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HomeMy WebLinkAboutC-5501 - Monrovia, 1499 - Exclusive Listing Agreement - Lease TransactionI_lll� REAL ESTATE SERVICES EXCLUSIVE LISTING AGREEMENT LEASE TRANSACTION O The undersigned Owner hereby appoints The Voit Corporation, a California corporation, as general partner of Voit Real Estate Services ("VRES ") as its sole agent and grants to VRES the exclusive right to lease the real property located at 1499 Monrovia, Newport Beach CA 92663 (the "Property"). 1) TERM: The term of this Agreement begins on May 1 2013 and will end at midnight on October 31, 2013, 2) VRES' SERVICES: VRES will enlist the efforts of its firm to secure a satisfactory tenant(s) for the Property, and if VRES deems it necessary, VRES will also solicit the cooperation of other licensed real estate brokers. VRES will negotiate the terms of any lease on behalf of Owner and in Owner's interest. 3) OWNER REFERRALS: Owner, at Owner's sole discretion, will refer to VRES routine inquiries and offerings received by Owner regarding the Property, and negotiations will be conducted solely by VRES or under VRES' direction, subject to Owner's review and final approval. Inquiries and offerings received by Owner and not referred to VRES shall not fall under the terms and conditions of this Agreement, and such transactions shall not be subject to a commission. 4) ADVERTISING: Owner authorizes VRES to advertise and to place signage on the Property. VRES, at its expense, will provide its standard signage and flyer /brochure. Any additional advertising and promotion will be done at Owner's expense pursuant to a program and budget agreed upon by Owner and VRES and will identify VRES as exclusive agent for the Property. 5) COMMISSION: If, during the term hereof, Owner enters into a lease for all or a portion of the Property, with the exception of the Prospective Tenant List attached hereto as Exhibit A, Owner will pay to VRES a commission in accordance with the attached Schedule of Commissions. Within 15 days after the end of the term, VRES will provide to Owner a list of prospective tenant(s) to whom the Property was submitted (by VRES, Owner or any third party) during the term: (i) who physically entered and was shown the Property during the Term or any extension thereof by VRES; or (ii) for whom VRES or any cooperating broker submitted to Owner a signed, written offer to lease or rent the Property. Owner, however, shall have no obligation to VRES under this section 5 unless, not later than 15 calendar days after the end of the Term or any extension, VRES has provided Owner a written notice of the names of such prospective tenant(s). If Owner enters into a lease with a prospective tenant appearing on said list within 120 days after the end of the term, Owner will pay a commission to VRES as provided above. Owner agrees that such 120 - day period will be extended for so long as negotiations with a prospective tenant are continuing. 6) ALTERNATIVE TRANSACTION: If a proposed transaction covered by this Agreement turns into any other transaction, including, but not limited to, a sale, exchange, build to suit, option to purchase, or right of first refusal, then VRES will automatically, without the necessity of any further acts by Owner or VRES or an amendment to this Agreement, be Owner's sole and exclusive agent for such transaction and will be entitled to a commission on such transaction under the terms of this Agreement, If the commission computation is Page 1 of 6 I L�1L� REAL ESTATE SERVICES not addressed in the attached Schedule of Commissions, then the Owner shall pay to VRES a market rate commission as dictated by local custom. 7) PROPERTY INFORMATION: Owner represents that it has no knowledge of toxic, contaminated or hazardous substances, or defective conditions, at the Property except as Owner has informed VRES in writing. Owner authorizes VRES to transmit such information to prospective tenants. 8) EXTENSION OF LISTING PERIOD: Upon expiration of the Listing Period as described above, the Listing shall automatically renew and continue in full force and effect for successive thirty (30) day periods without further written agreement unless either party provides written notice to the other that the Listing shall terminate at the expiration of thirty (30) days; provided, however, that the Listing Period shall automatically terminate one (1) year after the end of the Listing Period described above unless prior to termination both parties mutually execute a written agreement extending the Listing Period to another date. Notwithstanding the above, Owner shall have the right to terminate this Agreement at any time with 5 days prior written notice to VRES. 9) OTHER CLIENTS: Owner acknowledges that VRES may represent potential tenants and consents to such dual representation. The company, affiliates, or brokers or employees of the company may directly or indirectly own or may acquire an interest in properties that the client may consider competitive with the subject property. 10) DISPUTE RESOLUTION: Any dispute arising out of this Agreement and /or any sale, lease or alternative transaction involving the property shall first be submitted to mediation pursuant to California Evidence Code Sections 1115 to 1129. If such dispute is not resolved in mediation then it shall be submitted to binding arbitration pursuant to California Code of Civil Procedure Section 1280. 11) FEES AND EXPENSES: If either party institutes legal action, arbitration or mediation to enforce its rights under this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and other costs so incurred. Any portion of a commission not paid to VRES when due will bear interest from the due date until paid at the legal rate of interest. 12) AUTHORITY: Owner represents that it is the owner of the Property and /or has the full right, power and authority to execute this Agreement and to consummate a transaction as provided herein, and to perform Owner's obligations hereunder. The individuals signing this Agreement represent that they are authorized signatories. 13) PROFESSIONAL ADVICE: VRES recommends that Owner obtain legal, tax or other professional advice relating to this Agreement and the proposed sale or lease of the Property, as well as the condition and /or legality of the Property, including, but not limited to, the Property's improvements, equipment, soil, tenancies, title, environmental aspects, compliance with the Americans With Disabilities Act. VRES will have no obligation to investigate any such matters unless expressly otherwise agreed to in writing by Owner and VRES. Owner further agrees that in determining the financial soundness of any prospective purchaser or tenant, Owner will rely solely upon Owner's own investigation and evaluation, notwithstanding VRES' assistance in gathering any financial information. Page 2 of 6 no i REAL ESTATE SERVICES 14) NON - DISCRIMINATION: It is unlawful for either Owner or VRES to discriminate against any persons because of their race, color, religion, national origin, sex, disability or family status. 15) SURVIVAL: This Agreement is binding upon the parties and their respective successors and assigns. The terms "Owner" and "Tenant" include affiliates, successors, assigns and nominees and shall survive the execution of any sale, lease or alternative transaction. 16) PUBLICITY: Owner hereby consents to VRES' publicizing its role in any transaction entered into, subject to Owner's reasonable editorial approval of such publicity. 17) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement. 18) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between Owner and VRES and supersedes all prior discussions. No modification of this Agreement will be effective unless made in writing and signed by both Owner and VRES. Owner acknowledges receipt of a copy of this Agreement and the Schedule of Commissions. [SIGNATURES ON NEXT PAGE] Page 3 of 6 voit REAL ESTATE SERVICES IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. CITY OF NEWPORT BEACH, a California municipal corporation By: O.. Name Printed: David Kiff Title: City Manager Address: 100 Civic Center Drive Newport Beach, CA 92660 Phone:_ (949) 644-3300 Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 5/z0//3 By. l Aaron C. Harp City Attorney ATTEST: 6,jq-13 Date: r By: aty'—'— Leilani I. Brown City Clerk Attachments VOIT REAL ESTATE SERVICES Li.cI 376 By: Name Printed: Mark Read Title: Managing Director Address: 2020 Main Street, Suite 100 Irvine, CA 92614 Phone: 949/851-5100 Date: [END OF SIGNATURES] Schedule of Commissions Page 4 of 6 10M REAL ESTATE SERVICES SCHEDULE OF COMMISSIONS LEASE TRANSACTION LEASE Office /Commercial Property: Listing Broker Only: Carter Harrington and Doug Killian representing both Landlord and Tenant 1st Year: 1. Gross Lease: 51" Year: 6% of the Rent 2 I Year: 1 n Year: 5% of the Rent 5' Year: 5% of the Rent 2nd Year: 5% of the Rent 6tn through 10t" Year: 2.5% of the Rent 3rtl Year: 5% of the Rent 11th through 30th Year: 1 % of the Rent &h Year: 5% of the Rent Balance of the Term: 1 % of the Rent VRES's fee for a month -to -month tenancy is one average month's rental with a minimum fee of $1,000.00. Listing Broker and Tenant Broker: VRES to receive 1/3 of the below schedule and Tenant broker to receive 2 /3rds of the below schedule. Gross Lease: 1st Year: 6% of the Rent 51" Year: 6% of the Rent 2 I Year: 6% of the Rent 6"' through 10"' Year: 3% of the Rent 3rtl Year: 6% of the Rent 110 through 301h Year: 1.5% of the Rent 4" Year: 6% of the Rent Balance of the Term: 1.5% of the Rent VRES's fee for a month -to -month tenancy is one average month's rental with a minimum fee of $500.00. Subleases: For a sublease, the commission will be computed in accordance with the above rates based upon the aggregate rental set forth in the sublease. Assignment or Cancellation of Lease: For an assignment or cancellation of a lease, the commission will be based on the rent for the unexpired portion of the lease term and computed at the rates set forth above, plus 5% of any other consideration payable to Tenant for such assignment or cancellation. CONDITIONS REGARDING LEASES Cancellation Clauses: VRES will be paid a commission based upon the entire initial lease term notwithstanding any right of Landlord to cancel the lease. If Tenant has a right to cancel the lease after the term has commenced (and for reasons unrelated to casualty, condemnation, default and the like), the commission will initially be based upon the rental for the non - cancelable portion of the lease term plus the amount of any cancellation payment payable by Tenant; if such right is not thereafter exercised, Landlord will promptly pay VRES the balance of the commission. A lease will be deemed canceled only if Tenant vacates the premises. If a lease is terminated or amended and Tenant remains under a new or different arrangement, VRES shall be paid the balance of its commission. If a cancellation payment Page 5 of 6 M REAL ESTATE SERVICES includes the unamonized commission, then VRES will be paid a full commission as if no right of cancellation existed. Computation of Commissions: Commissions shall be computed in accordance with the above rates based upon the aggregate rental for the initial term as set forth in the lease. If a rental concession is made by Landlord allowing Tenant not to pay for rent for the initial months of the lease term, then the commission shall be calculated on the average rental for the entire term with the first year being deemed to commence on the first day of the lease term whether or not rent is payable. If rental concessions are granted in lieu of Landlord performing construction or alteration work and with respect to any other allowances or concessions granted to Tenant whether in the form of a credit against rent, construction, decoration or otherwise, there shall be no deduction from the aggregate rent set forth in the lease. Percentage Leases: If there is a minimum rent, then the commission shall initially be computed and paid based on the aggregate minimum rent set forth in the lease. If there is no minimum rent, the commission shall Initially be computed and paid as if the lease contained a minimum rent equal to 112 of the Landlord's asking price. Time of Payment: Commissions on leases shall be paid in full on the execution and delivery of the lease between Landlord and Tenant. Broker is hereby authorized to deduct its commission pursuant to the foregoing schedule from funds held in its trust account; the Owner shall pay any differences in cash in accordance herewith. In the case of a lease cancellation, the commission shall be paid in full on the execution of the document canceling or terminating the lease. Purchase Option: If the lease contains an option or right to purchase, and if Tenant purchases the property during the term of the lease, whether or not strictly pursuant to the option or right, Landlord will pay to VRES, upon closing of the transaction, a sales commission as provided in Section A of this Schedule. If the sale occurs during a period of the lease term for which VRES has been paid a leasing commission, the portion of VRES's share of the leasing commission attributable to the unexpired portion of the term will be credited against the sales commission. Sale by Landlord: In the event of a sale, conveyance or other disposition of all or any portion of Landlord's interest in the Property at which the lease is made, Landlord shall remain responsible to pay VRES the commissions due and /or which may become due hereunder, unless Landlord shall obtain from the grantee of its interest and deliver to VRES an agreement, in farm and substance and from a party acceptable to VRES, whereby the grantee assumes Landlord's commission obligations hereunder. In the event of a sale, a commission of 6% based upon the total consideration of the sale shall be paid to Voit and the procuring broker. In the event Voit represents both seller and buyer, a 4% commission shall be paid. General: The term "lease" shall also be deemed to mean "sublease" and the terms "Landlord" and "Tenant" shall also be deemed to mean "Subiandlord" and "Subtenant ", as the case may be, together with the terms "Purchaser" and "Seller", shall be deemed to include any subsidiaries, affiliates, successors and nominees of any of same. Page 6 of 6 EXHIBIT A Name /Organization Gregg Todd St. James Anglican Church —Jim Carlson, Jim Dale, Bill Dunlap