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EXHIBIT 10(l)
CONSULTING CONTRACT
This Consulting Contract (the "Agreement") is made as of this 1st day
of June, 2001, between Fitzgeralds Gaming Corporation on behalf of itself
and each of its operating subsidiaries: Fitzgeralds Mississippi, Inc.,
Fitzgeralds Reno, Inc., Fitzgeralds Las Vegas, Inc., and 000 Xxxx Xxxxxx, LLC
(collectively, "Client"), and Meritage Employer Services, LLC ("Meritage" or
"Consultant").
In the event of a conflict in the provisions of any Exhibits hereto and
the provisions set forth in this Agreement, the provisions of such Exhibits
shall govern.
1. SERVICES. Consultant agrees to perform for Client the services listed
in Exhibit A hereto and incorporated herein by reference. Client agrees that
Consultant shall have reasonable access to Client's staff and resources as
necessary to perform the Consultant's services.
2. TERM. The term of this Agreement shall commence on the ___ day of
__________, and, subject to the good faith negotiations set forth below, will
remain in effect until resolution of all claims asserted in the Client's
bankruptcy cases currently pending or against any Fitzgeralds liquidating trust
or similar entity formed to effectuate the liquidation of Fitzgeralds, unless
this Agreement is terminated by either party pursuant to the termination
provision contained in Section 17 herein. The parties hereby agree to engage in
good faith negotiations to make reasonable adjustments to the fees payable
hereunder during the sixty (60) day period prior to each sale of an operating
subsidiary (or substantially all its assets) and during the sixty (60) days
prior to the consummation of any plan that would assign this Agreement to any
reorganized Fitzgeralds or any liquidating trust or similar entity formed in
Fitzgeralds' currently pending bankruptcy cases.
3. RATE OF PAYMENT FOR SERVICES. Client agrees to pay Consultant for
services in accordance with the Contracted Fees schedule set forth in Exhibit B
attached hereto and incorporated herein by reference, subject to a three percent
(3%) annual increase on each anniversary of this Agreement.
4. INVOICING AND DEPOSIT. Upon execution of this Agreement and prior to
the effective date of services being rendered, the Client shall pay a deposit,
in advance, in the amount of $34,000. Client shall pay Consultant contracted
annual fees prorated monthly and payable on the first day of the month for
services to be rendered that month as set forth in Exhibit B for annualized
Standard Service Levels of 800 hours for OSHA consulting; 1,400 hours for health
clinic consulting; 1,400 hours for employment consulting; and 300 hours for
Insurance consulting. Exhibit C provides the hourly rates to be charged, if the
annualized Standard Service Levels for the Client are exceeded over the next
twelve (12) months. If the aggregate of annualized Standard Service levels for
all categories is not utilized and this Agreement continues for twelve (12)
months, the Consultant will remit any overpayment back to the Client. Should the
Client wish any overpayment offset against fees for ongoing services, the Client
shall have general rights of offset and recoupment with respect to amounts owing
under this Agreement and the other Risk Management Contracts (defined below).
Exhibit B-2 reflects examples of the rate of payment for services. To the extent
that reimbursement is being sought
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for approved out-of-pocket expenses, receipts will accompany all invoices
submitted to the Client for reimbursement. The Client shall remit payment within
fifteen (15) days of receipt of a proper and payable invoice.
5. CONFIDENTIAL INFORMATION. Each party agrees that all information
received by Consultant from the Client in connection with Consultant's services,
other than information previously publicly disclosed by the Client, shall be
considered confidential and shall not be used or disclosed by the Consultant
other than as necessary to perform services under this Agreement, unless
authorized in writing by the Client. This confidentiality provision shall
survive termination of this Agreement.
6. INDEMNIFICATION. Consultant agrees to indemnify, defend and hold the
Client harmless from all claims, demands, costs, fees (including reasonable
attorneys' fees), judgments and liability asserted against Client by a third
party which arise out of negligence, gross negligence or willful misconduct of
the Consultant in the performance or non-performance of this Agreement. This
indemnification will not apply where action or inaction of the Client is the
sole cause of litigation or fines where the Consultant has made reasonable
written recommendations to the Client, and the Client failed to follow such
written recommendations.
Client agrees to indemnify, defend and hold Consultant harmless from
all claims, demands, costs, fees (including reasonable attorneys' fees),
judgments and liability asserted against Consultant by a third party, which
arise out of the negligence, gross negligence or willful misconduct of Client in
the performance or non-performance of this Agreement.
7. STAFF. Consultant is an independent contractor and neither Consultant
nor Consultant's staff is or shall be deemed to be employed by Client. Client is
hereby contracting with Consultant for the services described on Exhibit A and
Consultant reserves the right to determine the method, manner and means by which
the services it has agreed to render. Consultant shall not be required to devote
Consultant's full time nor the full time of Consultant's staff to the
performance of the services required hereunder, and it is acknowledged that
Consultant has other Clients and Consultant offers services to the general
public. The order or sequence in which the work is to be performed shall be
under the control of Consultant, unless otherwise requested by Client.
Consultant agrees to perform services in a timely and professional manner.
Client may terminate Consultant's services hereunder with or without cause
subject to the provisions in Section 17 herein.
Each of the parties hereto agrees that while performing services
under this Agreement, and for a period of six (6) months following the
termination of this Agreement, neither party will, except with the other party's
written approval, solicit or offer employment to the other party's employees or
staff.
8. USE OF WORK PRODUCT. Except as specifically set forth in writing and
signed by both Client and Consultant, Consultant shall have all copyright and
patent rights with respect to all materials developed under this Agreement, and
Client is hereby granted a non-exclusive license to use and employ such
materials within the Client's business. All reports provided to the Client may
be used in an unrestricted manner for the Client's use.
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9. CLIENT REPRESENTATIVE. The general manager of each entity of the
Client and other representatives designated by the General Manager shall
represent the Client during the term of this Agreement, and have authority to
execute written modifications or additions to this Agreement.
10. DISPUTES. If a dispute or grievance between the parties arises with
respect to the obligations of the parties under this Agreement or as a result of
this Agreement, and such dispute or grievance cannot be resolved in an informal
fashion, the parties hereby agree that all disputes arising out of or related to
this Agreement shall be subject to the exclusive jurisdiction of the United
States Bankruptcy Court for the District of Nevada, and each hereby waives trial
by jury and any assertion that such dispute is a non-core matter.
11. INSURANCE. The Consultant shall maintain adequate Error and
Omissions coverage with a Best Rated A+ carrier, and shall provide, at the
request of the Client, evidence of the coverage.
12. SERVICE WARRANTY. Consultant warrants to Client that the material,
analysis, data, programs and services to be delivered or rendered hereunder,
will be of the kind and quality that meets or exceeds industry standards and
will be performed by qualified personnel.
13. COMPLETE AGREEMENT. This Agreement, together with the Claims
Processing and Managed Care Services Contract, the Liability Claims
Investigation, Adjustment and Management Agreement, the Workers Compensation
Service Agreement and the Consulting Contract (this Agreement and such
agreements, collectively, the "Risk Management Contracts"), contain the entire
agreement between the parties hereto with respect to the matters covered herein.
Any modifications shall be in writing signed by authorized representatives of
both the Client and Consultant.
14. APPLICABLE LAW. Consultant shall comply with all applicable laws in
performing services and maintain all licenses required to perform the services.
This Agreement shall be construed in accordance with the laws of the State of
Nevada.
15. REGULATORY REQUIREMENTS. Consultant acknowledges and agrees that
Client is subject to the licensing and regulatory control of the Nevada Gaming
Control Board and various other state, county and city gaming regulatory
enforcement agencies (collectively the "Gaming Authorities"). Said Gaming
Authorities may request or require the Client to obtain and report certain
information regarding Consultant and its principals. To the extent so required,
Consultant agrees to fully and promptly cooperate and comply with such request
for information, as authorized by the Client.
16. ADDITIONAL WORK. After receipt of a written request from the Client
that adds to the services, Consultant will provide a quotation for the
additional services, which the Client may accept or reject. Upon the Client's
written acceptance of the quotation, Consultant shall perform the agreed
additional services. Client agrees to pay Consultant for such additional
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services and expenditures at the hourly rate as set forth in Exhibit C of this
Agreement or at an agreed upon flat rate for payment of services.
17. NOTICES.
Notices to Client should be sent to: President
With a copy to: General Counsel
Fitzgeralds Gaming Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
General Manager
Fitzgeralds Reno, Inc
X.X. Xxx 00000
Xxxx, Xxxxxx 00000
General Manager
Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
General Manager
Fitzgeralds Mississippi, Inc.
000 Xxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
General Manager
000 Xxxx Xxxxxx LLC
000 Xxxxxxx Xxxxxx
X.X. Xxx X
Xxxxx Xxxx, Xxxxxxxx 00000
Notices to Consultant should be sent to: Xxxxxxxx Xxxxxx
Meritage Employer Services
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx, Xxxxxx 00000
18. ASSIGNMENT. Neither party may assign this Agreement without the
prior written consent of the other party. This Agreement shall be binding upon
and inure to the benefit of the heirs, successors and permitted assigns of the
parties hereto. Consultant agrees that this Agreement may be assigned by the
Client to any liquidating trust or similar entity formed to effect the
liquidation of Fitzgeralds, and hereby consents and agrees not to object to any
assumption and assignment of this Agreement to such an entity.
19. TERMINATION. This Agreement may be terminated by the Client at any
time upon giving ninety (90) days advance written notice to Consultant. In the
event Client terminates this
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Agreement without cause and prior to the end of twelve (12) months, Client
agrees to pay Consultant all remaining fees incurred through to the date of
termination in full within thirty (30) days of the date of termination.
Consultant may terminate this Agreement thirty (30) days after giving written
notice of a default by Client hereunder of a default by Client hereunder,
provided that such a default has not been cured.
20. BANKRUPTCY COURT APPROVAL. Consultant acknowledges and understands
that the Client and each of the operating subsidiaries commenced cases under
Chapter 11 of the United States Bankruptcy Code on December 5, 2000 and that
such proceedings are still pending. Consultant further acknowledges and
understands that this Agreement shall not be effective unless and until approved
by the Bankruptcy Court.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first set forth above.
FITZGERALDS GAMING CORPORATION MERITAGE EMPLOYER SERVICES, LLC
/s/ XXXXXX X. XXXXXXXX /s/ XXXXXXXX XXXXXX
---------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxxx Xxxxxx
President and CEO President
FITZGERALDS RENO, INC. FITZGERALDS LAS VEGAS, INC.
/s/ MAX L. PAGE /s/ XXXXXXX XXXXXX
---------------------------------- ----------------------------------
Max L. Page Xxxxxxx Xxxxxx
Exec. Vice President and Vice President and General Manager
General Manager
FITZGERALDS MISSISSIPPI, INC. 000 XXXX XXXXXX, LLC
/s/ XXXXXXX XXXXXXXX /s/ XXX XXXXXXX
---------------------------------- ----------------------------------
Xxxxxxx Xxxxxxxx Xxx Xxxxxxx
Vice President and General Manager Vice President and General Manager
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EXHIBIT A
INSURANCE CONSULTING
- Analysis, actuarial and insurance consulting services
- Effective management of human and risk capital in the areas of life,
health, property and casualty, directors & officers, and employment
practices insurance.
- Management of organizational risk management needs.
- Insurance pricing
- Reserving
- Regulatory compliance matters
- Assessment, management, and ultimately control of risks.
EMPLOYMENT CONSULTING
EMPLOYEE BENEFITS CONSULTING
- Strategic Benefit Plan Design, Implementation, and Management
- Administration and management of Health claims payment.
- Recommend programs, and vendors to create and manage benefit plans that
support the organization's financial, operational, and cultural
objectives.
- Recommending financially viable, cost-effective strategies that reflect
the client's business and human resource goals.
- Provider evaluation, selection, and negotiation through actuarial
valuations
HUMAN RESOURCES STRATEGIES AND EMPLOYMENT PRACTICE CONSULTING
- Compensation and Benefits Analysis
- Surveys & financial impact studies
- Recommendations
- Training
- Human Resources Policies Development
- Legal updates
- Consultation and Recommendations on Human Resources issues regarding
policy interpretation, application of various applicable legal issues,
Dept of Labor, ERISA, IRS, EEOC, Title VII, OSHA, ADEA, ADA, FMLA,
HIPPA, Etc.
- 401k and Profit Sharing Plan Trustee and Administrative Services
- Litigation case management on all Employment Related Cases approved by
Employment Practices Carrier
INTEGRATED HEALTH CLINIC MANAGEMENT AND CONSULTING
- Analyze and make recommendations for informed decisions regarding health
plan design, delivery, and performance.
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- Provide our "integrated" approach to health care management including
health plan operations, care delivery, Health Clinic Management.
- Management of onsite Health Services Clinics, Health Fairs, Utilization
Review and large case management.
OSHA CONSULTING AND SAFETY COMPLIANCE (FEDERAL AND STATE OSHA)
- Review Recommendations from OSHA
- Implement OSHA Recommendations
- Verification of OSHA Compliance Issues
- Ergonomics Standards
- Audit OSHA Findings
- Review OSHA Forms for Compliance
- Site Safety Review
- Safety Manuals
- Advocacy With OSHA
- Training Seminars
- Claims Management Systems
- Employee Safety Manuals
- Workplace Violence Training
- Workplace Safety Review
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EXHIBIT B
STANDARD SERVICE LEVELS
SUMMARY OF HOURS
------------------------------------------------------------------------------------------------
TYPES OF SERVICES BLACK HAWK LAS VEGAS RENO TUNICA CORPORATE TOTALS TOTALS
ANNUAL MONTHLY
------------------------------------------------------------------------------------------------
OSHA 150 150 150 350 800 67
------------------------------------------------------------------------------------------------
Health Clinics 50 100 1150 100 1400 117
------------------------------------------------------------------------------------------------
Employment Practices 300 300 300 500 1400 117
------------------------------------------------------------------------------------------------
Insurance Consulting 70 70 70 70 20 300 25
------------------------------------------------------------------------------------------------
TOTALS BY PROPERTY 885 815 1470 680 50 3900 325
------------------------------------------------------------------------------------------------
SUMMARY OF THEORETICAL FEES
BASED ON STANDARD SERVICE LEVELS
------------------------------------------------------------------------------------------------
TYPES OF SERVICES BLACK HAWK LAS VEGAS RENO TUNICA CORPORATE TOTALS TOTALS
ANNUAL MONTHLY
------------------------------------------------------------------------------------------------
OSHA 18,750 18,750 18,750 43,750 100,000 $ 8,333
------------------------------------------------------------------------------------------------
Medical Clinics 6,250 12,500 83,250 12,500 114,500 $ 9,542
------------------------------------------------------------------------------------------------
Employment Practices 58,500 58,500 58,500 97,500 273,000 $22,750
------------------------------------------------------------------------------------------------
Insurance Consulting 13,650 13,650 13,650 13,650 3,900 58,500 $ 4,875
------------------------------------------------------------------------------------------------
TOTALS BY PROPERTY $97,150 $103,400 $174,150 $167,400 $3,900 $546,000 $45,500
------------------------------------------------------------------------------------------------
SUMMARY OF FEES
CONTRACTUAL AGREED BILLING
------------------------------------------------------------------------------------------------
TYPES OF SERVICES BLACK HAWK LAS VEGAS RENO TUNICA CORPORATE TOTALS TOTALS
ANNUAL MONTHLY
------------------------------------------------------------------------------------------------
OSHA 15,000 15,000 15,000 35,000 80,000 $ 6,667
------------------------------------------------------------------------------------------------
Medical Clinics 12,000 10,000 73,500 6,000 101,500 $ 8,458
------------------------------------------------------------------------------------------------
Employment Practices 39,537 39,537 39,537 65,895 184,505 $15,375
------------------------------------------------------------------------------------------------
Insurance Consulting 9,800 9,800 9,800 9,800 2,800 42,000 $ 3,500
------------------------------------------------------------------------------------------------
TOTALS BY PROPERTY $76,337 $74,337 $137,837 $116,695 $2,800 $408,005 $34,000
------------------------------------------------------------------------------------------------
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EXHIBIT B-2
EXAMPLE 1
The Agreement with the Client continues for 12 months based on the contractual
agreed Rates and Hours and results in the following hours incurred by Meritage
on behalf of the Client:
OSHA 780
Health Clinic 1400
Employment 1430
Insurance 300
TOTAL HOURS 3910
====
Meritage remits 20 hours at @ $125/hr ($2,500) to Client. Client may choose to
have next period fees offset by the amount due from Meritage.
Client remits 30 hours @ $195/hr ($5,850) to Meritage. Should this situation
occur, the amount due from Meritage would be offset from the balance owed by the
Client, therefore the Client would remit $3,350.
EXAMPLE 2
The Agreement with the Client continues for 8 months and is terminated upon the
sale of the assets of the Client with the following hours incurred by Meritage
on behalf of the Client:
OSHA 500
Health Clinic 800
Employment 700
Insurance 250
TOTAL HOURS 2250
====
THE CONTRACT BILLING HOURS WOULD INCLUDE PAYMENT FOR 2600 HOURS FOR MONTHLY FEES
PAID, THERE WOULD BE 350 HOURS OVERPAID BY THE CLIENT.
There would be no adjustment to the monthly fee paid since the agreement was
terminated by the Client prior to 12 months.
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EXHIBIT C
HOURLY FEES FOR HOURS IN EXCESS OF STANDARD SERVICE LEVELS
ALL LINES OF COVERAGE INSURANCE ANALYSIS & CONSULTING
--------------------------------------------------------------------
PERSONNEL STANDARD HOURS COST PER HOUR
--------------------------------------------------------------------
Sr. Consultant $195
--------------------------------------------------------------------
Consultant Manager $125
--------------------------------------------------------------------
Support $ 75
--------------------------------------------------------------------
HUMAN RESOURCES STRATEGIES EMPLOYMENT PRACTICES, PENSION PLAN, LEGAL CASE
MANAGEMENT, COMPENSATION AND BENEFITS, LIABILITY AND WORKER'S COMPENSATION
CONSULTING
--------------------------------------------------------------------
PERSONNEL COST PER HOUR
--------------------------------------------------------------------
Sr. Consultant $195
--------------------------------------------------------------------
Consultant Manager $ 80
--------------------------------------------------------------------
Support $ 30
--------------------------------------------------------------------
INTEGRATED HEALTH CLINIC MANAGEMENT AND CONSULTING
--------------------------------------------------------------------
PERSONNEL COST PER HOUR
--------------------------------------------------------------------
Sr. Consultant $125
--------------------------------------------------------------------
Consultant Manager $ 70
--------------------------------------------------------------------
Support $ 30
--------------------------------------------------------------------
OSHA CONSULTING AND SAFETY COMPLIANCE
--------------------------------------------------------------------
PERSONNEL COST PER HOUR
--------------------------------------------------------------------
Sr. Consultant $195
--------------------------------------------------------------------
Consultant Manager $125
--------------------------------------------------------------------
Support $ 75
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PLUS: Related reasonable, pre-approved travel expenses (airfare, hotels, auto,
etc.)
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