INDEPENDENT CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made effective as of the 1st day of
January 2004, by and between Maui Land & Pineapple Company, Inc.,
a Hawaii corporation, whose principal place of business and
mailing address is 120 Kane Street, Kahului, Hawaii 96733 ("MLP")
and Douglas R. Schenk whose mailing address is 372 Hoopalua
Drive, Pukalani, Hawaii 96768 (hereinafter referred to as the
"Contractor").
RECITALS:
A. MLP is forming a new business unit to be named Maui
Agricultural Partners that will be responsible for among others
(i) Kapalua Farms, a MLP service entity supporting joint ventures
in diversified agriculture in Kapalua, Hawaii, (ii) Earth
University Island Institute a work study program being developed
with Earth University and the University of Hawaii to promote
applied research and education that fosters agricultural
entrepreneurs and (iii) Island Energy, a MLP program to identify
cost effective methods for growing, processing and marketing bio-
fuels (collectively the "Business"). MLP and MAP shall hereafter
be referred to collectively as the "Company."
B. Company desires to contract with Contractor, as an
independent contractor, to provide certain consulting and
advisory services more fully described below to the Company
regarding its operations, marketing and the distribution of its
products.
C. Contractor possesses the skills, experience and contacts
necessary to provide such services to Company.
NOW, THEREFORE, in consideration of the premises and the
covenants and conditions contained herein, Company and Contractor
hereby agree as follows:
1. Relationship of Independent Contractor Created.
1.1 It is expressly agreed by the parties hereto that
Contractor shall not be deemed to be an employee of Company for
any purpose whatsoever, but shall be an independent contractor.
Further, it is understood and agreed by the parties that nothing
contained in this Agreement shall be construed to create a joint
venture, partnership, association, or other affiliation or like
relationship between the parties, it being specifically agreed
that their relationship is and shall remain that of independent
parties to a contractual relationship as set forth in this
Agreement.
1.2 Company will not exercise any dominion or control
over the specific manner in which Contractor performs the services
hereunder, so long as the overall performance by Contractor of
such services are satisfactory to Company and in full conformity
with the requirements of this Agreement.
1.3 Company agrees that it shall place no restrictions,
either express or implied, upon Contractor's acceptance of work
from other persons or companies, provided, however, that
Contractor's acceptance of work from such other persons or
companies shall not relieve Contractor from the full compliance
with the terms of this Agreement, nor shall Contractor's work for
other companies interfere with, conflict with or be contrary to
the interests of Company.
1.4 Contractor shall have no authority to bind the
Company or to transact business in the name of Company.
2. Consulting Services.
2.1 During the term of this Agreement and as requested
by Company, Contractor will furnish to Company the following
consulting and advisory services for up to fifteen (15) days
(120 hours) during each calendar quarter covered by this Agreement:
(i) advice and/or consultations with Kapalua Farms managers
regarding ways to maximize its operations and results including
but not limited to the identity, feasibility and/or operations of
potential and/or existing joint ventures in diversified
agriculture, (ii) advice and/or consultations regarding the
operations of the Earth Island Institute's operations including
but not limited to ways to effectively develop implement monitor
and promote its work study research and/or education programs for
fostering agricultural entrepreneurs and (iii) advice and/or
consultations with Island Energy managers on methods to identify
and develop cost effective ways to grow, process and market bio-
fuels (hereafter collectively referred to as the "Consulting
Services"). The Consulting Services shall be provided at such
times and for such accounts as shall be mutually agreed upon by
Company and Contractor.
2.2 Contractor may provide other services to the
Company as may be agreed upon by the Company and Contractor from
time to time, provided that such other services shall not result
in any increase in the Contract Fee payable to Contractor
hereunder unless agreed to in writing by the Company and
Contractor.
3. Contract Fee.
3.1 In consideration for the Contractor's agreement
to provide the Consulting Services, Company shall pay to
Contractor a Contract Fee of up to Fifteen Thousand Dollars
($15,000) per calendar quarter prorated for the number of
Consulting Services hours actually provided by Contractor during
the calendar quarter (the "Contract Fee"). The Contract Fee shall
be paid to Contractor on or before the 15th day of the first month
of each calendar quarter for the Consulting Services performed
during the immediately preceding calendar quarter. Company shall
reimburse Contractor for all reasonably necessary tax deductible
business expenses incurred by Contractor with Company's prior
consent (hereafter collectively referred to as the "Contract Fee").
4. Liability for Taxes and other Statutory Requirements.
4.1 Contractor understands and agrees that as an
independent contractor, Contractor will be solely responsible for
obtaining and maintaining a current Hawaii Gross Excise Tax License
and for reporting and paying all state and federal taxes, social
security taxes, unemployment insurance contributions and assessments,
workers' compensation insurance, prepaid healthcare insurance,
temporary disability insurance, general excise taxes, self-
employment taxes, and any and all other taxes, fees, assessments
or contributions, if any, applicable to Contractor or arising out
of the Consulting Services provided by or the Contract Fee paid
to Contractor hereunder. Contractor understands and agrees that
(a) Contractor will not be treated as an employee of Company for
any purposes; (b) Company will not withhold on behalf of
Contractor any sums for income tax, unemployment insurance,
social security, or any other federal or Hawaii taxor
contribution pursuant to any law or requirement of any
governmental body; and (c) Contractor will indemnify and hold
Company harmless from any and all loss or liability arising from
Company's failure to make such payments or Company's failure to
make such contributions.
4.2 Contractor understands and agrees that Company will
not make available to Contractor any of the benefits afforded to
employees of Company, and Contractor shall not have and hereby
waives any claim under this Agreement or otherwise against Company
for any employee benefit or employee benefit plan coverage including
but not limited to vacation pay, paid sick leave, severance,
retirement benefits, social security, workers compensation,
health, disability, or unemployment insurance benefits or other
employee benefits of any kind excepting only the payments and
benefits described in Paragraph 2 of that certain Employment
Separation Agreement dated December 30, 2003 between the
parties. Contractor will indemnify, defend and hold Company
harmless from any and all loss or liability arising from
Company's failure to make or provide such benefits or
contributions.
5. Indemnification. Contractor agrees to indemnify,
defend and hold harmless Company and its officers, directors
and employees, from, and reimburse it for, any and all liabilities,
claims, demands, losses, damages, injuries, costs and expenses,
including attorney's fees and court costs, incurred in connection
with, arising out of or incident to the Consulting Services
provided hereunder by Contractor or the breach by Contractor of
any provision of this Agreement.
6. Confidentiality and Noncompetition.
6.1 Contractor agrees that, Contractor has, and in
the course of Contractor's performance of this Agreement
Contractor will acquire, confidential information regarding the
Company, its clients and its business (the "Confidential
Information"). Contractor understands and agrees that Contractor
shall: (a) keep such Confidential Information confidential at
all times during and after the expiration of the term of this
Agreement; (b) not disclose or communicate any Confidential
Information to any third party, except as required by law;
(c) not use any Confidential Information on Contractor's own
behalf or on behalf of any third party, except as otherwise
expressly authorized in writing by Company; and (d) not use any
Confidential Information to the detriment of Company.
6.2 During the term of this Agreement and for a
period of one (1) year after the termination of this Agreement,
Contractor shall not, without the prior written consent of
Company, engage in any activity competitive with the business of
Company, its parent or affiliated entities in the State of Hawaii
(hereafter referred to as the "Business"). An activity competitive
with the Business shall mean becoming an employee, officer,
director, contractor or consultant of, or being an investor in, or
owner of, any corporation, partnership, limited liability company,
or other person or entity engaged in any conduct which competes
directly or indirectly with the Business in the State of Hawaii.
It is the desire and intent of the parties that the provisions of
this Paragraph shall be enforced to the fullest extent
permissible under the laws and public policies of the State of
Hawaii. Accordingly, if any particular portion of this Section
shall be adjudicated to be invalid or unenforceable, this Section
shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable.
6.3 In view of the nature of Contractor's services
hereunder and the nature of the Confidential Information that
Contractor may receive during the course of the performance of
Contractor's services, Contractor agrees that any unauthorized
disclosure to third parties of any Confidential Information,
Contractor's engagement in any competitive activity, or any other
violation, or threatened violation, of this Section 6 would cause
irreparable damage to the Company, and that, therefore, the
Company shall be entitled to an injunction prohibiting Contractor
from any such disclosure, attempted disclosure, competitive
activity, attempted competitive activity, violation or threatened
violation. The undertakings set forth in this Section 6 shall
survive the termination of this Agreement.
7. Term and Termination.
7.1 The term of this Agreement shall commence on the
date hereof and shall continue through December 31, 2006 unless
terminated sooner as provided in Subparagraph 7.2.
7.2 This Agreement may be terminated by written notice
given prior to December 31, 20036 upon the occurrence of any of
the following events: (i) by mutual agreement of the parties,
(ii) by Contractor's death, (iii) by Contractor suffering a
physical, mental or emotional impairment that prevents Contractor
from being available or able to perform any of the Consulting
Services to Company's reasonable satisfaction for a period of
three consecutive months or any five months during a calendar
year, or (iv) by a material breach of this Agreement by either
party. In the event this Agreement is terminated prior to
December 31, 2006 for any of the foregoing reasons Contractor
shall be entitled to receive prompt payment of only those
Contract Fees earned through the termination date.
8. Arbitration. If any claim, dispute or controversy
should arise between the Company and Contractor, with respect to
this Agreement or their obligations under, any alleged breach of,
or the interpretation of, this Agreement (except for any alleged
breach of the provisions of Section 6 to which this Section shall
not apply), either the Company or Contractor may demand that the
dispute be settled by arbitration in Honolulu, Hawaii before a
single arbitrator in accordance with the then existing rules for
resolving commercial disputes of the American Arbitration
Association or its successor, provided, however, that the
arbitrator may not alter, amend or terminate any provision of
this Agreement or award punitive or exemplary damages unless
expressly provided for by statute. The award of the arbitrator
shall be final and binding and judgment upon the award may be
entered in accordance with the Federal Arbitration Act, unless
such law is not applicable in which case in accordance with
Hawaii Revised Statutes Chapter 658A, as amended, in any court
having jurisdiction thereof. All fees and expenses of the
arbitrators and all other expenses of the arbitration, except for
attorneys' fees shall be shared equally by the Company and
Contractor. Each party shall bear its own witness expenses. The
prevailing party in such arbitration shall be entitled to recover
reasonable attorneys' fees as part of the award resulting from
such arbitration but not to exceed the maximum amount permitted
under HRS 607-14.
9. Miscellaneous.
9.1 Notices or communications required or permitted
to be given under this Agreement shall be given to the respective
parties by personal delivery or by registered or certified mail
(such notice being deemed given as of the date of mailing) at the
addresses set forth in this Agreement unless a party shall
otherwise designate a different address by written notice to the
other party.
9.2 This Agreement shall be construed and enforced in
accordance with the laws of the State of Hawaii.
9.3 No assignment of this Agreement or the rights and
obligations hereunder shall be valid without the specific written
consent of both parties hereto.
9.4 This Agreement constitutes the entire understanding
and agreement of the parties hereto with respect to the
Consulting Services of Contractor and it supersedes all previous
agreements, correspondence, negotiations and discussions
regarding the Consulting Services.
9.5 This Agreement may be amended only by an instrument
in writing signed by both parties thereto, effective as of the
date stipulated therein.
9.6 If any provision of this Agreement is held to be
illegal, invalid, or unenforceable, such provision shall be fully
severable and this Agreement shall be construed and enforced as
if such illegal, invalid, or unenforceable provision had never
comprised a part hereof. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar
in terms to such illegal, invalid, or unenforceable provision as
may be possible and still be legal, valid or enforceable.
9.7 No consent or waiver, express or implied, by a party
or of any breach or default by the other party in the performance
by such other party of its obligations hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach
or default in the performance by such other party of the same or
any other obligations of such party hereunder.
9.8 This Agreement shall be binding upon and is for the
benefit of the parties hereto and their successors, transferees,
permitted assigns, heirs and personal representatives.
9.9 Any exhibits attached hereto are incorporated by
reference in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
MAUI LAND & PINEAPPLE COMPANY INC.
By /S/DAVID C. COLE
Its President & CEO
the "Company"
/S/ DOUGLAS R. SCHENK
DOUGLAS R. SCHENK