Loading...
HomeMy WebLinkAboutResource Commercial Real Estate LLC/Sale of Shapiro's deli AGREEMENT FOR SERVICES This Agreement for Services (the "Agreement"), executed as of the 18th day of December, 2013 (the "Effective Date"), by and between The City of Carmel Redevelopment Commission ("CRC"), and RESOURCE Commercial Real Estate, LLC d/b/a COLLIERS International I Indiana Region (the"Service Provider"), WITNESSES: Recitals WHEREAS, CRC has determined that it is necessary to obtain real estate marketing, listing, and brokerage services (the "Services") for CRC's properly commonly known as 918 S. Rangeline Road, Carmel, Indiana and formerly known as Shapiro's Deli (the"Property"); WHEREAS, Service Provider has submitted to CRC a proposal dated November 7, 2013, for the performance of the Services (the"Proposal"); WHEREAS, CRC has accepted the Proposal; and WHEREAS, CRC and Service Provider desire to enter into this Agreement to formalize the terms and conditions upon which Service Provider shall perform such services; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC and Service Provider agree as follows: 1. Services. During the Term (as hereinafter defined), Service Provider shall perform, and be the exclusive provider of, the Services, including, without limitation, advertising the Property, placing appropriate and legally permissible signs upon the Property, and disseminating information about the Property to other real estate brokers. Service Provider shall be an independent contractor of CRC. The term of this Agreement shall be for the period: (a) commencing on the Effective Date; and (b) ending on the date that is one year thereafter, unless earlier terminated in accordance with the terms and conditions of this Agreement (the 'Term"). CRC agrees to: (a) cooperate reasonably with Service Provider in its performance of the Services, including, without limitation, providing copies of existing reports and information concerning the Property in CRC's possession or otherwise readily available to CRC; (b) inform Service Provider of any known environmental hazard or defect affecting the Property; (c) allow Service Provider and its representatives and agents and prospective purchasers and cooperating brokers access to the Property at all reasonable times; (d) permit Service Provider and cooperating brokers to conduct key-entry showings of the Properly; (e) maintain adequate insurance on the Properly to protect CRC in the event of any damage or loss arising or resulting from the entry and ordinary use of the Properly by Service Provider and/or its representatives and agents, prospective purchasers, and cooperating brokers; and (f) the acknowledgments set forth on Exhibit A, attached hereto and incorporated herein by reference. 2. Payment. (a) Sale. CRC, in its sole and absolute discretion, may sell the Property to any third party for any price and upon any terms and conditions. Upon the closing of a sale of the Property (the "Sale") under a purchase agreement (the "Purchase Agreement") executed during the Term, CRC shall pay, or caused to be paid, to Service Provider a fee equal to: (i) 5.0% of the purchase price set forth in the Purchase Agreement (the "Purchase Price"), in the case of the purchaser under the Purchase Agreement (the "Purchaser") having a cooperating broker; or (ii) 3.5% of the Purchase Price, in the case of the Purchaser not having a cooperating broker (collectively, the "Fee"); provided that, in no event shall the amount of the Fee be less than $1,500. Service Provider shall be solely responsible for compensating any cooperating broker or other party representing the Purchaser; provided that Service Provider shall have the right to refuse to share the Fee with a cooperating broker who is a partner, shareholder, member, owner, or principal of the Purchaser; provided that, in such case, the "Fee" shall be 3.5% of the Purchase Price. (b) Identified Prospect. Within ten days after the expiration of the Term, Service Provider may give written notice to CRC of any prospective purchasers with whom Service Provider, CRC, or its agents or employees had any negotiations regarding the Property during the Term (the "Prospects"). Upon the Sale to any Prospect timely identified in writing, CRC shall pay, or cause to be paid, to Service Provider the Fee; provided that, in no event shall the amount of the Fee be less than $1,500. (c) Lawsuit. If CRC successfully prosecutes a claim or suit against a Purchaser under a Purchase Agreement, then CRC shall pay to Service Provider 50% of all amounts actually collected by CRC as a result thereof, exclusive of any amounts attributable to CRC's attorneys' fees, court costs, and other out-of-pocket expenses; provided that the maximum amount CRC shall be obligated to pay to Service Provider shall not exceed the amount of the Fee payable had the transaction contemplated by such Purchase Agreement closed. Notwithstanding the foregoing, no such amount shall be payable to Service Provider if Service Provider is otherwise paid a Fee upon a Sale. (d) Reimbursement. CRC shall reimburse Service Provider for all actual, out-of- pocket costs incurred by Service Provider in advertising or marketing the Property, which costs must be approved in advance by CRC. Upon receipt of an invoice for such costs, CRC shall pay to Service Provider all undisputed amounts in the ordinary course of CRC's approval and payment process. 3. Presentations. If CRC requests that Service Provider attend a CRC meeting to: (a) make a presentation with respect to the Services; or (b) answer questions with respect to an invoice submitted to CRC for approval; then Service Provider shall: (a) attend such meeting, and provide such information as CRC reasonably requests; and (b) not receive any compensation in excess of the Fee. 4. Performance. Service Provider shall perform the Services: (a) in coordination with CRC; (b) in accordance with the prevailing professional standards in the Carmel, Indiana, area for similar services; (c) with good faith and earnestness to identify a Purchaser; (d) consistent with the Proposal (unless otherwise directed by CRC or its designated agents); and (d) in compliance with all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees (the "Laws"). Prior to performing the Services, Service Provider shall: (a) obtain all permits and approvals required by the Laws; and (b) obtain, and maintain throughout the Term, all professional licenses and certifications required by the Laws, including, without limitation, that, throughout the Term, Service Provider shall have and maintain a valid real estate broker's license issued by the State of Indiana. All Services and related work product performed by Service Provider, regardless of whether completed (the "Work Product"), shall belong to CRC. If performance of the Services requires the entry by Service Provider onto real estate not owned by CRC or Service Provider, then Service Provider shall be responsible for obtaining permission to enter onto such real estate. 5. Relationship. The employees of Service Provider: (a) are (and shall be considered for all purposes to be) the employees or contractors of Service Provider; and (b) are not (and shall not be considered for any purpose to be) the employees or contractors of CRC or the City of Carmel, Indiana (the "City"). Accordingly, CRC and the City shall have no obligations or liabilities with respect to such employees, who shall look exclusively to Service Provider to discharge all obligations and duties as their -2- employer or principal. Service Provider shall indemnify and hold harmless CRC from and against all claims, suits, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) that result from any claim for wages, benefits, or otherwise by any agent, employee, or contractor of Service Provider. The indemnities set forth in this Section shall survive the termination of this Agreement and the completion of the Services by Service Provider. 6. Liens. Service Provider shall not suffer or cause the filing of any mechanic's lien against CRC's property, or any part thereof, by reason of labor, services, or materials claimed to have been performed or furnished to or for Service Provider. If any such mechanic's lien is filed against CRC's property, or any part thereof, then Service Provider shall cause such mechanic's lien to be discharged of record within 30 days after notice of filing by bonding, or as provided or required by law. Nothing in this Agreement shall be deemed or construed to: (a) constitute consent to, or request of, any party for the performance of any work for, or the furnishing of any materials to, Service Provider; or (b) give Service Provider the right or authority to contract for, authorize, or permit the performance of any work, or the furnishing of any materials, that would permit the attaching of a mechanic's lien to CRC's interest in its property. 7. Remedies. If there is a default by Service Provider with respect to the performance of its obligations under this Agreement, and such default continues for 15 days after CRC delivers written notice of such default to Service Provider, then CRC may terminate this Agreement and recover from Service Provider all damages incurred as a result of such default, including, without limitation, any additional fee or commission (beyond the Fee that would have been payable to Service Provider) payable to a substitute real estate broker to complete the Services; provided that, if the default is of such a nature that it cannot reasonably be cured within 15 days, then this Agreement shall not be terminated so long as Service Provider commences to cure within such 15-day period and diligently completes such cure to completion. Service Provider may terminate this Agreement, without cause, upon 30 days' written notice to CRC; provided that, after such a termination, Service Provider shall not be entitled to a Fee for a Sale to a Prospect. CRC may terminate this Agreement, for cause, immediately upon delivery of "Notice to Cease Services" to Service Provider. If Service Provider: (a) becomes insolvent, files, or has filed against it, a petition for receivership or bankruptcy; (b) makes a general assignment for the benefit of creditors; or (c) dissolves; CRC may: (a) terminate this Agreement, without liability to Service Provider; or (b) exercise any other rights or remedies available at law or in equity. If this Agreement is terminated as permitted pursuant to this Section, then Service Provider shall turn the Work Product over to CRC. Any delay by either party in exercising or pursuing its rights or remedies under this Agreement or the Laws shall not operate to waive any such rights or remedies, nor in any way affect the rights of such party to exercise or pursue such rights or remedies at any time thereafter. 8. Indemnity. Service Provider shall indemnify and hold harmless CRC from and against all claims, suits,judgments, liabilities, losses, costs, and expense, including, without limitation, reasonable attorneys' fees and court costs (the "Claims"), that result from: (a) the performance of the Services; (b) the failure of Service Provider to comply with the terms and conditions of this Agreement; (c) the entry by Service Provider onto real estate not owned by CRC or Service Provider in the course of performing the Services; and/or (d) the gross negligence or willful misconduct by Service Provider and/or its representatives and agents. CRC shall indemnify and hold harmless Service Provider from and against any Claims: (a) that result from CRC's breach of Section 2; (b) brought under a Purchase Agreement; and/or (c) arising or resulting from CRC's failure to maintain adequate insurance to protect against any damage or loss arising or resulting from the entry and ordinary use of the Property by Service Provider and/or its representatives and agents, prospective purchasers, and/or cooperating brokers; provided that CRC shall have no liability to Service Provider for any Claims arising or resulting from the gross negligence or willful misconduct by Service Provider and/or its representatives and agents, prospective purchasers, and/or cooperating brokers. The indemnities set forth in this Section shall survive the termination of this Agreement and the completion of the Services by Service Provider. -3- 9. Assignment. Service Provider shall not assign this Agreement or any of its obligations hereunder without the prior written consent of CRC, which consent may be withheld in CRC's sole discretion. CRC may assign this Agreement without the prior written consent to the City or any agency or instrumentality thereof. CRC otherwise shall not assign this Agreement without the prior written consent of Service Provider, which consent may be withheld in Service Provider's sole discretion. In the event of any assignment in accordance with this Section, CRC or Service Provider shall remain liable to Service Provider or CRC, respectively, for the performance such obligations. 10. Nondiscrimination. In connection with the performance of this Agreement, Service Provider shall not discriminate against any employee, applicant for employment, and/or other person in the subcontracting and/or performance of the Services with respect to hire, tenure, terms, conditions, or privileges of employment or any matter directly or indirectly related to employment, because of race, age, color, religion, sex, disability, national origin, or ancestry. No notice or cure period shall apply with respect to the obligation of Service Provider under this Section, and a default under this Section shall be an immediate event of default. 11. Notice. All notices required to be delivered hereunder shall be in writing, and shall be deemed to have been delivered when: (a) delivered in person or by; or (b) sent by nationally recognized overnight carrier; addressed as follows: (a)to CRC at: One Civic Square, Carmel, Indiana 46032, Attn: Executive Director, with a copy to Karl P. Haas, Esq., Wallack Somers & Haas, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204; and (b) to Service Provider at: . Either party may change its address for notice by written notice delivered to the other party as provided in this Section. Notwithstanding the foregoing, CRC orally may provide to Service Provider any notice required or permitted by this Agreement; provided that such notice also shall be delivered as required by this Section within 10 business days after the date of such oral notice. 12. Miscellaneous. Time is of the essence of this Agreement. This Agreement shall: (a) bind, and inure to the benefit of, CRC and Service Provider and their respective successors and assigns; and (b) be governed by, and construed in accordance with, the laws of the State of Indiana. The parties agree that, in the event of a lawsuit on this Agreement: (a) they shall waive the right to a jury trial, if any; and (b) the state courts in Hamilton County, Indiana shall be the venue for, and have jurisdiction over, the lawsuit. This Agreement shall not be construed to create a contractual relationship with, give rights or benefits to, or create a cause of action in favor of, anyone other than the parties hereto. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the other terms and conditions, and this Agreement shall be construed in all respects as if such invalid or unenforceable term or condition had not been contained herein. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of the Proposal, the terms and conditions of this Agreement shall control. Each of the undersigned represents that he or she has: (a) the authority to bind CRC or Service Provider, as applicable; and (b) the proper power and authority to execute this Agreement. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of such counterparts shall together constitute but one and the same instrument. [Signature page to follow.] -4- IN WITNESS WHEREOF, CRC and Service Provider have executed this Agreement as of the Effective Date. CRC: THE CITY OF CARME REDEVELOPMENT COMMIS O By: I I SiiSer III1114 Printed: n 1'Eu! t � Si �" Title: ` SERVICE PROVIDER: RESOURCE COMMERCIAL REAL ESTATE, LLC d/b/a COLLIERS International i Indiana Region Indiana License# LC10500110 By: Printed: Title: Salesperson/Agent: By: Thomas M. Osborne Salesperson/Agent: By: Jeffrey E. Merritt -5- IN WITNESS WHEREOF, CRC and Service Provider have executed this Agreement as of the Effective Date. CRC: THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: Printed: Title: SERVICE PROVIDER: RESOURCE COMMERCIAL REAL ESTATE, LLC d/b/a COLLIE' • - national I Indiana Region Indiana Licens• #LC 10500110 By: „„ib. L Printed: �oinvf ,*. t�54./iQ Title: tort./)e. / lefart�- Salesperso /Agent: By: The- as NI. Osborne SalesperZierrittt2 ent: By: -5- EXHIBIT A Acknowledgments A. Agency Relationship. CRC acknowledges Service Provider has advised CRC that the Purchase Agreement may be negotiated with the assistance of other brokers and salespersons operating as purchaser's agent and Service Provider's company policy is to cooperate with all such persons. Service Provider represents the interest of CRC as its agent to sell the Property. Other brokers and salespersons of Service Provider may show the Property to prospective purchasers and will represent the interest of the purchaser. Service Provider owes duties of trust, loyalty, confidentiality, accounting, and disclosure to CRC. However, Service Provider must deal honestly with any purchaser and disclose information about the Property. Such representations are made as the agent of CRC. CRC agrees that Service Provider and its brokers and salespersons, including the broker and salesperson of CRC, shall have the unconditional right, without liability to or objection by CRC, to disclose to any prospective purchaser, tenant, person, or entity interested in an exchange, broker, consultant, attorney, accountant, contractor, or agent or employee of any of the foregoing, any and all information known to Service Provider and its brokers and salespersons, including the broker and salesperson of CRC, relating to the Property and required by applicable statute, rule, or regulation. Purchaser's agents are brokers and salespersons who show the Property to prospective purchasers, but who represent only the interests of the purchaser. Purchaser's agents owe duties of trust, loyalty, confidentiality, accounting, and disclosure to such purchasers. Representations made by Purchaser's agents about the Property are not made as the agent of CRC. B. Limited Agency. The broker or salesperson of Service Provider representing CRC often represents purchasers as purchaser's agents. If such purchaser wishes to see the Property, then Service Provider or salesperson of Service Provider has agency duties to both CRC and purchaser, and those duties or interests may be different or even adverse. CRC hereby knowingly consents to the broker or salesperson of Service Provider acting as a limited agent for such showings, subject to the terms and conditions of this Paragraph. If limited agency arises, except as provided in Paragraph A of this Exhibit, for which an informed written consent is hereby provided, then the broker or salesperson of Service Provider shall not disclose the following without the informed consent, in writing, of both CRC and purchaser: 1. Any material or confidential information, except adverse material facts or risks actually known by the broker or salesperson of Service Provider concerning the physical condition of the Property, facts required by applicable statute, rule, or regulation to be disclosed. 2. That a purchaser will pay more than the offered purchase price for the Property. 3. That CRC will accept less than the listed price for the Property. 4. Other terms that would create a contractual advantage for one party over another party. 5. What motivates a party to buy or sell the Property. In a limited agency situation, CRC agrees there will be no imputation of knowledge or information between any party and the limited agent or among other brokers or salespersons of Service Provider. A-1 • CRC understands it does not have to consent to any of the brokers or salespersons;of Service Provider acting as a limited agent, but hereby gives informed consent voluntarily to Service Provider and its brokers and agents serving as limited agents and waives any claim CRC may have now or in the future against such broker or salesperson of Service Provider for acting as a limited agent in accordance with the terms and conditions of this Exhibit. - A-2