Exhibit 10a
Consulting Services Agreement
This Consulting Agreement ["the Agreement"] entered into on the date herein
below set forth adjacent to the signatures of the parties executing the same
between Saw Tooth Builders, Inc., a Nevada corporation, ["STB"] whose address is
0000 X. X. Xxxxxx, Xxxxx 0-X, Xxxx Xxxx Xxxx, XX 00000 and Senior Care
Industries, Inc., 000 Xxxxxxxx, 0xx Xxxxx, Xxxxxx Xxxxx, XX 00000 [hereinafter
referred to as "Client"].
Whereas Client requires the services of STB for the specific purpose of
providing construction management services for the building of the planned urban
development project in Oasis, Nevada; and
Whereas STB is in the business of providing construction management services;
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Responsibilities and Warranties of STB: STB hereby agrees to perform
consulting and advisory services for the Client in conjunction with the
development of the planned urban development being designed in Oasis, Nevada by
Client including but not limited to all construction management of the project,
governmental interface, state highway intersection design and construction,
project management, engineering management, coordination and facilitation of all
necessary and required entitlements for the project including water, sewer,
electrical, gas and any other utilities, site preparation, grading, street
design and management of the entire project.
2. Client's Responsibilities & Warranties: Client agrees to provide to STB all
information necessary together with any documents which may be requested by STB
or such professionals as STB may retain in connection with this Agreement to
facilitate the work which STB has agreed to perform under the terms hereof.
Client shall be solely responsible for the accuracy of the information and
representations made in any document prepared by STB and/or its retained
professionals.
3. Consideration: Client shall pay to STB or its assigns including such
employees and management personnel as STB may designate, a fee for their
services equal to 1,500,000 shares of common stock in Client. Such shares shall
be subject to registration by Client on Form S-8. Any costs associated with the
Registration of the stock shall be borne by Client.
4. Costs: In addition to the compensation set forth in Paragraph 3 above, Client
shall pay directly any permit or other fees and shall further pay all
professionals who may be retained by STB from time to time including but not
limited to architects, engineers and others, in such amounts as may here after
be determined in a budget, said amounts to be paid in cash to the said
professional persons when requested by STB.
Client must issue checks in full payment of any such fees, payable to the
appropriate payee in the appropriate amount and return the checks to STB
together with all properly executed documents.
5. Circumstances incident to filing of documents: STB does not accept
responsibility for any occurrence resulting from State, County or local
processing backlogs, agency computer breakdowns or other circumstances which may
cause a delay in the processing of submissions to any agency of the government.
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6. Indemnification: In the event litigation is instituted against Client naming
STB as a co-defendant for any reason, Client hereby agrees to indemnify and hold
harmless STB, its partners, employees, agents, representatives, retained
professionals, their assigns and controlling persons from any loss, claim,
damages, liabilities, costs and expense in any suit, proceeding and/or claim
arising from the cost of investigating, preparing and defending the submissions
made by STB based upon information which was obtained from Client and submitted
on forms prepared by STB and/or its retained professionals. This said Paragraph
6 shall survive the expiration or termination of this Agreement.
7. Independent Contractor Status: Client acknowledges that STB shall perform its
services under the provisions of this Agreement as an Independent Contractor and
not as an employee or an affiliate of Client.
8. Amendment and Modification: Subject to applicable law, this Agreement may be
amended, modified or supplemented only by a written agreement signed by both
parties. No oral modifications to this Agreement may be made.
9. Date of Commencement and Substantial Completion: The date of commencement of
the work shall be fixed in a notice to proceed issued by Client. If, prior to
commencement of the work the Client requires time to file mortgages, mechanic=s
liens and other security interests, the Client will provide timely to STB, if
required. STB shall commence work ten (10) days after such notice.
The contract time shall be measured from the date of commencement as fixed in
the notice issued by the Client. STB shall achieve Substantial Completion of the
entire work on a timely basis from the date of commencement.
10. Independent Investigation: STB has made in independent investigation of the
job site, and the soil conditions under the job site, and all other conditions
that might affect the progress of the work, and has satisfied itself as to those
conditions. And information that Client may have furnished to STB about the job
site, underground conditions or other job conditions is for STB=s convenience
only, and Client does not warrant that the conditions are as thus indicated. STB
has satisfied itself by its own investigation as to all job conditions,
including underground conditions, and has not relied on information furnished by
Client. STB shall receive equitable adjustments to the contract amount for
unforeseeable or unanticipated site conditions.
11. Extra Work: By issuing a written change order, the owner may change the
scope of the work required by the contract documents by adding or deleting work,
materials, or equipment, and STB shall perform the work required under this
contract as thus modified. In the event of such changes, the contract price
shall be equitably adjusted by the written change order signed by both parties.
If the parties cannot agree as to the amount of the equitable adjustment, then
STB shall provide the owner weekly with a detailed summary (including backup
documents) of the reasonable cost of extra work, including the cost of labor,
materials, equipment, and subcontracts, and the owner shall reimburse this cost,
monthly, concurrently with progress payments. The parties will continue to
negotiate the final amount of the equitable adjustment to the contract price,
and if they do not agree, the final amount will be determined by arbitration is
provided for in the contract documents, otherwise by litigation.
It conclusively presumed that all work performed by STB under this contact is
included in the contract price, unless the owner has signed a written extra work
order directing the contractor to perform additional work and specifying the
consideration to be paid. No architect, manager, superintendent, or other
employee of STB is authorized to sign extra work orders. The only person
authorized to sign extra work orders is Xxxxx Xxxxx, President of Client or such
other individual as may herein after designated by Client.
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12. Allowances: If the contract price included allowances, and the cost of
performing the work covered by an allowance is greater or less than the
allowance, the contract price shall be increased or decreased accordingly.
Unless otherwise requested by Client in writing, STB shall use its own judgment
in accomplishing work covered by an allowance. If Client requests that work
covered by an allowance be accomplished in such a way that the cost will exceed
the cost of allowance, STB shall comply with Client=s request, provided Client
pays the additional cost in advance.
13. Time is of Essence, Progress of Work: Time is of the essence of this
agreement. If STB should fail to supply sufficient men, material, supplies, and
equipment to achieve scheduled completion, Client shall give written notice to
STB, which notice shall require that STB supply sufficient men, supplies,
materials, and equipment to diligently prosecute of the work within 48 hours
after such notice is delivered, Client may eject STB from the job, take over all
supplies, equipment, and material of STB on the job site, and either obtain
another contractor to finish the project or finish the project with its own
forces. In such event, STB shall be liable to Client for damages, including but
not limited to the full cost of completing the project.
14. Delay: STB shall be excused for any delay in completion of the contract
caused by acts of God, acts of Client or Client=s agent, labor trouble, acts of
public utilities, public bodies, or inspections, extra work, failure of Client
to make progress payments promptly, or other contingencies unforeseen by the
contractor and beyond the reasonable control of STB.
15. Damage to Project, Insurance: Client will procure as its own expense, and
before commencement of any work hereunder, a broad form all risk policy of
insurance, including coverage for flood and earthquake, at least equal to the
contract price, with such insurance to name of STB and all subcontractors as
additional insurers, and to protect owner, contractor, and all subcontractors as
their interests may appear, with loss payable to Client for the benefit of the
Client, contractor and subcontractors. Client will, as named insured, properly
process claims with the carrier for the benefit of Client, contractor, and
subcontractors. Should Client fail so to do, STB may procure such insurance as
agent for and at the expense of Client, but STB is not required to do so. Client
shall, upon request, furnish a copy of the policy to STB.
If the project, or any part of it, is destroyed or damaged by accident,
disaster, or calamity, such as fire, storm, flood, landslide, subsidence,
earthquake, or vandalism, any work done by STB or subcontractor in rebuilding or
restoring the project shall be paid for as extra work, for which STB shall
receive equitable compensation from Client.
STB will carry workers compensation insurance for the protection of its
employees during the progress of the work. Client shall obtain and pay for
insurance against injury for its own employees and persons under Client's
direction and persons on the job site at Client=s invitation.
16. Form; Conflict Between Contact Documents: If there is any conflict between
contract documents as to materials, equipment, or work to be performed or
furnished, STB will bring the conflict to the attention of the Client and a
mutual resolution will be negotiated.
17. Notices: Any notice required or permitted under this contract may be given
by ordinary mail at the address contained in this contained in this contract,
and such address may be changed by written notice given by one party to the
other from time to time. Notice shall be deemed received one (1) day after
deposited in the mail, postage prepaid.
18. Owner=s Right to Cancel if Construction Loan Falls Through: The performance
of a certain portion of the work under this contract depends on the ability of
Client to obtain satisactory financing. If Client is not able to arrange
satisfactory financing, it may cancel this contract, provided, however, that STB
will be considered to have earned at least a portion of the common stock in
Client which has already been paid hereunder.
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19. Acts Requiring Mutual Consent: No party shall without the written consent of
the other members, assign, mortgage, grant a security interest in, or sell its
share in the Corporation or in its capital assets or property, or enter into any
agreement, as a result of which any person shall become interested with it in
the corporation; or do any act detrimental to the best interests of the
corporation, or which would make it impossible to carry on the ordinary
business.
20. Assignment of Interest & Rights to Accrued Profits in That Event: No party
shall sell, assign or in any way transfer its interest or any part thereof in
this agreement without first obtaining the written consent of the parties
hereto.
21. Conduct of Other Business: All parties hereto shall be free to carry on
their respective businesses independent of the others and no party shall have
any right in or claim against the business of the others on any contract other
than the aforementioned development.
22. Disputes: In the event of any dispute between STB and Client as to the work
to be done, under this contract, the payments to be made, or the manner of
accomplishment of the work, STB shall nevertheless proceed to perform the work
as directed by Client pending settlement of the dispute, as long as Client
continues to make progress payments. STB would be required to he ahead and
finish the job and file suit or demand arbitration to resolve the dispute.
23. Indemnity: STB will indemnify Client against all claims, demands, and
liability for damages for the death or bodily injury to persons or property
damage and caused by or related to performance of the work by contract or any
subcontractor. The obligation to indemnify shall be effective even if active or
passive negligence or misconduct of the owner contributes to the loss or claim.
This indemnity will not extend to claims, demands, liability, or expense arising
out of the sole negligence or sole willful misconduct of Client.
24. Arbitration: Any controversy arising out of relating to the performance or
interpretation of their contract or any subcontract or sub-subcontract is
subject to arbitration. Client, STB, and all subcontractors, sub-subcontractors,
material suppliers, and other parties concerned with the construction of the
project are bound, each to the other, by this arbitration clause, provided the
party has signed this contact or has signed a document that refers to or
incorporates this contract by reference, or signs any other agreement to be
bound by this arbitration clause.
On the demand of the arbitrator or any party to the arbitration initiated under
the arbitration provisions of this contract, owner, subcontractor,
sub-subcontractor, or any other party bound by this arbitration provision agrees
to join in, become a party to, and be bound by such arbitration proceedings.
Arbitration shall be conducted in accordance with Construction Industry Rules of
the American Arbitration Association that are in effect at the time of the
arbitration, and judgment may be entered on the award. Evidence presented at the
arbitration shall admitted or denied be subject to the Nevada rules of evidence.
If any party refuses or neglects to appear at or to participate in arbitration
proceedings after reasonable notice, the arbitrator is empowered to decide the
controversy in accordance with whatever evidence is presented by the party or
parties who do participate. The arbitrator may award any remedy that is just and
equitable in the opinion of the arbitrator. The arbitrator will award to the
prevailing party or parties such sums as are proper to compensate for the time,
expense and trouble of arbitration, including arbitration fees and attorney
fees, not to exceed ten thousand dollars ($10,000.00). The arbitrator will
remain jurisdiction of a controversy even if a party or parties to the dispute
will not or cannot be joined in the arbitration proceedings.
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25. Attorneys Fees: If the parties become involved in litigation or arbitration
arising out of this contract or the performance thereof, the court or arbitrator
shall award reasonable costs and expense, including attorneys fees, to the
prevailing party, not to exceed ten thousand dollars ($10,000.00).
26. Fully Integrated Agreement: The terms and provisions of this Contract and
all of the attachments, schedules and exhibits hereto constitute the entire and
fully integrated agreement between the parties. It supersedes all previous
communications, representations, agreements, proposals, terms and negotiations
either written or oral, between the parties relating to the subject matter
hereof. Any changes, additions, deletions, amendments or addenda to or
modifications or corrections of this Contract (including all attachments,
schedules and exhibits hereto) or any other agreement between the parties shall
be null and void unless the same be in writing and signed by both Contractor and
Subcontractor.
27. Governing Law: This agreement shall be construed in accordance with, and
governed by, the laws of the State of Nevada. This paragraph does not prevent
the application of the Federal Arbitration Act to any disputes that may arise
under this contract
28. Venue & Situs of Contract: The place of this agreement, its situs or forum
is at all times in the state of Nevada in which state all matters, whether
sounding in contract or in tort relating to the validity, construction,
interpretation and enforcement of this contract, shall be determined. Each of
the parties to the Agreement hereby consents to the venue and jurisdiction of
the Superior Court of the State of Nevada in and for the County of Xxxxx.
29. Severability: If any term, provisions, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the rest of the Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
30. Benefit: This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto, their successors, trustees, assigns, heirs, administrators
and legal representatives, but shall not inure to the benefit of any other
person, firm or corporation.
31. Counterparts: This Agreement may be signed in counterparts and all signed
copies shall be deemed one instrument.
IN WITNESS HEREOF, the parties above have caused this Agreement to be duly
executed at Downey, California on the day and year set forth below.
Saw Tooth Builders, Inc.
By: /s/ Xxxxxxxxx Xxxxxxxxxx Date: 12/31/2001
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Xxxxxxxxx Xxxxxxxxxx
President
CLIENT:
Name: SENIOR CARE INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxx Date: 12/31/2001
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Officer: President
Name: Xxxxx Xxxxx
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