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HomeMy WebLinkAbout55280,,m,�4 b� OMsr.�2_ ORDINANCE NO. 5 5 2 8 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING AN AGREEMENT BETWEEN THE CITY AND NORTHWEST CORPORATE REAL ESTATE FOR LEASING SERVICES PERTAINING TO THE LEASING OF GROUND -FLOOR RETAIL SPACE IN THE COMMUTER RAIL STATION PARKING GARAGE. WHEREAS, The City of Auburn is contracting with Sound Transit for the construction of ground -floor retail space in the commuter Rail Station parking garage to promote revitalization of the downtown, and WHEREAS, THE City needs to find tenants and negotiate leases for that space, and WHEREAS, the City solicited bids from commercial brokerage firms for services concerning the parking garage and Northwest Corporate Real Estate was the sole bid received, and WHEREAS, the city and Northwest Corporate Real Estate have negotiated a contract for services pertaining to the leasing of this retail space. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized to execute the Listing Agreement between the City and the Northwest Corporate Real Estate, a copy of which is attached hereto as Exhibit "A" and is incorporated herein by reference. Section 2. The Mayor is hereby authorized to implement such Ordinance No. 5528 March 29, 2001 Page 1 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: April 2, 2001 PASSED: APPROVED April 2, 2001 April 2, 2001 (�." N A oc:+e CHARLES A. BOOTH MAYOR ATTEST: �F�4!I�ALGt2't✓ Danielle E. Daskam, City Clerk APPROVED AS TO FORM: A4X Michael J. Reynolds, City Attorney Published: °�I 5—c)6(f/ Ordinance No. 5528 March 29, 2001 Page 2 LISTING AGREEMENT THIS AGREEMENT is made and entered into as of , 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 1048 West James, Suite 104, Kent, Washington 98032. RECITALS: 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 corner 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 5528 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 up to the first five (5) years of the Gross Lease Amount for 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 tenant exercises any option to extend or renew its sublease or any option to enlarge its subleased premises. Ordinance 5528 Exhibit "A" 2 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 persons meeting the conditions of subparts (b) and (c) of this section and the tenant is included on that list; and (e) the conditions set forth in parts (b) through (d) of Section 4.2 have been satisfied. 4.4 City shall pay to Broker 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. 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 Ordinance 5528 Exhibit "A" 3 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. INDEMNIFICATIONMOLD 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. 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 Ordinance 5528 Exhibit "A" 4 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 Both the general liability and professional liability coverage shall provide that Broker's insurance coverage shall be primary insurance with respect to this listing as respects City, its officers, employees and other 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 by certified mail return receipt requested. 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. 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 Ordinance 5528 Exhibit "A" 5 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. 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 Ordinance 5528 Exhibit "A" 6 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 arising 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 5528 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 e" A OC A, Charles A. Booth, Mayor Date y- ATTEST: Danielle E. Daskam, City Clerk APPROVED AS TO FORM: �1W Michael J. Reynolds, City Attorney NORTHWEST CORPORATE REAL ESTATE, INC. By: _ Title: Address: 1048 West James, Suite 104 Kent, Washington 98032 Phone: 206-852-5800 Facsimile No.: Ordinance 5528 Exhibit "A" EXHIBIT A TRANSIT CENTER LEASING GUIDELINES The following policies are drafted for discussion purposes. They are in no particular order. No space is to be leased to any use deemed by City Administration to be "adult oriented". 2. No space is to be leased to any use, excluding State Liquor stores, that derive more then 50% of their revenues from the sale of liquor. 3. There is a preference for leasing space for "Transit Oriented Development" including the sale of goods and services for transit patrons and customers/residents of development in the vicinity of the station. However, it is not the intent of the City to restrict tenants to TOD-related uses. The first priority of the leasing program is to fully lease available space to quality tenants that will expand the range of goods, services and competition in downtown Auburn. 4. The leasing program must recognize the fact that financing obligations require that 38 jobs be created for people in low and moderate -income categories. Leases will obligate the tenants to cooperate in achieving and monitoring satisfaction of this requirement. [This requirement may be waived contingent upon financing option selected by the City. Use of HUD Section 108 funds result in this need. A decision will be made ASAP.] 5. Leases shall include the use of parking stalls in the garage. Parking in the garage will be regulated. A sticker allowing all day parking for employees will be provided for each 1000 square feet of leased area. Leaseholders will be required to share in a fair -share proportion of City costs associated with the parking garage, including but not limited to maintenance and security. [This program requires further development.] 6. Private bathroom facilities can be added to individual spaces but the cost must be fully borne by the tenant. Sewer and water service is provided but is reimbursable to the City as part of the Tenant's prorata share of costs at the utility rates as in effect when provided. Uses that require large amounts of water (such as restaurants) may be subject to a meter monitoring water usage, with that tenant's share of the costs calculated on the basis of actual usage. 8. Electric and communication services shall be contracted individually by each tenant. 1 of 2 ORDINANCE 5528 EXHIBIT A 9. Exterior signage shall be limited to Sign Boards located above each tenant, and standard panels located under the sidewalk canopy. Window signage consistent with City ordinances is also permitted. 10. City may consider contracting with Tenants for use of exterior space on the pedestrian plaza, for sale of goods and services. 11. City may consider contracting with Tenants for pushcarts placed in the plaza or on the station, for sales of goods and services. 12. City may consider contracting with Tenants for exclusive rights to sales of a good or service on the plaza or platform. If no such contract is entered into, the City reserves the right to allow others to provide such services. 13. City may consider contributing to the cost of constructing Tenant Improvements. It is the City's goal to both minimize these concessions and where possible, have them accrue as rent reductions rather than cash outlays by City. Nevertheless, Tenant Improvements to be made by City or allowances for Tenant Improvements to be paid by City are negotiable based on the building standards for the space (to be developed by City), the tenant's needs, the length of the lease, the lease rates, and other relevant factors. 14. Initial lease rates are to be $14-16 per square foot plus utilities and parking maintenance and other cost reimbursements. 15. City's costs of common areas and services available to all tenants (such as hallways, restrooms, and trash disposal) will be included in each tenants prorata share of the costs to be reimbursed to City. 16. All leases are subject to a 12.5% excise tax to be paid by the tenant. 2 of 2 ORDINANCE 552$ EXHIBIT A