Exhibit 6.1
CONSULTING AGREEMENT
This Agreement ("Agreement") is effective as of the date of the last signature
below (the "Effective Date") and is by and between PINNACLE WEST CAPITAL
CORPORATION ("PNW') located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx,
00000-0000 ("PNW") and TRAFFIC TECHNOLOGY INC., ("TTI"), having a principal
place of business located at 0000 Xxxx Xxxxx Xxxx, Xxxxx X-0, Xxxxxxxxxx,
Xxxxxxx, 00000.
1. SCOPE
PNW shall perform consulting services or be available for consultation for TTI
in the area of Traffic Control System Integration. A statement of all Consulting
Services Work ("Consulting Services") appears in Attachment A. This work shall
be performed at a place mutually agreeable to the parties hereto. PNW will use a
mutually agreed upon methodology in conducting the Attachment A, Consulting
Services. Other than representing that the tests were conducted in accordance
with such methodology, the tests and recommendations will be provided on an "as
is" basis, without any representations or warranties.
2. TERMS AND TERMINATION
This Agreement shall remain in effect for a period of twenty-four (24) months
after the Effective Date. The parties, by mutual written agreement, may extend
the validity of this Agreement by additional periods of twelve (12) months. PNW
may terminate this Agreement for convenience, or if T-H breaches any of its
obligations contained herein, by providing TIT seven (7) days prior written
notice.
The nondisclosure provisions contained in Section 6, shall survive the
expiration, or early termination of this Agreement.
3. COMPENSATION
As compensation for the consulting services described in Attachment A, PNW will
be paid in the form of receipt of 200,000 shares of TTI stock, within 30 days of
the Effective Date of this Agreement. PNW will have no voting or management
rights or obligations to TTI.
Time spent on travel shall not be deemed to be time spent on the Services, and
shall be reimbursed as set forth in Section 4.
4. REIMBURSABLE EXPENSES
Expenses of PNW incurred or arising out of the Consulting Services hereunder
shall be reimbursable, but only to the extent provided herein. TTI shall
reimburse Consultant for preapproved reasonable and necessary out of town
travel, meals, and hotel expenses (which in no event shall exceed actual cost)
incurred by PNW in connection with the Consulting Services ("Reimbursable
Expenses"). Air transportation shall be economy class or standard coach. Hotel
accommodations shall be single room at corporate rates, if available, and car
rentals shall be compact class.
Reimbursable Expenses shall be invoiced by PNW to TM as such expenses are
incurred, each invoice shall enumerate expenses actually incurred. Invoices
shall be accompanied by documentation such as receipts, vouchers and invoices
that are reasonably necessary to verify the amount, date, and nature of each
expense. TTI shall reimburse PNW within 10 business days after receipt of
invoice.
5. INDEPENDENT CONTRACTOR
PNW shall perform the services contemplated by this Agreement as an independent
contractor, and not as an employee or agent of TTI. As such, PNW shall not be
entitled to or claim any benefits or rights afforded employees of TTI. Further,
PNW shall pay all wages, salaries and other amounts due its employees and shall
be responsible for all reports, payments, withholdings, and other obligations in
respect to such employees.
This Agreement does not make or appoint, and nothing contained in this Agreement
shall be construed to appoint PNW as an agent of TTI, or to create a partnership
or joint venture between TTI and PNW. PNW shall not act or represent itself as
an agent of TTI, and shall not bind or obligate TTI in any manner.
TTI shall not be responsible to PNW, PNW employees or any governing body for any
federal or state income tax, social security tax, unemployment tax or any other
taxes related to the performance of the Services. However, TTI shall pay the
amount of any sales, use, excise or similar taxes applicable to the performance
of the Services, if any.
6. NONDISCLOSURE
Both parties agree that all information obtained from the other party gathered
in connection with the performance of this Agreement shall be deemed proprietary
and confidential information of the other party. Both parties shall use such
information solely for the purpose of developing the specification for an
Integrated Traffic Control System.
For a period of five (5) years after the early termination, or expiration of
this Agreement, the parties shall safeguard the confidential information against
disclosure to third parties by using not less than the same degree of care as
for their own similar confidential information of like importance, and restrict
the use of confidential information solely to the purpose contemplated by this
Agreement.
Both parties shall not be bound by the obligation of confidentiality created by
this Agreement with respect to confidential information which: i) Can be shown
to be already known to the other party at the time of the disclosure, or ii) is
or becomes publicly known through no wrongful act on the other parties part, or
iii) is rightfully received by the other party from a third party without
similar confidentiality restrictions, or iv) is required to be disclosed by law
or by the order of a court or similar judicial or administrative body, or v) is
approved for release by written authorization of the other party.
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Both parties acknowledge that the restrictions and obligations contained in this
Agreement are a reasonable and necessary protection of the legitimate interest
of the other party, and third parties, and that any violation of such
restrictions or obligations could cause substantial injury to the other party.
Both parties further acknowledge that an action for damages would not be
expected to provide full and adequate compensation to the other party in the
event of a violation of the restrictions or obligations. Therefore, in the event
of a violation, each party shall be entitled, in addition to any other remedy
available at law, to immediate preliminary injunctive relief against disclosure.
In conducting the Consulting Services, PNW will use certain of its intellectual
property, which property TTI may have access to. TTI agrees to keep such
property confidential and to not use the property for any purpose not approved
by PNW. TTI shall have no rights, licenses or claim to the PNW intellectual
property.
7. RIGHTS IN INVENTIONS
7.1 All right, title and interest to any know-how, trade secret, patentable
invention copyrightable material, or the like, which a party first conceives,
originates or first reduces to practice or tangible form, and which arises out
of the performance of this Agreement, will be the property of that party. In the
event such property is jointly conceived, originated, reduced to practice or
tangible form, or the like, the parties shall meet and mutually agree on the
respective ownership rights of the parties with respect to such property.
7.2 Any teaching tools, materials, manuals, handouts, visuals, videos, or
instruments supplied by PNW or created in the performance of Agreement shall be
the property of PNW.
8. INDEMNITY
Each party shall indemnify and hold harmless the other party, its directors,
employees and officers form and against any and all liabilities, losses,
damages, costs, and expenses, including, but not limited to, fees and charges of
attorneys and court and arbitration costs, which the indemnified party, its
directors, officers, and employees may hereafter suffer in connection with any
claim, action, or right of action, at law or in equity, because of any injury,
including death, damage to person, entity or property, fines and penalties,
violation of government laws, regulations or orders, or failure of performance
which arises from any negligent acts, errors, or omissions on the part of the
indemnifying party, its directors, officers, subcontractors and employees in the
performance of this Agreement.
9. LIMITATION OF LIABILITY
IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INDIRECT, CONTINGENT OR CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING,
WITHOUT LIMITATION, LOSS OF CONTRACT, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF
GOODWILL, LOSS OF MARKET, LOSS OF PROFIT OR LOSS OF ANTICIPATED PROFIT), EXPENSE
OR COST WHATSOEVER OR HOWSOEVER SUFFERED OR INCURRED, WHETHER OR NOT THE SAME
ARE FORESEEABLE AND WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, RELATING TO
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OR ARISING OUT OF PERFORMANCE OF THIS AGREEMENT PURSUANT TO THIS AGREEMENT, EVEN
IF EITHER PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY
THEREOF.
10. RESTRICTIONS ON HIRING
Each party agrees not to solicit in any manner the employment of any employee of
the other party during the Term of this Agreement, other than in the ordinary
course of business (e.g. general advertising for employment).
11. COMPLIANCE WITH LAWS AND REGULATIONS
The parties shall comply with and shall ensure that their employees and
subcontractors at all times, comply with any and all federal, state and local
laws, ordinances, statues, rules, and regulations, including but not limited to,
applicable safety and security regulations. TTI shall comply with all PNW
facility security requirements.
12. ADDITIONAL RIGHTS
PNW will be granted the first right of refusal for future capital investitures
and will receive notice of future investment opportunities.
PNW will be granted first right of refusal to provide and perform any additional
services relating to solar/battery design, applications, maintenance,
integration, or related services.
PNW will be granted first right of refusal for distribution rights of any
commercially available products or equipment to electric utilities and energy
suppliers throughout the United States.
TTI will make available to PNW any commercially available products or equipment
at 10 percent better than best customer price for non-exclusive distribution in
the Southwestern United States.
13. ANNOUNCEMENTS
Any TTI publication, advertisement, press release, or other type of announcement
made or growing out of this Agreement, or the Consulting Services, shall be
subject to PNW's prior written approval. PNW reserves the right to withhold such
approval when PNW considers such xxx uncement to have a proprietary or
advertising significance with regard to PNWs ongoing business.
TTI shall not use the name Pinnacle West, APS, or any PNW affliate in any
manner, including, but not limited to, as an endorsement of their products
without PNW prior written consent which consent PNW may withhold in its sole and
absolute discretion.
14. GOVERNING LAW
This Agreement and the legal relations of the parties shall be governed by the
laws of the State of Arizona without regard to any conflicts of law provisions
contained therein.
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15. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect
to its subject matter and supersedes all prior understandings, proposals,
negotiations and communications, oral or written, between the parties or their
representatives. This Agreement may not be modified except in a writing signed
by the duly authorized representatives of the parties hereto.
16. SEVERABILITY
Should any provision of this Agreement be invalid, illegal or unenforceable in
any respect, such provision shall be severed and the parties specifically intend
that the remaining provisions shall continue as valid, legal and enforceable,
and these provisions shall be integrated and interpreted in such a way as to
give them maximum enforceability and validity under the applicable law, while
retaining the original intent of the parties with respect to such provisions.
17. ASSIGNMENT
The terms and provisions of this Agreement shall be binding upon and inure to
the benefit of any permitted successor of a party hereto. This Agreement may not
be assigned, in whole or in part, by either party, by operation of law or
otherwise, without the express written consent of the other party, which consent
may be withheld of any reason; provided, however, that PNW may assign this
Agreement, in whole or in part, without TTI prior consent to an affiliate or
subsidiary thereof.
18. NOTICES
AD legal notices and communications required by this Agreement shall be in
writing and shall be delivered to the individuals set forth below, or mailed
thereto by certified mail, postage prepaid, return receipt requested. Notice
shall be effective on the date delivered.
If to PNW:
Xxxxx X. Xxxxxx, Business Development Consultant
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 602.250.2526
If to TTI:
Xx. Xxxxxxx Xxxxxxx, President
0000 Xxxx Xxxxx Xxxx, Xxxxx X-0
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 480.607.6688
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
Pinnacle West Capital Corporation, Traffic Technology Inc.,
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxxxx Xxxxxxx
---------------------------- -------------------------------
Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Title: Manager Technical Development Title: President
Date: May 30, 200 Date: 15 May 2000
Attachments to this Agreement:
Attachment A - PNW Consulting Services Work Scope
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ATTACHMENT A
PNW CONSULTING SERVICES WORK SCOPE
OPTION A
I. Power Consumption Testing as follows:
a. Intersection Control Signal IC-12
b. Standard Incandescent Signal
c. Standard LED Signal
d. Turn Arrow TA-12
II. Written Report Detailing an Integrated Product Specification for 3
Applications/Scenarios (TBD)
a. Battery/Solar Requirements
b. Battery Technology Recommendation
c. Solar Technology Recommendation
d. Control System Recommendations
e. Battery UPS Recommendation
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