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HomeMy WebLinkAboutAlpert International LLLP & First Western Property - Tacoma Inc0-2.3.~3 First Western Properties - Tacoma inc. o copyright 1999 - 2005 6402 Tacoma Mall Bivd, Commercial Brokers Association ~ ~~~Tacoma, WA 98409 All Rights Reserved - Phone: (253) 472-0404 CBA Form xL Exclusive Lease Fax: (253) 4720541 Rev. 12/99 Page 1 of 4 COMMERCIAL BROKERS ASSOCIATION EXCLUSIVE LISTING AGREEMENT In consideration of the services to be performed by the undersigned Broker AND SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, the undersigned the City of Auburn ("OWNER")AND ALPERT INTERNATIONAL, LLLP ("ALPERT") hereby grant to the undersigned Broker commencing with date of this Agreement and expiring at midnight on October 1, 2010, , except as extended by the terms hereof, the exclusive and irrevocable right to Isase or ss!l for a minimum term of Eighteen (18) monthc, Five Hundred Forty Five (545) days (see definitions below) and to receipt for deposit in connection therewith, the following described commercial real estate ("the Property") situate in the City of Auburn, King County, Washington; commonly known as Auburn Junction-Auburn, WA. and legally described as follows [X] as attached hereto in Exhibit "A", incorporated herein by this reference, and as such property description may be augmented at a later time pursuant to the terms of the below-described Master Plan Development Agreement, as amended and/or extended from time to time. HOWEVER, SUCH GRANT SHALL BE STRICTLY LIMITED TO AND GOVERNED BY THE RIGHTS OF OWNER AND ALPERT AS CONTAINED IN THAT CERTAIN MASTER PLAN DEVELOPMENT AGREEMENT WITH THE CITY OF AUBURN ("MPDA") ATTACHED HERETO AS EXHIBIT "A" AND MADE A PART HEREOF FOR ALL PURPOSES, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS PERTAINING TO ALPERT'S RIGHTS IN REGARD TO ANY OR ALL OF THE PROPERTY DESCRIBED IN EXHIBIT "A'. NEITHER ALPERT NOR OWNER SHALL HAVE ANY OBLIGATION TO BROKER EXCEPT WITH REGARD TO LEASES OBTAINED BY BROKER PERTAINING TO PROJECTS DEVELOPED ON OR SALES RELATED TO THE PROPERTY DESCRIBED IN EXH161T "A" PURSUANT TO ALPERT'S RIGHTS AS PROVIDED IN THE MPDA. SAID EXCLUSIVE LISTING AGREEMENT IVIAY BE EXTENDED ON A MONTH-TO- MONTH BASIS AFTER THE INITIAL EXPIRATION OF THE ORIGINAL TERM OF SAID EXCLUSIVE LISTING AGREEMENT AT THE SOLE DISCRETION OF THE OWNER AND ALPERT, BUT IN NO CASE TO EXTEND PAST THE EXPIRATION DATE OF THE MPDA (AS EXTENDED) UPON EXPIRATION AND PROPER NOTICE OF TERMINATION OF SAID EXCLUSIVE LISTING AGREEMENT, THE LISTING BROKER SHALL HAVE FIFTEEN (15) BUSINESS DAYS TO PROVIDE AN "EXCLUSION LIST" TO THE LANDLORD, AS DEFINED BELOW. IN THE EVENT A LEASE IS CONSUMMATED WITH ANY TENANT ON SAID "EXCLUSION LIST", LANDLORD SHALL PAY A COMMISSION AS STATED IN THE COMMISSION SECTION OF THIS AGREEMENT; THE PARTIES TO THIS AGREEMENT SPECIFICALLY AGREE THAT NOTHING IN THIS AGREEMENT MODIFIES OR AMENDS THE TERMS AND CONDITIONS OF THE MPDA. FURTHER, THE PARTIES AGREE THAT OWNER AND ALPERT MUST APPROVE IN WRITING ANY TRANSACTION CONTEMPLATED IN THIS AGREEMENT DURING THE TERM OF THE MPDA. Listing Price $ TBD Per Square Foot Possession: TBD Terms: TBD 1. DEFINITIONS. The term "lease" and similar phrases as used in this Agreement, shall mean and include "sublease." The term "lessee" includes "sublessee," if applicable. The phrases "this Agreement" and "during the term hereof' include written extensions of this Agreement. The term "Landlord" shall mean the Owner or ALPERT, whichever is the legal owner of the Property at the time the lessee occupies the Property. The term 11 sale" includes transfer of any property rights. The term "Property" includes additional property or property rights First Western Properties - Tacoma Inc. O Copyright 1999 - 2005 6402 Tacoma Mall Blvd, Commercial BrokersAssociation , FIRSTTacoma, WA 98409 All Rights Reserve Phone: (253) 472-0404 CBA Form XL Fax: (253) 4720541 Exclusive Lease Rev. 12/99 Page 2 of 5 COMMERCIAL BROKER'S ASSOCIATION EXCLUSIVE LEASE LISTING AGREEMENT (CONTINUED) subsequently acquired by ALPERT pursuant to the MPDA. 2. AGENCY / DUAL AGENCY. ALPERT and Owner authorize Broker to appoint Ray Velkers, Tim Weber, Don Whittles, and Jeremiah Durr of First Western Properties Tacoma, Inc. to act as ALPERT and Owner's Listing Agent(s). It is understood and agreed that this Agreement creates an agency relationship with Listing Agent(s) and Broker only, not with any other salesperson of Broker; provided, ALPERT and Owner authorize Broker to appoint other salespersons affiiiated with Broker as subagents to act on ALPERT and Owner's behaif as and when needed, at Broker's discretion; Provided, that any salesperson affiliated with Broker who is appointed to act on Owner and AlperYs behalf shall not also represent any lessee. Any other broker or salesperson, other than Broker or Listing Agent(s), will not be representing ALPERT and Owner and may represent the lessee. Accordingly, for purposes of this Agreement, "Broker" means Listing Agent(s), including any subagents, and Listing Agent's Broker, Designated Broker or Branch Manager, unless expressly stated otherwise. ALPERT and Owner further authorizes Broker to enter into cooperative brokerage agreements. ALPERT and Owner agree that if the property is leased, pursuant to the terms of this agreement, to a lessee represented by one of Broker's salespersons other than Listing Agent(s), then ALPERT and Owner consent to Broker acting as a dual agent. ALPERT and Owner further agree-that if the property is leased to a lessee who Listing Agent also represents, then ALPERT and Owner consent to Listing Agent(s) and Broker acting as dual agents. ALPERT and Owner agree that different salespersons affiliated with Broker may represent different lessors in competing transactions involving the same lessee and that this shall not be considered action by Broker that is adverse or detrimental to the interests of either lessor, nor shall it be considered a conflict of interest on the part of Broker. ALPERT and Owner acknowledge receipt of the pamphlet entitled "The Law of Real Estate Agency." If Broker acts as a dual agent, then Broker shall be entitled to the entire commission payable under this Agreement plus any additional compensation Broker may have negotiated with the lessee. Owner, ALPERT, and Broker acknowledge that ALPERT is signing this agreement both as an entity with a property interest in the Property as set forth in the MPDA, and as an entity that may be entitled to a referral fee in accordance with the terms of this agreement. The parties agree that ALPERT's roles as described and as disclosed in this Agreement shall not be considered to be a conflict of interest as between the City and ALPERT, or between ALPERT and Broker. 3. TITLES / PROPERTY INFORMATION. Owner warrants that Owner has entered into the MPDA which grants ALPERT certain property rights in and to a portion of the Property. Broker acknowledges that the Property is currently owned in part by the Owner and in part by third parties, and that no obligation will arise to pay commissions to Broker in regard to any portion of the Property owned by third parties unless Owner or ALPERT first obtains an interest in such property(ies). ALPERT and Owner confirm that following the lease of the Property, the amount of rent and any other terms of the lease of the Property shall not be deemed confidential information and ALPERT and Owner authorize disclosure of the same by Broker as reasonably required. 4. COMMISSION. Subject to the terms contained herein, Broker shall be entitled to a commission if: (a) Broker procures a lessee with a fully executed lease on terms acceptable to ALPERT and Owner; (b) ALPERT or Owner sells or leases the Property directly or indirectly or through any person or entity other than Broker during the term of this Agreement, except no commission shall be payable to Broker as a result of any sale by Owner to Alpert per the MPDA; (c) ALPERT or Owner sells or leases the property within six months after the expiration or sooner termination of this Agreement to a person or entity that submitted an offer to purchase or lease the property during the term of this Agreement that appears on any registration list provided by Broker pursuant to First Western Properties - Tacoma Inc. 0 Copyright 1999 - 2005 6402 Tacoma Mall Bivd, Commercial Brokers Association , FOWST T8COm8, WA 98409 All Rights Reserved Phone: (253) 472-0404 CBA Form XL Fax: (253) 4720541 Exclusive Lease Rev. 12/99 Page 3 of 5 COMMERCIAL BROKER'S ASSOCIATION EXCLUSIVE LEASE LISTING AGREEMENT (CONTINUED) this Agreement, or an "Affiliate" of such a person or entity that submitted an offer or that appears on the registration list; (d) ALPERT or Owner cancels this Agreement, or otherwise prevents Broker from leasing the property without reasonable cause and leases or sells the property to a person on the registration list within six months of the termination of this Agreement. Notwithstanding any provision herein to the contrary, Owner will have no obligation to pay any commission on a lease or sale of property which the City of Auburn does not own at the time of such lease or sale. The commission shall be calculated as follows: without any deduction or offset in free rent or Tenant Improvement Allowance, six percent (6%) of the rental income for years one (1) through five (5) of the original lease term and three percent (3%) of the rental income for years six (6) through ten (10) of the original lease term. In the event a fifteen (15) year or finrenty (20) year lease is consummated, commission shall additionally include three percent (3%) of the rental income for years eleven (11) through fifteen (15) of the original lease term and three percent (3%) of the rental income for years sixteen (16) through twenty (20) of the original lease term (if applicable). In the event Consumer Price index (CPI) is used as a calculation mechanism for the rental increases for any Lease Agreement within the subject property, said commission shall be calculated with a minimum annual increase of finro percent (2%) per year during the original lease term. In the event a Lease is signed that is less than thirteen (13) months, said commission shall be equal to one (1) months rent. In addition, no commission shall be less than five dollars ($5.00) per square foot for any lease term greater than three (3) years. Spencer Alpert shall be entitled to a 25% referral fee out of any funds received by Broker as a result of any lease or as provided in Subsections (a) -(d) above or otherwise. Upon the closing of a Sale, commission shall be 6% of the sale price from $0 to $2,000,000 plus 5% of the sales price from $2,000,001 to $4,000,000 plus 4% of the sales price above $4,000,000. Lease commissions as calculated above, shall be paid one-half (1/2) upon lease execution and first construction draw, if applicable, and the second half upon Tenant taking possession of the leased premises. Sale commissions as calculated above are due upon closing. Alpert shall be entitled to a 50% referral fee out of any funds received by Broker as a result of the sale of any Property that ALPERT owns, has an option to purchase at the time of sale or is exercising said option at the time of sale, or has any rights to the Property as provided in the MPDA or otherwise. Any commission(s) that is/are due and not paid within thirty (30) days of receipt shall receive a twelve percent (12%) per annum late fee compounded. Broker shall submit any registration list to ALPERT and Owner within 15 days after the expiration or sooner termination of this Agreement and shall only include on the registration list persons or entities to whose attention the property was brought through the signs, advertising or other action of Broker, or who received information secured directly from or through Broker during the term of this Agreement. ALPERT and the Owner shall provide the registration list to any other brokers that assist ALPERT and the Owner with this property. "Affiliate" means, with respect to any person or entity that submitted an offer during the term of this Agreement or that appears on the registration list, a person or entity which has more than a 10% ownership or voting interest in such an entity or any entity in which more than 10% of the ownership or voting interests are owned or controlled by such a person or entity. 5. BROKER/MULTIPLE LISTING. Broker shall cause this listing to be published by Commercial Brokers Association ("CBA") for distribution to all CBA members through CBA's listing systems. Broker shall cooperate with all other members of CBA in working toward the lease of the property. Owner understands and agrees that all property information contained in this Agreement or otherwise given to CBA becomes the property of CBA, is not confidential, and will be given to third parties, including prospective lessees, other cooperating members of CBA who do not represent the Owner and, in some instances, may represent the lessee and other parties granted access to CBA's listing systems. Regardless of whether a cooperating member is the Broker of the lessee, the Owner, neither or both, the member shall be entitled to receive the selling office's share of the commission as designated by the listing office. IT IS UNDERSTOOD THAT COMMERCIAL BROKERS ASSOCIATION IS NOT A PARTY TO THIS AGREEMENT, AND ITS SOLE FUNCTION IS TO FURNISH THE DESCRIPTIVE First Western Properties - Tacoma Inc. OO Copyright 1999 - 2005 6402 Tacoma Mall Blvd, Commercial Brokers Association , IIAAI~RVJ FU4S*T Tacoma, WA 98409 All Rights Reserved Phone: (253) 472-0404 CBA Form XL ~~rffsFax: (253) 4720541 Exclusive Lease Rev. 12/99 Page 4 of 5 COMMERCIAL BROKER'S ASSOCIATION EXCLUSIVE LEASE LISTING AGREEMENT (CONTINUED) INFORMATION SET FORTH IN THIS LISTING TO ITS MEMBERS, WITHOUT VERIFICATION AND WITHOUT ASSUMING ANY RESPONSIBILITY FOR SUCH INFORMATION OR IN RESPECT TO THIS AGREEMENT. 6. ATTORNEY'S FEES. In the event either party employs an attorney to enforce any terms of this Agreement and is successful, the other party agrees to pay a reasonable attorney's fee. In the event of trial, the amount of the attorney's fee shall be as fixed by the court. ADDITIONAL TERMS. The following attached hereto are part of this Agreement: a. BROKER UNDERSTANDS THAT AS PER THE "MASTER PLAN DEVELOPMENT AGREEMENT", EXHIBIT "A", DEVELOPMENT SCHEDULE, THE "AUBURN JUNCTION" PROJECT IS SCHEDULED IN FOUR (4) PHASES, WHICH ARE NOT GUARANTEED DATES, AS FOLLOWS: PHASE 1 SEPTEMBER, 2011 PHASE 2 SEPTEMBER, 2012 PHASE 3 SEPTEMBER, 2013 PHASE 4 SEPTEMBER, 2014 b. ALPERT may assign its obligations under the MPDA without triggering the obligation to pay a commission. Dated this day of , 2009. ATTN: Administration / Peter B. Lewis 25 West Main Street Auburn, WA 98001-4998 ~ Business: (253) 804-3108 Fax: (253) 288-3132 By Peter B. Lewis, Mayor Dated this ~ day of LN\. A , 2009. 10218 Richwood Ave NW Seattle, WA 98177 Business: (206) 915-7200 By Spencer Alpert, President ALPERT INTERNATION^L LLLP By the Alp Gr up, Inc. In consideration of Owner's execution of this Agreement, the undersigned hereby agrees to act as Owner's agent to lease the property. First Western Properties - Tacoma Inc. m copyrignt 1999 - 2005 6402 Tacoma Mall Bivd, Commercial erokersAssociation CV Tacoma, WA 98409 All Rights Reserved WE~Ri~I Phone: (253) 472-0404 CBA Form Xl Fax: (253) 4720541 Exclusive Lease Rev. 12/99 • Page 5 of 5 COMMERCIAL BROKER'S ASSOCIATION EXCLUSIVE LEASE LISTING AGREEMENT (CONTINUED) First Westem Properties - Tacoma, Inc., Broker (Company) 5• ~i'• ~I Daniel T. ^r roker (Authorized Representative) Owner hereby extends the above Agreement to midnight of Owner Owner