INDEPENDENT CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made effective as of the 1st day of
January 2004, by and between Maui Land & Pineapple Company, Inc.,
a Hawaii corporation, whose principal place of business and
mailing address is 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000 ("MLP")
and Xxxxxx X. Xxxxx whose mailing address is 000 Xxxxx Xxxxx,
Xxxx, Xxxxxx 00000 (hereinafter referred to as the "Contractor").
RECITALS:
A. Kapalua Land Company ("KLC") is a business unit of MLP
and is engaged in the development and operation of the Kapalua
Resort on the Island of Maui's northwest coast (hereafter referred
to as the "Business"). MLP and KLC shall hereafter be referred to
collectively as the "Company."
B. Company desires to contract with Contractor, as an
independent contractor, to provide certain consulting and
advisory services more fully described below to the Company
regarding the Business.
C. Contractor possesses the skills, experience and contacts
necessary to provide such services to Company.
NOW, THEREFORE, in consideration of the premises and the
covenants and conditions contained herein, Company and Contractor
hereby agree as follows:
1. Relationship of Independent Contractor Created.
1.1 It is expressly agreed by the parties hereto that
Contractor shall not be deemed to be an employee of Company for
any purpose whatsoever, but shall be an independent contractor.
Further, it is understood and agreed by the parties that nothing
contained in this Agreement shall be construed to create a joint
venture, partnership, association, or other affiliation or like
relationship between the parties, it being specifically agreed
that their relationship is and shall remain that of independent
parties to a contractual relationship as set forth in this
Agreement.
1.2 Company will not exercise any dominion or control
over the specific manner in which Contractor performs the services
hereunder, so long as the overall performance by Contractor of
such services are satisfactory to Company and in full conformity
with the requirements of this Agreement.
1.3 Company agrees that it shall place no restrictions,
either express or implied, upon Contractor's acceptance of work from
other persons or companies, provided, however, that Contractor's
acceptance of work from such other persons or companies shall not
relieve Contractor from the full compliance with the terms of
this Agreement, nor shall Contractor's work for other companies
interfere with, conflict with or be contrary to the interests of
Company.
1.4 Contractor shall have no authority to bind the Company
or to transact business in the name of Company.
2. Consulting Services.
2.1 During the term of this Agreement Contractor agrees
to be available for up to twenty-five (25) days as and when requested
by Company to advise and/or consult with Company managers and
others on ways to enhance and maximize the development marketing
and operations of KLC's Kapalua Resort (hereafter referred to as
the "Consulting Services") .
2.2 Contractor may provide other services to the Company
as may be agreed upon by the Company and Contractor from time to
time, provided that such other services shall not result in any
increase in the Contract Fee payable to Contractor hereunder
unless agreed to in writing by the Company and Contractor.
3. Contract Fee.
3.1 In consideration for the Contractor's agreement to be
available during the term of this Agreement for up to twenty-five
(25) days as and when requested by Company, to provide the
Consulting Services, Company shall pay to Contractor a Contract
Fee of Fifty Thousand Dollars ($50,000.00) at the termination of
this Agreement on April 15, 2004 and shall reimburse Contractor
for all reasonably necessary tax deductible business expenses
incurred by Contractor with Company's prior consent (hereafter
collectively referred to as the "Contract Fee").
4. Liability for Taxes and other Statutory Requirements.
4.1 Contractor understands and agrees that as an
independent contractor, Contractor will be solely responsible for
obtaining and maintaining a current Hawaii Gross Excise Tax License
and for reporting and paying all state and federal taxes, social
security taxes, unemployment insurance contributions and assessments,
workers' compensation insurance, prepaid healthcare insurance,
temporary disability insurance, general excise taxes, self-employment
taxes, and any and all other taxes, fees, assessments or contributions,
if any, applicable to Contractor or arising out of the Consulting
Services provided by or the Contract Fee paid to Contractor
hereunder. Contractor understands and agrees that (a) Contractor
will not be treated as an employee of Company for any purposes;
(b) Company will not withhold on behalf of Contractor any sums
for income tax, unemployment insurance, social security, or any
other federal or Hawaii taxor contribution pursuant to any law or
requirement of any governmental body; and (c) Contractor will
indemnify and hold Company harmless from any and all loss or
liability arising from Company's failure to make such payments or
Company's failure to make such contributions.
4.2 Contractor understands and agrees that Company will
not make available to Contractor any of the benefits afforded to
employees of Company, and Contractor shall not have and hereby
waives any claim under this Agreement or otherwise against Company
for any employee benefit or employee benefit plan coverage including
but not limited to vacation pay, paid sick leave, severance,
retirement benefits, social security, workers compensation,
health, disability, or unemployment insurance benefits or other
employee benefits of any kind excepting only the payments and
benefits described in Paragraph 2 of that certain Employment
Separation Agreement dated December 24, 2003 between the parties.
Contractor will indemnify, defend and hold Company harmless from
any and all loss or liability arising from Company's failure to
make or provide such benefits or contributions.
5. Indemnification. Contractor agrees to indemnify, defend
and hold harmless Company and its officers, directors and employees,
from, and reimburse it for, any and all liabilities, claims,
demands, losses, damages, injuries, costs and expenses, including
attorney's fees and court costs, incurred in connection with,
arising out of or incident to the Consulting Services provided
hereunder by Contractor or the breach by Contractor of any
provision of this Agreement.
6. Confidentiality and Noncompetition.
6.1 Contractor agrees that, Contractor has, and in the
course of Contractor's performance of this Agreement Contractor
will acquire, confidential information regarding the Company, its
clients and its business (the "Confidential Information").
Contractor understands and agrees that Contractor shall: (a)
keep such Confidential Information confidential at all times
during and after the expiration of the term of this Agreement;
(b) not disclose or communicate any Confidential Information to
any third party, except as required by law; (c) not use any
Confidential Information on Contractor's own behalf or on behalf
of any third party, except as otherwise expressly authorized in
writing by Company; and (d) not use any Confidential Information
to the detriment of Company.
6.2 During the term of this Agreement and for a period
of one (1) year after the termination of this Agreement, Contractor
shall not, without the prior written consent of Company, engage
in any activity competitive with the business of Company, its
parent or affiliated entities in the State of Hawaii (hereafter
referred to as the "Business"). An activity competitive with the
Business shall mean becoming an employee, officer, director,
contractor or consultant of, or being an investor in, or owner
of, any corporation, partnership, limited liability company, or
other person or entity engaged in any conduct which competes
directly or indirectly with the Business in the State of Hawaii.
It is the desire and intent of the parties that the provisions of
this Paragraph shall be enforced to the fullest extent
permissible under the laws and public policies of the State of
Hawaii. Accordingly, if any particular portion of this Section
shall be adjudicated to be invalid or unenforceable, this Section
shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable.
6.3 In view of the nature of Contractor's services
hereunder and the nature of the Confidential Information that
Contractor may receive during the course of the performance of
Contractor's services, Contractor agrees that any unauthorized
disclosure to third parties of any Confidential Information,
Contractor's engagement in any competitive activity, or any other
violation, or threatened violation, of this Section 6 would cause
irreparable damage to the Company, and that, therefore, the
Company shall be entitled to an injunction prohibiting Contractor
from any such disclosure, attempted disclosure, competitive
activity, attempted competitive activity, violation or threatened
violation. The undertakings set forth in this Section 6 shall
survive the termination of this Agreement.
7. Term and Termination.
7.1 The term of this Agreement shall commence on
the date hereof and shall continue through April 15, 2004 unless
terminated sooner as provided in Subparagraph 7.2.
7.2 This Agreement may be terminated by written
notice given prior to April 15, 2004 upon the occurrence of any of
the following events: (i) by mutual agreement of the parties, (ii)
by Contractor's death, (iii) by Contractor suffering a physical,
mental or emotional impairment that prevents Contractor from
being available or able to perform any of the Consulting Services
to Company's reasonable satisfaction for a period of four (4)
consecutive weeks or any six (6) weeks during the any two (2)
month period, or (iv) by a material breach of this Agreement by
either party. In the event this Agreement is terminated prior to
April 15, 2004 for any of the foregoing reasons Contractor shall
be entitled to receive prompt payment of only those prorated
Contract Fees earned through the termination date.
8. Arbitration. If any claim, dispute or controversy should
arise between the Company and Contractor, with respect to this
Agreement or their obligations under, any alleged breach of, or
the interpretation of, this Agreement (except for any alleged
breach of the provisions of Section 6 to which this Section shall
not apply), either the Company or Contractor may demand that the
dispute be settled by arbitration in Honolulu, Hawaii before a
single arbitrator in accordance with the then existing rules for
resolving commercial disputes of the American Arbitration
Association or its successor, provided, however, that the
arbitrator may not alter, amend or terminate any provision of
this Agreement or award punitive or exemplary damages unless
expressly provided for by statute. The award of the arbitrator
shall be final and binding and judgment upon the award may be
entered in accordance with the Federal Arbitration Act, unless
such law is not applicable in which case in accordance with
Hawaii Revised Statutes Chapter 658A, as amended, in any court
having jurisdiction thereof. All fees and expenses of the
arbitrators and all other expenses of the arbitration, except for
attorneys' fees shall be shared equally by the Company and
Contractor. Each party shall bear its own witness expenses. The
prevailing party in such arbitration shall be entitled to recover
reasonable attorneys' fees as part of the award resulting from
such arbitration but not to exceed the maximum amount permitted
under HRS 607-14.
9. Miscellaneous.
9.1 Notices or communications required or permitted
to be given under this Agreement shall be given to the
respective parties by personal delivery or by registered or
certified mail (such notice being deemed given as of the date of
mailing) at the addresses set forth in this Agreement unless a
party shall otherwise designate a different address by written
notice to the other party.
9.2 This Agreement shall be construed and enforced in
accordance with the laws of the State of Hawaii.
9.3 No assignment of this Agreement or the rights and
obligations hereunder shall be valid without the specific written
consent of both parties hereto.
9.4 This Agreement constitutes the entire understanding
and agreement of the parties hereto with respect to the Consulting
Services of Contractor and it supersedes all previous agreements,
correspondence, negotiations and discussions regarding the
Consulting Services.
9.5 This Agreement may be amended only by an instrument
in writing signed by both parties thereto, effective as of the
date stipulated therein.
9.6 If any provision of this Agreement is held to be
illegal, invalid, or unenforceable, such provision shall be fully
severable and this Agreement shall be construed and enforced as
if such illegal, invalid, or unenforceable provision had never
comprised a part hereof. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar
in terms to such illegal, invalid, or unenforceable provision as
may be possible and still be legal, valid or enforceable.
9.7 No consent or waiver, express or implied, by a party
or of any breach or default by the other party in the performance
by such other party of its obligations hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach
or default in the performance by such other party of the same or
any other obligations of such party hereunder.
9.8 This Agreement shall be binding upon and is for the
benefit of the parties hereto and their successors, transferees,
permitted assigns, heirs and personal representatives.
9.9 Any exhibits attached hereto are incorporated by
reference in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
MAUI LAND & PINEAPPLE COMPANY INC.
By /S/ XXXXX X. XXXX
Its President and CEO
the "Company"
/S/ XXX XXXXX
XXXXXX X. XXXXX
