R-04-01-08-7E1 - 1/8/2004RESOLUTION NO. R -04-01-08-7E1
WHEREAS, the City of Round Rock desires to retain professional
real estate services relating to possible purchase of real property,
and
WHEREAS, Summit Commercial Industrial Properties, Inc. has
submitted a Consulting Agreement for Professional Services to provide
said services, and
WHEREAS, the City Council desires to enter into said agreement
with Summit Commercial Industrial Properties, Inc., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Consulting Agreement for Professional Services for
Possible Purchase of Real Property with Summit Commercial Industrial
Properties, Inc., a copy of said agreement being attached hereto as
Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended
RESOLVED this 8th day of January, 209_4. /
City o Round Rock, Texas
ATTEST:
CHRISTINE R. MARTINEZ, City Secretary
@PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R40108E1.WPD/—c
CITY OF ROUND ROCK CONSULTING AGREEMENT
FOR PROFESSIONAL SERVICES OF
SUMMIT COMMERCIAL INDUSTRIAL PROPERTIES, INC.
THIS AGREEMENT for professional real estate services ("Agreement") is made by and
between the City of Round Rock, a Texas home rule municipal corporation, whose offices are
located at 221 East Main Street, Round Rock, Texas 78664-5299, ("City") and Summit Commercial
Industrial Properties, Inc. ("Summit" or "Consultant"), whose offices are located at 18 Chisholm
Trail Road, Round Rock, Texas 78681.
RECITALS:
WHEREAS, City desires to contract for professional real estate services relating to possible
purchase of real property, and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each party
hereto, and shall remain in full force and effect unless and until it expires by operation of the term
indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be for twelve (12) months beginning from the effective date
hereof.
City reserves the right to review the progress of the subject matter of this Agreement at any
time, and may elect to terminate with or without cause.
1.02 PAYMENT
As consideration for the professional services to be performed by Summit, the parties
expressly agree as follows: Financial compensation for real estate services provided by Summit shall
be real estate commissions paid by the sellers of the parcels to Summit if, as and when closing and
funding occurs. It is expressly understood and agreed by and between the parties that in no event
shall commissions be payable by sellers until the transactions are closed and funded in accordance
with terms of the respective contracts. In the event that any one or more contemplated transactions
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EXHIBIT
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are not closed for any reason whatsoever, then and in that event any commission will be deemed not
to have been earned and shall not be due or payable by sellers. It is expressly understood and agreed
by and between the parties that City shall not be obligated to pay any financial compensation to
Summit in the form of real estate commissions.
1.03 SERVICES TO BE PERFORMED
Summit agrees to provide, by way of inclusion but not limitation, the following services:
(1) Meeting with and negotiating with owners/agents ofparcels of real estate identified
for potential purchase by City;
(2) Working with the City Attorney relative to preparation of contracts;
(3) Assisting City with negotiating leases, if necessary;
(4) Assisting City with negotiating "lease -back" arrangements for owners or tenants in
existing facilities, if necessary; and
(5) Any and all other real estate services necessary to effect satisfactory purchase of
identified tracts by City.
1.04 REQUIRED REPORTS
Summit agrees to provide City with either a written or oral report each month, at City's
designation, detailing status of all activities associated with this Agreement.
1.05 TERMINATION
This Agreement may be terminated for any of the following conditions:
By City for reasons of its own, with or without cause, and not subject to the mutual
consent of any other party, such written termination notice to be given to the other
party not less than thirty (30) days prior to termination.
2. By mutual agreement and consent of both parties, such agreement to be in writing.
3. By City for failure by the other party to perform the services set forth herein in a
satisfactory manner, such termination notice to be given in writing to the other party.
4. By satisfactory completion of all services and obligations described herein.
2
The termination of this Agreement shall extinguish all rights, duties, and obligations of City
and the terminated party to fulfill contractual obligations. Termination under this section shall not
relieve the terminated party of any obligations or liabilities which occurred prior to cancellation.
1.06 INDEPENDENT CONTRACTOR STATUS
Summit is an independent contractor, and is not City's employee. Summit's employees or
subcontractors are not City's employees. This Agreement does not create a partnership, employer-
employee, or joint venture relationship. No party has authority to enter into contracts as agent for the
other party. Summit and City agree to the following rights consistent with an independent contractor
relationship:
1. Summit has the right to perform services for others during the term hereof.
2. Summit has the sole right to control and direct the means, manner and method by
which services required by this Agreement will be performed.
3. Summit has the right to hire assistants as subcontractors, or to use employees to
provide the services required by this Agreement.
4. Summit or its employees or subcontractors shall perform the services required
hereunder, and City shall not hire, supervise, or pay any assistants to help Summit.
5. Neither Summit nor its employees or subcontractors shall receive training from City
in skills necessary to perform services required by this Agreement.
6. City shall not require Summit or its employees or subcontractors to devote full time
to performing the services required by this Agreement.
7. Neither Summit nor its employees or subcontractors are eligible to participate in any
employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City.
1.07 CONFIDENTIALITY
Any programs, data, or other materials furnished by City for use by the parties in connection
with services to be performed under this Agreement shall remain the sole property of City and shall
be held in confidence by the parties as set forth hereunder. Both parties agree to hold all confidential
information in the strictest confidence and not make any use thereof other than for the performance
of this Agreement. Notwithstanding the foregoing, the parties recognize and understand that City
is subject to the Texas Public Information Act and its duties run in accord therewith.
1.08 WARRANTIES
Summit warrants that all services performed hereunder shall be performed consistent with
generally prevailing professional or industry standards, and shall be performed in a professional and
workmanlike manner. Summit shall re -perform any work not in compliance with this warranty.
1.09 INDEMNIFICATION
Summit agrees to hold harmless, exempt, and indemnify City, its officers, agents, servants
and employees, from and against all suits, actions, legal proceedings, demands, costs, expenses,
losses, damages, attorneys fees, and claims, and any and all other costs and fees incident to any work
done as a result of this Agreement arising as a result of actions by it and its agents and subcontractors
during its performance pursuant to this Agreement.
1.10 ASSIGNMENT AND DELEGATION
No party may assign any rights or delegate any duties under this Agreement without the other
party's prior written approval.
1.11 LOCAL, STATE AND FEDERAL TAXES
Summit shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred
while performing services under this Agreement. City will not do the following:
1. Withhold FICA from Summit's payments or make FICA payments on its behalf;
2. Make state and/or federal unemployment compensation contributions on Summit's
behalf; or
3. Withhold state or federal income tax from any of Summit's payments.
1.12 NOTICES
All notices and other communications in connection with this Agreement shall be in writing
and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage prepaid
to the recipient's address as stated in this Agreement.
4
Notice to Summit:
Summit Commercial Industrial Properties, Inc.
Attention: Jim Boles
18 Chisholm Trial Road
Round Rock, TX 78681
Notice to City:
City of Round Rock
Attention: Jim Nuse, City Manager
221 East Main Street
Round Rock, Texas 78664-5299
AND TO:
City Attorney's Office
Attention: Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, Texas 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Summit.
1.13 APPLICABLE LAW
The laws of the State of Texas shall govern this Agreement. Venue shall lie in Williamson
County, Texas.
1.14 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement constitute the entire agreement between the
parties and supersede all previous communications, representations, and agreements, either written
or oral, with respect to the subject matter hereof. No modifications of this Agreement will be
binding on any party unless acknowledged in writing by the duly authorized representative for each
party.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
1.15 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute
with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall
5
select one mediator and Summit shall select one mediator and those two mediators shall agree upon
a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be
shared equally by the parties.
City and Summit hereby expressly agree that no claims or disputes between the parties arising
out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC
Section 1-14) or any applicable state arbitration statute.
1.16 ATTORNEY FEES
In the event that any lawsuit is brought by one party against the other party in connection with
this. Agreement, the prevailing party shall be entitled to seek to recover its reasonable costs and
reasonable attorney fees.
1.17 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or
default in performance of any obligation hereunder shall constitute an event of default or a breach
of this Agreement, only to the extent that such failure to perform, delay or default arises out of
causes beyond control and without the fault or negligence of the party otherwise chargeable with
failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war,
insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties,
strikes or other labor troubles, which in any way restrict the performance under this Agreement by
any one or both of the parties.
1.18 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no way
affect the validity of enforceability of any other portion or provision of this Agreement. Any void
provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be
construed and enforced as if this Agreement did not contain the particular portion of provision held
to be void. The parties further agree to amend this Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken provision. The
provisions of this Article shall not prevent this entire Agreement from being void should a provision
which is of the essence of this Agreement be determined void.
1.19 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only and
shall have no substantive effect on construction of this Agreement.
2
No document that purports to modify or supplement the printed text of this Agreement or any
schedule, exhibit or addendum shall add to or vary the terms of this Agreement. All such proposed
variations or additions (whether submitted by Summit or City) are objected to and deemed material
unless properly agreed to in writing.
Except for contractual obligations recited herein, no party shall be liable for any failure due
to causes beyond its control. The failure of a party to exercise any right hereunder shall not operate
as a waiver of said party's right to exercise such right or any other right in the future.
Time is of the essence to this Agreement.
City agrees to provide the other party with one fully executed original Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated.
CITY OF ROUND ROCK, TEXAS ATTEST:
Nyle Maxwell, Mayor
Date Signed:
Christine R. Martinez, City Secretary
Date Signed:
SUMMIT COMMERCIAL INDUSTRIAL PROPERTIES, INC.
By: ZLJ
Jim Bol s, President
Date Signed: / z • /5?. 03
7
DATE: January 2, 2004
SUBJECT: City Council Meeting - January 8, 2004
ITEM: 7.E.1. Consider a resolution authorizing the Mayor to execute a
Consulting Agreement for Professional Services of Summit
Commercial Industrial Properties for real estate consulting
services.
Resource: Jim Nuse, City Manager
History: Parking continues to be a problem in our business districts. In order to
acquire adequate space for parking, we are considering the purchase of
suitable property.
Funding: None - Financial compensation for real estate services provided by
Summit shall be real estate commissions paid by the sellers of the
parcels to Summit.
Cost: N/A
Source of Funds: N/A
Outside Resources: N/A
Impact/Benefit: This action will help provide long term parking
accommodations.
Public Comment: N/A
Sponsor: N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK CONSULTING AGREEMENT
FOR PROFESSIONAL SERVICES OF
SUMMIT COMMERCIAL INDUSTRIAL PROPERTIES, INC.
THIS AGREEMENT for professional real estate services ("Agreement") is made by and
between the City of Round Rock, a Texas home rule municipal corporation, whose offices are
located at 221 East Main Street, Round Rock, Texas 78664-5299, ("City") and Summit Commercial
Industrial Properties, Inc. ("Summit" or "Consultant"), whose offices are located at 18 Chisholm
Trail Road, Round Rock, Texas 78681.
RECITALS:
WHEREAS, City desires to contract for professional real estate services relating to possible
purchase of real property, and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each party
hereto, and shall remain in full force and effect unless and until it expires by operation of the term
indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be for twelve (12) months beginning from the effective date
hereof.
City reserves the right to review the progress of the subject matter of this Agreement at any
time, and may elect to terminate with or without cause.
1.02 PAYMENT
As consideration for the professional services to be performed by Summit, the parties
expressly agree as follows: Financial compensation for real estate services provided by Summit shall
be real estate commissions paid by the sellers of the parcels to Summit if, as and when closing and
funding occurs. It is expressly understood and agreed by and between the parties that in no event
shall commissions be payable by sellers until the transactions are closed and funded in accordance
with terms of the respective contracts. In the event that any one or more contemplated transactions
Map\::ODMA/WORIDOX/O:/wdox/CORR/ I/ t/0006001 I.WPD/jkg
Z0y-01-O� yEr
are not closed for any reason whatsoever, then and in that event any commission will be deemed not
to have been earned and shall not be due or payable by sellers. It is expressly understood and agreed
by and between the parties that City shall not be obligated to pay any financial compensation to
Summit in the form of real estate commissions.
1.03 SERVICES TO BE PERFORMED
Summit agrees to provide, by way of inclusion but not limitation, the following services:
(1) Meeting with and negotiating with owners/agents of parcels of real estate identified
for potential purchase by City;
(2) Working with the City Attorney relative to preparation of contracts;
(3) Assisting City with negotiating leases, if necessary;
(4) Assisting City with negotiating "lease -back" arrangements for owners or tenants in
existing facilities, if necessary; and
(5) Any and all other real estate services necessary to effect satisfactory purchase of
identified tracts by City.
1.04 REQUIRED REPORTS
Summit agrees to provide City with either a written or oral report each month, at City's
designation, detailing status of all activities associated with this Agreement.
1.05 TERMINATION
This Agreement may be terminated for any of the following conditions:
By City for reasons of its own, with or without cause, and not subject to the mutual
consent of any other party, such written termination notice to be given to the other
party not less than thirty (30) days prior to termination.
2. By mutual agreement and consent of both parties, such agreement to be in writing.
3. By City for failure by the other party to perform the services set forth herein in a
satisfactory manner, such termination notice to be given in writing to the other party.
4. By satisfactory completion of all services and obligations described herein.
2
The termination of this Agreement shall extinguish all rights, duties, and obligations of City
and the terminated party to fulfill contractual obligations. Termination under this section shall not
relieve the terminated party of any obligations or liabilities which occurred prior to cancellation.
1.06 INDEPENDENT CONTRACTOR STATUS
Summit is an independent contractor, and is not City's employee. Summit's employees or
subcontractors are not City's employees. This Agreement does not create a partnership, employer-
employee, or joint venture relationship. No party has authority to enter into contracts as agent for the
other party. Summit and City agree to the following rights consistent with an independent contractor
relationship:
1. Summit has the right to perform services for others during the term hereof.
2. Summit has the sole right to control and direct the means, manner and method by
which services required by this Agreement will be performed.
3. Summit has the right to hire assistants as subcontractors, or to use employees to
provide the services required by this Agreement.
4. Summit or its employees or subcontractors shall perform the services required
hereunder, and City shall not hire, supervise, or pay any assistants to help Summit.
5. Neither Summit nor its employees or subcontractors shall receive training from City
in skills necessary to perform services required by this Agreement.
6. City shall not require Summit or its employees or subcontractors to devote full time
to performing the services required by this Agreement.
7. Neither Summit nor its employees or subcontractors are eligible to participate in any
employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City.
1.07 CONFIDENTIALITY
Any programs, data, or other materials furnished by City for use by the parties in connection
with services to be performed under this Agreement shall remain the sole property of City and shall
be held in confidence by the parties as set forth hereunder. Both parties agree to hold all confidential
information in the strictest confidence and not make any use thereof other than for the performance
of this Agreement. Notwithstanding the foregoing, the parties recognize and understand that City
is subject to the Texas Public Information Act and its duties run in accord therewith.
3
1.08 WARRANTIES
Summit warrants that all services performed hereunder shall be performed consistent with
generally prevailing professional or industry standards, and shall be performed in a professional and
workmanlike manner. Summit shall re -perform any work not in compliance with this warranty.
1.09 INDEMNIFICATION
Summit agrees to hold harmless, exempt, and indemnify City, its officers, agents, servants
and employees, from and against all suits, actions, legal proceedings, demands, costs, expenses,
losses, damages, attorneys fees, and claims, and any and all other costs and fees incident to any work
done as a result of this Agreement arising as a result of actions by it and its agents and subcontractors
during its performance pursuant to this Agreement.
1.10 ASSIGNMENT AND DELEGATION
No party may assign any rights or delegate any duties under this Agreement without the other
party's prior written approval.
1.11 LOCAL, STATE AND FEDERAL TAXES
Summit shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred
while performing services under this Agreement. City will not do the following:
Withhold FICA from Summit's payments or make FICA payments on its behalf;
2. Make state and/or federal unemployment compensation contributions on Summit's
behalf; or
3. Withhold state or federal income tax from any of Summit's payments.
1.12 NOTICES
All notices and other communications in connection with this Agreement shall be in writing
and shall be considered given as follows:
When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage prepaid
to the recipient's address as stated in this Agreement.
4
Notice to Summit:
Summit Commercial Industrial Properties, Inc.
Attention: Jim Boles
18 Chisholm Trial Road
Round Rock, TX 78681
Notice to City:
City of Round Rock
Attention: Jim Nuse, City Manager
221 East Main Street
Round Rock, Texas 78664-5299
AND TO:
City Attorney's Office
Attention: Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, Texas 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Summit.
1.13 APPLICABLE LAW
The laws of the State of Texas shall govern this Agreement. Venue shall lie in Williamson
County, Texas.
1.14 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement constitute the entire agreement between the
parties and supersede all previous communications, representations, and agreements, either written
or oral, with respect to the subject matter hereof. No modifications of this Agreement will be
binding on any party unless acknowledged in writing by the duly authorized representative for each
party.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
1.15 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute
with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City shall
5
select one mediator and Summit shall select one mediator and those two mediators shall agree upon
a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be
shared equally by the parties.
City and Summit hereby expressly agree that no claims or disputes between the parties arising
out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC
Section 1-14) or any applicable state arbitration statute.
1.16 ATTORNEY FEES
In the event that any lawsuit is brought by one party against the other party in connection with
this Agreement, the prevailing party shall be entitled to seek to recover its reasonable costs and
reasonable attorney fees.
1.17 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay or
default in performance of any obligation hereunder shall constitute an event of default or a breach
of this Agreement, only to the extent that such failure to perform, delay or default arises out of
causes beyond control and without the fault or negligence of the party otherwise chargeable with
failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war,
insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other casualties,
strikes or other labor troubles, which in any way restrict the performance under this Agreement by
any one or both of the parties.
1.18 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no way
affect the validity of enforceability of any other portion or provision of this Agreement. Any void
provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be
construed and enforced as if this Agreement did not contain the particular portion of provision held
to be void. The parties further agree to amend this Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken provision. The
provisions of this Article shall not prevent this entire Agreement from being void should a provision
which is of the essence of this Agreement be determined void.
1.19 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only and
shall have no substantive effect on construction of this Agreement.
IZ
No document that purports to modify or supplement the printed text of this Agreement or any
schedule, exhibit or addendum shall add to or vary the terms of this Agreement. All such proposed
variations or additions (whether submitted by Summit or City) are objected to and deemed material
unless properly agreed to in writing.
Except for contractual obligations recited herein, no party shall be liable for any failure due
to causes beyond its control. The failure of a party to exercise any right hereunder shall not operate
as a waiver of said party's right to exercise such right or any other right in the future.
CI'.
IM
Time is of the essence to this Agreement.
City agrees to provide the other party with one fully executed original Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated.
ATTEST:
Christine R. Martinez, itySec etary
Date Signed: % — ` SV
SUMMIT COMMERCIAL INDUSTRIAL PROPERTIES, INC.
By:�
Jim Bolest President
Date Signed: f .I>— r c`? 3
7