CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made this 1st day of
January, 1997, between Rock Bottom Restaurants, Inc. ("Rock Bottom"), a Delaware
corporation, located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx,
00000, and FBD Management Corp. (the "Consultant").
RECITALS
WHEREAS, Consultant has certain expertise and knowledge regarding
restaurant operation and administration, restaurant design, site selection and
implementation of management systems; and
WHEREAS, Rock Bottom is engaged in the restaurant business and desires
to hire Consultant as an independent contractor-consultant to provide restaurant
design, site selection and other Services to Rock Bottom under the terms and
conditions hereinafter set forth, and Consultant is willing to work in such
capacity.
NOW, THEREFORE, in consideration of the compensation, Services,
promises and mutual covenants herein set forth, and for other good and valuable
consideration, including past, present and future compensation, the parties
hereby agree as follows:
ARTICLE I
SERVICES OF CONSULTANT
Rock Bottom agrees to employ Consultant in the capacity of independent
contractor-consultant to assist Rock Bottom with restaurant design, site
selection and other Services ("Services").
ARTICLE II
CONSULTING FEE
Rock Bottom agrees to pay Consultant a fee of One Hundred Thousand
Dollars ($100,000) per year in twelve equal monthly installments of Eight
Thousand Three Hundred Thirty-three Dollars and thirty-three cents ($8,333.33)
for the term of this Agreement. In addition, Rock Bottom agrees to pay
Consultant for all expenses incurred while providing such Services, including,
but not limited to, travel, meals, entertainment, and lodging, on a semi-monthly
basis. Payment shall be made by checks payable to FBD Management Corp.
ARTICLE III
TERM
The term of this Agreement is two years, beginning as of the date first
above written. Thereafter, it shall be in effect for successive periods of one
year each, each year beginning on the day and month that this Agreement is
originally executed ("Successive Period"), unless either party provides written
notice to the other party at least 60 days prior to the beginning of the
Successive Period.
ARTICLE IV
TERMINATION
Either party hereto may terminate this Agreement upon the breach of a
material term hereof by the other party, which breach remains uncured for thirty
(30) days after the date that the nonbreaching party has served written notice
on the breaching party, which notice will set forth the basis of such breach and
the party's intent to terminate the Agreement.
ARTICLE V
GENERAL PROVISIONS
A. No Assignability. Neither party shall have the right to assign its
rights and obligations hereunder to any other person or entity
without the express written consent of the other party hereto. Any
assignment, delegation, or any transfer by either party in
violation of this paragraph shall be null and void, and shall be a
material breach of this Assignment.
B. Separateness. Nothing in this Agreement shall be construed as
combining the business operations of Rock Bottom in any way with
the business operations of Consultant. All such operations shall
be maintained separately and distinctly.
C. No Agency Relationship. This Agreement does not establish any
agency, joint venture, or partnership relationship between the
parties, and neither party can bind the other by any contract or
representation.
D. Independent Contractor Status. Nothing in this Agreement shall
construe Consultant as an employee of Rock Bottom. Consultant is
an independent contractor, engaged in and independent business
from Rock Bottom, and is free from Rock Bottom's control and
direction in the performances of Services.
E. Worker's Compensation Insurance. Consultant and its employees are
not entitled to workers' compensation benefits through Rock
Bottom, and Consultant is obligated to pay federal and state
income tax on any moneys paid pursuant to this Agreement.
F. Unemployment Insurance. Consultant and its employees are not
entitled to unemployment insurance benefits through Rock Bottom
and Consultant is obligated to pay federal and state income tax on
any moneys paid pursuant to this Agreement.
G. Notices. All notices provided for in this Agreement shall be in
writing and shall be deemed effective when either served by
personal delivery or sent by express, registered or certified
mail, postage prepaid, return receipt requested, to the other
party at the corresponding mailing address set forth above or at
such other address as such other party may hereafter designate by
written notice in the manner aforesaid.
H. Modification. The parties acknowledge and agree that this
Agreement may only be modified by the mutual written agreement of
the parties.
I. Arbitration. IN THE EVENT OF ANY DISPUTE ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE BREACH OF VALIDITY THEREOF, THE
PARTIES AGREE TO MAKE ALL REASONABLE EFFORTS TO REACH AN AMIABLE
SETTLEMENT OF THEIR DIFFERENCES. FAILING SUCH SETTLEMENT WITHIN
THIRTY (30) DAYS AFTER THE NOTICE OF SUCH DISPUTE, THE DISPUTE
SHALL BE SETTLED BY ARBITRATION UNDER THE COMMERCIAL RULES OF
ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION. THE DECISION
OF THE ARBITRATORS SHALL BE BINDING AND CONCLUSIVE UPON EACH PARTY
HERETO AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.
J. Attorney Fees. In the event that action is brought to enforce,
interpret, or construe the terms of this Agreement or the acts of
the parties in relation thereto, the prevailing party in such
action shall, in addition to any other relief awarded, be entitled
to reasonable attorneys fees in such action or in a separate
action bought for that purpose.
K. Governing Law. The parties agree that this Agreement is entered
into and will be governed in accordance with the laws of the State
of Colorado in any action relating to this Agreement.
L. Entire Agreement. This Agreement, together with any written
agreements delivered contemporaneously herewith, contains the
entire agreement of the parties with respect to its subject matter
and no waiver, modification or change of an of its provisions
shall be valid unless in writing and signed by the party or
parties against whom such claimed waiver, modification or change
is to be enforced.
M. Waiver. The waiver of any breach of any one or more of the
provisions of this Agreement shall not be, or be construed to be,
a waiver of any subsequent or other breach of this Agreement; nor
shall any failure on the part of the nonbreaching party to require
the exact full and complete compliance with any of the provisions
of this Agreement be construed as in any manner changing the terms
hereof.
N. Divisibility. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall to any
extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to persons
or circumstances other than those as to which is held invalid or
unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
ROCK BOTTOM RESTAURANTS, INC. CONSULTANT:
FBD MANAGEMENT CORP.
By: ________________________ By: ________________________
Xxx Xxxxxx Xxxxx X. Day
President & CEO President
