Exhibit 10.13
INDEPENDENT CONSULTANT
CONTRACT FOR SERVICES
This Agreement is made and effective this 17th day of July, 2001
("Effective Date") by and between SONOMAWEST HOLDINGS, INC. a California
corporation ("Client") and XXXXX X. XXXXXXX, ("Consultant").
1. SERVICES AND DELIVERABLES. Consultant will perform the services
described on Exhibit A ("Services"), and will determine the method, details and
means of performing the Services. The parties intend for this agreement to
govern all services provided and to be provided by Consultant to Client after
April 1, 2001.
2. FEES AND PAYMENT. In consideration for the Services to be performed by
Consultant, Client will pay to Consultant a monthly fee of $2,500. In addition,
in the event either of the Company's Sonoma County properties are sold during
the term hereof, Consultant will be paid a fee of 2-1/2% of the sales price if
no broker commission is involved and 1-1/4 % of the sales price if a broker is
involved. In the event either property is refinanced during the term hereof
Consultant will be paid a fee equal to 1% of the amount of proceeds received by
the Company in excess of its current debt.
3. INDEPENDENT CONSULTANT STATUS. It is the express intention of the
parties that Consultant is an independent consultant and not an employee, agent,
joint venturer or partner of Client. Nothing in this Agreement will be
interpreted or construed as creating or establishing the relationship of
employer and employee between Client and Consultant, or any employee or agent of
Consultant.
4. ADDITIONAL OBLIGATIONS OF CONSULTANT.
a. Consultant will supply all tools and instrumentalities required
to perform the services under this Agreement. Consultant is not required to
purchase or rent any tools, equipment or services from Client.
b. Consultant is responsible for all costs and expenses incident to
performing services hereunder, including but not limited to costs of equipment
provided by Consultant, fees, fines, licenses, bonds, or taxes required of or
imposed against Consultant and its assistants, if any, as costs of doing
business. Client is not responsible for any expenses incurred by Consultant in
performing services for Client, except for those reasonable out-of-pocket travel
expenses incurred by Consultant in performing the services under this Agreement.
c. Consultant may, at its option and at its own expense, employ such
assistants as Consultant deems necessary to perform the Services. Consultant
assumes full and sole responsibility for the payment of all compensation and
expenses of these assistants and for any state and federal income tax,
unemployment insurance, Social Security, disability insurance
and other applicable withholdings of such assistants. Consultant will provide
workers' compensation insurance coverage for its employees and agents, and
agrees to hold harmless and indemnify Client for any and all claims arising out
of any injury, disability, or death of any of Consultant's employees or agents.
Consultant will indemnify and hold Client harmless against any and all liability
imposed or claimed, including attorneys' fees and other legal expenses, arising
directly or indirectly from any act or failure to act of Consultant or
Consultant's assistants, employees or agents, including all claims relating to
injury or death of any person or damage to property.
d. Consultant specifically agrees to abide by Client's standards and
rules of conduct and general operating procedures while on Client's premises or
otherwise while performing services pursuant to this Agreement.
e. Consultant may not assign any duties or obligations under this
Agreement without Client's express written consent.
f. Consultant acknowledges that, as he is an independent Consultant
and not an employee, he is responsible for paying all required state and federal
taxes. In particular, Client will not: (i) withhold FICA (Social Security) from
Consultant's payments; (ii) make state or federal unemployment insurance
contributions on Consultant's behalf; (iii) withhold state or federal income tax
from payment to Consultant; (iv) make disability insurance contributions on
behalf of Consultant; (v) obtain workers' compensation insurance on behalf of
Consultant.
g. Consultant further acknowledges that he is not eligible for
participation in any benefit plan or program available to Consultant's
employees, and that the fee for services has been established in recognition of
Consultant being responsible for maintaining such benefit coverage as it deems
appropriate.
5. TERM AND TERMINATION.
a. This Agreement begins on the Effective Date and continues until
the earlier of (i) written notice of termination by either party; (ii)
termination in accordance with the provisions set forth below; or (iii) December
31, 2003.
b. This Agreement will terminate automatically on any of the
following events: (i) bankruptcy or insolvency of either party; (ii) sale or
discontinuance of the business of either party; (iii) death of either party.
c. If Consultant defaults in the performance of the Agreement or
materially breaches any of the provisions, Client at its sole option may
terminate the Agreement at any time on written notice to Consultant. For
purposes of this section, material breach includes, but is not limited to: (i)
failure or refusal to perform the Services when and as contemplated; (ii)
failure to provide timely invoices with appropriate descriptions and approved
expenses as provided herein; (iii) negligence, misconduct, an act of dishonesty,
or taking an action or conducting itself in a manner contrary or inimical to
Client's best business interests or reputation.
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d. If Client fails to pay Consultant fees or payment as provided
herein, Consultant at its sole option may terminate the Agreement, provided
Client does not remedy the failure within 30 days from the date payment is due.
6. CONFIDENTIALITY, TRADE SECRETS, WORK FOR HIRE AND NON-COMPETITION.
a. Consultant recognizes that during the term of this Agreement, and
in preparation therefore, he will be privy to many of Client's trade secrets or
proprietary or other confidential or privileged information. Consultant agrees
to keep all such information in strictest confidence and not to disclose it
except for legitimate purposes of Client and with Client's express written
consent, either during the term of this Agreement or at any time thereafter.
b. On termination of this Agreement, Consultant will promptly
deliver to Client all equipment belonging to Client, all code and computer
programs of whatever nature, as well as all manuals, letters, reports, price
lists, customer lists, sales information, analyses, recommendations, and all
copies thereof, and all other materials of a confidential nature regarding
Client's business that are in its possession or control. Consultant agrees that
the remedy at law for any breach of the foregoing will be inadequate, and that
Client is entitled to seek appropriate injunctive relief in addition to any
remedy at law in case of any such breach.
c. Consultant agrees that all work he performs pursuant to this
Agreement, and all work which relates at the time of conception or reduction to
Client's business, and all work which results from work he performs for Client,
whenever performed during the term of this Agreement, and whether or not
utilizing Client's equipment, supplies, facilities or trade secret information,
is considered work made for hire for Client as such term is defined in section
101 of the Copyright Act of 1976 and belongs to Client. Consultant further
agrees that in the event that this Agreement is determined not to be a work for
hire agreement, Consultant will assign to Client any and all rights retained by
Consultant.
7. GENERAL PROVISIONS.
a. Any notices given by either party may be effected by personal
delivery in writing or by mail, registered or certified, postage prepaid, or by
facsimile transmission or by electronic submission, if receipt is confirmed in a
commercially acceptable manner. Mailed notices are to be addressed to the
parties at the addresses below:
If to Client: SonomaWest Holdings, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxx, President
Phone: 000.000.0000
Fax: 000.000.0000
If to Consultant: Xxxxx X. Xxxxxxx
0000 Xx Xxxxx Xxx
Xxxxxxxxxx, XX 00000
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Notices delivered personally are deemed communicated as of actual receipt;
mailed notices are deemed communicated as of two days after mailing.
b. This agreement supersedes any and all agreements, oral or
written, between the parties with respect to rendering services by Consultant
for Client, and contains all agreements between the parties. Any modification of
this Agreement is effective only if I n writing signed by the party to be
charged.
c. If any provisions in this Agreement are held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions will continue in full force provided that the essential purposes of
the Agreement can be achieved without the invalid provision.
d. This Agreement is governed by and construed in accordance with
the law of the state of California.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date and
year first above written.
Consultant:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Client:
SONOMAWEST HOLDINGS, INC.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, President
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EXHIBIT A
DESCRIPTION OF SERVICES
Management of the development, leasing and sale of Client's real property
located in the Sonoma County, California.
