EXHIBIT 10(x)
XXXX XXXXXXX CONSULTING AGREEMENT
CONSULTING AGREEMENT
INTRODUCTION
This Consulting Agreement made and entered into by and between U.S. West
Homes, Inc. a Nevada Corporation, hereinafter "U.S. West" whose address is 000
Xxxxxxxx, Xxxxxx Xxxxx, XX 00000 AND LAS BRISAS DE LA MAR INC, a Nevada
corporation and Brisas de la Mar, a Nevada corporation, as the personal
service company of Xxxx Xxxxxxx {"Consultant"), whose address is 0000 Xxxx
Xxxx Xxxxx, Xxx Xxxxx, XX 00000.
WHEREAS, U.S. West owns promissory notes which are due from Senior Care
International, S.A. de C.V., a Mexican corporation, hereinafter referred to as
"SCI", that owns contracts for deed for two development projects in the State
of Baja California more fully described as:
1. A partially completed shopping center known as Plaza Rosarito
together with 9 acres of ocean front undeveloped land which was
formerly a polo field and hacienda;
2. Approximately 650 acres of raw land located in an area commonly
known as the Hills of Bajamar and adjacent to the Bajamar Golf and
Country Club; and
WHEREAS, U.S. West requires the services of Consultant to provide on-going
consulting Services during the development phase of these properties; and
WHEREAS, this agreement will define the responsibilities of the Consultant
in and to the performance of the aforementioned project.
IT IS THEREFORE AGREED:
Consultant shall furnish such skill, knowledge and experience as may be required
to perform the business efficiently and expeditiously, to advise and be
responsible to supervise the construction of Plaza Rosarito, development of the
ocean front site, arrangement for all necessary architectural, engineering and
other entitlements which may be necessary to record planned urban development
plans for the Hills of Bajamar, to arrange for site improvements and to
coordinate the sales of lots on the Hills of Bajamar.
1
On each of the anticipated projects, Consultant shall be responsible for the
following: (7) Selection of the design team and approval of all floor plans; (8)
Soliciting bids from general contractors; (9) Review and approval AND MANAGEMENT
of the construction budget; (10) Pricing of the units and marketing necessary to
attract the requisite numbers of buyers; (11) Arranging for required appraisals
of land and properties; (12) Interfacing with tenants and condominium owners at
Portal Del Mar; (13) Soliciting and arranging for a joint venture with a time
share developer on Plaza Resorts; (14) Evaluation of the floor plans and
coordination of the design team to ensure accurate drawings; (15) Distribution
of the plans to the various subtrades for the purpose of securing pricing; (16)
Finalizing the construction budget; (17) Furnishing all construction management,
contract administration, subcontractor coordination, on site supervision,
equipment, material, and labor necessary to construct and complete the projects
in a good workmanlike and substantial manner.
The Company agrees to pay Consultant a fee for the services (the "Initial Fee")
by way of the issuance by the Company of Seven Million (7,000,000) shares of the
Company's common stock (the "Fee Shares"). As additional work is done, from time
to time, the Company agrees to pay the consultant fees based upon the degree of
completion of work as more particularly set forth in the Joint Venture Agreement
between the Company and Las Brisas de xx Xxxxxx dated February 24, 2003.
No later than ten (10) days following the date hereof as to the Fee Shares the
Company will cause such shares to be registered with the Securities and Exchange
Commission under a Form S-8 or other applicable registration statement, and it
shall cause such registration statement to be remain effective at all times
while Advisor holds such shares. At Consultant's election, such shares may be
issued prior to registration in reliance on exemptions from registration
provided by Section 4(2) of the Securities Act of 1933 (the "'33 Act"),
Regulation D of the '33 Act, and applicable state securities laws. Such issuance
or reservation of shares shall be in reliance on representations and warranties
of Advisor set forth herein. Failing to register such shares, or maintain the
effectiveness of the applicable registration statement, the Company shall
satisfy any Compensation in cash within ten (10) days of receipt of Advisor's
statement setting out the amount of compensation then due and payable.
2
The contract time shall be measured from the date of commencement as fixed in
the notice issued by the owner. The Consultant shall achieve Substantial
Completion of the entire work on a timely basis from the date of commencement
and in accordance with a detailed construction and production schedule which may
be attached to this agreement as an exhibit or as determined in writing by the
parties and attached hereto as a Modification and/or Addendum.
INDEPENDENT INVESTIGATION: Consultant has made in independent investigation of
each of the job sites, and the soil conditions under the job site, and all other
conditions that might affect the progress of the work, and has satisfied itself
as to those conditions. And information that owner may have furnished to
contractor about the job site, underground conditions or other job conditions is
for contractors convenience only, and owner does not warrant that the conditions
are as thus indicated. Contractor has satisfied itself by its own investigation
as to all job conditions, including underground conditions, and has not relied
on information furnished by owner. Contractor shall receive equitable
adjustments to the contract amount for unforeseeable or unanticipated site
conditions.
TIME IS OF ESSENCE BEFORE PROGRESS OF WORK: Time is of the essence of this
agreement. If Consultant is unable to supply a general contractor who can in
turn, supply sufficient men, material, supplies, and equipment to achieve
scheduled completion, the SCI shall give written notice to LAS BRISAS, which
notice shall require that Consultant immediately make arrangements for the
general contractor of the sub-contractor as the case may be, to supply
sufficient men, supplies, materials, and equipment to diligently prosecute of
the work within 48 hours after such notice is delivered, SCI may eject the
contractor from the job, take over all supplies, equipment, and material of the
contractor on the job site, and either obtain another contractor to finish the
project or finish the project with its own forces. In such event, the contractor
shall be liable to the owner for damages, including but not limited to the full
cost of completing the project.
FORM; CONFLICT BETWEEN CONTRACT DOCUMENTS: If there is any conflict between
contract documents as to materials, equipment, or work to be performed or
furnished, the contractor will bring the conflict to the attention of the owner
and a mutual resolution will be negotiated.
NOTICES: Any notice required or permitted under this contract may be given by
ordinary mail at the address contained in this contained in this contract, and
such address may be changed by written notice given by one party to the other
from time to time. Notice shall be deemed received one (1) day after deposited
in the mail, postage prepaid.
ACTS REQUIRING MUTUAL CONSENT: No party shall without the written consent of the
other members, assign, mortgage, grant a security interest in, or sell its share
in the Corporation or in its capital assets or property, or enter into any
agreement, as a result of which any person shall become interested with it in
the corporation; or do any act detrimental to the best interests of the
corporation, or which would make it impossible to carry on the ordinary
business.
3
CONDUCT OF OTHER BUSINESS: Consultant shall be free to carry on his
respective businesses independent of the others and no party shall have any
right in or claim against the business of the others on any contract other than
the aforementioned development.
DISPUTES: In the event of any dispute between the owner and the contractor as to
the work to be done, under this contract, the payments to be made, or the manner
of accomplishment of the work, the contractor shall nevertheless proceed to
perform the work as directed by the owner pending settlement of the dispute, as
long as the owner continues to make progress payments. The contractor would be
required to he ahead and finish the job and file suit or demand arbitration to
resolve the dispute.
ARBITRATION: Any controversy arising out of relating to the performance or
interpretation of their contract or any subcontract or sub-subcontract is
subject to arbitration. Owner, contractor, and all subcontractors,
sub-subcontractors, material suppliers, and other parties concerned with the
construction of the project are bound, each to the other, by this arbitration
clause, provided the party has signed this contact or has signed a document that
refers to or incorporates this contract by reference, or signs any other
agreement to be bound by this arbitration clause.
On the demand of the arbitrator or any party to the arbitration initiated under
the arbitration provisions of this contract, owner, subcontractor,
sub-subcontractor, or any other party bound by this arbitration provision agrees
to join in, become a party to, and be bound by such arbitration proceedings.
Arbitration shall be conducted in accordance with Construction Industry Rules of
the American Arbitration Association that are in effect at the time of the
arbitration, and judgment may be entered on the award. Evidence presented at the
arbitration shall admitted or denied be subject to the California Evidence Code.
4
If any party refuses or neglects to appear at or to participate in arbitration
proceedings after reasonable notice, the arbitrator is empowered to decide the
controversy in accordance with whatever evidence is presented by the party or
parties who do participate. The arbitrator may award any remedy that is just and
equitable in the opinion of the arbitrator. The arbitrator will award to the
prevailing party or parties such sums as are proper to compensate for the time,
expense and trouble of arbitration, including arbitration fees and attorney
fees, not to exceed ten thousand dollars ($10,000.00). The arbitrator will
remain jurisdiction of a controversy even if a party or parties to the dispute
will not or cannot be joined in the arbitration proceedings.
ATTORNEY'S FEES: If the parties become involved in litigation or arbitration
arising out of this contract or the performance thereof, the court or arbitrator
shall award reasonable costs and expense, including attorney's fees, to the
prevailing party, not to exceed ten thousand dollars ($10,000.00).
FULLY INTEGRATED AGREEMENT: The terms and provisions of this Contract and all of
the attachments, schedules and exhibits hereto constitute the entire and fully
integrated agreement between the parties. It supersedes all previous
communications, representations, agreements, proposals, terms and negotiations
either written or oral, between the parties relating to the subject matter
hereof. Any changes, additions, deletions, amendments or addenda to or
modifications or corrections of this Contract (including all attachments,
schedules and exhibits hereto) or any other agreement between the parties shall
be null and void unless the same be in writing and signed by both Contractor and
Subcontractor.
GOVERNING LAW: This agreement shall be construed in accordance with, and
governed by, The laws of the State of California. This paragraph does not
prevent the application of the Federal Arbitration Act to any disputes that may
arise under this contract.
VENUE & SITUS OF CONTRACT: The place of this agreement, its situs or forum is at
all times in the state of California in which state all matters, whether
sounding in contract or in tort relating to the validity, construction,
interpretation and enforcement of this contract, shall be determined. Each of
the parties to the Agreement hereby consents to the venue and jurisdiction of
the Superior Court of the State of California in and for the County of Orange.
SEVERABILITY: If any term, provisions, covenant or condition of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the rest of the Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
BENEFIT: This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto, their successors, trustees, assigns, heirs, administrators and
legal representatives, but shall not inure to the benefit of any other person,
firm or corporation.
COUNTERPARTS: This Agreement may be signed in counterparts and all signed copies
shall be deemed one instrument. ALL PARTIES WARRANT THEY HAVE THE AUTHORITY TO
SIGN AND ASSIGN OR ENFORCE ANY PLEDGES OR AGREEMENTS MADE BY AND BETWEEN THEM ON
BEHALF OF THIRD PARTIES TO THIS AGREEMENT I.E. U.S. WEST HOMES FOR SCI
UNDERWRITERS. THIS AUTHORITY THEY BELIEVE IS GRANTED TO THEM DUE TO OTHER
AGREEMENTS ALREADY SIGNED WHICH ARE ATTACHMENTS TO THIS AGREEMENT.
IN WITNESS WHEREOF the parties have executed this instrument this 17th day of
April, 2003, in the City of Laguna Beach , California
Las Brisas de la Mar
By: /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx
President
U.S. West Homes, Inc.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxx, Xx.
