Consulting Agreement - Cellular


This CONSULTING AGREEMENT (this “Agreement”), dated as of July 4, 2022 (the “Effective Date”), between Asset Essentials Cellular, LLC, a Texas limited liability company (the “Consultant”) and (the “Client”).

 

WHEREAS, Consultant is engaged in the business of evaluating cell tower and 5G contracts and presenting to the Client recommendations concerning such contracts, including advising Client as to alternative approaches for the procurement of such services for the Premises (as defined below);

 

WHEREAS, Client desires to engage Consultant to perform such services for Client, and Consultant has agreed to provide such services in each case in accordance with terms and provisions of this Agreement.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

ARTICLE 1.  TERM

The Client hereby engages the Consultant on an exclusive basis to provide the Services and Consultant accepts such engagement, upon the terms and conditions set forth in this Agreement, for a term (the “Initial Term”) of five (5) years, commencing on the Effective Date and expiring on the earlier of the expiration of this Agreement, or any earlier date that this Agreement may be terminated in accordance with the provision hereof. The term shall automatically renew for successive one-year terms (each a “Renewal Term”) unless either party provides written notice at least 30 days prior to the end of the hen-current term of its intent not to renew. The Renewal Term and the Initial Term together constitute the “Term”.

 

ARTICLE 2.  CONSIDERATION

This Agreement is made in consideration of the Services that the Consultant will perform, and the compensation that the Client will pay to Consultant for such Services.  Fees due to Consultant and related payment terms will be specified in each Lease entered into by and between Consultant and Client.

 

ARTICLE 3.  DESCRIPTION OF PREMISES

Consultant shall provide Services for real estate represented by Client described and depicted on the Property List (the “Premises”), the current copy of which is attached hereto as Exhibit B.  The Property List may be updated by the parties from time to time without amending this Agreement by providing written notice to the other party.

 

ARTICLE 4.  SERVICES; APPOINTMENT AS CLIENT’S AGENT

4.1 Services.  Consultant and Client agree that Consultant will market Client’s Premises for sublease or sublicense to telecommunications operators, wireless service providers, internet service providers, and other customers (collectively, “Operators”) for the co-location of Operator’s equipment on the Premises (“Services”).  “Services” shall also include: (i) entering into a lease agreement with Client for the rental of the Premises on Consultant’s form lease agreement (“Lease”); (ii) identifying Operators and in procuring terms from the Operators for the ultimate and particular use of a Premises by an Operator (hereafter “Operator Agreement”), subject to the approval by Client, in its sole discretion, of any such Operator; and (iii) receiving, processing, and tracking payment by Operator of any and all fees provided for in the Operator Agreement and collecting same.

 

4.2 Agency Appointment.  Client hereby appoints Consultant as its exclusive agent to provide the Services including marketing the Premises and procuring the terms and conditions of all leases, licenses or other agreements on behalf of Client.  Consultant hereby accepts such appointment and agrees to act as such agent for the Premises under the terms and conditions specified in this Agreement. The Consultant may accept work performing similar services for other clients during the Term.  The Consultant will act for the benefit of, and subject to the Client’s control.  The relationship between the Client and Consultant intended to be created by this Agreement is that of client and independent consultant, and nothing herein contained shall be construed as creating a relationship of employer and employee or a joint venture between the parties and Consultant shall not be deemed to be a fiduciary or have any fiduciary obligations or liabilities to the Client and shall not have any right to execute any agreements on behalf of, or otherwise bind the Client in any way. 

 

4.3 Name, Logo, and Website Use Authorization. By signing this Agreement, Client agrees to allow Consultant and its partners, affiliates, agents, vendors, subcontractors, representatives, and/or employees to display Client’s name, logo, and/or website on any marketing materials used in conjunction with marketing Client’s Premises Assets to Operators, including but not limited to: websites, advertisements, presentations, newsletters, and emails. Client further agrees to provide Consultant with information with respect to the Premises (i.e. latitude and longitude of the Premises, photos of the Premises, and other unique features of the Premises) (“Client Content”). Client acknowledges that Consultant will collect Client Content and will provide Client Content to be posted or published on marketing websites and related databases (collectively, “Website”). Client represents and warrants that Client owns, and/or has a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights), and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Client Content (in whole or in part) worldwide, and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Client Content. Client hereby grants Consultant a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, adapt, perform, display, modify, and reformat Client Content (in whole or in part) for the purposes of submitting the same for publication on a Website. Client agrees that it, not Consultant, is responsible for all of Client Content that is made available on or in the Website.

 

ARTICLE 5.  PROFESSIONAL SERVICES STANDARD

The Consultant will provide services in accordance with industry standards and will comply with all federal, state and local laws, ordinances, regulations, orders and other legal requirements that exist now or during the Term of this Agreement.

 

ARTICLE 6.  WARRANTIES

The parties respectively warrant that they (1) have full authority to execute this Agreement, (2) have disclosed fully all material information relating to the subject of this Agreement, and (3) have no knowledge of any actual or apparent conflicts of interest not disclosed to the other party.  The Consultant warrants that it has substantial experience in evaluation of property similar to the Premises and is competent to perform the required duties under this Agreement. 

 

ARTICLE 7.  TERMINATION

In addition to any other termination provisions contained in this Agreement, this Agreement may be terminated upon ninety (90) days prior written notice of termination by the Client or the Consultant.

 

ARTICLE 8. INDEMNITY

8.1  The Client agrees to indemnify, defend and hold harmless, at Client's own cost and expense, Consultant, its affiliates, and its and their respective officers, agents, directors and employees from and against any and all liability, payments, damages, costs, reasonable attorneys’ fees and expenses arising from or related to any asserted or threatened claims or causes of action of whatever nature (collectively, “Claims”) in connection with, or relating to: (a) any acts or omissions of the Client and/or its employees, agents, representatives, directors or officers, (b) any material breach of the Client’s representations, warranties, covenants, agreements or obligations under this Agreement that continues for more than fifteen (15) days after Consultant sends written notice of the same to Client, in each case other than arising out of or relating to the gross negligence, willful misconduct, fraud bad faith or breach of the agreement of Consultant and/or any other indemnified party, and (c) Client Content.   The Client shall have the obligation to control the defense, negotiation and settlement of any claim for which the Client has the obligation to provide indemnification.  Consultant shall cooperate and assist the Client in the defense of any such claim. In no event shall Client have any liability hereunder for consequential, special, punitive or indirect damages or other amounts.

 

8.2 The Consultant agrees to indemnify, defend and hold harmless, at Consultant's own cost and expense, Client, its affiliates, and its and their respective officers, agents, directors and employees from and against any and all Claims in connection with, or relating to: (a) any acts or omissions of the Consultant and/or its employees, agents, representatives, directors or officers and (b) any material breach of the Consultant's representations, warranties, covenants, agreements or obligations under this Agreement that continues for more than fifteen (15) days after Client sends written notice of the same to Consultant, in each case other than arising out of or relating to the gross negligence, willful misconduct, fraud bad faith or breach of the agreement of Client and/or any other indemnified party.   The Consultant shall have the obligation to control the defense, negotiation and settlement of any claim for which the Consultant has the obligation to provide indemnification.  Client shall cooperate and assist the Consultant in the defense of any such claim. In no event shall Consultant have any liability hereunder for consequential, special, punitive or indirect damages or other amounts.

 

ARTICLE 9. OPTION TO LEASE; NOTICE TO PROCEED

By signing this Agreement, Client hereby gives Consultant an option to lease (and the right to sublease, sub-sublease, sublicense, or sub-sublicense) the Premises subject to this Agreement. Once the Premises is listed and made available to Operator, if an Operator is interested in any such Premises and Consultant has been notified, then the process for Consultant to lease the Premises from Client shall be initiated. After Consultant’s notifies Client of Operator’s interest, Client shall (i) issue to Consultant a Notice to Proceed (“NTP”) with regard to the applicable Premises or (ii) Client may reject Consultant’s option to lease a Premises in the event Client determines Client is unable to move forward with the leasing of the Premises due to circumstances beyond Client’s control. If Client rejects Consultant’s option to lease the Premises, Client shall promptly notify Consultant in writing with details of such circumstances and may not lease the Asset to a third party for one year from the date of such notice. The term of any Lease shall be for term equal to that of the related Operator Agreement.

 

ARTICLE 10. NON-CIRCUMVENTION

Throughout the term of this Agreement, any Lease, and any Operator Agreement, and for one (1) full calendar year after the expiration or earlier termination of this Agreement, any Lease, or any Operator Agreement,  Client will not: (i) deal directly with a prospective Operator, or indirectly through an affiliate of a prospective Operator, who submits an application for use of any Premises; (ii) entertain, accept, or permit any other representative or sales agent of Client (or its affiliates) to enter into any binding or non-binding agreement with respect to such Operator for any Premises; (iii) terminate a Lease with Contractor for a specific Premises and subsequently enter into an agreement (directly or indirectly) with the particular Operator for the same Premises; and (iv) directly or indirectly through an affiliate, solicit, offer, or approach an Operator with respect to the renewal of an Operator Agreement, or with respect to an alternative agreement for any of the Premises leased under such Operator Agreement to an Operator. Client agrees that Contractor shall be the sole party to engage in any Operator Agreement renewal efforts. Client further agrees to notify each representative, sales agent, person, or entity offering the same or similar services as Contractor that such person or entity may not solicit or enter into negotiations with such prospective Operator for the Assets identified in the application.

 

ARTICLE 11. ASSIGNMENT

Neither party may directly or indirectly assign or transfer this Agreement or any of its rights hereunder or any interest herein, in each case without the express prior written consent of the other party and any such assignment without such prior written consent shall be void ab initio; provided, however, that Consultant may assign its rights or delegate its obligations, in whole or in part, without such consent to an entity that acquires all or substantially all of the business or assets of Consultant, whether by merger, reorganization, acquisition, sale, or otherwise.

 

ARTICLE 12.  NOTICE

All written notices, consents, reports and other written communications provided for in this Agreement will be delivered in person, by registered or certified mail, postage prepaid and return receipt requested or by nationally recognized overnight courier, or via email.  A notice or other written communication is considered received upon the earlier of: (a) delivery or refusal at the address required hereunder, (b) if sent by registered or certified mail, postage prepaid and return receipt requested the expiration of 72 hours after deposit in the United States mail, (c) if sent by nationally recognized overnight courier, one business day after deposit therewith and (d) if by email, when sent (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours.  All written communications should be addressed to the parties as follows:

 

To the Client:

Company:  

Attn:  

Address:  

E-mail:  

Phone:  

Fax:  

 

To the Consultant:

Asset Essentials Media, LLC

Attn: Chad McCaleb

103 W. Ashby Place

San Antonio, TX 78212

Chad@assetessentials.com

Phone: (210) 979-6674

Fax: (210) 979-6680

 

Either party may notify the other of a change of address by using the procedures of this paragraph. Notice may be given to either party by email, at the email address furnished to the other from time to time, with a copy no later than one (1) business day thereafter by one of the other methods set forth herein.  No copy is required to update the Property List via email.

 

ARTICLE 13.  SECTION HEADINGS. 

The headings of the paragraphs of this Agreement are inserted solely for convenience of reference and are not a part hereof and are not intended to govern, limit or aid in the construction of this term or provision hereof.

 

ARTICLE 14.  ENTIRE AGREEMENT. 

This Agreement (including the exhibits hereto) and the agreements, documents and instruments to be executed and delivered pursuant hereto or thereto are intended to embody the final, complete and exclusive agreement among the parties with respect to the subject matter hereof; are intended to supersede all prior agreements, understandings and representations, written or oral, with respect thereto and may not be contradicted by evidence of any such prior to contemporaneous agreement, understanding or representation, whether written or oral.

 

ARTICLE 15.    WAIVER; MODIFICATION.

No provision of this Agreement may be amended or modified, or the termination or discharge thereof agreed to or acknowledged orally, but such may be accomplished only by an agreement in writing signed by the party against whom the enforcement of any such waiver, amendment, modification, termination or discharge is sought.  No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. 

 

ARTICLE 16.    SEVERABILITY. 

In the event that any provision or part of any provision of this Agreement is void or unenforceable for any reason whatsoever, then such provision shall be stricken from this Agreement and of no force and effect.  However, the remaining provisions of this Agreement shall continue in full force and effect, and to the extent required, shall be modified to preserve their validity.  The parties shall cooperate in good faith to substitute (or cause such court or other legal authority to substitute) for any provision so held to be invalid a valid provision, as alike in substance to such invalid provision as is lawful.

 

ARTICLE 17.    LEGAL FEES AND COSTS. 

If a lawsuit, other legal proceeding or alternative dispute resolution proceeding is instituted by either party against the other party to this Agreement on account of the performance or non-performance of such other party, then the party prevailing in such suit or proceeding shall be entitled to collect from the other party the reasonable legal fees, court costs, and dispute resolution costs and fees incurred in the prosecution or defense of that suit or proceeding.  The provisions of this Section 18 survive the expiration or earlier termination of this Agreement.

 

ARTICLE 18.    NO THIRD-PARTY BENEFICIARIES.  

This Agreement will not be construed to give any person other than Consultant and Client any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement. 

 

ARTICLE 19.    INTERPRETATION. 

For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections and exhibits mean the sections of and exhibits attached to, this Agreement; and (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred

 

ARTICLE 20.    COUNTERPARTS. 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.  This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other parties.

 

ARTICLE 21.    CONFIDENTIALITY.

From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about the terms of this Agreement, the Disclosing Party’s business affairs, client list, services, confidential intellectual property, trade secrets, third-party confidential information (including client contact information), and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” that a reasonable person would understand to be confidential given the nature of its disclosure (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Article 21 by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. During the Term and for a period of two years following the expiration or termination of this Agreement, the Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights, or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Article 21 caused by any of its representatives. On the expiration or termination of the Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its representatives to return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its representatives to prevent the breach or threatened breach of this Article 21 and to secure its enforcement.

 

ARTICLE 22. MISCELLANEOUS.

22.1 This Agreement will bind and inure to the benefit of the parties to this Agreement and their respective permitted heirs, executors, administrators, legal representatives, successors and assigns, except as this Agreement states otherwise.

22.2  Time is of the essence in this Agreement.

22.3 Until a Lease is signed, this Agreement shall be governed by the laws of the State of Texas (without giving effect to any choice or conflict of law provision or rule). Once a Lease is signed for a particular Premises, the controlling law under that Lease shall govern this Agreement with respect to that particular Premises. For any other Premises subject to this Agreement but not subject to any Lease, the laws of the State of Texas shall govern this Agreement. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted in the federal courts of the United States or the courts of the State of Texas in each case located in the city of San Antonio and County of Bexar, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

 

This Consulting Agreement is executed on July 4, 2022.

 

CLIENT:

By:  

Title:  

 

CONSULTANT:

ASSET ESSENTIALS MEDIA, LLC

By: Chad McCaleb

Chief Operating Officer of Asset Essentials Media, LLC

 

Leave this empty:

Signature arrow sign here

Signed by Chad McCaleb
Signed On: November 19, 2019


Signature Certificate
Document name: Consulting Agreement - Cellular
lock iconUnique Document ID: 6c6cbca7375e5e18c46cc3711e7ce8548f2cc1b9
Timestamp Audit
October 21, 2019 11:05 am CDTConsulting Agreement - Cellular Uploaded by Chad McCaleb - support@assetessentials.com IP 109.97.146.8
October 30, 2019 4:53 pm CDTAmanda Sanchez - amanda@assetessentials.com added by Chad McCaleb - support@assetessentials.com as a CC'd Recipient Ip: 71.78.146.18
November 6, 2019 2:40 pm CDTAmanda Sanchez - amanda@assetessentials.com added by Chad McCaleb - support@assetessentials.com as a CC'd Recipient Ip: 109.97.136.181