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ORDINANCE NO.5 5 5 2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, AMENDING ORDINANCE 5528 TO AUTHORIZE AN
INCREASE IN THE LEASING COMMISSION FROM AN AMOUNT OF 5% OF
THE GROSS RENTAL FOR UP TO THE FIRST FIVE YEARS TO A LEASING
COMMISSION OF 5% OF THE GROSS RENTAL FOR THE FIRST 5 YEARS
AND 2.5% FOR THE SIXTH THROUGH THE TENTH YEARS OF THE INITIAL
SUBLEASE AND TO PROVIDE FURTHER CLARIFICATION REGARDING
THE METHOD OF CITY PAYMENT TO THE BROKER OF THE ANTICIPATED
COMMISSION(S).
WHEREAS, The City Council passed Ordinance 5528 April 2, 2001,
approving a Leasing Agreement between the City and the Northwest Corporate
Real Estate, Inc., for the leasing of ground-floor retail space in the Commuter
Rail Station parking garage to promote revitalization of the downtown, and
WHEREAS, The Leasing Agreement requires adjustment and correction;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Purpose. The purpose of this Ordinance is to amend the
Leasing Agreement passed in Ordinance 5528, to approve a increase in the
leasing commission and to clarify the method of City payment to the broker of
the anticipated commission(s). A copy of said Leasing Agreement reflecting
the amendments reflecting the method of City payment to the broker of the
anticipated commission(s) is attached hereto, as Exhibit "A" and is incorporated
herein by reference.
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Ordinance No. 5552
May 18, 2001
Page 1
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directions of
this legislation.
Section 3. This ordinance shall take effect and be in force five (5)
days from and after its passage, approval, and publication, as provided by law.
INTRODUCED:
PASSED:
APPROVED:
May 21, 2001
May 21, 2001
May 21, 2001
~ A. ~-æ
CHARLES A. BOOTH
MAYOR
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Ordinance No. 5552
May 18, 2001
Page 2
ATTEST:
&~M l/..aJ~
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
iÆr, V
. '~AEV\
Michael J. Reynolds,
City Attorney
Published: 5-;) 1-01
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Ordinance No. 5552
May 18, 2001
Page 3
LISTING AGREEMENT
THIS AGREEMENT is made and entered into as o?-m~ .;¿/ ,2001, by
and between the CITY OF AUBURN, a Municipal Corporation in King County,
Washington ("City"), and NORTHWEST CORPORATE REAL ESTATE, INC., a
Washington corporation ("Broker"), whose address is 1 048 West James, Suite 104,
Kent, Washington 98032.
RECIT ALS:
1. Sound Transit is currently in the process of designing Phase II of its
transit center in the City of Auburn ("Transit Center") which will include a parking
garage to be constructed on the southwest comer of First Street SW and A Street SW in
Auburn.
2. The first floor of the Parking Garage will have approximately 14,000
square feet of retail space (the "Space").
3. City will lease the Space from Sound Transit and desires to sublease the
Space to one or more tenants.
NOW THEREFORE, in consideration of the covenants, conditions and
agreements contained herein the parties do hereby agree as follows:
1. SCOPE OF WORK.
Subject to the terms and conditions of this Agreement, Broker shall act
as City's exclusive real estate listing agent to solicit offers to sublease all or any part of
the Space.
2. TERM.
Subject to earlier termination as herein provided, the term of this
Agreement ("Term") shall begin on the date specified above and end on December 31,
2001. The Term may be extended only by written agreement of the parties.
3. AUTHORITY OF BROKER.
3.1 On the terms and conditions specified in this Agreement and for
the Term, City hereby appoints Broker as City's exclusive real estate agent for the
limited purpose of soliciting offers to sublease all or any part of the Space ("Tenant
Premises") and Broker hereby accepts such appointment. Broker has no authority to and
shall not do any of the following on City's behalf without City's prior written consent:
(a) make any agreements, representations, or warranties; (b) otherwise incur any
Ordinance 5552
Exhibit "A"
1
liabilities; (c) negotiate the terms of any sublease of the Tenant Premises; or (d) accept
any payment or deposit of money.
3.2 It is understood and agreed that this Agreement creates a real
estate agency relationship between City and Broker. City acknowledges receipt of the
pamphlet entitled The Law of Real Estate Agency.
3.3 Broker may represent, as a real estate broker, potential tenants
who offer to sublease Tenant Premises and City consents to any such dual agency.
Broker also acts as real estate broker for other property owners as well as for tenants.
City understands that Broker may show to and discuss with prospective tenants other
properties which may be in competition with the Space.
3.4 City agrees that different salespersons affiliated with Broker may
represent different property owners in competing transactions involving the same tenant
and that this shall not be considered an action by Broker that is adverse or detrimental to
the interest of City, nor shall it be considered a conflict of interest on the part of Broker.
3.5 While Broker employs or otherwise contracts with several
persons in its office, City has granted only Harold Gambini the authority, which City in
its sole and absolute discretion may withdraw at any time, to act on Broker's behalf in
soliciting offers to sublease Tenant Premises under this Agreement. Without City's
prior written consent Broker shall not use any other person to act on Broker's behalf in
soliciting offers to sublease Tenant Premises under this Agreement. If City gives such
consent with respect to any other person, City may revoke it by written notice to Broker
and on Broker's receipt of such notice Broker shall cease using such person in
connection with its services under this Agreement.
4. BROKER'S COMMISSION.
4.1 Broker's sole compensation under this Agreement shall be a
commISSIon, if and to the extent earned by Broker. Broker shall not be entitled to
reimbursement for any expenses or any other sums Broker incurs related to or involving
the performance of its services under this Agreement. The commission shall be equal to
five percent (5%) for HfHe- the first five (5) years of the initial sublease term and two
and one-half percent (2 Y2%) of the Gross Lease Amount for the sixth through the tenth
years of the initial sublease term, paid upon occupancy. "Gross Lease Amount" means
the base rent required to be paid by the tenant during the initial sublease term, and does
not include any additional rent such as, but not limited to, percentage rents, pro rata
share of operating costs and taxes, late charges, costs of improvements or alterations, or
any other potential increases in the rent which are subject to any uncertainty in the
happening or the amount thereof. Broker shall not earn an additional commission if a
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Ordinance 5552
Exhibit "A"
2
tenant exercises any option to extend or renew its sublease or any option to enlarge its
subleased premises.
4.2 Broker shall earn a commission under this Agreement only when
all of the following have occurred during the Term with respect to a sublease of the
Tenant Premises: (a) City and the tenant have each signed, acknowledged, and delivered
to each other a written sublease containing the terms and conditions of the leasing;
(b) City has received rent for the first full calendar month of the sublease term and, if
required, all other sums the tenant is obligated to pay at or before commencement of the
term of the sublease; (c) the tenant has occupied the Space that is the subject of the
sublease; and (d) the term of the sublease has commenced.
4.3 If a tenant has been introduced to the Space by Broker during the
Term, and such tenant subleases the Tenant Premises after expiration or termination of
the Term, Broker shall earn a commission under this Agreement only if all of the
following conditions are satisfied: (a) during the Term, the tenant visited the Space;
(b) the tenant and City executes a lease within six (6) months after expiration or
termination of the Term; (c) during the Term, tenant expressed an interest in leasing the
Tenant Premises, as evidenced by a letter of intent; (d) Broker has delivered to City,
within fourteen (14) days after expiration or termination of the Term, a list of perso:q.s
meeting the conditions of subparts (b) and (c) of this section and the tenant is includeð
on that list; and (e) the conditions set forth in parts (b) through (d) of Section 4.2 have
been satisfied.
4.4 Promptly after the conditions specified in subparts (a) and (b) of
paragraph 4.2 occur with respect to a sublease. City shall pay to Broker on account of
the anticipated commmission to be earned by Broker for that sublease an amount equal
to the lesser of (1) one-half the anticipated commission or (2) the amount of the
payments described in such subpart (b) received by City that is not refundable. City
shall pay to Broker the balance of each commission earned by Broker under this
Agreement within fourteen (14) days after it is earned.
5. LEASE TERMS.
Broker understands that City has adopted certain leasing policies, as set
forth in Exhibit A (the "Leasing Policies"), which City may change from time to time in
its sole and absolute discretion. City shall notify Broker of any changes in the Leasing
Policies within five (5) business days after the change. Broker shall solicit tenants under
this Agreement in accordance with the Leasing Policies, as so revised from time to time.
Ordinance 5552
Exhibit "A"
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6. OFFERS.
6.1 Broker shall submit all offers to sublease Tenant Premises for
City's consideration, unless City directs otherwise from time to time. City shall refer to
Broker all inquiries received by City from third parties indicating an interest in
subleasing Tenant Premises. Acting in its absolute discretion and without liability or
obligation to Broker, City may reject any offer to sublease Tenant Premises even if the
offer meets the criteria set forth in City's then-current Leasing Policies.
6.2 During the Term, Broker shall diligently and continuously
exercise its best efforts to solicit offers to sublease Tenant Premises as provided in this
Agreement. Broker may advertise the Space as being available; provided that (a) Broker
shall pay when due all costs of such advertising; (b) all such advertising shall be subject
to City's prior approval; and (c) Broker shall promptly cease or remove any which City
disapproves.
6.3 Broker is authorized to submit this listing to any multiple listing
service of any association of real estate brokers to which Broker belongs. However,
neither by such referral nor otherwise shall any other person be authorized to act as
agent or sub-agent of City without City's prior written consent or of Broker (without
prior written consent of both City and Broker). In addition, any compensation due any
other broker arising out of any such referral, agency, or sub-agency shall be paid by
Broker unless paid by tenant or unless otherwise specifically agreed in writing by City.
7. INDEMNIFICATION/HOLD HARMLESS.
Broker shall indemnify and hold City and its officers, employees and
other agents harmless from and shall process and defend at its own expense all claims,
demands, or suits at law or equity arising in whole or in part from Broker's negligence
or breach of any of its obligations under this Agreement; provided that nothing herein
shall require Broker to indemnify City against or hold harmless City from claims,
demands or suits based solely upon the conduct of City or its officers, employees or
other agents; and provided further that if the claims or suits are caused by or result from
the concurrent negligence of (a) Broker or its agents, employees or contractors and
(b) City or its officers, employees or other agents, this indemnity provision with respect
to claims or suits based upon such negligence shall be valid and enforceable only to the
extent of Broker's negligence or the negligence of Broker's agents, employees or
contractors. The provisions of this Section shall survive the expiration or termination of
this Agreement.
Ordinance 5552
Exhibit "A"
4
8. ASSIGNMENT.
The parties agree that this Agreement may not be assigned in whole or in
part without the written consent of City. Any assignment without the written consent of
City shall be null and void except that, at its option, City may treat any attempt by
Broker to assign this Agreement without City's prior written consent as a material
breach of this Agreement.
9. INSURANCE.
9.1 Broker shall procure and maintain for the duration of this
Agreement, commercial general liability insurance against claims for injuries to persons
or damage to property (including any arising from operation of owned and non-owned
motor vehicles) which may arise from or be related to services provided to City by
Broker or its agents, employees or sub-agents, under this Agreement, with liability
limits of no less then ONE MILLION DOLLARS ($1,000,000.00) per occurrence and Two
MILLION DOLLARS ($2,000,000.00) general aggregate. Broker shall also procure and
maintain for the duration of this Agreement professional liability coverage in the
minimum liability limits of ONE MILLION DOLLARS ($1,000,000.00) per claim and ONE
MILLION DOLLARS ($1,000,000.00) aggregate.
9.2 The general liability coverage shall also provide that City, its
officers, employees and other agents are to be covered as additional insureds in respect
to liability arising out of the services performed by or under obligation of Broker, its
agents, employees or sub-agents, under the terms of this Agreement.
9.3 Røtk tke gøRsralliaeility ooE! 13roÍ8ssiOl'ialliaeility eø";erage skall
"1'1 ð . iàe tkftt Bf8lcer' a iRBMfæiss eev8fage sRall 88 13rimary iPls\iLraREi8 '.,:itk res138st t8 this-
l¡",t¡llg ð-~ 1(,~pe(,ts City, itg 6ffieers, e~løyees aHà øtker agents. Any insurance or self
insurance maintained by City, its officers, employees or agents shall be excess to
Broker's insurance and shall not contribute with it. Each insurance policy required by
Section 9.1 of this Agreement shall be endorsed to state that coverage shall not be
suspended, voided, or canceled except when thirty (30) days prior written notice has
been given to City èy eeftiHeà mail retMl'fl ressiþt reE¡Mestøà. All insurance shall be
obtained from an insurance company authorized to do business in the State of
Washington and otherwise reasonably satisfactory to City. Broker agrees to provide
copies of the certificates of insurance to City specifying the coverage required by this
section within fourteen (14) days after the execution of this Agreement. City reserves
the right to require that complete, certified copies of all required insurance policies be
submitted to City at any time. City shall pay no commissions under Section 4 until
Broker has fully complied with this section.
Ordinance 5552
Exhibit "A"
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10. NONDISCRIMINATION.
Broker may not discriminate regarding any services or activities to which
this Agreement may apply directly or through contractual, hiring, or other arrangements
on the grounds of race, color, creed, religion, national origin, sex, age, or where there is
the presence of any sensory, mental or physical handicap.
11. OWNERSHIP OF RECORDS AND DOCUMENTS.
Broker agrees that any and all computer discs, documents, records, and
such other information and materials as Broker may accumulate, prepare or obtain as
part of providing services under the terms of this Agreement by Broker, shall belong to
and shall remain the property of City. In addition, Broker agrees to maintain all books
and records relating to its operation and concerning this Agreement for a period of six
(6) years following the date of the termination or expiration of this Agreement. Broker
further agrees that City may inspect any and all documents held by Broker and relating
to this Agreement upon good cause at any reasonable time within the six (6) year period.
Broker also agrees to provide to City, at City's request, the originals of all records,
documents, and other items specified in this Section and information compiled in
providing services to City under the terms of this Agreement. Reuse by City of any of
the computer discs, documents, records, books, specifications, reports, estimates,
summaries and such other information and materials without the written permission of
Broker shall be at City's sole risk and City agrees to defend, indemnify and hold
harmless Broker from all claims, damage and expenses including attorney's fees arising
out of such unauthorized reuse of Broker's computer discs, documents, record books,
specifications, reports, estimates, summaries and such other information and materials
by City, its officers, employees, agents, or others that may obtain the information from
City.
12. TERMINATION OF AGREEMENT.
12.1 Either party may terminate this Agreement by notice to the other
at any time the other is in breach of its obligations hereunder. Such termination shall be
without prejudice to any other remedy the terminating party may have on account of the
breach.
12.2 City may terminate this Agreement, without cause, on ten (10)
days prior notice to Broker of such termination.
Ordinance 5552
Exhibit "A"
6
13. GENERAL PROVISIONS.
13.1 This Agreement shall be governed by the laws, regulations and
ordinances of the City of Auburn, the County of King, the State of Washington, and
where applicable, federal laws.
13.2 All claims, disputes and other matters in question arising out of,
or relating to, this Agreement or the breach hereof, except with respect to claims which
have been waived, will be decided by a court of competent jurisdiction in King County,
Washington. Pending final decision of a dispute hereunder, Broker and City shall
proceed diligently with the performance of the services and obligations herein.
13.3 City and Broker respectively bind themselves, their partners,
successors, assigns, and legal representatives to the other party to this Agreement with
respect to all covenants to this Agreement.
13.4 This Agreement represents the entire and integrated Agreement
between City and Broker and supersedes all prior negotiations, representations or
agreements either oral or written. This Agreement may be amended only by written
instrument signed by both City and Broker.
13.5 In any action based on this Agreement or anslllg out of the
relationship between City and Broker, the prevailing party shall be entitled to reasonable
attorneys' fees, expenses and court costs, including those on appeal or in arbitration.
13.6 Broker agrees to comply with all local, state and federal laws
applicable to its performance.
13.7 If any provision of this Agreement is invalid or unenforceable,
the remaining provisions shall remain in force and effect.
13.8 Unless expressly provided otherwise in the particular provision,
wherever this Agreement requires, permits or otherwise provides for City's approval,
disapproval, consent, or other concurrence or discretionary decision, City may act or not
act on such matter exercising its sole and absolute discretion.
[The remainder of this page intentionally left blank.]
Ordinance 5552
Exhibit "A"
7
IN WITNESS WHEREOF, the parties have caused this Listing Agreement to be
duly executed as of the date first written above.
CITY OF AUBURN
~~~~
Charles A~otJ Mayor
Date ...5 '21 ¿ 00 ¡
t (
ATTEST:
~\Jit~
Danielle E. Daskam, City Clerk
A i~~FORM
Michael J.Reynolds, City Attorney
NORTHWEST CORPORATE REAL
ESTATE, INC.
BY:'~!Ý~'
Title: ~---;.~
Address:
1 048 West James, Suite 104
Kent, ~ã§þington 98032
Phone:~-852-5800
Facsimile No.:
2.';3~· ð"~Î...~ S?fÞ
Ordinance 5552
Exhibit "A"
8