EXHIBIT 10.26
INDEPENDENT CONTRACTOR AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of the 1st day of
January 2005 and is between MIZEL DESIGN AND DECORATING COMPANY ("Consultant")
and M.D.C. HOLDINGS, INC. (the "Company").
1. ENGAGEMENT. The Company hereby engages Consultant as an independent
contractor to perform the services specified in Paragraph 3 below for the
Company.
2. TERM. The term of this Agreement shall be for a period beginning on
January 1, 2005 and ending December 31, 2005, unless previously terminated
pursuant to Paragraph 8 below. This Agreement shall be automatically renewed on
January 1 of each successive year for a one-year term unless previously
terminated by either party pursuant to Paragraph 8 below.
3. RESPONSIBILITIES. Commencing on January 1, 2005, Consultant shall
perform consulting services as are reasonably requested by the Company in those
areas described on Exhibit A attached hereto and incorporated by this reference.
Consultant shall be responsible and report to the Company's Chief Operating
Officer at the Company's Denver, Colorado headquarters. The Company agrees that,
because of the reduction in Consultant's compensation to the level set forth in
Paragraph 6 below, Company will not request Consultant to provide consulting
services totaling more than 20 hours per week.
4. BEST EFFORTS. Consultant shall use its best efforts to competently
and expeditiously perform its responsibilities under this Agreement. Consultant
shall, while on Company premises, and at all other times while performing its
responsibilities under this Agreement, observe, abide by and comply with all
corporate policies and procedures of the Company. Consultant shall not commit
any act or make any statements that would be damaging to the reputation and good
will of the Company.
5. OBLIGATIONS OF THE COMPANY. During the term of this Agreement, the
Company shall reimburse Consultant for all reasonable business expenses incurred
by Consultant's personnel in connection with performance of Consultant's
services. Reimbursement of such expenses shall be made and documented in
accordance with Company's normal expense reimbursement policies and procedures.
6. COMPENSATION. Subject to paragraph 8.d. below, Consultant shall be
paid $10,000.00 per month for the term of this Agreement. Payments hereunder
shall be made semi-monthly, two weeks in arrears.
7. CONFIDENTIALITY OF INFORMATION. Consultant recognizes and
acknowledges that it will have access to certain confidential information of the
Company, its subsidiaries and affiliated companies, and that such information
constitutes valuable, special and unique property of the Company, its
subsidiaries and
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affiliated companies. Consultant agrees that, during its engagement by the
Company and after the termination of such engagement (voluntarily or
involuntarily), it will not use, disclose or otherwise permit, and will take all
reasonable precautions to prevent any person, firm, corporation, or other
entity, access to the confidential information of the Company, except to
authorized representatives of the Company, its subsidiaries and affiliated or
related companies, and except as authorized by the Company.
8. TERMINATION.
a. The Company shall have the right to terminate Consultant's
engagement hereunder immediately, without liability or damages, upon
the occurrence of any one of the following:
(i) In the event Consultant engages in fraud, dishonesty or any
other act of misconduct; or
(ii) In the event of a material breach by Consultant of any of
the terms of this Agreement.
b. The Company or Consultant may terminate this Agreement for any
reason, with or without cause, upon thirty days prior notice.
c. In the event of termination pursuant to this Paragraph 8,
Consultant's compensation for the month in which termination occurs
shall be pro rated to the date of actual termination.
9. DISPUTE. In the event of a dispute, controversy or claim arising out
of or relating to this Agreement, such matter shall be settled by arbitration in
Denver, Colorado, such arbitration to be conducted before a panel of three
arbitrators, one of whom shall be appointed by the Company, one by Consultant,
and the third to be appointed by the first two arbitrators. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators that shall be
conducted as provided for in this Paragraph 9. Judgment upon the award rendered
by the arbitrators shall be final and binding on the parties and may be entered
in any court having jurisdiction thereof. The arbitrators shall divide all costs
incurred in conducting their arbitration in their final award in accordance with
what they deem just and equitable under the circumstances. In an appropriate
case, the arbitrators shall be entitled to order equitable remedies.
10. INDEPENDENT CONTRACTOR STATUS. The relationship of the Consultant
to the Company shall be that of an independent contractor. Nothing in this
Agreement is intended or shall be construed to create an employer-employee
relationship, joint venture relationship or partnership, expressly or by
implication. It is expressly understood and agreed that the payments
contemplated by this agreement are to be considered and treated as payment for
services rendered to the Company by Consultant as an independent contractor and
the Company shall have no responsibility whatsoever to Consultant with
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respect to vacation pay, sick leave, medical benefits, retirement benefits,
disability benefits, unemployment benefits or any other employer or fringe
benefit. Consultant shall be responsible for all local, state, federal and
self-employment taxes on the payments made to Consultant by the Company.
11. MISCELLANEOUS.
a. Consultant may not assign any of its rights or obligations under
this Agreement.
b. Failure to insist upon strict compliance with any provisions
hereof shall not be deemed a waiver of such provision or any other
provision hereof.
c. The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other provision.
d. As to the subject matter of this Agreement, there are no oral
agreements or understandings that limit, expand, or otherwise pertain
to these matters. This Agreement includes the entire agreement between
the parties hereto relative to the subject matter hereof and supersedes
all prior understandings and agreements with respect thereto.
e. Any notice which is required or permitted to be given under this
Agreement shall be given by personal delivery or certified mail, return
receipt requested, and directed to the respective party at its last
known address. Unless and until changed, the address of the parties
shall be as follows:
TO: Company
M.D.C. Holdings, Inc.
3600 S. Yosemite Street, #900
Denver, Colorado 80237
Attention: Chief Operating Officer
TO: Consultant
Mizel Design and Decorating Company
Suite 810
3600 S. Yosemite Street
Denver, Colorado 80237
Attention: Carol Mizel
All notices shall be deemed given on the date of personal delivery or,
if mailed postage prepaid by certified mail, return receipt requested,
on the date of delivery appearing on the return receipt therefor.
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f. This Agreement cannot be changed or modified except by a written
instrument executed by both parties.
g. This Agreement shall be deemed to have been made and shall be
construed and interpreted in accordance with the laws of the state of
Colorado.
h. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their successors and permitted assigns.
IN WITNESS WHEREOF, the undersigned parties have caused this agreement
to be executed as of the day and year first above written.
Signed:
CONSULTANT:
MIZEL DESIGN AND DECORATING COMPANY
By: /s/ CAROL MIZEL Date: February 14, 2005
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Title:
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M.D.C. HOLDINGS, INC.
By: /s/ MICHAEL TOUFF Date: February 14, 2005
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Title: Senior Vice President
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EXHIBIT A.
Consultant's responsibilities shall include services with respect to the
following:
1. Corporate and Consumer Marketing
2. Merchandising
3. Interior Design and Space Planning
4. Human Resources Development
5. Product
6. Design Center/Home Gallery
7. Meetings
8. Such other matters as may be requested by the Company's
Senior Management