Exhibit 10.29
STAFFING AGREEMENT
This Staffing Agreement (the "AGREEMENT") is effective August 1, 2004, by and
between PORTLAND BREWING COMPANY, a corporation organized and existing under the
laws of the State of Oregon, with its principal office located at 0000 XX
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("PBC") and PYRAMID BREWERIES, INC., of 00
Xxxxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("PMID").
RECITALS
A. PBC wishes to contract with PMID for the services of PMID in providing
professional or skilled labor in the general field of brewery operations.
B. PMID is ready, willing, and able to provide such services as may be
required by PBC.
In consideration of the matters described above, and of the mutual benefits
and obligations set forth in this agreement, the parties agree as follows:
SECTION ONE
SERVICES
A. PMID understands and agrees that services to be provided PBC under and
pursuant to this agreement shall be so provided on a day-to-day, as-needed,
basis and that PBC in its sole discretion shall determine its need, if any, for
services or the continuation of services as may be provided by PMID under and
pursuant to this agreement. This is not an exclusive agreement, and PBC may
obtain its staffing from any source in PBC's discretion.
B. PMID agrees to provide services upon request of PBC and further agrees that
the cost of such services shall not exceed the limitation of cost set forth in
PBC's request. In the absence of express limitation, the cost of such services
shall not exceed PMID's cost plus five percent (5%).
C. PBC shall have sole discretion to establish the minimum qualifications
necessary for the performance of any service to be rendered under and pursuant
to this agreement. Further, if at any time and at its sole discretion, PBC
determines that the services performed under and pursuant to this agreement by
any of the persons provided by PMID are not satisfactory, PBC will so notify
PMID in writing, and PMID shall immediately withdraw such individual and, at
PBC's option, furnish an individual who meets the qualifications required.
D. If so directed by PBC, PMID's services hereunder shall include all services
required for PBC's performance of its duties related to the production and sale
of beer under the Production Agreement dated February 14, 2006 between PBC and
PMID (the "PRODUCTION AGREEMENT"), and PMID shall discharge such duties as
directed by PBC.
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SECTION TWO
COMPENSATION
A. For labor expended by PMID in providing services under and pursuant to this
agreement, PMID shall be paid an amount equal to the applicable hourly or daily
rate multiplied by the total number of hours or days actually worked by persons
provided by PMID.
B. Actual expenses of persons provided by PMID incurred in the providing of
services and directly related to such services, shall be reimbursed by PBC to
PMID at actual cost when supported by appropriate receipts.
SECTION THREE
PAYMENT
A. Payment for services provided PBC under and pursuant to this agreement shall
be net thirty (30) days from the date of receipt by PBC of PMID's invoice.
Payment may be by credit on invoices rendered by PBC to PMID, to the extent the
offsetting invoices are payable no later than PBC's invoices.
B. If requested by PBC, Agency's invoice shall set forth the date or dates that
persons provided by PMID actually worked in providing services under and
pursuant to this agreement, in which event beginning and ending dates shall be
shown whenever services are provided uninterrupted over a period of time and
individual dates shall be shown whenever services have been provided on a
day-to-day basis. PMID's invoice shall clearly show the labor classification,
name(s) of PMID-provided worker(s), applicable labor rate(s), and the total
dollars claimed for the period. Whenever PMID provides services for an extended
period of time, PMID shall submit its invoices for labor expended no less often
than quarterly.
C. The expenses incurred by PMID-provided workers directly related to the
providing of services under and pursuant to this agreement shall be reimbursed
by PBC to PMID from regular invoices. Such expenses shall be supported by
appropriate receipts and such other supporting details as may be required by
PBC.
SECTION FOUR
STAFFING AGENCY-PROVIDED WORKERS
PMID-provided workers who perform services for PBC under and pursuant to
this agreement shall be bound by the provisions of this agreement and PMID
shall, at the request of PBC, furnish to PBC satisfactory evidence to that
effect.
SECTION FIVE
CONFIDENTIALITY
PMID agrees that (a) all knowledge and information that PMID may receive
from PBC or employees or consultants of PBC, or by virtue of the performance of
services under and pursuant to this agreement, relating to inventions, products,
processes, machinery, apparatus, prices, discounts, costs, business affairs,
future plans, or technical data that belong to PBC or to those
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with whom PBC has contracted regarding such information, and (b) all information
provided by PMID to PBC in reports of work done, together with any other
information acquired or gained by PMID or by PMID-supplied workers, shall for
all time and for all purposes be regarded by PMID as strictly confidential and
held by PMID in confidence, and solely for PBC's benefit and use, and shall not
be used by PMID or directly or indirectly disclosed by PMID to any person
whatsoever excepting to PBC or with PBC's written permission.
SECTION SIX
AGENCY REPRESENTATION
PMID represents and warrants that PMID and its PMID-supplied workers have
the right to perform the services required under and pursuant to this agreement
without violation of obligations to others, and that PMID and its PMID-supplied
workers have the right to disclose to PBC all information transmitted to PBC in
the performance of services under and pursuant to this agreement, and PMID
agrees that any information submitted to PBC, whether patentable or not, may be
used fully and freely by PBC.
SECTION SEVEN
DURATION AND TERMINATION
A. This agreement shall become effective as of the date stated above and shall
expire on the third anniversary thereof. In addition, this agreement may be
terminated:
1. 1. Immediately upon death or incapacity of any person employed or
supplied by PMID who, in the sole opinion of PBC, was essential for the
successful performance of PMID's obligation under and pursuant to this
agreement; or
2. By either party, with or without cause at any time, upon sixty (60)
days' prior written notice; or
3. By PBC, at any time, upon written notice, if PMID assigns this
agreement, or any right or obligation under this agreement, without PBC's prior
written consent; or if there is a change in the control or management of PMID
that is unacceptable to PBC; or if PMID ceases to function as a going concern or
to conduct its labor contracting operations in the normal course of business; or
4. Immediately upon the termination of the Production Agreement.
B. The obligations of PMID under Section Five above shall survive any expiration
or termination of this agreement.
C. Upon termination of this agreement, PMID will return to PBC all written
information, drawings, models, and other materials or files supplied to PMID or
created by PMID at the expense of PBC.
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SECTION EIGHT
INDEMNIFICATION
PMID agrees to indemnify and hold PBC, its officers, agents, and employees
harmless from and against any and all liabilities, damages, losses, actions, or
causes of action, costs, and expenses (including attorney's fees), whether
relating to property of PBC or of any third party, or to personal injury or
death, arising out of or in any way contributed to by the acts or failure to act
of the PMID, its agents, employees, officers, or PMID-supplied workers.
SECTION NINE
INDEPENDENT CONTRACTOR
The status of PMID is that of an independent contractor and not of an agent
or employee of PBC and, as such, PMID shall not have the right or power to enter
into any contracts, agreements, or any other commitments on behalf of PBC.
SECTION TEN
INSURANCE
PMID shall maintain in full force and effect, and upon the request of PBC,
shall furnish evidence satisfactory to PBC that PMID maintains the following
insurance coverages:
A. Comprehensive general liability insurance in the minimum amount of $1,000,000
combined single limit that will cover any and all losses to PBC property,
property of third parties, or personal injuries caused by the acts or omissions
of PMID.
B. For any vehicle used by PMID or PMID-supplied workers in providing services
under and pursuant to this agreement, vehicle liability insurance in the minimum
amount of $1,000,000 combined single limit.
C. PMID will carry Workers' Compensation and Employer's Liability Insurance in
accordance with applicable law.
SECTION ELEVEN
ASSIGNMENT
The rights and obligations of PMID under this agreement are personal to
PMID and may not be assigned or transferred to any other person, firm,
corporation, or other entity without the prior, express, and written consent of
PBC.
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SECTION TWELVE
ENTIRE AGREEMENT
This agreement shall constitute the entire agreement between the parties
with respect to the provision of staff to PBC by PMID, and any prior
understanding or representation of any kind preceding the date of this agreement
shall not be binding upon either party except to the extent expressly
incorporated in this agreement.
SECTION THIRTEEN
NOTICES
Any notice provided for or concerning this agreement shall be in writing
and be deemed sufficiently given when sent by certified or registered mail if
sent to the respective address of each party as set forth at the beginning of
this agreement.
SECTION FOURTEEN
GOVERNING LAW
It is agreed that this agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Oregon.
SECTION FIFTEEN
PARAGRAPH HEADINGS
The titles to the paragraphs of this agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this agreement.
SECTION SIXTEEN
MODIFICATION OF AGREEMENT
Any modification of this agreement or additional obligation assumed by
either party in connection with this agreement shall be binding only if
evidenced in writing signed by each party or an authorized representative of
each party.
SECTION SEVENTEEN
NO WAIVER
The failure of either party to this agreement to insist upon the
performance of any of the terms and conditions of this agreement, or the waiver
of any breach of any of the terms and conditions of this agreement, shall not be
construed as thereafter waiving any such terms and conditions, but the same
shall continue and remain in full force and effect as if no such forebearance or
waiver had occurred.
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Executed February 14, 2006
PYRAMID BREWERIES, INC.
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By: Xxxx Xxxxxx
Its: President and
Chief Executive Officer
PORTLAND BREWING COMPANY
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By: R. Xxxxx XxxXxxxxxxx
Its: President
