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HomeMy WebLinkAboutResolution - 2001-R0131 - Brokerage Agreement With Staubach Global Services, Inc. - 04/12/2001Resolution No. 2001-RO131 April 12, 2001 Item No. 64 EXCLUSIVE BROKERAGE AGREEMENT THIS BROKERAGE AGREEMENT (this "Agreement") is entered into as of this 12th day of Apri1,.2001, (the "Effective Date") between Lubbock International Airport, a department of the City of Lubbock, Texas (the "Airport"), and Staubach Global Services, Inc., formerly known as Staubach Alliance Services, Inc., a Texas corporation ("SGS"). WITNESSETH: WHEREAS, the Airport owns certain properties at the Lubbock International Airport known as the Interport Trade Center (collectively the "Trade Center Properties" and each individually known as a "Property"); and WHEREAS, the Airport desires to retain SGS for the marketing and disposition of any or all of the Trade Center Properties; and WHEREAS, SGS desires to be so retained. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Airport and SGS (each individually referred to as a "Party" and collectively referred to as the "Parties") do hereby agree as follows: 1. The Airport hereby retains SGS as its sole and exclusive agent to sell or lease all or a portion of the Trade Center Properties. For this project, SGS hereby commits the services of Austin Lewis and Doug Carignan (the "Project Team"), together with such other personnel as the Project Team shall determine necessary in their discretion, to perform the duties as contained herein. The term of this Agreement shall commence upon the Effective Date and shall expire one (1) year later unless earlier terminated as provided for herein. This Agreement will automatically extend on a month-to-month basis after the expiration of the initial term for a period of twelve months, unless either Party terminates this Agreement by providing the other Party thirty (30) days written notice. 2. The objective of the Airport is to dispose of the Trade Center Properties upon terms and conditions that are acceptable to the Airport in its sole and absolute discretion, whether through the sale or leasing thereof. SGS agrees that it will give its commercially reasonable efforts to accomplish the objective of the Airport, whether through the sale or land lease thereof. SGS will cooperate with the inquiries and efforts of other real estate brokers to sell or lease the 1 respective Trade Center Properties. It is understood that the Airport shall have sole and absolute discretion whether to accept terms and conditions offered to the Airport for any and all transactions pertaining to the Trade Center Properties, and that no commission shall be payable hereunder until the "Disposition Effective Date" of a transaction as further specified below. 3. SGS agrees that within thirty (30) days of the Effective Date it will: a) Perform an analysis of existing and projected market conditions for the Trade Center Properties; b) Based upon such analysis, prepare a strategic marketing plan for the Trade Center Properties for approval by the Airport; and c) Based upon such analysis, develop a pricing plan for the Trade Center Properties for approval by the Airport. The Airport agrees that, if it has not disapproved either or both of the strategic marketing plan and/or the pricing plan within ten (10) business days of the receipt thereof, such plan(s) shall be deemed approved. Promptly following approval thereof, SGS shall implement all appropriate activities to accomplish the strategic marketing plan. 4. SGS agrees that, within thirty (30) days of the Effective Date, it will engage a local broker in the Lubbock area to assist in the marketing and disposition activities undertaken in respect of the Trade Center Properties. Promptly upon approval of the marketing plan for the Trade Center Properties by the Airport, SGS shall undertake the activities specified in such marketing plan as exclusive agent of the Airport for the Trade Center Properties. Any reference to the local broker in marketing activities shall be only as an extension of SGS. 5. The cost of typical marketing activities (listing of properties in standard industry services such as CoStar and LoopNet, posting of Airport approved signage on the Trade Center Properties, etc.) shall be borne by SGS. Advertising of the Trade Center Properties in local newspapers or other local, regional, national or trade publications, custom brochures, and other specialized marketing activities ("Special Activities") shall be subject to prior authorization by the Airport. The Airport shall also reimburse SGS for the costs of such Special Activities provided an authorized representative of the Airport has approved the Special Activities in advance. For purposes of this Agreement, the Airport's authorized representative shall be Mark N. Earle, Director of Aviation. 6. SGS agrees to provide the Airport monthly reports listing all proposals presented and/or prospects toured through each of the Trade Center Properties. 7. During the term of this Agreement, the Airport shall promptly refer to SGS any and all parties who make inquiries to the Airport regarding any one or more of the Trade Center 2 Properties or otherwise express an interest of any kind in any one or more of the Trade Center Properties. 8. Where SGS is the sole procuring cause of a sale of any one or more of the Trade Center Properties where the purchase and sale agreement therefor (a) is executed by the Airport and the purchaser, (b) is approved in writing by any applicable City of Lubbock municipal authorities (when necessary), and (c) for which all conditions precedent to the obligations of the purchaser have been satisfied or duly waived by the purchaser, the Airport agrees to pay SGS a commission for each such Property so sold in an amount equal to Six Percent (6%) of the sale price for such Property as stipulated in the purchase and sale agreement for such Property. Each such commission shall be payable upon the "Disposition Effective Date" for such sale, which shall be defined as the date upon which the conditions specified in clauses (a), (b) and (c) of the first sentence of this section have been satisfied as to such sale. However, as a convenience to the Airport only, SGS shall defer receipt of the commission due and payable with respect to the sale of a Property until the closing of the sale of such Property. 9. Where a cooperating broker is involved as a procuring cause for a sale of any one or more of the Trade Center Properties, where the purchase and sale agreement therefor (a) is executed by the Airport and the purchaser, (b) is approved in writing by any applicable City of Lubbock municipal authorities (when necessary), and (c) for which all conditions precedent to the obligations of the purchaser have been satisfied or duly waived by the purchaser, the Airport agrees to pay a commission for each such Property so sold in an amount equal to Eight Percent (8%) of the sale price for such Property as stipulated in the purchase and sale agreement for such Property. Each such commission shall be payable upon the "Disposition Effective Date" for such sale, which shall be defined as the date upon which the conditions specified in clauses (a), (b) and (c) of the first sentence of this section have been satisfied as to such sale. However, as a convenience to the Airport only, SGS shall defer receipt of the commission due and payable with respect to the sale of a Property until the closing of the sale of such Property. Such commission will be divided equally between SGS and the cooperating broker. For purposes of this Agreement, a cooperating broker is any properly licensed broker other than either (i) an employee of SGS or (ii) the local broker engaged by SGS in accordance with Paragraph 4 above to assist in the marketing and disposition of such Property. 10. Where SGS is the sole procuring cause of a land lease of any one or more of the Trade Center Properties where the lease agreement therefor (a) is executed by the Airport and the tenant, (b) is approved in writing by any applicable City of Lubbock municipal authorities (when necessary), and (c) for which all conditions precedent to the obligations of the tenant have been satisfied or duly waived by the tenant, the Airport agrees to pay SGS a commission for each such Property so leased in an amount equal to one (1) year's average base rent over the term of such land lease less adjustments for inflation as stipulated in the lease agreement for such Property. Current City policy recommends an annual CPI adjustment to offset inflation. Each such commission shall be payable upon the "Disposition Effective Date" for such land lease, which shall be defined as the date upon which the conditions specified in clauses (a), (b) and (c) of the 3 first sentence of this section have been satisfied as to such sale. However, as a convenience to the Airport only, SGS shall defer receipt of the commission due and payable and hereby agrees to receive such commission in equal quarterly payments over the first twenty-four (24) months of the term of such lease. 11. Where a cooperating broker is involved as a procuring cause of a land lease of any one or more of the Trade Center Properties, where the lease agreement therefor (a) is executed by the Airport and the tenant, (b) is approved in writing by any applicable City of Lubbock municipal authorities (when necessary), and (c) for which all conditions precedent to the obligations of the tenant have been satisfied or duly waived by the tenant, the Airport agrees to pay a commission for each such Property so leased in an amount equal to eighteen (18) months average base rent over the term of such land lease less adjustments for inflation as stipulated in the lease agreement for such Property. Current City policy recommends an annual CPI adjustment to offset inflation. However, as a convenience to the Airport only, SGS shall defer receipt of the commission due and payable and hereby agrees to receive such commission in equal quarterly payments over the first twenty-four (24) months of the term of such lease. Such commission will be divided equally between SGS and the cooperating broker. For purposes of this Agreement, a cooperating broker is any properly licensed broker other than either (i) an employee of SGS or (ii) the local broker engaged by SGS in accordance with Paragraph 4 above to assist in the marketing and disposition of such Property. 12. Where the City of Lubbock, the Airport, or Lubbock's economic development agent, Market Lubbock, Inc. is a procuring cause for the sale or lease of any one or more of the Trade Center Properties due to activities undertaken prior to the signing of this Agreement, SGS will receive no commission unless the Airport has specifically requested in writing after the signing of this Agreement, that SGS participate. If SGS is requested to participate, and a purchase and sale agreement or lease agreement (a) is executed by the Airport and the purchaser/tenant, (b) is approved in writing by applicable City of Lubbock municipal authorities (when necessary), and (c) all conditions precedent to the obligations of the purchaser or tenant (as the case may be) have been satisfied or duly waived by the purchaser or tenant (as the case may be), then the Airport agrees to pay SGS a commission for each such Property under the terms of the appropriate paragraph 9 or 11 above, as if SGS were a cooperating broker for the sale or lease of the Property. 13. If, during the term of this Agreement or, except following termination arising out of breach of the Agreement by SGS, the one hundred twenty (120) day period following termination of this Agreement, the Airport shall enter into a purchase and sale agreement for the sale of any one or more of the Trade Center Properties or into a land lease for the lease of any one or more of the Trade Center Properties with anyone with whom SGS negotiated during the term of this Agreement, and whose name was provided by SGS to the Airport by written notice prior to or within ten (10) business days following the termination of this Agreement, which purchase and sale agreement or land lease (a) is executed by the Airport and the purchaser or tenant (as the case may be), (b) is approved in writing by any applicable City of Lubbock municipal authorities (when necessary), and (c) for which all conditions precedent to the obligations of the purchaser 0 or tenant (as the case may be) have been satisfied or duly waived by the purchaser or tenant (as the case may be), the Airport shall pay to SGS a commission in accordance with this Agreement. The commission(s) shall be otherwise payable in accordance with the terms of Paragraphs 6 — 9 hereinabove, as applicable to the specific situation. 14. Conflicts of Interest: SGS shall not represent the Airport (nor be entitled to any commission or other compensation based upon this Agreement or based upon a claim of having represented the Airport) with respect to any transaction as to any individual Property in which SGS represents an opposing party (e.g., a prospective purchaser or tenant under a land lease), unless SGS has given full disclosure to the Airport of SGS's representation of such adverse party and the Airport has given its written consent to such dual representation, which consent may be granted or withheld in the Airport's sole discretion. If the Airport elects not to consent to such dual representation, then SGS may continue to represent the adverse party as to such individual Property only, but the Airport may engage another broker to represent the Airport in such transaction only and, as to such individual Property only, without any liability or obligation to SGS and without SGS being entitled to any commission or other compensation pursuant to this Agreement or as an agent or broker for the Airport. In the event that SGS represents a prospective purchaser or tenant under a land lease for any individual Property, SGS shall take all commercially reasonable steps to assure that SGS's work for the Airport is not subject to any conflict of interest, which steps shall include without limitation, prohibiting those SGS employees assigned to represent the Airport with regard to this Agreement from also representing such prospective purchaser or tenant under a land lease as to any individual Property or communicating confidential or strategic information of the Airport to those other employees of SGS representing the prospective purchaser or tenant under a land lease. 15. At all times SGS and the local broker engaged by SGS in accordance with Paragraph 4 above shall observe their fiduciary obligations to the Airport, including but not limited to the duties of good faith and undivided loyalty. SGS and such local broker shall act in accordance with the highest professional standards and practices of the National Association of Realtors and the commercial real estate industry. SGS and such local broker shall comply with all applicable federal, state, and local laws, rules, regulations and ordinances. Without limiting the foregoing, SGS warrants that it and such local broker will comply during the course of this Agreement and any transactions undertaken pursuant to this Agreement with all laws and regulations governing real estate brokerage services applicable to each such transaction. 16. SGS represents and warrants to the Airport that both it and the local broker engaged by SGS in accordance with Paragraph 4 above are duly licensed as real estate brokers in the jurisdiction where the Trade Center Properties are located and are, and shall be at all times, in compliance with all applicable laws. 17. Upon expiration or termination of this Agreement, SGS agrees to provide the Airport, as to each individual Property, a complete written registration list containing the 5 company or organization name, date of the proposal and individual to whom the proposal was presented for all prospective purchasers or tenants under a land lease to whom SGS and/or the local broker engaged by SGS in accordance with Paragraph 4 above have presented written proposals or toured through each such Property prior to the expiration or termination of this Agreement. Should the Airport effectuate a sale or land lease to any company or organization on this list within one hundred twenty (120) days of expiration or termination of this Agreement, the Airport shall pay a commission as set forth herein to SGS unless this Agreement has been terminated due to a default by SGS. 18. Either party may terminate this Agreement upon thirty- (30) days' prior written notice to the other party. The Airport may terminate this Agreement immediately upon the breach of this Agreement by SGS or the negligence or willful misconduct of SGS in the performance of its duties under this Agreement. 19. Notwithstanding any provisions herein to the contrary, the Airport, in its sole discretion, reserves the right to take any one or more of the respective Properties off the market at any time during the term of this Agreement. 20. SGS may not assign this Agreement without the Airport's written consent, which consent may be withheld in the Airport's sole discretion. 21. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas. If either party brings any claim or action to enforce this Agreement, the prevailing party shall be entitled to recover from the nonprevailing party its costs in such action, including reasonable attorneys' fees. 22. All notices, requests, demands or other communications hereunder shall be in writing and deemed given when received after being delivered personally, when faxed (provided such facsimile delivery is confirmed via delivery the next business day via nationally recognized overnight courier), delivered via a nationally recognized overnight courier service, postage prepaid, or delivered by the U. S. Mail, by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to SGS: Staubach Global Services, Inc. 15601 Dallas Parkway Suite 400 Addison, TX 75001 Attention: Senior Vice President, Client Services Fax No.: 972-361-5908 3 . 4 If to the Airport: Mark Earle, Director of Aviation Lubbock International Airport 5401 N. MLK Blvd. Lubbock, Texas 79401 Fax: (806) 775-3133 Or to such other address as the parties may from time to time designate by notice in writing to the other parties. Agreed and accepted this 12th day of April, 2001: LUBBOCK INTERNATIONAL AIRPORT TY OF LUBBOCK, TEXAS MAYOR VqNDY SITTON ATTEST: Rebecca Garza, City Secretary V APPROVE TO CONTENT: Mar e, Director of Aviation APPROVED AS TO FORM: Linda L. Chamales, Supervising Attorney 7 STAUBACH GLOBAL SERVICES, INC. 6ir/- By"-'L51 : Name: Title: