Exhibit 10.24
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is made and entered into as of the
first day of March, 2004 by and between Standard Parking Corporation, a Delaware
corporation ("Standard") and Xxxxxx X. Xxxxxxxxx ("Consultant").
RECITALS
A. Standard is an operator and developer of parking facilities throughout
the United States.
B. Consultant possesses certain special and unique knowledge which may
benefit Standard in obtaining parking operations and opportunities in the New
York City metropolitan area (the "New York City Region"), as well as contacts
which may lead to parking operations and/or opportunities in the continental
United States outside the New York City Region (the "National Region").
C. Standard desires to retain Consultant and Consultant desires to be
retained by Standard and provide the services described herein on the terms and
conditions described hereafter.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
1. RETENTION OF CONSULTANT. Effective March 1, 2004 ("Commencement
Date"), Standard agrees to retain Consultant, and Consultant agrees to serve as
an independent consultant to Standard on the terms and conditions set forth
herein.
2. DUTIES.
a. Consultant agrees to diligently and in good faith render advice,
counsel and direction to Standard and its subsidiaries and affiliates
(collectively "Standard") in the promotion and development of new parking
operations and the consummation of contracts to operate parking facilities
(which include, but are not limited to, management contracts and lease
agreements) in the (a) New York City Region, and (b) National Region. Such
duties shall also include contacting persons who own, manage or control parking
facilities and consulting and advising Standard on special projects as may be
agreed upon, from time to time, by the parties hereto. For purposes of this
Agreement all references herein to "subsidiaries" or "affiliates" of Standard
shall be deemed to include subsidiaries or affiliates now or hereafter existing.
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b. Expressly excluded from this Agreement and the scope of
Consultant's duties hereunder are: (i) any existing facilities operated by
Standard, unless Consultant is specifically requested to assist in a contract
renewal, extension or modification and (ii) any Non-Qualified Government
Facility (hereinafter defined).
c. For purposes of this Agreement:
(1) "Non-Qualified Government Facility" shall mean any parking
facility or operation owned and/or operated by or on behalf of any local, state
or quasi-governmental agency or authority (a "Government Facility"), for which
Consultant's services under this Agreement may be construed as being regulated
under the so-called "lobbying" regulations (the "Lobby Regulations") of the
jurisdiction where the Government Facility is located.
(2) "Qualified Government Facility" shall mean a Government
Facility for which Consultant's services under this Agreement is either
specifically exempt from the applicable Lobby Regulations or is not within the
scope of the applicable Lobby Regulations of the jurisdiction where the
Government Facility is located.
3. TERM. This Agreement shall commence on the Commencement Date and shall
continue for a term of one (1) year and, unless terminated as hereafter
provided, automatically continuing thereafter year-to-year (the initial one (1)
year term and any year-to-year continuation are together sometimes collectively
hereinafter referred to as the "Term"). Either party may terminate this
Agreement by giving not less than sixty (60) days' advance written notice to the
other party prior to the end of the Term.
4. CONSULTING FEES.
a. Unless otherwise specifically stated in the New Business
Certificate (hereinafter defined), for all services rendered by Consultant
hereunder resulting in the consummation of a contract to lease or operate a
privately owned parking facility or a Qualified Government Facility that does
not: (i) require MBE Affiliation (hereinafter defined), or (ii) require any
capital contribution by Standard, Standard shall pay Consultant a fee (the
"Consulting Fee") of twenty percent (20%) of the aggregate Net Operating Profit
of Qualifying New Business Locations.
b. For purposes of this Agreement:
(1) "Qualifying New Business Location" shall mean a contract
(including, but not limited to, a management contract and lease agreement)
entered into by Standard, to operate a privately owned parking facility or
Qualified Government Facility at a location which Standard does not currently
lease or operate, which is suggested to Standard by Consultant and is stipulated
by the parties as a "Qualifying New Business
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Location" on a certificate in the form of EXHIBIT A attached hereto (the "New
Business Certificate").
(2) (a) If Consultant shall suggest a parking operation or
development opportunity, privately owned or a Qualified Government Facility,
which is either/or: (a) in the National Region, (b) requires a capital
investment, or (c) requires an MBE Affiliation, the Consulting Fee shall be
negotiated on a case-by-case basis and the parties shall stipulate their
agreement to a revised Consulting Fee in the New Business Certificate. For
purposes of this Agreement "MBE Affiliation" shall mean any governmental or
quasi-municipal parking facilities which require an operator to operate such
governmental or quasi-municipal parking facilities pursuant to or in conjunction
with a minority business enterprise, disadvantaged business enterprise or other
affiliation specified by such governmental or quasi-municipal agency.
(b) If Consultant shall suggest a Non-Qualified Government
Facility, then, in such event, the parties shall stipulate and agree, in
writing, to a separate agreement regarding the scope of Consultant's activities
on behalf of Standard, as well as a fee arrangement which shall comport in all
respects to the legal requirements of the Lobby Regulations governing such
activities of Consultant with respect to the Non-Qualified Government Facility.
(3) "Net Operating Profit" shall mean either: (x) the balance
remaining after deducting all Operating Expenses of the Qualifying New Business
Locations from the Gross Revenues of all Qualifying New Business Locations, or
(y) the fee(s) Standard receives for operating all such Qualifying New Business
Locations under a management, operating or service agreement, after deducting
all non-reimbursable Operating Expenses for all such Qualifying New Business
Locations. Gross Revenues, as well as Operating Expenses, shall be determined
solely by Standard as stated in Standard's profit and loss statements.
(4) "Operating Expenses" shall mean any and all expenses
incurred by Standard in its operation of any Qualifying New Business Location
under this Agreement including, but not limited to, rent, payroll, payroll
burden, payroll taxes, employee benefits (including worker's compensation),
license and permit fees, insurance and bond expenses (including any deductible
losses paid), depreciation and amortization of capital expenditures of Standard
(including cost of acquiring a Qualifying New Business Location, e.g., cost of
contract), costs of maintenance and repair required of Standard, uniforms,
supplies, tools, cleaning, utility charges, bookkeeping and administrative
expenses, tickets, postage, stationery including report forms, computer use fee,
bank charges, computerized accounts receivable fee, property damage, loss from
theft or robbery, and losses resulting from vehicle damage to the extent not
covered by insurance (including attorney's fees and court costs to defend the
owner of the facility and/or Standard in actions brought to recover damages for
such losses), real estate taxes and assessments and any other taxes, except
taxes on Standard's income; provided, however, if Standard is reimbursed for any
Operating Expense which is incurred and paid
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by Standard, such Operating Expense shall be excluded from the computation of
Net Operating Profit hereunder.
(5) Based on the aggregate of all Qualifying New Business
Locations generated by Consultant, Standard will calculate the aggregate Net
Operating Profit or aggregate Net Operating Loss of all Qualifying New Business
Locations. For purposes of this Agreement, "Net Operating Loss" shall mean the
deficit if the aggregate Gross Revenues of all Qualifying New Business Locations
is exceeded by the aggregate Operating Expenses of all Qualifying New Business
Locations. The Consulting Fee shall be computed on the aggregate Net Operating
Profit or aggregate Net Operating Loss of all Qualifying New Business Locations
each month. If a Qualifying New Business Location terminates prior to the
expiration of the term of the contract for the Qualifying New Business Location
and a Net Operating Loss is sustained, the amount of such loss shall be
considered and factored at the time of the next month's computation of the
Consulting Fee.
(6) Within thirty (30) days after the end of each month,
Standard shall remit to Consultant the Consulting Fee earned for the preceding
month, together with a true and complete copy of Standard's profit and loss
statement for each Qualifying New Business Location and a consolidated statement
for all Qualifying New Business showing the aggregate Net Operating Profit (or
Net Operating Loss) and Consulting Fee earned for the preceding month. Such
monthly Consulting Fee payments shall be subject to any adjustment of Gross
Revenue and/or Operating Expenses and/or management, operating or service fees
which may from time to time occur, and to an annual adjustment following the
close of each contract year. If at the end of any month there is an aggregate
Net Operating Loss for all Qualifying New Business Locations, while Consultant
shall not be required to reimburse Standard for such Net Operating Loss, such
Net Operating Loss shall be accrued, carried forward and applied as an offset
against any Consulting Fee payments becoming due to Consultant under this
Agreement until the entire accrued Net Operating Loss is offset. No Consulting
Fee shall be paid prior to the offset of any such accrued Net Operating Loss.
(7) The Consulting Fee represents and constitutes the entire
financial obligation of Standard to Consultant, and Consultant agrees that it
shall not be entitled to any other compensation. Except as otherwise provided in
Section 12 herein, upon expiration or earlier termination of this Agreement
and/or Consultant's services hereunder, the Consulting Fee shall continue to be
paid so long as Standard continues to operate the Qualifying New Business
Location.
5. AUTHORIZED EXPENSES/REIMBURSEMENT. Standard will reimburse Consultant
for reasonable business expenses incurred by Consultant in connection with the
performance of its duties outlined herein. Any such expense reimbursement
requested by Consultant during the term shall be expressly conditioned upon
Consultant receiving advance approval from Standard.
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6. OPERATION OF PARKING FACILITIES TO BE SOLELY BY STANDARD. Until a
Qualifying New Business Location is agreed to in writing by mutual execution of
a New Business Certificate, Standard shall be permitted to make separate contact
with individuals, firms or companies, separately submit bids or proposals in the
name of Standard and take any other action with respect to development and
acquisition of parking facilities solely under, by or through the name of
Standard without such parking facilities being included as part of this
Agreement.
7. RELATIONSHIP. Consultant is retained hereunder only for the purpose
and to the extent set forth in this Agreement and his relationship to Standard
is that of an independent contractor and not an agent or employee. The personnel
performing services under this Agreement shall at all times be under
Consultant's exclusive direction and control and shall be employees of
Consultant and not Standard. Consultant shall pay all wages, salaries, and other
amounts due his employees in connection with this Agreement and shall be
responsible for all reports and obligations respecting them relating to social
security, income tax withholding, unemployment compensation, workers'
compensation, and similar payroll reporting and employment matters.
8. BENEFITS. Consultant shall not acquire any rights under any pension,
stock option, group insurance or any other benefit plans of Standard by reason
of this Agreement.
9. ASSIGNMENT. This Agreement is a personal service contract and may not
be assigned by Consultant. Standard may assign this Agreement and the Agreement
shall be binding upon and inure to the benefit of any successor or assignee of
Standard. Consultant may retain, at his own expense, partners, associates and
staff to assist Consultant, as Consultant deems appropriate; however, Consultant
shall retain and exercise his personal oversight and supervision of any such
activities and shall advise the Responsible Parties of the contents of this
Agreement, specifically, Section 12 hereof.
10. INDEMNIFICATION. Consultant shall indemnify, defend, and hold harmless
Standard from and against all claims and actions, and all expenses incidental to
such claims or actions, based upon or arising out of damage to property or
injuries to persons or other tortuous acts caused or contributed to by
Consultant or anyone acting under his direction or control or in his behalf in
the course of their performance under this Agreement, provided the Consultant's
aforesaid indemnity and hold harmless agreement shall not be applicable to any
liability based upon the sole negligence of Standard. This Section 10 and
Consultant's indemnity obligation shall survive the termination of this
Agreement for any reason.
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11. NOTICES. Any notice or communications to be given shall be in writing
and shall be served personally, by express courier, facsimile copy, or mailed by
United States registered or certified mail, return receipt requested, to the
following addresses:
To : Standard Parking Corporation
Attn: Legal Department
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax # (000) 000-0000
To Consultant: Xx. Xxxxxx X. Xxxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax # (000) 000-0000
12. COVENANTS AGAINST UNFAIR COMPETITION AND DISCLOSURE OF CONFIDENTIAL
INFORMATION.
a. During the term of this Agreement, Consultant and, as applicable,
his partners, associates, employees and/or affiliates (collectively hereinafter
referred to as "Responsible Parties") will have access to and will gain
knowledge with respect to trade secrets and private and secret processes of
Standard, confidential information concerning the financial statements and
operations of Standard, its sales and marketing activities and procedures, its
bidding techniques, its design and construction techniques, product research and
engineering data, its customer lists of owners of parking facilities, or credit
and financial data concerning such customers or potential customers (in the
aggregate referred to hereinafter as "Secret and Confidential Information").
Consultant acknowledges that the Secret and Confidential Information constitutes
a valuable, special and unique asset of Standard, to which Standard has the
right to retain and hereby does retain all of its proprietary interests.
However, access to and knowledge of the Secret and Confidential Information is
essential to the performance of Consultant's services for Standard. In
recognition of this fact, Consultant agrees that neither the Consultant nor any
Responsible Parties will, during or after the term of this Agreement, disclose
or divulge any of such Secret and Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
(except as necessary in the performance of Consultant's duties hereunder) or
make use of any of the Secret and Confidential Information for his own purpose
or those of the Responsible Parties.
b. Consultant acknowledges and agrees that the remedy at law for any
breach of this Section 12 will be inadequate and that the damages flowing from
such
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breach are not readily measurable in monetary terms. Accordingly, it is
acknowledged that Standard shall be entitled, among other remedies, to immediate
injunctive relief for any breach and, if the court so permits, to obtain a
temporary order restraining any threatened or further breach. This covenant
shall nevertheless, if breached, give rise to monetary damages, if any, in
accordance with the other provisions of this Agreement. Upon the breach or
threatened breach, Standard shall be relieved of any and all obligations to pay
any Consulting Fee then due and owing or to become due and owing to Consultant.
c. The covenants on the part of Consultant set forth in this Section
12 shall be construed as agreements independent of any other provisions of this
Agreement, and the existence of any claim or cause of action of the Consultant
against Standard, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Standard of these covenants.
13. DEATH OR DISABILITY OF XXXXXX X. XXXXXXXXX. In the event of the death
or disability (as determined by Standard in its sole discretion) of Xxxxxx X.
Xxxxxxxxx occurring during the term of this Agreement, this Agreement shall be
deemed terminated upon notice from Standard. Consulting Fees earned for
Qualifying New Business Locations will be paid in accordance with Section 4 and,
unless otherwise provided in the New Business Certificate, shall be paid to
Xxxxxx X. Xxxxxxxxx or Xxxxxx X. Xxxxxxxxx'x beneficiaries, as applicable, so
long as Standard continues to operate the Qualifying New Business Location.
14. REPRESENTATIONS BY CONSULTANT. In representing Standard to third
parties, neither Consultant nor any of the Responsible Parties, shall have or
represent itself or himself as having any authority to bind or commit Standard
to any contract, to invest funds, or to extend a line of credit in the name of
Standard.
15. TERMINATION. In addition to the termination rights set forth in
Section 3 herein, this Agreement may be terminated by either party if the other
party defaults in any of its obligations hereunder, and fails to cure such
default within fifteen (15) days following receipt of written notice thereof.
Provided, however, a violation by Consultant and/or the Responsible Parties of
Section 12 herein shall constitute grounds for immediate termination of this
Agreement by Standard and forfeiture of any Consulting Fees, Fee Advance and/or
other sums due or to become due to Consultant hereunder.
16. INVALID PROVISIONS. Should any portion of this Agreement, for any
reason, be declared by a court of competent jurisdiction to be unreasonable or
invalid, any such unreasonable portion shall be enforceable to the extent deemed
reasonable by such court and any such invalidity shall not affect the remaining
portion of this Agreement, which remaining portions shall continue in full force
and effect as if this Agreement had been executed with the invalid portion
thereof eliminated; it being the intention of the
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parties that they would have executed the remaining portion of this Agreement
without including any such invalid portion.
17. GOVERNING LAW AND METHOD OF AMENDMENT. This Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois
and contains the entire understanding and agreement between the parties and
shall not be amended, modified or supplemented, except by written agreement by
the parties hereto.
18. INTEGRATION. This Agreement and the attached Exhibits constitute the
entire agreement of the parties with respect to the subject matter hereof and
supersede all prior agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date first above written.
Standard Parking Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx
Executive Vice President
CONSULTANT:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxxx
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EXHIBIT A
NEW BUSINESS CERTIFICATE
The undersigned hereby stipulate and agree that the following constitutes
Qualifying New Business Location for purposes of the Consulting Agreement dated
as of ________________, 2004 between Xxxxxx X. Xxxxxxxxx and Standard Parking
Corporation:
Location(s): Description:
____________________________ __________________________________________
____________________________ __________________________________________
____________________________ __________________________________________
____________________________ __________________________________________
If the Consulting Fee is other than as set forth in the Consulting
Agreement, the parties stipulate and agree that the Consulting Fee for the
following Qualifying New Business Location shall be as follows: _______________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
----------------------------
Xxxxxx X. Xxxxxxxxx
Date:
----------------------------
Agreed and Approved by:
Standard Parking Corporation
By:
----------------------------------
Xxxxxx X. Xxxxxxxxx
Executive Vice President
Date:
---------------------------------
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