Loading...
HomeMy WebLinkAboutRes 19-01 Catalyst Services Agreement 1.5.2019Town of Westlake Services Agreement 1.5.2019.pdf 1 STATE OF TEXAS § § AGREEMENT FOR PROFESSIONAL SERVICES COUNTY OF TARRANT § This Agreement (hereinafter “AGREEMENT”) is made by between the Town of Westlake (hereinafter “Town”), a Texas municipality, acting by and through its Town Manager, and Catalyst Commercial, Inc., (hereinafter "CONSULTANT") a Texas corporation, acting by and through its authorized representatives: WHEREAS, the Town desires to have the CONSULTANT provide services related to commercial retail strategy and recruitment strategies in the Town of Westlake, Texas (“SERVICES”); and WHEREAS, CONSULTANT has the knowledge, ability and expertise to provide such SERVICES needed by the Town; and WHEREAS, the Town desires to engage the services of CONSULTANT, as an independent contractor and not as an employee, to provide the SERVICES under the terms and conditions provided in this AGREEMENT; NOW, THEREFORE, in exchange for the mutual covenants set forth herein and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows: A. TERM / TERMINATION 1. The term of this Agreement shall begin on January 1, 2019, unless terminated by either party pursuant to the following paragraph of this agreement, shall remain in effect until December 31, 2019, a period of one year. Unless CONSULTANT or Town notify the other party in writing at least thirty (30) days in advance of the applicable anniversary date that this Agreement will not be renewed, this Agreement will be automatically renewed on each anniversary date for successive one (1) year periods; provided that this Agreement shall not constitute a debt of the Town and shall be subject to Section A.3 of this Agreement. 2. This Agreement may be terminated prior to the end of the term by either party, for any reason or for no reason, at any time upon thirty (30) days written notice by registered or certified mail, return receipt requested, addressed to the other party at the addresses listed below; provided, that in any such case, the CONSULTANT shall be paid the reasonable value of the services rendered up to the time of termination on the basis of the payment provisions of this Agreement. 3. Notwithstanding any provision herein to the contrary, the Town’s financial obligation of extensions of this Agreement shall be contingent upon adoption of a budget that appropriates sufficient funds and under which sufficient funds are lawfully available to allow full compliance with the terms of this Agreement. In the event that Westlake Town Council (“WTC”) does not appropriate future funds or sufficient funds for this Agreement, this Agreement shall terminate on the last day of the fiscal year in which funds were appropriated for this Agreement. In the event that WTC does appropriate some funds for this Agreement but lesser amounts than those set forth the Fee Schedule herein, the parties may agree upon a revised budget for CONSULTANT expenses that will be covered by the amounts that the Town appropriates under the Town budget. If a revised CONSULTANT budget is not agreed upon within 30 days of the new fiscal year, WTC Resolution 19-01 2 shall notify CONSULTANT of termination as set forth under Section A.2. due to lack of funding, and no funds shall be released by Town to the CONSULTANT until a new budget is approved. B. SCOPE OF SERVICES / RESPONSIBILITY OF THE PARTIES 1.CONSULTANT’s Responsibilities and Authority. PROJECT: The Project is described as follows: Advisory Services 1.Work with the Developer and Town to create a Merchandising Strategy for the Entrada with factors that align with the original project vision. 2. Create an initial list of [20] prospects (“Top 20”) that align with the Merchandising Strategy, for example: a.Unique regional destination restaurants b.National high-quality multi-state operators new to North Texas c.Destination high-end personal care services 3. Create call plans “Why Entrada” for the Top 20 prospects and conduct ongoing outreach to the qualified prospects, or additional prospects identified by CONSULTANT, developer, or Town during this engagement. 4. Manage the recruitment process and maintain notes on the recruitment pipeline 5.Create monthly reports and participate in up to 2 regularly scheduled one-hour meetings with Town, development Broker, and developer team to update parties on marketing activities and discuss strategy to advance certain prospect(s) (at hourly rates) Recruitment Services 1. Work with developer, development Broker and Town to qualify net new leads 2.Refine leads based upon developer and Town standards/goals 3.Support development Broker in procuring/marketing to prospects 4.Coordinate with development Broker to maintain a list of available commercial spaces and associated proposed terms, planned spaces and existing uses when sold or leased. Marketing Services 1. Support developer and development Broker in developing marketing data and information regarding Entrada. 2.Update retail marketing data and statistics of the Town to be used on marketing materials on an annual basis, or as needed, but not more than 4 times per year. 3. Represent Entrada to various brokerage houses, up to four per year. 4. Market Entrada at ICSC, Retail Live and other retail/restaurant conferences (at additional cost) 5.Maintain general Entrada information on Website (at additional cost) C. FEE STRUCTURE Town shall pay CONTRACTOR a fee as set forth herein and tasks in Section B.1., plus reimbursable expenses, if any. CONTRACTOR shall invoice Town on a monthly basis pursuant to a percentage Resolution 19-01 Town of Westlake Services Agreement 1.5.2019.pdf 3 completion of the tasks delineated in Section B.1. along with reimbursable expenses incurred to date. All invoices shall be due upon receipt and paid within thirty (30) days. Any local, state or federal taxes applicable to any of the services provided by CONTRACTOR shall be added to the amount due. Fee Schedule: CONSULTANT shall complete the SERVICES based upon the fee schedule below: 1) Advisory Services $6,500 2) Recruitment Services (12 months at $2,500/M)$30,000 Total for SERVICES $36,500 Optional Tasks: CONSULTANT may complete the SERVICES, if authorized by Town in writing, based upon the fee schedule below: 1) Marketing Services a) ICSC Recon Las Vegas $2,500 b) Brokerage house pitches ($550/ea)$2,200 Total for OPTIONAL TASKS $4,700 Additional Work: All other services undertaken by CONTRACTOR and authorized by Town beyond those specified in Section B above shall be compensated at the rate of $300.00 per hour for principals, $225.00 per hour for project partners, $175.00 per hour for associate consultants, and $105.00 per hour for professional support staff, unless other arrangements are made by mutual written agreement. Notwithstanding anything contained herein to the contrary, Town shall be responsible for any and all costs expended by CONSULTANT in implementing Services. Costs shall include, but not limited to, printing, design, travel, meals, entertainment lodging, transportation. All actual costs expended by CONSULTANT, or additional Services, shall be reimbursed on a monthly basis, within 30 days of submission of such invoicing by CONSULTANT, at a rate of 115% times actual costs, or at CONSULTANTS hourly rates as specified above. Offset: CONSULTANT may enter into a separate agreement with MRW Investments, LLC (“Developer”) for additional services for Entrada. If so, CONSULTANT agrees to offset future expenses owed by the Town. As such, any Consulting Fees that may be earned and paid this calendar year under the agreement between Developer and CONSULTANT shall be credited to the Town to offset to future expenses due to CONSULTANT under this Agreement. Notwithstanding anything contained herein, credits to the Town shall not exceed the unpaid balance of Marketing Services remaining under this Agreement, as set forth in the Fee Schedule above. D. ADDITIONAL PROVISIONS Reporting: During the term of this AGREEMENT, CONSULTANT shall provide brief written reports to the Town detailing the status of CONSULTANT’S delivery of the SERVICES. Subconsultant and Third-Party Vendors: CONSULTANT may enlist the efforts of CONSULTANT’S associates, and all CONSULTANT’S associates shall devote an amount of time and effort on Town’s behalf as CONSULTANT, in CONSULTANT’S sole discretion, determines necessary to carry out the duties described in this AGREEMENT. CONSULTANT and CONSULTANT’s employees, agents, affiliates, and associates are entitled to engage in other business activities including, but not limited to, Resolution 19-01 4 representing other principals, listing properties for sale or lease, and presenting the same properties to other prospects. Successors and Assigns: The Town and CONSULTANT each binds itself and its partners, successors, executors, administrators and assigns to the other party of this Agreement and to partners, successors, executors, administrators and assigns of each other in party in respect to all covenants of this Agreement. Neither the Town nor the CONSULTANT shall assign, sublet or transfer its interest in this Agreement without the written consent of the other. Nothing herein shall be construed as giving any right or benefits hereunder to anyone other than the Town and the CONSULTANT. Renewal: This Agreement shall be renewed automatically on its anniversary date, unless terminated earlier by either party pursuant to Section A.2. of this Agreement. Closure: By signature below, the parties to this Agreement hereby bind themselves to the terms stated herein, including all attachments referred to herein. Insurance: During the term of this Agreement and for two (2) years thereafter, Contractor shall keep in force General Liability and Professional Liability Insurance coverage up to $1,000,000.00 per occurrence and $1,000,000.00 in aggregate total coverage, respectively. Entire Agreement/Modification: This Agreement is the entire agreement between the parties and supersedes all prior negotiations, agreements and understanding relating to the subject matter of this Agreement. This Agreement may only be modified or amended in writing. Email communication constitutes a writing if intended by both parties to be a writing under this paragraph. Assignment: Town understands that it may not assign this Agreement or its rights hereunder, or delegate any or all of its duties under this Agreement without written authorization from Contractor. Except for the use of sub-contractors to perform services, Contractor understands that it may not assign this Agreement or its rights hereunder, without written authorization from Town. Legal Expenses: In the event that legal action is taken by either party to enforce any rights or remedies under this Agreement, it is hereby agreed that the successful or prevailing party shall be entitled to receive any costs, disbursements and reasonable attorney’s fees. Severability: In the event that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, and the enforceability of the remaining provisions contained herein shall not be impaired thereby. Binding Effect: The parties to this Agreement further agree that the promises, covenants, and conditions herein shall be binding upon the parties to this Agreement, their heirs, assigns, successors, administrators, and representatives forever. Indemnification and Hold Harmless: To the extent allowable by law, each party agrees to indemnify and hold the other party, its heirs, assigns, successors, administrators, and representatives harmless of and from any and all claims, actions, liabilities, losses, damages, suits or causes of action brought by any third party, person or entity as a result of any incident, event or occurrence giving rise to such claims, to the extent such claims, actions, liabilities, losses, damages, suits or causes of action are caused by any negligent act, error Resolution 19-01 Town of Westlake Services Agreement 1.5.2019.pdf 5 or omission of the indemnifying party or any person or organization for whom indemnifying party is legally liable. Limitation of liability: Contractor’s liability for any cause or combination of causes is, in the aggregate, limited to an amount no greater than the fee paid to Contractor hereunder or available insurance coverage delineated herein, whichever is greater. Governing Law: It is understood and agreed by the parties that this Agreement shall be governed by and enforced in accordance with the laws of the State of Texas. Relationship of Parties: It is understood by the parties that CONSULTANT is an independent CONSULTANT with respect to Town, and not an employee of Town. CONSULTANT will be responsible for reporting and payment of all of its tax obligations related to the payments hereunder. Amendments: This Agreement may be amended only by an instrument in writing and signed by the parties hereto. Notices: Any notices required or permitted to be given under this Agreement shall be in writing and may be given by personal service, or by depositing a copy thereof in the United States mail, registered or certified, postage prepaid, to the last known address of such party, or electronically as set forth herein. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. Counterparts: This Agreement may be executed in multiple counterpart copies, each of which will be considered an original and all of which constitute one and the same instrument. Any counterpart transmitted by facsimile or electronic mail shall have the same force and effect as an original. Waiver of Contractual Rights: The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. No Prejudice: CONSULTANT, and its sub consultants (if any) shall not be barred from representing or providing services to the private sector, including Developer, for additional and similar services during or after the termination of this Agreement for any engagements related to this work. Furthermore, Town acknowledges that Jason Claunch, principal for Consultant is a licensed real estate broker (TREC #0456163) and authorizes CONSULTANT to act as an intermediary and to appoint its associated licensees to work with the parties in the event that broker also represents a buyer, or tenant, that wishes to purchase or lease property listed with the firm. CONSULTANT may act as an intermediary between a prospective buyer or tenant, subject to The Texas Real Estate License Act. Town hereby acknowledges and consents to CONSULTANT acting as an intermediary. No additional fees shall be due to Resolution 19-01 6 CONSULTANT, from Town, except according to the fees set forth herein in connection with any intermediary services provided by CONSULTANT. In the event CONSULTANT serves as an Intermediary, CONSULTANT is required to treat each party honestly and fairly and to comply with The Texas Real Estate License Act. If CONSULTANT acts as an intermediary in a transaction CONSULTANT: (1) shall treat all parties honestly; (2) may not disclose that the owner will accept a price less that the asking price unless authorized in writing to do so by the owner; (3) may not disclose that the buyer will pay a price greater than the price submitted in a written offer unless authorized in writing to do so by the buyer; and (4) may not disclose any confidential information or any information that a party specifically instructs the CONSULTANT in writing not to disclose unless authorized in writing to disclose the information or required to do so by court order. Remainder intentionally left blank Resolution 19-01 Town of Westlake Services Agreement 1.5.2019.pdf 7 TOWN OF WESTLAKE CATALYST COMMERCIAL, INC a Texas Corporation By:_______________________By:_____________________________________Thomas E. Brymer, Town Manager Jason Claunch, President Date:______________________Date:_______________________ Town of Westlake Catalyst Commercial, Inc. 1500 Solana Boulevard 8750 N Central Expressway Building 7, Suite 7200 Suite 1020 Westlake, TX 76262 Dallas, Texas 75231 Phone: 817-430-0941 Phone: 972-999-0081 Resolution 19-01