
this provision shall be enforceable as a final and binding decision as if it
were a final decision or decree of a court of competent jurisdiction.
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21. HEADINGS. The headings of the various sections in this Agreement are
inserted for the convenience of the parties and shall not affect the meaning,
construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
TALQUIN DEVELOPMENT COMPANY
By: /s/ Xxxxxx X. XxXxxxx
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"Corporation"
MISSION DEVELOPMENT COMPANY
By: /s/ W. Xxxxxxx Xxxxxxx
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"Consultant"
