Exhibit 10.6
CONSULTING
AGREEMENT
BETWEEN TEPPCO MARINE SERVICES,
L.L.C.
AND CENAC MARINE SERVICE,
L.L.C.
This Consulting Agreement (this
“Agreement”) is made and entered into as of August 1,
2009 by and between TEPPCO Marine Services, L.L.C., a Delaware
limited liability company (“TEPPCO”), and Cenac Marine
Services, L.L.C., a Louisiana limited liability company acting
through its President, Arlen B. Cenac, Jr., who also is a signatory
to this Agreement and individually bound by the terms hereof
(“Consultant”).
WHEREAS, Consultant is an
experienced marine operator and is familiar with TEPPCO’s
business and operations; and
WHEREAS, TEPPCO desires to engage
Consultant’s services to provide general advice and
management services, on a part time basis; and
WHEREAS, TEPPCO and Consultant
desire to enter into this Agreement for the purpose of
memorializing the terms and conditions of Consultant’s
engagement by TEPPCO;
NOW, THEREFORE, in consideration of
the premises and the representations, warranties, covenants, and
agreements stated herein, and upon the terms and subject to the
conditions hereinafter set forth, TEPPCO and Consultant hereby
agree as follows:
1.
Contract Term . The term of this Agreement
shall commence on August 1, 2009, and shall continue in force and
effect for a period of two (2) years thereafter unless terminated
sooner by TEPPCO or Consultant by giving at least ninety (90) days
advance notice in writing to the other Party.
2.
Scope of Consultant’s Services
. During the term of this Agreement, Consultant shall be
responsible for (i) the efficient management, supervision, and
oversight of TEPPCO’s day-to-day operations, including,
without limitation, the supervision of certain individuals working
on the TEPPCO business, the maintenance of all TEPPCO equipment,
and compliance by TEPPCO with all applicable safety regulations and
(ii) such other related management services that TEPPCO may request
of Consultant. In addition, when and to the extent
requested by TEPPCO, Consultant shall cooperate with TEPPCO to
fully and adequately train, and to otherwise effectively and
efficiently to transition the duties, responsibilities and
authority of Consultant with respect to the day-to-day business of
TEPPCO to, the person or persons designated by TEPPCO to assume
Consultant’s responsibilities upon the expiration or earlier
termination of this Agreement. Consultant agrees to
devote its best efforts to the performance of its services under
this Agreement. Consultant further agrees for itself and
for all its employees performing services under this Agreement to
comply with the Code of Conduct of EPCO, Inc., a Texas corporation
(“EPCO”), and all EPCO or and all TEPPCO policies
regarding and relating to outside contractors. TEPPCO
acknowledges that Consultant has other businesses, and that the
services
provided hereunder will be on a part-time basis,
which will allow Consultant to continue with other business, that
is not inconsistent with Consultant’s duties
hereunder.
3.
Consultant’s Direct Report . During
the term of this Agreement, Consultant shall report to and receive
instructions from TEPPCO’s President and CEO or such other
person designated in writing by TEPPCO’s Board of
Directors.
4.
Scope of Consultant’s Authority .
During the term of this Agreement, Consultant shall
have authority to bind TEPPCO to commitments at such levels and
with respect to such matters as may be determined from time-to-time
by TEPPCO’s Board of Directors and communicated to Consultant
by TEPPCO’s President and CEO. Unless otherwise
authorized in writing by TEPPCO’s Board of Directors,
Consultant’s authority shall not include the purchase or
lease of tows, barges, tugs, push boats, or other vessels of any
kind.
5.
Independent Contractor Status of Consultant .
During the term of this Agreement, Consultant shall be
an independent contractor of TEPPCO, and it is expressly understood
that all employees of Consultant performing services pursuant to
this engagement, are employees of Consultant and not of TEPPCO or
any of TEPPCO’s affiliates. As such, none of
Consultant’s employees performing services under this
Agreement shall be entitled to participate in any employee benefits
plans sponsored by TEPPCO or any of its affiliates for their
respective own employees, and Consultant shall be responsible for
payment of all compensation, payroll and other taxes due to, for or
in respect of its employees, whether performing services under this
Agreement or otherwise. Consultant further agrees to
indemnify TEPPCO and its affiliates and hold TEPPCO and its
affiliates harmless against any and all claims by
Consultant’s employees, including employment law claims,
arising from the performance of services under this Agreement or by
any taxing authority for payroll taxes alleged to be due on the
wages of such employees.
6.
Compensation . Within five (5) business
days after the commencement date of this Agreement, TEPPCO will pay
Consultant a one-time retainer fee in cash of Two Hundred Thousand
and No/100 ($200,000.00). In addition, on or before the
last day of each month during the term of this Agreement, TEPPCO
shall pay Consultant a monthly consulting fee of Forty-One Thousand
Six Hundred Sixty-Seven Dollars and No/100 ($41,667.00), which
shall be prorated for any partial month of performance.
7.
Expenses . On or before the tenth day of
each month during the term of this Agreement, Consultant shall
invoice TEPPCO for all expenses reasonably incurred by Consultant
during the prior month in connection with Consultant’s
performance of services under this Agreement, subject to and
consistent with EPCO’s or TEPPCO’s general policies
governing the reimbursement of expenses incurred by outside
contractors. TEPPCO agrees to pay such invoices within
thirty (30) business days following receipt; provided, however,
that in the event of a dispute concerning any amount invoiced by
Consultant, TEPPCO shall pay the undisputed portion of
such
invoice and Consultant shall furnish TEPPCO with
any and all records as may be requested by TEPPCO relating to such
disputed amount so as to enable the parties to resolve the
dispute.
8.
Insurance . Consultant agrees to
maintain, at its own expense with no charge to TEPPCO, general
liability insurance with a minimum limit of $10,000,000.00,
automobile insurance with a minimum limit of $6,000,000.00, and
workers compensation insurance covering all of its employees
performing services under this Agreement consistent with
TEPPCO’s requirements for outside
contractors. TEPPCO, during the term of this
Agreement, will carry or maintain or caused to be carried or
maintained insurance, including, at a minimum, general liability
insurance with limits of $1,000,000.00 combined single limit per
occurrence; automobile liability insurance limits with limits of
$1,000,000.00 combined single limit per
accident/occurrence for bodily/personal injury and property damage,
including coverage for all owned, hired and non-owned vehicles or
automotive equipment; excess liability limits in the amount of
$10,000,000.00 per occurrence in excess of the primary limits
above; and protection and indemnity insurance (Form SP 23 or
equivalent) on all marine equipment of TEPPCO and general liability
insurance for the marine equipment with an overall limit of
$200,000,000.00 per occurrence, including coverage for marine crew,
pollution liability, removal of wreck, collision and tower’s
liability, cargo legal liability, third-party bodily injury and
property damage liability, including contractual liability
coverage.
With respect to each of the policies
described above, TEPPCO and Consultant shall waive and require
their insurers to waive any right of subrogation or recovery
against each other. Additionally, with respect to each
of the policies described above, TEPPCO and Consultant shall be
named as additional insureds on all policies except workers
compensation.
TEPPCO and Consultant will deliver
to each other certificates of insurance upon request.
9.
Mutual Indemnification . It is the
intention of the parties hereto that the indemnity obligations by
and between them in consideration of this Agreement be reciprocal
and mutual as stated herein:
A.
By Consultant : Consultant agrees to
defend, indemnify and hold harmless TEPPCO and its affiliates from
any and all claims or losses of whatever nature or kind made by
Consultant’s employees, invitees or agents for personal
injury or death arising out of or related to the operations and
services provided in this Agreement.
Further, Consultant agrees to
defend, indemnify and hold harmless TEPPCO and its employees from
any and all claims of whatever nature or kind for damage to, or
destruction of Consultant’s property arising out of or
related to the operations and services provided in this
Agreement.
B.
By TEPPCO : TEPPCO agrees to defend,
indemnify and hold harmless Consultant and its affiliates from any
and all claims or losses of whatever nature or kind made by
TEPPCO’s employees, affiliates, invitees or agents for
personal injury or death arising out of or related to the
operations and services provided in this Agreement.
Further, TEPPCO agrees to defend,
indemnify and hold harmless Consultant and its employees from any
and all claims or losses of whatever nature or kind for damage to
or destruction of TEPPCO property arising out of or related to the
operations and services provided in this Agreement.
C.
(i) The
indemnities and obligations assumed in subparagraphs A and B of
this part are owed regardless of the fault, negligence or strict
liability of the indemnified party, whether sole, concurrent,
contributory or comparative. However, no indemnity
obligation is owed to the extent that any claims are predicated
upon the gross negligence or willful misconduct of the Indemnified
Party.
(ii) The
obligation to “defend” includes all reasonable attorney
fees and costs of investigation, defense and
adjudication. The obligation to indemnify includes all
damages, liabilities, judgments, fines, penalties, assessments, and
other amounts unless otherwise limited herein.
(iii) Except
as otherwise expressly provided herein, neither Consultant nor
TEPPCO shall be obligated to defend, indemnify or hold harmless
under this article or otherwise in respect of this Agreement for
exemplary, special, punitive, indirect, remote, speculative or
consequential damages unless such amounts are recovered from any
insurance policy set forth herein.
10.
Restrictive Covenants .
A.
Confidentiality . Consultant acknowledges
that during the course of this
