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HomeMy WebLinkAboutResolution - 2001-R0505 - Contract For Mausoleaum Sales And Development - Crouch & Associates, Ltd. - 12/03/2001Resolution No. 2001-RO505 December 3, 2001 Item No. 31 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a contract for professional services for mausoleum sales and development, by and between the City of Lubbock and Crouch & Associates, Ltd., Texas, and related documents. Said contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 3rd day of December ,2001. WINDY SI ON, MAYOR ATTEST: Rebecca Garza, City Secretary Qk APPROVED AS TO CONTENT: U' Victor Kilma , Purchasing Manager APPROVED AS TO FORM: -: -- "�7& 1 William de Haas Contract Manager/Attorney gs: kcdocs/Contract-Crouch&Assoc. res Nov 21, 2001 Resolution No. 2001-RO505 December 3, 2001 Item No. 31 CEMETERY SALES AND DEVELOPMENT PROFESSIONAL SERVICE AGREEMENT This Agreement made and executed this 3rd day of December 2001, by and between the City of Lubbock, (herein after referred to as "Cemetery") and Crouch & Associates Ltd., a Texas Limited Partnership (hereinafter referred to as "Management"), which principal place of business is Austin, Texas. WITNESSETH: WHEREAS, Cemetery owns and operates a cemetery located in Lubbock, Texas which contains certain vacant real estate dedicated for cemetery purposes, and WHEREAS, Management is a professional mausoleum sales and development company, rm WHEREAS, Cemetery is interested in contracting for, and Management is interested in conducting for Cemetery, the sales program and construction, consisting of one or more mausoleum buildings on the real estate owned by Cemetery. NOW, THEREFORE, in consideration of the premises, covenants and Agreements herein contained it is understood and agreed by and between the parties hereto as follows: Section 1. Grant. Subject to other provisions of this Agreement as hereinafter set forth, Cemetery hereby appoints Management as their exclusive mausoleum sales and developer for Cemetery during the term of this Agreement. In such capacity, Management will enjoy the exclusive right to handle the mausoleum development and sales programs for Cemetery and to arrange for the sale of all cemetery crypts, and niches for the Cemetery developed by Management. This exclusive right shall only be in effect during the initial term of this Agreement described in section 2(a) hereof and any renewal term thereafter. Each additional mausoleum shall be mutually agreed upon by Management and Cemetery, and Cemetery agrees that it will not unreasonably withhold its consent. Section 2. (a) Term. The initial term of this contract is for five (5) years, commencing on November 15, 2001, and ending on November 15, 2006. This Agreement may be renewed by the Cemetery for an additional five (5) year term thereafter on the same terms and conditions. (b) If after the term of the Agreement expires or the contract is terminated for any reason, Management shall retain the sales rights to any crypts constructed prior to termination and may actively market those crypts under the same terms and conditions as provided for during the term of the Agreement. (c) Upon completion of the mausoleum described in this Agreement and in any event upon termination of this Agreement, the ownership of the mausoleum will revert to the Cemetery. That ownership will not override individual crypt owner entombment rights to crypts paid in full. Page 2 Management shall only retain the sales rights to any unsold crypts and will be able to market those crypts as described in Section 2 (b) of this Agreement. Section 3. Sales Authori� and Responsibilities of Management. As Cemetery's exclusive development sales company Management shall have the following obligations, rights and privileges: (a) To develop and sell a mausoleum consisting of up to l 176 crypts and 400 niches, and any crypts and niches in subsequent mausoleums as provided for in this Agreement. Management shall have the right to construct a fewer number of units of similar configuration based on Management's evaluation of sales program success. Any such modification shall be agreed upon by Management and Cemetery. Management, in order to begin the project, shall furnish to Cemetery within one hundred and fifty days of the signing of this Agreement the following items: 1. Design of initial mausoleum complex by Management to be mutually agreed upon; 2. Building specifications for the initial mausoleum and, 3. Sales contract to be used by Management and its Sales Agents for the sale of entombment rights in crypts and niches. (b) In addition to the mausoleum complex provided for in paragraph 3(a), 1., above, Cemetery grants to Management the exclusive right to sell and erect additional mausoleum buildings during the term of this Agreement on Cemetery lands now owned or hereinafter acquired by Cemetery and the exclusive right to sell entombment rights in crypts and niches in the mausoleum buildings erected or to be erected by Management. Such exclusive rights to continue for the five (5) year period and any renewals thereof. (c) Cemetery and Management shall agree on the approximate location of the mausoleum before any entombment rights in crypts or niches to be contained in such building are sold, and either party shall not unreasonably withhold such Agreement. A map of the cemetery describing the approximate location is attached hereto as Exhibit "A". A survey of the exact location will be obtained within one hundred and fifty (150) days of the signing of the Agreement. (d) The program for initial mausoleum and any subsequent additions shall be performed in two (2) concurrent or consecutive stages as follows: 1. Stage I shall be the survey and sales stage during which Management will actively sell entombment rights in the mausoleum; and, 2. Stage II shall be the construction stage when Management will, in addition to handling sales, be constructing the mausoleum. The construction stage shall commence within forty eight (48) months from the date of the initial sale or such earlier commencement date as determined by Management. Page 3 (e) When Management shall cause the commencement of construction of such mausoleum addition, it shall be completed within twelve (12) months, unless suspended or delayed as a result of strike, riot, war, weather, the failure of a sub -contractor to perform or causes beyond Management's control. The time allowed for construction of that building shall be extended accordingly. (f) Management shall at its own expense obtain all building and any other permits required or cause the same to be done by the Contractor. (g) 1. All engineering and building plans and practices shall comply with and be approved by proper local and state authorities. Compliance with all codes, regulations and laws shall be the responsibility of Management. 2. All zoning shall be the responsibility and at the cost of the Management. 3. Management shall secure a Payment and Performance Bond in the amount of the estimated construction cost of the Mausoleum within 60 days of signing of the Agreement. The Bond shall name Granit -Bron (Management's sub -contractor) as principal and the City of Lubbock as obligee. (h) The risk of damage to or loss of all improvements shall be the responsibility of Management until completion and acceptance of each mausoleum by cemetery. Thereafter, the risk of damage or loss shall be the Cemetery's and any additional insurance desired by Cemetery shall be at Cemetery's expense. (i) Management shall have authority to establish payment terms for the customers. (j) 1. Management shall hire, train and supervise their sales personnel. Management shall instruct its sales personnel in a manner so as to maintain and increase the good will and reputation of Cemetery. Management and its sales personnel, when conducting sales presentations or otherwise providing service to members of the public at Cemetery's facilities, shall refer to themselves as a representative of the Cemetery and would be considered an independent contractor and not employees of the Cemetery. Management shall be responsible for the conduct of any sales personnel it hires. 2. In the event of any misconduct by an employee of Management and upon written notice thereof by Cemetery, then such action on the part of the employee shall be corrected within a reasonable period of time. (k) All Sales Contracts (Purchase Agreements) shall designate Cemetery as Seller, and Management is hereby authorized to sign said contract on Cemetery's behalf. All Sales Contracts (Purchase Agreements) shall be in writing. (1) It is understood and agreed that all direct sales expenses shall be paid by Management. Such expenses shall be incurred solely by Management including, but not limited to, the cost of recruiting sales personnel, training sale personnel, providing kits, sales incentives, bonuses Page 4 and advances, and salaries or commissions. Other sales expenses including any stamp and recording fees, maps and deed forms, shall be borne by Cemetery. (m)In connection with the collection by Management of the Gross Selling Price with respect to any sale, management shall serve as fiscal agent and will receive and make deposit of checks, notes, drafts, Bill of Exchange, acceptances, undertakings or other orders for the payment of money. (n) It is understood and agreed that this Agreement is intended to give, insofar as possible, exclusive rights and privileges to Management for the development and sales of all mausoleum goods and services of mausoleums to be constructed in the future, including but not limited to sales of crypts and niches for Cemetery, during the life of this Agreement. (o) Management shall with respect to this Agreement be considered an independent contractor. (p) Cemetery shall make available to Management for use in making sales and sales contracts all inquiries, and all leads, which it hereafter receives. The Cemetery will make available to Management the Cemetery's property owner files for contact regarding interest in a mausoleum purchase. It is understood that all such inquiries and leads that are tendered to Management by Cemetery is the property of Cemetery and upon termination of this Agreement all such inquiries, prospects, leads and all other cards, records of customers and/or prospective customers, which were originally tendered by Cemetery to Management as obtained by Management pursuant to this Agreement are to be returned and delivered to Cemetery and shall be the sole property of Cemetery. Section 4. (a) Compensation of Management and Cemetery. Cemetery shall be paid the entombment fee, ten (10%) percent of all sales proceeds from crypt and niche sales, not including any interest, credit life or other carrying charges and Management shall receive the balance. (b)Pgyment for Use of Land. Management shall pay Cemetery Twelve Thousand Dollars ($12,000.00) in twelve (12) equal monthly installments of One Thousand Dollars ($1,000.00) each for the right to build the mausoleum on an approximate 160 x 50 foot parcel of land in a mutually agreed upon location. Cemetery shall continue to own property, and Management is only purchasing the rights to build and sell the crypts and niches on this property. The first installment of One Thousand Dollars ($1,000.00) will be paid within thirty (30) days of the full execution of this Agreement. (c) Trade -Ins. Management shall be allowed to accept trade-ins of lot spaces toward the purchase of mausoleum crypts or niches and may resell said spaces without paying any commission to Cemetery. (d) Sale of Cemetery Spaces. If Management, in connection with the Mausoleum sales program, sells lot spaces to customers that do not want to purchase mausoleum crypts or niches, management will retain 40% of the gross sale and all interest charges on spaces. Page 5 (e) If contracts are financed then such amount shall be paid to Cemetery and Management when the funds are received from the financing entity less any discount required by the financing institution. If contracts are not financed and are held as house accounts by Management, then the payments shall be made to Cemetery from each principal payment on a proportionate basis as payments are received. (f) If a contract for a crypt or a niche is financed over time and the customer default due to non- payment or cancels contract prior to payment in full, Management will recapture the entombment commission paid to the Cemetery for the purpose of defraying sales expenses incurred. The mausoleum crypt would then be re -sold and Cemetery would receive payment as per section 4(a) of this Agreement. Section 5. Management's Covenant. In discharging his responsibilities hereunder, Management agrees that it will: (a) Complete construction of an 1176 crypt, 400 niche mausoleum on or before November 30, 2005. The design and specifications are to be agreed upon by Cemetery and Management. (b) Management maintains a professional staff and employs, as needed, other qualified specialists experienced in mausoleum sales and development, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. (c) Management will and shall conduct all activities contemplated by this Agreement in a good and workmanlike manner, and comply with all laws, rules and regulations, both state and federal, relating to mausoleum sales and development, as contemplated herby. If any of the activities of Management, or omissions of the activities required herein, shall cause, in whole or in part, liability or loss on the part of the City, it shall be deemed that Management did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. (d) Management warrants that any materials provided by Management for use by Management or Cemetery pursuant to this Agreement shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other similar law. Management shall be solely responsible for ensuring that any materials provided by Management pursuant to this Agreement shall satisfy this requirement and Management agrees to hold Cemetery harmless from all liability or loss to which Cemetery is exposed on account of Management's failure to perform this duty. (e) Not engage in any type of "investment selling" ("investment selling" is defined as persuading a customer to buy for the sole purpose of reselling cemetery property for a future profit.) Section 6. Covenants of Cemetery. agrees: Page 6 Cemetery covenants, represents, warrants and (a) The rights granted herein with respect to the real property, if any, shall be without warranty, express or implied, statutory or otherwise, and all warranties that might arise by common law, statute, implication or otherwise are expressly excluded. (b) To make available additional land after the mausoleum on the initial land is sold or as requested by Management for the sum of Twelve Thousand Dollars ($12,000.00). The additional land shall be a 160x50 parcel of land as depicted on Exhibit B, labeled additional land. (c) To assist in the promotion of the sales of entombment rights in the proposed Mausoleum by making appropriate announcement and arranging permission for the distribution of pamphlets and/or other literature at the financial expense of Management. (d) To not otherwise sell, encumber, mortgage or otherwise incur any liens on the additional land to be used for mausoleum units. In the event the provision is breached by Cemetery, then Management, at its option, may terminate this Agreement subject to the provisions of Section 12 hereof. (e) In good faith to render such other information and assistance as may be reasonably possible to assist in the success of the sales program and take no action, which would delay or inhibit any sale. (fj To execute Certificates of Ownership conveying to purchasers the right of entombment to any crypts and niches sold and paid in full by Management or the sales personnel hired, trained and supervised by Management. (g) To provide Management with information as to Cemetery's property owners records which Management may deem necessary for the purpose of customer relations. (h) To transmit promptly to Management all inquiries and complaints received by Cemetery relative to Management's activities pursuant to this Agreement. (i) To furnish, execute and deliver such documents, instruments, certificates, notes Management shall reasonably require as necessary or desirable to effect complete consummation of this Agreement. (j) To allow Management the reasonable and prudent use of Cemetery's name for customer relations and communications. (k) To not directly or indirectly employ or retain, for the Lubbock City Cemetery, after this Agreement is terminated any of the sales personnel, agents or representative who have worked under this Agreement, and not to knowingly enter into any future employment, sales, or consultation Agreement with such persons (except with the Page 7 written consent of Management) during the time which this Agreement is in force and for a period of one year thereafter. In the event this provision shall take effect, Management or its designated agent shall have the right to inspect Cemetery's books and records at any reasonable time to determine its damages. (1) To allow Management to periodically audit Cemetery books and records with respect to Sales Contracts entered into in accordance with this Agreement on a quarterly basis at Management's own expense. Section 7. Assi nag bility. Management may not assign this Agreement without the prior written approval of the Cemetery. Section 8. Notices. All notices required under this Agreement shall be in writing and sent by registered or certified mail to: Cemetery: Randy Truesdell Parks and Recreation Director City of Lubbock 1010 9t' Street Lubbock, Texas 79401 Management: Crouch & Associates, Ltd. PO Box 150038 Austin, Texas 78715 With copy to: Harvey I. Lapin Harvey I. Lapin & Associates, P.C. 2592 Chedworth Court Northbrook, IL 60062 Section 9. (a) Audit. Management shall provide access to its corporate books and records to the Cemetery. Cemetery may audit, at its expense and during normal business hours, Management's books and records with respect to this Agreement between Management and Cemetery. (b) Records. Management shall maintain records that are necessary to substantiate all the services provided by Management. Section 10. Successor and Assigns. This Agreement binds and inures to the benefit of the Cemetery, Management, and their respective successors, legal representatives, and assigns. Section 11. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE Page 8 JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. Section 12. Termination. (a) In the event the Management breaches any term and/or provision of this Agreement in a material way, the Cemetery shall be entitled to exercise any right or remedy available to it at law or equity, including without limitation, immediate termination of this Agreement and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent of subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. (b) Cemetery shall have the right to terminate this Agreement, if Management does not receive at least Two Hundred Thousand Dollars ($200,000.00) per year in gross sales starting December 3, 2001 and for each year thereafter. Termination upon this provision may be made by giving notice to Management of said termination within sixty (60) days after the year-end on which such termination is based. (c) Management may terminate the Agreement by giving sixty (60) days notice to Cemetery provided that Management shall upon cemetery's request complete after termination the construction of any mausoleum site on which sales have been commenced. Termination of the Agreement for whatever cause, shall in no way jeopardize the entitlement to all payment due to Management, but such payment shall be paid to or retained by Management in full as herein provided. Section 13. Water and Electric. It is agreed that it is the responsibility of Cemetery to provide water and electric lines to the Mausoleum site at Cemetery's expense for purposes of construction and thereafter for the proper operation of the mausoleum. Section 14. Temporary Entombments. It shall be the responsibility and the cost of Management to provide a receiving vault for the storage of remains until such time as an 18 crypt Feature Mausoleum can be constructed for the same purpose (location to be agreed upon by Cemetery and Management) until such time as the first unit of the Mausoleum described in Paragraph 3A is completed. (a) Management has the same right to sell Feature Mausoleum crypts after caskets are removed under the same terms and conditions set forth in this Agreement for the sale of the Mausoleum described in Paragraph 3A. (b) Cemetery shall provide a 15'x20' parcel of land as recorded on Exhibit A for the Construction of Feature Mausoleum. Management shall pay Two Thousand Dollars ($2,000.00) to Cemetery for use of said land. Any cost of surveying and platting shall be paid by Management. (c) Lifting Devise. Management shall provide no more than Ten Thousand Dollars ($10,000.00) to Cemetery to purchase a lifting devise adequate to be used for the Page 9 entombment of caskets in all tiers of the mausoleum thirty (30) days prior to completion of mausoleum. Section 15. Roads. Cemetery shall provide adequate roads to support construction and ongoing operation of the Mausoleum. It is understood that all such roads will be built and maintained by the Cemetery and that Management will not share in any costs relating to roads. Section 16. Children of Persons Purchasing Mausoleum Space. Parties agree that where a family has purchased mausoleum space and there is a death of child residing with that family the following will occur: Child Age Over One Year but Less Than Eighteen Years: Management will provide mausoleum space at no charge to the family. Cemetery will charge the family the normal and customary entombment charges. Cemetery will not be entitled to any compensation arising form the use of such space from Management and Management shall not be responsible for entombment charges, such charges being the responsibility of the family. Section 17. Office Space. Cemetery shall make available office space for a sales manager during the hours of nine AM through nine PM, Monday through Friday. Cemetery shall also provide two telephones with local service after five PM, Monday through Friday. Section 18. Compliance with Law. Management shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Agreement, and any amendments thereto. Section 19. This Agreement shall not be construed, in any way, manner or form, as a lease of the City of Lubbock Cemetery or as conveying any interest in the real property comprising the City of Lubbock Cemetery. Section 20. Indemnity. City of Lubbock shall not be liable or responsible for, and shall be saved and held harmless by Contractor from and against any and all suits, actions, losses, damages, claims, or liability of any character, type, or description, including all expenses of litigation, court costs, and attorney's fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by, directly or indirectly, in whole or in part, the performance of Contractor under this agreement, including claims and damages arising in whole or in part from the negligence of City of Lubbock. It is the expressed intent of the parties to this Agreement that the indemnity provided for in this section is an indemnity extended by Contractor to indemnify and protect City of Lubbock from the consequences of City's own negligence, whether that negligence is the sole or contributory cause of the resultant injury, death, or damage. Section 21. Entire Agreement. This Agreement contains the entire Agreement of the parties, and any modifications hereof must be in writing signed by the parties hereto to be effective. Page 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and their seals attested by their duly authorized officers all on the day and year first above written. Executed this 3rd day of December , 2001. CITY OF LUBBOCK, TEXAS Y' WINDASIT N. MAYOR ATTEST: Re b cca Garza City Secretary APPROVED AS TO CONTENT: 'f R66 Truesdell Parks and Recreation Manager APPROVED AS TO FORM: William de Haas Contract Manager CROUCH & ASSOCIATES, LTD. uch, President Resolution No. 2001-RO505 r _ � a wO Jb o , I N CVV N h :,ON N w Q► c�7 t9 N � W UOf fn IF -r ww �..." x . UJ J LL 01 � � N r O O C L— o C� U O C: N M N N x OO O CU < E W Q Z {u N r ei Iu W r r w v /3 us r=, P 7 O E.. Ed d 3 � v � Q • ® C / U w N Li Z Z C U f 0 U1 4J Z >' Q � Q C v w O z z n Z s= W (} F: ca 'j C Ui W Q 0 I 0 F\ 11 11 I1 Resolution No. 2001-R0505 0 13 0 c U • f$ C' W fl ��ao®o Resolution No. 2001-RO505 December 3, 2001 Item No. 31 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a contract for professional services for mausoleum sales and development, by and between the City of Lubbock and Crouch & Associates, Ltd., Texas, and related documents. Said contract is attached hereto and incorporated in this resolution as if fully set -forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 3rd day of December , 2001. WINDYSI ON, MAYOR ATTEST: Rebecca Garza, City Secretary QS APPROVED AS TO CONTENT: U` Victor Kilma , Purchasing Manager APPROVED AS TO FORM: /-p: --- '�;L I William de Haas Contract Manager/Attorney gs: kcdocs/Contract-Crouch&Assoc.res Nov 21, 2001 Resolution No. 2001-RO505 December 3, 2001 Item No. 31 CEMETERY SALES AND DEVELOPMENT PROFESSIONAL SERVICE AGREEMENT This Agreement made and executed this 3rd day of December 2001, by and between the City of Lubbock, (herein after referred to as "Cemetery") and Crouch & Associates Ltd., a Texas Limited Partnership (hereinafter referred to as "Management"), which principal place of business is Austin, Texas. WITNESSETH: WHEREAS, Cemetery owns and operates a cemetery located in Lubbock, Texas which contains certain vacant real estate dedicated for cemetery purposes, and WHEREAS, Management is a professional mausoleum sales and development company, and WHEREAS, Cemetery is interested in contracting for, and Management is interested in conducting for Cemetery, the sales program and construction, consisting of one or more mausoleum buildings on the real estate owned by Cemetery. NOW, THEREFORE, in consideration of the premises, covenants and Agreements herein contained it is understood and agreed by and between the parties hereto as follows: Section 1. Grant. Subject to other provisions of this Agreement as hereinafter set forth, Cemetery hereby appoints Management as their exclusive mausoleum sales and developer for Cemetery during the term of this Agreement. In such capacity, Management will enjoy the exclusive right to handle the mausoleum development and sales programs for Cemetery and to arrange for the sale of all cemetery crypts, and niches for the Cemetery developed by Management. This exclusive right shall only be in effect during the initial term of this Agreement described in section 2(a) hereof and any renewal term thereafter. Each additional mausoleum shall be mutually agreed upon by Management and Cemetery, and Cemetery agrees that it will not unreasonably withhold its consent. Section 2. (a) Term. The initial term of this contract is for five (5) years, commencing on November 15, 2001, and ending on November 15, 2006. This Agreement may be renewed by the Cemetery for an additional five (5) year term thereafter on the same terms and conditions. (b) If after the term of the Agreement expires or the contract is terminated for any reason, Management shall retain the sales rights to any crypts constructed prior to termination and may actively market those crypts under the same terms and conditions as provided for during the term of the Agreement. (c) Upon completion of the mausoleum described in this Agreement and in any event upon termination of this Agreement, the ownership of the mausoleum will revert to the Cemetery. That ownership will not override individual crypt owner entombment rights to crypts paid in full. Page 2 Management shall only retain the sales rights to any unsold crypts and will be able to market those crypts as described in Section 2 (b) of this Agreement. Section 3. Sales Authority and Responsibilities of Management. As Cemetery's exclusive development sales company Management shall have the following obligations, rights and privileges: (a) To develop and sell a mausoleum consisting of up to 1176 crypts and 400 niches, and any crypts and niches in subsequent mausoleums as provided for in this Agreement. Management shall have the right to construct a fewer number of units of similar configuration based on Management's evaluation of sales program success. Any such modification shall be agreed upon by Management and Cemetery. Management, in order to begin the project, shall furnish to Cemetery within one hundred and fifty days of the signing of this Agreement the following items: 1. Design of initial mausoleum complex by Management to be mutually agreed upon; 2. Building specifications for the initial mausoleum and, 3. Sales contract to be used by Management and its Sales Agents for the sale of entombment rights in crypts and niches. (b) In addition to the mausoleum complex provided for in paragraph 3(a), l., above, Cemetery grants to Management the exclusive right to sell and erect additional mausoleum buildings during the term of this Agreement on Cemetery lands now owned or hereinafter acquired by Cemetery and the exclusive right to sell entombment rights in crypts and niches in the mausoleum buildings erected or to be erected by Management. Such exclusive rights to continue for the five (5) year period and any renewals thereof. (c) Cemetery and Management shall agree on the approximate location of the mausoleum before any entombment rights in crypts or niches to be contained in such building are sold, and either party shall not unreasonably withhold such Agreement. A map of the cemetery describing the approximate location is attached hereto as Exhibit "A". A survey of the exact location will be obtained within one hundred and fifty (150) days of the signing of the Agreement. (d) The program for initial mausoleum and any subsequent additions shall be performed in two (2) concurrent or consecutive stages as follows: 1. Stage I shall be the survey and sales stage during which Management will actively sell entombment rights in the mausoleum; and, 2. Stage II shall be the construction stage when Management will, in addition to handling sales, be constructing the mausoleum. The construction stage shall commence within forty eight (48) months from the date of the initial sale or such earlier commencement date as determined by Management. Page 3 (e) When Management shall cause the commencement of construction of such mausoleum addition, it shall be completed within twelve (12) months, unless suspended or delayed as a result of strike, riot, war, weather, the failure of a sub -contractor to perform or causes beyond Management's control. The time allowed for construction of that building shall be extended accordingly. (f) Management shall at its own expense obtain all building and any other permits required or cause the same to be done by the Contractor. (g) 1. All engineering and building plans and practices shall comply with and be approved by proper local and state authorities. Compliance with all codes, regulations and laws shall be the responsibility of Management. 2. All zoning shall be the responsibility and at the cost of the Management. 3. Management shall secure a Payment and Performance Bond in the amount of the estimated construction cost of the Mausoleum within 60 days of signing of the Agreement. The Bond shall name Granit -Bron (Management's sub -contractor) as principal and the City of Lubbock as obligee. (h) The risk of damage to or loss of all improvements shall be the responsibility of Management until completion and acceptance of each mausoleum by cemetery. Thereafter, the risk of damage or loss shall be the Cemetery's and any additional insurance desired by Cemetery shall be at Cemetery's expense. (i) Management shall have authority to establish payment terms for the customers. (j) 1. Management shall hire, train and supervise their sales personnel. Management shall instruct its sales personnel in a manner so as to maintain and increase the good will and reputation of Cemetery. Management and its sales personnel, when conducting sales presentations or otherwise providing service to members of the public at Cemetery's facilities, shall refer to themselves as a representative of the Cemetery and would be considered an independent contractor and not employees of the Cemetery. Management shall be responsible for the conduct of any sales personnel it hires. 2. In the event of any misconduct by an employee of Management and upon written notice thereof by Cemetery, then such action on the part of the employee shall be corrected within a reasonable period of time. (k) All Sales Contracts (Purchase Agreements) shall designate Cemetery as Seller, and Management is hereby authorized to sign said contract on Cemetery's behalf. All Sales Contracts (Purchase Agreements) shall be in writing. (1) It is understood and agreed that all direct sales expenses shall be paid by Management. Such expenses shall be incurred solely by Management including, but not limited to, the cost of recruiting sales personnel, training sale personnel, providing kits, sales incentives, bonuses Page 4 and advances, and salaries or commissions. Other sales expenses including any stamp and recording fees, maps and deed forms, shall be borne by Cemetery. (m)In connection with the collection by Management of the Gross Selling Price with respect to any sale, management shall serve as fiscal agent and will receive and make deposit of checks, notes, drafts, Bill of Exchange, acceptances, undertakings or other orders for the payment of money. (n) It is understood and agreed that this Agreement is intended to give, insofar as possible, exclusive rights and privileges to Management for the development and sales of all mausoleum goods and services of mausoleums to be constructed in the future, including but not limited to sales of crypts and niches for Cemetery, during the life of this Agreement. (o) Management shall with respect to this Agreement be considered an independent contractor. (p) Cemetery shall make available to Management for use in making sales and sales contracts all inquiries, and all leads, which it hereafter receives. The Cemetery will make available to Management the Cemetery's property owner files for contact regarding interest in a mausoleum purchase. It is understood that all such inquiries and leads that are tendered to Management by Cemetery is the property of Cemetery and upon termination of this Agreement all such inquiries, prospects, leads and all other cards, records of customers and/or prospective customers, which were originally tendered by Cemetery to Management as obtained by Management pursuant to this Agreement are to be returned and delivered to Cemetery and shall be the sole property of Cemetery. Section 4. (a) Compensation of Management and Cemetery. Cemetery shall be paid the entombment fee, ten (10%) percent of all sales proceeds from crypt and niche sales, not including any interest, credit life or other carrying charges and Management shall receive the balance. (b)Payment for Use of Land. Management shall pay Cemetery Twelve Thousand Dollars ($12,000.00) in twelve (12) equal monthly installments of One Thousand Dollars ($1,000.00) each for the right to build the mausoleum on an approximate 160 x 50 foot parcel of land in a mutually agreed upon location. Cemetery shall continue to own property, and Management is only purchasing the rights to build and sell the crypts and niches on this property. The first installment of One Thousand Dollars ($1,000.00) will be paid within thirty (30) days of the full execution of this Agreement. (c) Trade -Ins. Management shall be allowed to accept trade-ins of lot spaces toward the purchase of mausoleum crypts or niches and may resell said spaces without paying any commission to Cemetery. (d) Sale of CemetM Spaces. If Management, in connection with the Mausoleum sales program, sells lot spaces to customers that do not want to purchase mausoleum crypts or niches, management will retain 40% of the gross sale and all interest charges on spaces. Page 5 (e) If contracts are financed then such amount shall be paid to Cemetery and Management when the funds are received from the financing entity less any discount required by the financing institution. If contracts are not financed and are held as house accounts by Management, then the payments shall be made to Cemetery from each principal payment on a proportionate basis as payments are received. (f) If a contract for a crypt or a niche is financed over time and the customer default due to non- payment or cancels contract prior to payment in full, Management will recapture the entombment commission paid to the Cemetery for the purpose of defraying sales expenses incurred. The mausoleum crypt would then be re -sold and Cemetery would receive payment as per section 4(a) of this Agreement. Section 5. Management's Covenant. In discharging his responsibilities hereunder, Management agrees that it will: (a) Complete construction of an 1176 crypt, 400 niche mausoleum on or before November 30, 2005. The design and specifications are to be agreed upon by Cemetery and Management. (b) Management maintains a professional staff and employs, as needed, other qualified specialists experienced in mausoleum sales and development, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. (c) Management will and shall conduct all activities contemplated by this Agreement in a good and workmanlike manner, and comply with all laws, rules and regulations, both state and federal, relating to mausoleum sales and development, as contemplated herby. If any of the activities of Management, or omissions of the activities required herein, shall cause, in whole or in part, liability or loss on the part of the City, it shall be deemed that Management did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. (d) Management warrants that any materials provided by Management for use by Management or Cemetery pursuant to this Agreement shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other similar law. Management shall be solely responsible for ensuring that any materials provided by Management pursuant to this Agreement shall satisfy this requirement and Management agrees to hold Cemetery harmless from all liability or loss to which Cemetery is exposed on account of Management's failure to perform this duty. (e) Not engage in any type of "investment selling" ("investment selling" is defined as persuading a customer to buy for the sole purpose of reselling cemetery property for a future profit.) Page 6 Section 6. Covenants of Cemeterv. Cemetery covenants, represents, warrants and agrees: (a) The rights granted herein with respect to the real property, if any, shall be without warranty, express or implied, statutory or otherwise, and all warranties that might arise by common law, statute, implication or otherwise are expressly excluded. (b) To make available additional land after the mausoleum on the initial land is sold or as requested by Management for the sum of Twelve Thousand Dollars ($12,000.00). The additional land shall be a 160x50 parcel of land as depicted on Exhibit B, labeled additional land. (c) To assist in the promotion of the sales of entombment rights in the proposed Mausoleum by making appropriate announcement and arranging permission for the distribution of pamphlets and/or other literature at the financial expense of Management. (d) To not otherwise sell, encumber, mortgage or otherwise incur any liens on the additional land to be used for mausoleum units. In the event the provision is breached by Cemetery, then Management, at its option, may terminate this Agreement subject to the provisions of Section 12 hereof. (e) In good faith to render such other information and assistance as may be reasonably possible to assist in the success of the sales program and take no action, which would delay or inhibit any sale. (f) To execute Certificates of Ownership conveying to purchasers the right of entombment to any crypts and niches sold and paid in full by Management or the sales personnel hired, trained and supervised by Management. (g) To provide Management with information as to Cemetery's property owners records which Management may deem necessary for the purpose of customer relations. (h) To transmit promptly to Management all inquiries and complaints received by Cemetery relative to Management's activities pursuant to this Agreement. (i) To furnish, execute and deliver such documents, instruments, certificates, notes Management shall reasonably require as necessary or desirable to effect complete consummation of this Agreement. (j) To allow Management the reasonable and prudent use of Cemetery's name for customer relations and communications. (k) To not directly or indirectly employ or retain, for the Lubbock City Cemetery, after this Agreement is terminated any of the sales personnel, agents or representative who have worked under this Agreement, and not to knowingly enter into any future employment, sales, or consultation Agreement with such persons (except with the Page 7 written consent of Management) during the time which this Agreement is in force and for a period of one year thereafter. In the event this provision shall take effect, Management or its designated agent shall have the right to inspect Cemetery's books and records at any reasonable time to determine its damages. (1) To allow Management to periodically audit Cemetery books and records with respect to Sales Contracts entered into in accordance with this Agreement on a quarterly basis at Management's own expense. Section 7. Assignability. Management may not assign this Agreement without the prior written approval of the Cemetery. Section 8. Notices. All notices required under this Agreement shall be in writing and sent by registered or certified mail to: Cemetery: Randy Truesdell Parks and Recreation Director City of Lubbock 1010 91` Street Lubbock, Texas 79401 Management: Crouch & Associates, Ltd. PO Box 150038 Austin, Texas 78715 With copy to: Harvey I. Lapin Harvey I. Lapin & Associates, P.C. 2592 Chedworth Court Northbrook, IL 60062 Section 9. (a) Audit. Management shall provide access to its corporate books and records to the Cemetery. Cemetery may audit, at its expense and during normal business hours, Management's books and records with respect to this Agreement between Management and Cemetery. (b) Records. Management shall maintain records that are necessary to substantiate all the services provided by Management. Section 10. Successor and Assigns. This Agreement binds and inures to the benefit of the Cemetery, Management, and their respective successors, legal representatives, and assigns. Section 11. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE Page 8 JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. Section 12. Termination. (a) In the event the Management breaches any term and/or provision of this Agreement in a material way, the Cemetery shall be entitled to exercise any right or remedy available to it at law or equity, including without limitation, immediate termination of this Agreement and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent of subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. (b) Cemetery shall have the right to terminate this Agreement, if Management does not receive at least Two Hundred Thousand Dollars ($200,000.00) per year in gross sales starting December 3, 2001 and for each year thereafter. Termination upon this provision may be made by giving notice to Management of said termination within sixty (60) days after the year-end on which such termination is based. (c) Management may terminate the Agreement by giving sixty (60) days notice to Cemetery provided that Management shall upon cemetery's request complete after termination the construction of any mausoleum site on which sales have been commenced. Termination of the Agreement for whatever cause, shall in no way jeopardize the entitlement to all payment due to Management, but such payment shall be paid to or retained by Management in full as herein provided. Section 13. Water and Electric. It is agreed that it is the responsibility of Cemetery to provide water and electric lines to the Mausoleum site at Cemetery's expense for purposes of construction and thereafter for the proper operation of the mausoleum. Section 14. Temporary Entombments. It shall be the responsibility and the cost of Management to provide a receiving vault for the storage of remains until such time as an 18 crypt Feature Mausoleum can be constructed for the same purpose (location to be agreed upon by Cemetery and Management) until such time as the first unit of the Mausoleum described in Paragraph 3A is completed. (a) Management has the same right to sell Feature Mausoleum crypts after caskets are removed under the same terms and conditions set forth in this Agreement for the sale of the Mausoleum described in Paragraph 3A. (b) Cemetery shall provide a 15'x20' parcel of land as recorded on Exhibit A for the Construction of Feature Mausoleum. Management shall pay Two Thousand Dollars ($2,000.00) to Cemetery for use of said land. Any cost of surveying and platting shall be paid by Management. (c) Lifting Devise. Management shall provide no more than Ten Thousand Dollars ($10,000.00) to Cemetery to purchase a lifting devise adequate to be used for the Page 9 entombment of caskets in all tiers of the mausoleum thirty (30) days prior to completion of mausoleum. Section 15. Roads. Cemetery shall provide adequate roads to support construction and ongoing operation of the Mausoleum. It is understood that all such roads will be built and maintained by the Cemetery and that Management will not share in any costs relating to roads. Section 16. Children of Persons Purchasing Mausoleum Space. Parties agree that where a family has purchased mausoleum space and there is a death of child residing with that family the following will occur: Child Age Over One Year but Less Than Eighteen Years: Management will provide mausoleum space at no charge to the family. Cemetery will charge the family the normal and customary entombment charges. Cemetery will not be entitled to any compensation arising form the use of such space from Management and Management shall not be responsible for entombment charges, such charges being the responsibility of the family. Section 17. Office Space. Cemetery shall make available office space for a sales manager during the hours of nine AM through nine PM, Monday through Friday. Cemetery shall also provide two telephones with local service after five PM, Monday through Friday. Section 18. Compliance with Law. Management shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Agreement, and any amendments thereto. Section 19. This Agreement shall not be construed, in any way, manner or form, as a lease of the City of Lubbock Cemetery or as conveying any interest in the real property comprising the City of Lubbock Cemetery. Section 20. Indemnity. City of Lubbock shall not be liable or responsible for, and shall be saved and held harmless by Contractor from and against any and all suits, actions, losses, damages, claims, or liability of any character, type, or description, including all expenses of litigation, court costs, and attorney's fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by, directly or indirectly, in whole or in part, the performance of Contractor under this agreement, including claims and damages arising in whole or in part from the negligence of City of Lubbock. It is the expressed intent of the parties to this Agreement that the indemnity provided for in this section is an indemnity extended by Contractor to indemnify and protect City of Lubbock from the consequences of City's own negligence, whether that negligence is the sole or contributory cause of the resultant iniury, death, or damage. Section 21. Entire Agreement. This Agreement contains the entire Agreement of the parties, and any modifications hereof must be in writing signed by the parties hereto to be effective. Page 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and their seals attested by their duly authorized officers all on the day and year first above written. Executed this 3rd day of CITY OF LUBBOCK, TEXAS Y' WIND4NX, 4MAYOR ATTEST: Reb cca Garza City Secretary APPROVED AS TO CONTENT: A-V Randy Truesdell Parks and Recreation Manager APPROVED AS TO FORM: William de Haas Contract Manager December ,2001. CROUCH & ASSOCIATES, LTD. &.uch,esident m W w 2 W u Q� �-- u m0 i W J IL 0� t a. � t. o o U � — O O �cuE E E = N x OO O Q CU cu Q E i Resolution No. 2001—RO505 1 7X7 F -I F -I 11 N Zus tu w > N N O I.. O = V 0 a • ® C r w z z k Z Lu J � i v .` n= LU `ci 4 z o o D a - c ® z o m C) 1 I V. Ili Resolution No. 2001-R0505 0 I W o C7 i, m V � O I