Exhibit 10.5
CONSULTING AGREEMENT
THIS AGREEMENT is dated March 29, 1999,
BETWEEN:
Xxxxxx Refrigerated Warehouses, Inc.
000 Xxxxx Xxxxxx
Xxxxxx
Xxxxx, 00000
(herein the "Client")
- and -
Engineering Design and Construction Managers Limited
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx
Xxxxxxx, X0X IN2
(herein "Consultant")
WHEREAS the Client desires to engage the Consultant to provide services to the
Client for the term of this Agreement Find the Consultant has agreed to provide
such service, all in consideration and upon the terms and conditions contained
herein;
NOW THEREFORE it is hereby agreed as follows:
1. Services _______
The Client agrees to engage the Consultant to provide the
services Identified on Exhibit A and the Consultant has agreed
to perform and provide such services (collectively the
"Services").
2. Term _______
Except as otherwise provided in this Agreement, the Client
agrees to engage the Consultant to provide the Services for a
term of one year. Such term shall begin January 1, 1999.
Should the Consultant provide services beyond the end of the
initial term of the Agreement (or the end of any automatic
renewals thereof), the term of this Agreement shall be
automatically renewed for an additional term of one year.
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3. Fee _______
(a) The Client agrees to pay the Consultant an annual fee
for the Services provided by the Consultant under the
Agreement in the amount of US $200,000.00 payable in
equal monthly payments of $16,667.00.
(b) The Consultant agrees to render monthly invoices to
the Client, in a form reasonably acceptable to the
Client, detailing the Services performed by the
Consultant.
(c) The Client shall be responsible for sales, value
added or other similar taxes payable in the State of
Texas in respect of such fees paid to the consultant.
4. Expenses _______
The Client shall pay for or reimburse the Consultant for all
reasonable, ordinary and necessary expenses incurred by the
Consultant in the ordinary course of performing the Services
upon presentation of proper accounts, statements, invoices or
receipts for such items; provided, however , that any expense
in excess of $5,000 must be pre-approved in writing by the
client.
5. Independent Contractor _______
The Consultant's relationship with the Client as created by
this Agreement is that of an independent contractor. It is
intended that the Consultant shall have general control and
direction over the manner in which its services are to be
provided to the Client under this Agreement. Nothing contained
in this Agreement shall be regarded or construed as creating
any relationship (whether by way of employer/employee; agency,
joint venture, association, or partnership) between the
parties other than as an independent contractor as set forth
herein.
6. Authority _______
The Consultant acknowledges that it is being retained as a
consultant to the Client and that as such it does not have the
authority and cannot commit or bind the Client to any matter,
contract or negotiation without the prior written
authorization of the Client.
7. Compliance _______
The Consultant shall comply with all applicable, state and
municipal laws, rules and regulations arising out of or
connected with the performance of the Services under this
Agreement by the Consultant or its employees.
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8. Support _______
The Client agrees to provide such assistance and make
available such employees, office space and support to the
Consultant as is reasonably necessary to enable the Consultant
to perform the Services under this Agreement.
9. Other Services _______
The Consultant will be free to perform consulting and other
services to the Consultant's other clients during the term of
this Agreement, provided, however, that the Consultant shall
ensure that the Consultant is able to perform the Services
pursuant to this Agreement in a timely and professional
fashion. The Consultant agrees not to perform services for the
Consultant's other clients which may create a conflict of
interest or interfere with the Consultant's duties pursuant to
this Agreement.
(a) In the event that the Consultant breaches this
Agreement, or otherwise fails to perform the Services
in accordance with the terms of this Agreement, the
Client may terminate this Agreement immediately and
without notice for cause. Either party may terminate
this Agreement at any time, without cause or reason,
upon giving 3 months advance notice to the other.
(b) Upon termination of this Agreement:
(i) the Client's obligations to the Consultant
under this Agreement shall terminate except
for the Client's obligation to pay the
monthly fees and expenses in accordance with
the terms of this Agreement, to the date of
termination; and
(ii) the Consultant's obligations to the Client
under this Agreement shall terminate except
those obligations which are specifically
expressed to survive the termination of this
Agreement.
11. Indemnification _______
The Client undertakes to, and does hereby agree to, indemnify
the Consultant and its directors, officers and employees
against any and all actions, suits, claims, costs, and
demands, losses, damages and expenses which may be brought
against or suffered by them or which they may sustain, pay or
incur by reason of the Consultant's performance of the
Services under this Agreement, with the exception of any such
actions, suits, claims, costs and demands, losses, damages and
expenses caused by the wilful misconduct or gross negligence
of the Consultant or any of its directors, officers or
employees.
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12. Governing Law _______
This Agreement shall be governed by the laws of the State of
Texas without giving effect to principles of conflicts of laws
and any federal laws applicable therein.
13. Severability _______
If any provision of this Agreement, or the application of such
provision to any person or in any circumstance, shall be
determined to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement, and the application of
such provision to any person or in any circumstance other than
that to which it is held to be invalid, illegal or
unenforceable, shall not be affected thereby.
14. Amendments _______
Any amendment to this Agreement must be in writing and signed
by both parties hereto.
15. Time of Essence _______
Time shall be of the essence in this Agreement.
16. Entire Agreement _______
This is the entire Agreement between the Client and the
Consultant with respect to the consulting services to be
provided by the Consultant to the Client and supersedes any
prior agreements with respect to such services whether written
or oral.
17. Notices _______
Notices hereunder shall be in writing and must be either
personally delivered or sent by double registered mail to the
address(es) set forth above. A party may change the address
set forth above by proper notice to the other.
18. No Waiver _______
The failure of any party to insist upon the strict performance
of a covenant or obligation hereunder, irrespective of the
length of time for which such failure continues, shall not be
a waiver of such party's right to demand strict performance in
the future. No consent or waiver, express or implied, to or of
any breach or default in the performance of any covenant or
obligation hereunder shall constitute a consent of waiver to
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or of any other breach or default in the performance of the
same or of any other obligation hereunder.
19. Assignment _______
This Agreement is personal in nature and may not be assigned
by either party hereto.
20. Enurement _______
This Agreement shall be binding upon and shall enure to the
benefit of each of the parties hereto and their respective
employees and permitted receivers, successors and assigns.
IN WITNESS WHEREOF the parties hereto have signed this Agreement as of the day
and year first above written.
Xxxxxx Refrigerated Warehouses, Inc.
Per: /s/X. X. Xxxxxxxx
---------------------------
X. X. Xxxxxxxx
CFO
Engineering Design and Construction Managers Limited
Per: /s/H. P. Xxxxxx
---------------------------
H. P. Xxxxxx
Vice President
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Exhibit A - Services
Consulting, engineering and management services related to
construction, renovations, conversions and maintenance operations for
all existing buildings and refrigeration systems and equipment owned by
or operated under lease by the Client.
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