(d) Consulting Contract-Xxxxxx Xxxxxx
CONSULTING AND
CONTRACTING AGREEMENT
This Consulting and Contracting Agreement (hereinafter referred to as
"Agreement") made and entered into as of this 8th day of August, 1998, by and
between Swifty Carwash & Quik-Lube, Inc., a Florida corporation (hereinafter
called "Swifty"), and Xxxxxx X. Xxxxxx, Inc., a Florida corporation (hereinafter
called "Xxxxxx").
WHEREAS, Swifty is, among other things, a Florida corporation that was
formed for the purpose of developing, owning and operating a chain of carwash
and oil change centers, (the "Centers"), and Xxxxxx engages primarily in the
development and construction of real estate, primarily residences and small
commercial buildings; and
WHEREAS, Swifty desires to obtain the benefit of Xxxxxx' knowledge,
experience, expertise and advice in the construction and real estate businesses
to assist Swifty in the location and purchase of appropriate land parcels and in
the construction of the Centers; and
WHEREAS, Xxxxxx desires to perform the services as set forth herein and
Swifty will delegate to Xxxxxx and Xxxxxx will accept from Swifty certain
responsibilities and duties as described more fully herein all subject to
certain specifications and limitations to be provided by Swifty as set forth
herein; and
WHEREAS, Xxxxxx desires to provide the services as stated above;
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, Swifty and Xxxxxx, intending
to be legally bound, agree as follows:
1. Xxxxxx agrees to actively explore, investigate and locate appropriate
parcels of land which are available at reasonable prices, in the greater Tampa
area which are suitable and desirable for the construction of the Centers
subject to the perimeters, instructions and limitations to be provided to Xxxxxx
by Swifty.
2. Xxxxxx will explore, investigate and locate suppliers of equipment to be
used in the type of Centers desired by Swifty in accordance with the
specification furnished to Xxxxxx by Swifty.
3. Xxxxxx will negotiate the actual prices of the parcels described in the
paragraph numbered 1 above and equipment described in the paragraph numbered 2
above, so as to enable Swifty to obtain the best possible prices reasonably
available.
4. Xxxxxx will agree to provide construction services to Swifty for the
construction of buildings in connection with the Centers to the extent that
Xxxxxx and Swifty agree that such construction will be appropriate for Xxxxxx to
undertake. However in the event that Xxxxxx and Swifty do not agree that Xxxxxx
is the appropriate construction contractor for construction in connection with
any of the Centers or if Swifty believes that Swifty can obtain a more
competitive price or superior construction other than through Xxxxxx, then
Xxxxxx will or Swifty may seek out and obtain such other appropriate builder or
construction contractor as Xxxxxx or Swifty may determine appropriate.
5. Swifty shall deposit with Xxxxxx the sum of $210,000 to be held by
Xxxxxx and used by Xxxxxx in connection with the accomplishing of the foregoing,
including actual payment on behalf of Swifty for any land, construction or
equipment, provided however, that in no event shall Xxxxxx enter into any
agreements or expend any sums in connection with these matters without the prior
written consent and approval of Swifty. Notwithstanding the foregoing, Xxxxxx
may not expend more than the maximum total sum in the amount of Twenty-Five
Thousand Dollars and no/100 ($25,000.00), in connection with Xxxxxx' actual
out-of-pocket expenditures in connection with Xxxxxx performance as described in
this Agreement, without prior written consent of Swifty. However, even as to
said expenditures, Xxxxxx will keep Swifty reasonably informed as such expenses
accrue.
6. For providing the services as specified herein it is contemplated that
Swifty will pay to Xxxxxx between three and five percent of the total cost of
that portion of such projects which have been negotiated by or performed by
Xxxxxx. However, that amount may be more or less than the three or five percent
contemplated depending on the agreement between Xxxxxx and Swifty. Xxxxxx and
Swifty will agree upon such rates on each project as such matters arise and will
only be bound by such rates in a writing signed by both of them. In no event
shall such commission cause the total costs to Swifty in connection with any
project (including such commission rates) to exceed those costs which would be
commercially available to Swifty in the absence of any assistance from Xxxxxx.
7. This Agreement shall only apply to such projects and endeavors
as may be designated by Swifty from time to time during the term of this
Agreement.
8. Either Swifty or Xxxxxx may terminate this Consulting and
Contracting Agreement at any time by furnishing at least 5 days written notice
to the other party. If not terminated prior, then this Agreement shall terminate
3 years from the date hereof unless extended in a writing executed by the
parties. Upon termination neither party will have any further obligation to
perform under this Agreement and all of the then remaining funds that were
deposited by Swifty with Xxxxxx shall be returned to Swifty at the time of
termination. The then remaining funds to be returned at such time shall be the
full amount of the deposit made by Swifty with Xxxxxx as described in paragraph
numbered 5 above, less the amount that may have been expended on behalf of
Swifty pursuant to a written agreement between Swifty and Xxxxxx as described in
paragraph numbered 5, and further reduced by the actual out-of-pocket expenses
incurred by Xxxxxx up to the maximum amount of Twenty-Five Thousand Dollars and
no/100 ($25,000.00). Xxxxxx will not be required to invest such funds in an
interest bearing account, however, to the extent that Xxxxxx does so, Xxxxxx
shall be entitled to retain the interest earned on such funds as additional
compensation for Xxxxxx' performance under this Agreement.
9. The parties contemplate that from time to time they may enter into
supplementary agreements and modifications of this Agreement, provided however,
that any such supplemental agreement or modification must be in writing,
including, for example, the extension of the geographical area in which Xxxxxx
will perform its duties including regions elsewhere in the State of Florida and
other portions of the United States.
10. This Agreement shall be binding upon, inure to the benefit of and be
the obligation of Swifty and Xxxxxx and their respective heirs, agents,
representatives, successors and assigns. However, neither Swifty nor Xxxxxx
shall assign or transfer this Agreement to any other person, corporation or
entity without the prior written consent of the other party.
11. Whenever notice is required to be given hereunder, it shall be deemed
duly given when delivered by hand or deposited in the United States mail by
certified mail or registered mail, return receipt requested, postage prepaid, to
Swifty or Xxxxxx at the addresses set forth below, or to such other addresses as
any party hereto may designate by written notice in like manner to the other
party(ies):
To Swifty:
Swifty Carwash & Quik-Lube, Inc.
Attention: Xxxxxx Xxxxxx, President
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
To Xxxxxx:
Xxxxxx X. Xxxxxx, Inc.
Attention: Xxxxxx Xxxxxx, President
000 Xxxxx Xxxxxx Xxx.
Xxxxx, Xxxxxxx 00000
12. This Agreement contains the entire agreement between Swifty and Xxxxxx
and cannot be changed or terminated orally but may only be altered or amended by
an agreement in writing and signed by all parties hereto.
13. The illegality, invalidity, or unenforceability of any provision of
this Agreement shall not operate to invalidate the whole Agreement and shall in
no way affect the validity or enforceability of any other provisions of this
Agreement. Any such illegality, invalidity, or unenforceability of any provision
of this Agreement shall be construed or rewritten in such manner as to avoid
such illegality, invalidity, or unenforceability while keeping the intent of the
parties, as expressed in this Agreement, in mind.
14. This Agreement has been made in the State of Florida and shall be
governed by and construed in accordance with the laws of the State of Florida.
15. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original instrument, but all of which together will
constitute for all purposes one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first-above written.
_______/s/ Xxxxxx Steele_______ _____/s/ Xxxxxx Hughes_______
Swifty Carwash & Quik-Lube, Inc. Xxxxxx X Xxxxxx, Inc..
By: Xxxxxx Xxxxxx, President By: Xxxxxx X. Xxxxxx, President
