HomeMy WebLinkAbout5.b. Retail Strategies Contract Discussion
EXECUTIVE SUMMARY
Port Authority Meeting Date: December 17, 2019
AGENDA ITEM: Retail Strategies Contract Discussion AGENDA SECTION:
New Business
PREPARED BY: Eric Van Oss, Economic Development
Coordinator, Kim Lindquist, Deputy
Director
AGENDA NO. 5.b.
ATTACHMENTS: Contract APPROVED BY: LJM
RECOMMENDED ACTION: Direction whether to retain or end agreement with Retail
Strategies.
BACKGROUND
In February of 2018, the Port Authority entered into a contract with Retail Strategies to provide the
following services: market research, real estate analysis, retail recruitment, and a web-based marketing
platform. The agreement included a 3-year term that is renewable on the anniversary of the initial
agreement date. The Port Authority may terminate the agreement at any time for any or no reason upon
delivery of notice prior to 30 days of the anniversary date, to Retail Strategies. The 3rd year payment
amounts to $40,000 and is due in February 2020. There is no partial reimbursement of payment should the
city terminate the agreement within the 3rd year. Therefore, the decision to continue the contract or
terminate should be made to allow ample notification for termination.
The initial reasoning behind hiring Retail Strategies was due to their relationships with national retailers
and to market Rosemount to retail developers. Retail Strategies through their updates has indicated that
they approached Jersey Mike’s who have settled into the new multi-tenant retail space. Retail Strategies has
provided monthly updates with retailers they have contacted, but many of these contacts are also
accessible to City staff making some outreach efforts redundant. It appears that building new relationships
with developers via Retail Strategies has not meaningfully materialized. A significant change in the City’s
economic development strategy has been the employment of the Economic Development Coordinator
which allows the City to pursue local retailers and developers in a more consistent manner as well as cold
call differing service and commercial establishments.
RECOMMENDATION
Provide staff direction.
[BABC 3-7-16]
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PROFESSIONAL SERVICES AGREEMENT TO PROVIDE
CONSULTING SERVICES
This Professional Services Agreement to Provide Consulting Services (this “Agreement”)
sets forth the mutual understanding of The City of Rosemount, MN (the “Client”) and Retail
Strategies, LLC, an Alabama limited liability company (the “Consultant”) on this the _____ day
of February, 2018 (the “Execution Date”), for the provision of professional consulting services as
more fully set forth below.
R E C I T A L S:
The Consultant possesses a high degree of professional skill and experience and is a unique
provider of professional consulting services in retail recruitment.
The Client desires to hire the Consultant to provide professional consulting services
because of its professional skill and experience.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth in this Agreement, the Client and the Consultant, intending to be legally
bound, do hereby agree as follows:
1. CONSULTING SERVICES. The Consultant agrees to provide the following
professional consulting services to the Client (the “Services”):
A. Research. The Consultant will identify the Client’s retail trade area using a blend of
demographics, political boundaries, drive times and/or custom boundaries. The Consultant
will perform market and retail analysis based on current industry standards at the time such
reports are run. The Consultant will map retail locations and analyze opportunities given
local and macro retail trends.
B. In-Market Real Estate Analysis. The Consultant will analyze existing shopping centers
and retail corridors and actively reach out to local brokers and real estate owners. The
Consultant will identify, evaluate and catalogue priority commercial properties for
development or redevelopment based on their highest-and-best-use. The Consultant will
identify priority business categories to expand locally and to recruit to the area.
C. Retail Recruitment. The Consultant will proactively recruit businesses for targeted zones
through the contact of a minimum of 30 retailers, restaurants, brokers or developers. The
Consultant will regularly update the Client Representative on retail recruitment efforts via
email, telephone and the Consultant’s client web portal known as “Basecamp.” One market
visit per calendar year is included in this agreement, additional travel outside of this
agreement and requested by the Client shall be approved and paid for by the Client. The
Consultant will represent the Client at International Council of Shopping Center
conferences and provide updates according to the yearly conference schedule.
D. Web Platform. Consultant will design and develop a web based platform to house and
maximize exposure of information and demographics most relevant to retail decision
making in the Client community (the “Web Platform”).
E. Updates. The Consultant will provide the Client Representative with updates within three
business days of receipt of a request from the Client Representative (as defined in Section
4 below).
2. TERM. The Consultant’s engagement and provision of Services will commence
upon the Execution Date as set forth above. The Consultant’s engagement and this Agreement
will terminate automatically on the third anniversary of the Effective Date (the “Term”) unless
earlier terminated as provided in Section 6 below. At the end of the Term, the Client, acting by
and through the Client Representative, may extend the Term at its option for successive one year
periods on such terms and conditions as the Client Representative, acting for and on behalf of the
Client, and the Consultant may agree upon in writing.
3. CONSULTING FEE.
A. Consulting Fee. In consideration for providing the Services, the Client agrees to pay the
Consultant a consulting fee (the “Consulting Fee”) in an amount equal to $130,000.00. The
Consulting Fee will be paid in installments of immediately available funds as follows:
Contract Period Payment Date Payment Amount
Year One
Upon execution of this
agreement
$45,000.00
Year Two
On or before the 1st
anniversary of the Effective
Date
$45,000.00
Year Three
On or before the 2nd
anniversary of the Effective
Date
$40,000.00
B. Payment Default. If the Client fails to pay any portion of the Consulting Fee on the
requisite payment date, the Consultant will immediately cease all Services, including but
not limited to: (1) negotiation of incentive agreements; (2) all recruiting and marketing
efforts; (3) representation of the Client at trade shows; (4) booking meetings for the Client
with prospective retailers; and (5) including the Client in marketing materials.
C. Web Platform Service Fees. Consultant will update demographic information annually
during the Term of this Agreement. Modifications, corrections, and/or additions to the
Client’s Web Platform within the first thirty (30) days of delivery to Client are included
within the Consulting Fee as set forth above. Should the Client request Web Platform
changes, modifications, or corrections after the designated thirty (30) day Consultant will
bill an hourly rate not to exceed One Hundred and no Dollars ($100) per hour for time
spent (“Web Platform Service Fee”). Request for Web Platform service must be made to
the Consultant in writing. Consultant will use good faith effort to complete such requests
within ten (10) days of receiving written request from client. Upon completion of
preforming Web Platform service the Consultant shall submit invoices to the Client
supported by information in such detail as may be required by the Client and shall be
sufficient to substantiate that the Consultant has performed the services.
4. CLIENT INFORMATION AND ACCESS.
A. To the extent permitted by law, the Client will provide the Consultant with access to
relevant personnel, facilities, records, reports and other information (including any
information specified in the Consultant’s proposal to the Client) accessible by the Client
that the Consultant may reasonably request from time-to-time during the Term. The Client
acknowledges and agrees that the Consultant’s scheduled delivery of the Services is
dependent upon the timely access to such personnel, facilities, records, reports and other
requested information.
B. To facilitate such access and Consultant’s delivery of the Services, the Client designates
the Community Development Director (the “Client Representative”), currently Kim
Lindquist, The Client Representative will serve as the primary liaison between the
Consultant and the Client. The Client Representative will have responsibility for regular
communications between the Client and the Consultant, including providing updates in a
timely manner through Basecamp. The Client Representative’s communications to the
Consultant will include information regarding retail growth and development, such as
actual and prospective business openings and closings, changes in economic drivers (e.g.,
significant increases or decreases in workforce of major employers, school enrollments,
housing or healthcare services) and changes in the ownership of targeted real estate (e.g.,
transfers of real estate or changes in the finances of ownership). The Client Representative
will also be responsible for disseminating updates relative to consultants activities related
to scope of work to members of local stakeholder groups of the Client (e.g. City Council,
Economic Development Boards, and Chamber of Commerce etc.).
Initials of Client Representative: _____
C. The Client hereby authorizes the Client Representative (i) to act on behalf of the Client in
the day-to-day administration and operation of this Agreement and the arrangements it
contemplates and (ii) to execute and deliver, on behalf of the Client, such notices,
approvals, consents, instruments, amendments or other documents as may be necessary or
desirable to facilitate or assist the Consultant with the provision of the Services. Data
Practices.
D. Data provided, produced, or obtained under this Agreement shall be administered in
accordance with the Minnesota Government Data Practices Act, Minnesota Statutes
Chapter 13. Consultant will immediately report to Client any requests from third parties
for information relating to this Agreement. Consultant agrees to promptly respond to
inquiries from Client concerning data requests. Consultant agrees to defend and indemnify
Client from any claim, liability, damage or loss asserted against Client as a result of
Consultant’s failure to comply with the requirements of this paragraph; provided that
Consultant shall have no duty to defend or indemnify where Consultant has acted in
conformance with Client’s written directions.
5. INTELLECTUAL PROPERTY. As part of the Services, the Consultant will prepare
periodic and final reports including demographic and other research reports that will become the
property of the Client upon delivery from the Consultant. Any other reports, memoranda,
electronic mail, facsimile transmissions or other written documents prepared or used by the
Consultants in connection with the Services will remain the property of the Consultant. With the
Consultant’s prior permission, the Client may use other information provided by the Consultant,
such as specifics related to retailers, developers, site information or other “confidential
information” for internal purposes while taking reasonable steps to so limit the use of such
materials and maintain its confidentiality, to the extent Client is able to do so under applicable law.
6. TERMINATION.
A. By the Client At-Will. The Client may terminate this Agreement at any time for any or
no reason upon delivery of 30 days’ prior written notice to the Consultant. Any portion of
the Consulting Fee paid prior to such termination of this Agreement is earned when paid
and nonrefundable.
B. By the Client Upon the Consultant’s Default. The Client may notify the Consultant
within 90 days of the day that the Client knows or should have known that the Consultant
breached this Agreement. The Consultant will have 30 days following receipt of such
notice to cure any alleged breach. If the Consultant fails to cure any alleged breach within
that 30-day period, then the Client may terminate this Agreement. Within 30 days of such
termination of this Agreement, the Consultant will refund a pro rata portion of the
installment of the Consulting Fee previously paid for the contract period during which such
termination occurs based upon the number of days remaining in such contract period.
C. By the Consultant At-Will. The Consultant may terminate this Agreement at any time
for any or no reason upon delivery of 30 days’ prior written notice to the Client. Within
30 days of such termination of this Agreement, the Consultant will refund a pro rata portion
of the installment of the Consulting Fee previously paid for the period during which such
termination occurs based upon the number of days remaining in such period.
D. By the Consultant Upon the Client’s Default. The Consultant may notify the Client
within 90 days of the day that the Consultant knows or should have known that the Client
breached this Agreement. The Client will have 30 days following receipt of such notice to
cure any alleged breach. If the Client fails to cure any alleged breach within that 30-day
period, then the Consultant may terminate this Agreement. Any portion of the Consulting
Fee paid prior to such termination of this Agreement is earned when paid and
nonrefundable.
7. NOTICES. Any notice or communication in connection with this Agreement will be in
writing and either delivered personally, sent by certified or registered mail, postage prepaid,
delivered by a recognized overnight courier service, or transmitted via facsimile or other electronic
transmission, addressed as follows:
Client: Kim Lindquist
Address: 2875 145th St. West Rosemount, MN 55068
Email: kim.lindquist@ci.rosemount.mn.us
Fax: 651-423-4424
Attention: Kim Lindquist
Consultant: Retail Strategies, LLC
120 18th Street South, Suite 201
Birmingham, AL 35233
Email: Ashton@retailstrategies.com
Fax: (205) 313-3677
Attention: ASHTON L. ARRINGTON
or to such other address as may be furnished in writing by either party in the preceding manner.
Notice shall be deemed to have been properly given for all purposes: (i) if sent by a nationally
recognized overnight carrier for next business day delivery, on the first business day following
deposit of such notice with such carrier, (ii) if personally delivered, on the actual date of delivery,
(iii) if sent by certified U.S. Mail, return receipt requested postage prepaid, on the third business
day following the date of mailing, or (iv) if sent by facsimile or email of a PDF document (with
confirmation of transmission), then on the actual date of delivery if sent prior to 5 p.m. Central
Time, and on the next business day if sent after such time.
8. INDEPENDENT CONTRACTOR. The Consultant, in its capacity as a professional
consultant to the Client, is and will be at all times an independent contractor. The Consultant does
not have the express, implied or apparent authority either (A) to act as the Client’s agent or legal
representative or (B) to legally bind the Client, its officers, agents or employees.
9. STANDARD TERMS.
A. Affiliated Services: The Client acknowledges that certain affiliates of the Consultant
provide real estate brokerage and management services for which they are paid brokerage,
development, leasing, management and similar fees. In connection with the Services and
with the prior written permission of the Client, such affiliates may be engaged to provide
such services in consideration for the payment of such fees.
B. Applicable Laws: The Consultant will abide by all laws, rules and regulations applicable
to the provision of the Services.
C. Insurance: The Consultant will carry all employee/worker’s compensation insurance
necessary to comply with applicable state and federal laws. Consultant must also maintain
Professional Liability (Errors & Omissions) Insurance that provides coverage for all claims
the Consultant may become legally obligated to pay resulting from any actual or alleged
negligent act, error, or omission related to Consultant’s professional services required
under this Agreement. Consultant must carry the following minimum limits: $2,000,000
– per occurrence; $2,000,000 – annual aggregate. Consultant shall maintain such insurance
for a period of at least two (2) years following completion of the services in this Agreement.
D. Third Party Beneficiaries: This Agreement is for the sole benefit of the parties to this
Agreement and their permitted successors and assigns. Nothing in this Agreement,
whether express or implied, is intended to or will confer upon any other person or entity
any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
E. Publicity: The Client agrees that the Consultant may, from time-to-time, use the Client’s
name, logo and other identifying information on the Consultant’s website and in marketing
and sales materials.
F. Entire Agreement: This Agreement, together with any exhibits or amendments hereto,
constitutes the entire agreement of the parties, as a complete and final integration thereof
with respect to its subject matter. Any prior written or oral understandings and agreements
between the parties are merged into this Agreement, which alone fully and completely
expresses their understanding. No representation, warranty, or covenant made by any party
which is not contained in this Agreement or expressly referred to herein has been relied on
by any party in entering into this Agreement.
G. Further Assurances: Each party hereby agrees to perform any further acts and to execute
and deliver any documents which may be reasonably necessary to carry out the provisions
of this Agreement.
H. Force Majeure: Neither party to this Agreement will hold the other party responsible for
damages or delay in performance caused by acts of God, strikes, lockouts or other
circumstances beyond the reasonable control of the other or the other party’s employees,
agents or contractors.
I. Indemnification: Consultant agrees to indemnify, hold harmless, and defend Client, its
officials, employees, contractors, and agents from and against any and all liability, loss,
costs, damages, expenses, claims, actions, or judgments, including reasonable attorneys’
fees which it, or its agents or contractors may hereinafter sustain, incur, or be required to
pay, arising out of or by reason of Consultant’s performance or non-performance of its
obligations under this Agreement.
J. Amendment in Writing: This Agreement may not be amended, modified, altered,
changed, terminated, or waived in any respect whatsoever, except by a further agreement
in writing, properly executed by a duly authorized officer of the Consultant and the Client
Representative, acting for and on behalf of the Client.
K. Binding Effect: This Agreement will bind the parties and their respective successors and
assigns. If any provision in this Agreement will be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
L. Captions: The captions of this Agreement are for convenience and reference only, are not
a part of this Agreement and in no way define, describe, extend, or limit the scope or intent
of this Agreement.
M. Construction: This Agreement will be construed in its entirety according to its plain
meaning and will not be construed against the party who provided or drafted it.
N. Prohibition on Assignment: No party to this Agreement may assign its interests or
obligations hereunder without the written consent of the other party obtained in advance of
any such assignment. No such assignment will in any manner whatsoever relieve any party
from its obligations and duties hereunder and such assigning party will in all respects
remain liable hereunder irrespective of such assignment.
O. Waiver: Non-enforcement of any provision of this Agreement by either party will not
constitute a waiver of that provision, nor will it affect the enforceability of that provision
or of the remaining terms and conditions of this Agreement.
P. Survival: Section 5 and Section 9(H) will survive termination of this Agreement.
Q. Counterparts; Electronic Transmission: This Agreement may be executed in
counterparts, each of which will be deemed to be an original, and such counterparts will,
together, constitute and be one and the same instrument. A signed copy of this Agreement
delivered by telecopy, electronic transmission or other similar means will be deemed to
have the same legal effect as delivery of an original signed copy of this Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Client and the Consultant have caused this Agreement to
be executed by their duly authorized officers to be effective as of the Effective Date.
CLIENT:
City of Rosemount, MN
By: ______________________________
Name:
Title:
Date:
CONSULTANT:
RETAIL STRATEGIES, LLC
By: ______________________________
Name:
Title:
Date
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