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HomeMy WebLinkAbout6.B.(2) Listing Agreement with CB Richard Ellis~-'~.CL~ LISTING AGREEMENT FOR SALE OR LEASE ('OMMERCIAL REAL ESTATE DATE: September 18. 2009 BROKER: Robert Bradley Associates, LLC d/b/a CB Richard Ellis Bradley (`Broker") SELLER: The City of South Bend. Department of Redevelopment,actinQ by and through its South Bend Redevelopment Commission. PROPERTY ADDRESS: "Colfax & Hill" and "LaSalle Hotel" DESCRIPTION: See Exhibit B for additional Details In consideration of the mutual covenants herein and services to be performed, Seller appoints Broker as Seller's agent with an irrevocable and exclusive right to sell. exchange, option or lease the property, during the Tenn for the stated price and terms and Broker, in return, promises to use its diligent efforts to find a Buyer (or tenant) for said Property under the teens and conditions of this Contract- Where the word "Seller" appears. it shall also mean "Lessor," "Landlord" or "Optionor;" "Sale" or "Purchase'- shall also mean "Lease," "Exchange" or "Option; ' "Buyer" shall also mean "Lessee," "Tenant" or "Optionee; -and "Broker'- shall include any licensed salesperson associated ~~~ith the Broker's firm. '`Property" shall mean all property offered for sale or lease pursuant to this Contract as defined in Sections D and E below. A. TERM: This Contract begins on the 1st day of September. 2009, and shall continue until midnight on the 31st day of August, 2010, provided, however, that if Seller enters into a purchase agreement, exchange agreement, option or lease during the term of this Contract, then this Contract shall be extended to coincide with the closing date. B. PRICE: See Attached Schedule. Seller offers the Property for sale, exchange, option or lease upon any other price and terms acceptable to Seller as evidenced by Seller's execution and delivery of a written contract with respect to the property. C. MARKETING: Seller authorizes Broker to place and remove "For Sale' or "For Lease" and other signs on the Property. Seller further authorizes Broker or cooperating brokers to conduct showings of the Property. Seller represents that adequate insurance will be kept in force to protect Seller in the event of any dama~~e, loss or claim arising from entry to the Property, and holds harmless Broker and its agents, employees and independent contractors from any damage, loss or claim resulting therefrom. Broker is also authorized to advertise the Property on the Internet and in the local newspaper or other media, as deemed advisable, and to take and use photographs and video of the Property. Seller agrees to provide Broker with a marketing allowance/retainer ("Allowance/Retainer'') of Two Thousand Five Hundred Dollars ($2.500.00) to be applied toward a customized marketing campaign, which efforts shall be mutually agreed by the parties. The Allowance is due and payable upon commencement of this Listing Contract and shall be reimbursed to the Seller upon first commissions earned. D. BROKER'S COMMISSION: Seller agrees to pay Broker a commission. which shall be determined and paid as follows: SALE OR EaCHANGE: Seller shall pay Broker a commission of Six percent (6%) of the gross sales price or consideration received by Seller for the Property, or as otherwise noted in Exhibit B, or a minimum fee of Five Thousand Dollars ($5.000.00). This amount shall be paid at the time of the closing of the transaction, when Buyer receives the title to or an interest in the Property or when title to or an interest in the Property is exchanged for other property. When the consideration is not set forth as a monetary value in an exchange agreement, or any related purchase agreement, the consideration for the Property shall be deemed to be the listing price set forth in this Contract If the Property is sold on a land contract, the commission shall be paid at the time the land contract is signed. ~ If a combination of efforts between Broker and Seller is the cause for identifying a Buyer and Broker has limited involvement through the process to closing- the fee paid to Broker in consideration of disposition services shall he two percent (2%)of the gross sales price; 2. LEASE: Intentionally Omitted. 3. OPTION: Seller shall pay Broker $2,000.00 or Ten percent (10%) of each payment, whichever is greater, when made to Seller to obtain, renew or extend the option. In the case that an option to purchase accompanying a lease is exercised, the Seller shall pay the Broker commissions from both the lease and the sale, provided that the lease commission offset is applied a~~ainst sale commission. 4. DEFAULT: If Seller enters into a fully executed contract for sale, exchange, option or lease and Seller defaults under that contract, then a commission in the same amount as would be payable upon a closing or lease execution pursuant to this Contract shall be due immediately upon such default. 5. READY, WILLING AND ABLE PERSON: If Broker procures a written offer from a Buyer who is ready, willing and financially able to consummate the proposed transaction concerning the Property according to the terms contained in this Contract, and Seller refuses to accept the offer, Broker shall be immediately entitled to a commission in the same amount as would be payable upon a closing or lease execution pursuant to this Contract. 6. SUIT BY OWNER: If Seller successfully prosecutes a suit against a Buyer who breached a purchase agreement, exchange agreement or lease concerning the Property and collects al] or any part of the monetary damages proximately caused by such breach as a result of trial, compromise, settlement or otherwise, then after first deducting Seller's reasonable attorney fees and court costs. Seller shall pay Broker an amount equal to one-half (ll2) of the funds received by Seller. The maximum amount that Seller shall be obligated to pay Broker shall not exceed the amow~t of Broker's commission if the sale, exchange agreement or lease have been consummated. 7. COMMISSION PROTECTION: [f Seller sells the Property to a Buyer who was procured in whole or in part by the efforts of Broker, Buyer's Broker, or Seller during the term of this Contract, and if such sale occurs within 120 days after the time this Contract terminates, and who was identified on a list submitted to Seller within Ten (]0) days after expiration of the Tenn, then Seller shall pay Broker a commission pursuant to the procedures above as applicable. Broker shall also be entitled to recover its attorney's fees and expenses from Seller for the collection of commissions due. E. PROPERTY OFFERED FOR SALE: The above price(s) includes the real estate together with all buildings and all permanent improvements and fixtures attached thereto, EXCEPT the following items to be EXCLUDED (if any): None F. PERSONAL PROPERTY OFFERED FOR SALE: The above price includes the following items of personal property to be INCLUDED in the sale: None G. SELLER'S COVENANTS: Seller agrees to fully cooperate with Broker, its agents and Buyer's Brokers with respect to Broker's efforts to market and sell the Property. Seller agrees to refer to Broker all inquiries received relating to the sale of the Property and to conduct all negotiations with prospective buyers of the Property through Broker under the direction of Seller, subject to instructions and final approval. Seller further agrees to furnish Broker with any information concerning the Property as Broker may reasonably require from time to time. If the Property is not presently rented, the Seller agrees not to rent or lease the Property while listed without Brokers consent. Additionally. it is agreed that the Broker or his representatives and all prospective purchasers or lessees shall at all reasonable times have access to said Property and structures located thereon for the purpose of showing and inspecting the same. H. SELLER'S REPRESENTATIONS: To Seller's best knowledge and belief. Seller represents and warrants to Broker as follows: 1. The undersigned Seller holds fee simple title to the Property. is authorized and has the capacity to execute and deliver this Listing Contract, and has the ability to convey a good and marketable title by a general warranty deed and/or enter into sale. 2. The Seller represents that no person or entity who has an ownership interest in the Property is a foreign person as defined in the Foreign Investment in Real Property Tai Act (commonly known as "FIRPTA'"). 3. The Seller agrees to give possession of the Property to Buyer at the closill~ 4. 5. The Property is connected to a municipal sewer system: and is connected to a municipal water system. 6. There are no actions, suits or proceedings pending or threatened against Seller of the Property, affecting any portion of the Property, before any judicial tribunal or ~~overnmental agency. department or instrumentality. EXCEPT: None 7. There are no pending or tlu-eatened condemnation actions or special assessments of any nature with respect to the Property, and Seller has not received any notices of any such condemnation actions or special assessments being contemplated. 8. There are no foreclosures pending or tln-eatened with respect to the Property nor has Seller received any notices of any foreclosure action being contemplated. 9. Seller has not received any notice in writing or otherwise from any govenmlental or municipal agency requiring the correction of any condition of the Property or any part thereof, by reason of a violation or alleged violation of any applicable federal or state statute, ordinance. code or regulation, EXCEPT: None 10. Seller represents to Broker that all environmental problems affecting the Property, known to Seller, have been disclosed to Broker in writing in this Contract. Seller acknowledges and agrees that Broker has not made any representation or warranty with respect to, nor conducted any investigation of, the environmental condition or suitability for any particular use of the Property or any adjacent property and that Broker has no duty or obligation to Seller. any prospective purchaser or lessee or other person or entity to make any such investigation, warranty or representation and does not by this Contract incur any such obligation. Seller further acknowledges and agrees that any obligation that may exist with regard to compliance with statutes, ordinances and regulation relating to the environmental condition of all or any part of the Property, or the use thereof, is the sole responsibility of the Seller. Seller acknowledges that Broker has advised Seller of the potential risk of environmental issues affecting the Property by letter prior to entering into this Contract. Seller agrees to indemnify and hold Broker harmless against any liability, expense, cost, attorney's fees or other fees which Broker may incur as a result of any environmental problems associated with the Property, except as a result of Broke-'s negligence. 11. ENVIRONMENTAL CONDITION OF PROPERTY (Applies to h~diana Properties Only): (Check 1 or 2) ^ I. Seller is not required to provide Buyer with a Disclosure Statement pursuant to LC. 1 ~-2~-3-I et seq., Indiana's Responsibility Property Transfer Law, because, to the best of Seller's knowledge, the Property is exempt from the provisions of the law or (1) the Property does not contain any hazardous chemical or material under the Community Right-to-Know Act of 1986; (2) the Property does not contain any underground storage tanks which are or have been utilized to hold petroleum or other regulated substances; and (3) the Property is not listed on the Comprehensive environmental Response, Compensation and Liability Information system. ^ 2. Seller is required to provide Buyer with a Disclosure Statement pursuant to LC. 13-25-3-1 et seq.. because, to the best of Seller's knowledge, the Property is not exempt from the provisions of the law. 12. It is understood that Broker may rely on the validity of the data provided by the Seller pertaining to the listing contract. Seller agrees that Broker may disclose such data to qualified brokers. The Seller also agrees that Broker will furnish notice to qualified brokers of all changes in information concerning the Property as agreed by Seller. Upon the closing of a fully executed purchase agreement, exchange agreement or lease on the Property. Broker is authorized to disseminate the sales and lease information. I. SELLER'S INDEMN[FICATION: Seller agrees to indemnify, defend and hold Broker harmless from any and all claims. demands, liabilities, damages, losses, judgments, expenses, costs and attorney fees resulting from. arising out of or relating to Seller's furnishing Broker, any brokers or sales person of Broker or causing Broker to be furnished with any false. incorrect, or inaccurate information or representations, or Seller's concealment of any material information. or otherwise relating to the Property. If a dispute arises at any time concerning the condition of the Property. the structures. improvements permanently installed and affixed thereto, Property defects, or health hazards. Seller agrees to indemnify, defend and hold harmless Broker from and against any and all claims, demands, liabilities_ damages, losses.. judgments, expenses. costs and attorley fees resulting from.. arising out of or relatnig to such dispute. In the event of the transfer of any interest in the Property to another party, this provision shall survive such passing of interest J. BROKER'S LIEN: For purposes of this Contact, the parties understand and agree that Broker's commission is deemed to be a share of the money received by Seller, and Broker shall have a lien on the funds until the commission is paid. K. AUTHORITY TO OBTAIN' PROPERTY INFORMATION: If Seller has mortgaged the Property, Seller hereby authorizes the lending institution to divulge all mortgage infornation to Broker and to provide copies of the note and mortgage, if requested. Seller also authorizes Broker to obtain historic utility billing information from utility service providers. L. EARNEST MONEY: Broker is hereby authorized to accept an earnest money deposit made out to escrow agent, Meridian Title Company. with any offer to purchase said real estate, which escrow agent may retain this deposit until closing unless otherwise provided in the purchase agreement. exchange agreement or lease. Notwithstanding terms to the contrary, the Parties agree that all funds delivered to the Escrow Agent be in such form that the closing agent shall be able to disburse in compliance with IC 27- 07-3.7 et seq. Therefore, all funds from a single source of $10,000.00 or more in aggregate shall be wired unconditionally and all funds under $10.000.00 from a single source shall be good funds as so defined by said Statute. Should the Buyer fail to complete the purchase, the earnest money deposit shall be applied first to Broker's advertising and other out-of-pocket expenses directly related to, and made in reliance upon.. this Contract. and the balance shall be divided equally beriveen Broker and Seller, except that Broker's portion shall in no event exceed the regular commission had the sale been closed. In the event that any contract for the sale, exchange, option or lease of the Property does not close for any reason, any earnest money held by escrow agent shall be held until Seller, Buyer and Broker mutually agree in writin~~ as to its disposition or until the disposition is directed by a court order. M. TITLE INSURANCE: Except as otherwise provided in the Purchase or Exchange Agreement, Buyer shall be furnished, at Seller's expense, with an owner's policy or title insurance in the amount of the sales price or Seller's exchange value showing an insurable title to the Property in Seller's name, subject only to easements, taxes and restrictions of record and other items as provided in the Purchase or Exchange Agreement. N. AGENCY DISCLOSURES: Indiana/Michigan licensing law, and Broker's corporate policy (Exhibit A), require that the Seller clearly understand the specific agency responsibilities of the Broker and its Licensees in the contemplated transaction. Licensees are obligated to describe to the Seller the various agency relationships available, specifically identifying the Licensee's duties in each type of agency relationship. The following are the only types of agency relationships possible, along with the duties related thereto: 1. Seller's Agents. A Seller's agent acts solely on behalf of the Seller and as the exclusive representative of, the Seller. A Seller's agent owes the Seller a duty of trust, loyalty_ confidentiality, accountability, and disclosure. Seller's agents may disclose to the Seller any and all known information about a potential Buyer which may be used to the benefit of the Seller. A Seller's agent may not disclose to a Buyer or a Buyer's agent that a Seller will accept less than the listed sales price or lease rate for the property, that the Seller will accept other contract concessions, or disclose what motivates file Seller/landlord to sell the property. A Seller's agent has no duty to the Buyer other than an obligation to deal honestly with the Buyer. 2. Buyer's Agents. A Buyer's agent acts solely on behalf of the Buyer. Buyer's agents may disclose to the Buyer any and all ]crown information about the Seller which may be used to benefit the Buyer. Seller should understand that a Buyer's agent has no duty to the Seller. 3. Limited Agents. A real estate Licensee may be a limited agent, serving as an agent of both the Seller and the Buyer in a transaction. Limited agency most frequently arises when the listing agent or Broker's principal or managing broker is asked by a Buyer to show the Property. In such event, a limited agency relationship automatically arises, in which case both the Licensee and the principal/managing Broker have duties to both the Seller and the Buyer. In a limited agency relationship, the Licensee may not disclose the following without the informed consent, in writing, of both the Seller and the Buyer: (a) Any material or confidential information, except (i) adverse material facts or risks actually known by Licensee concerning the physical condition of the property which could not be discovered by a reasonable and timely inspection of the Property by the parties, or (ii) facts required by law to be disclosed; (b) That a Buyer would pay more than the offered price for the Property, or that a Seller would accept less than the listed price for the property; (c) Other terns which would create a contractual advantage of one party over another; and (d) What motivates a party to buy or sell the Property. In such a limited agency situation, it is understood that there will be no imputation of knowledge or inforniation between any party and the limited agent, or among licensees. Seller is advised that the Property may be sold with assistance of other licensees working as Buyer's agents (including licensees affiliated with Broker) and that our company policy is to cooperate with and compensate both affiliated and unaffiliated agents. Our affiliated licensees will disclose to Buyers orally and in writing, in a manner to be consistent with state laws, that they have a fiduciary responsibility to the Seller. We will advise all cooperating/unaffiliated agents not to make any statements or representations about the Property, the Seller, or the Seller's motivations/ intentions that are not contained in our company fact sheets, flyers, or in a written directive from our office. Seller's agent may show alterative properties not owned by the Seller to a prospective Buyer, may list competing properties for lease or sale without breaching any duty or obligation to the Seller, and may provide assistance to a Buyer with services in the ordinary course of a transaction, such as preparing offers to purchase, comm~unicating those offers to the Seller, arranging for attorneys, inspectrn•s, insurance agents, contractors and similar services. none of which would deemed to violate the terms of this Agreement with the Seller. By initialing below, Seller acknowledges the foregoing has been read and understood. Seller voluntarily gives informed consent to Limited Agency under the conditions set forth above. should it arise during the tern of this Listing Agreement. O. ADDITIONAL PROVISIONS: Seller and Broker acknowledge that: 1. All persons signing below as Seller have read and understand this Contract and have received a copy of it. 2. This Contract contains the entire a~~reement of the parties and cannot be changed except by their written consent. 3. This Contract is binding upon the parties' heirs, administrators. executors, successors and assigns. 4. Broker war•ants that Broker and Brokers agent hold a valid real estate license in the state in which the property is located. 5. Broker may refer Seller to other professionals, service providers or product vendors, including lenders, loan brokers, title insurers, escrow companies, inspectors, surveyors, engineers, consultants, environmental inspectors and contractors. Broker has no responsibility for the perfornlance of any service provider. Seller is free to select providers other than those referred or recommended to Seller by Broker. 6. If it becomes necessary for either Party to retain an attorney or initiate any legal proceedings in order to secure compliance with this Contract, then in addition to all other sums such Party may recover, such Party shall also recover court costs, reasonable attorney fees, pre-judgment and post-judgment interest and all other costs incurred by such Party in connection therewith. 7. This Contract may be transmitted between the parties electronically or digitally. The parties intend that electronically or digitally transmitted signatures constitute original signatures and are binding on the parties. The original document shall be promptly executed and/or delivered, if requested. This Contract may be executed simultaneously or in hvo or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 8. This Property is offered for sale or lease without regard to race, color, religion, age, sex, marital status, family status, disability or national origin in accordance with state and federal laws. 9. Broker is not and shall not be charged with the responsibility for the custody, management_ care, maintenance, protection or repair of the Property, nor for the protection or custody of any personal property located thereon, unless provided for in another agreement. 10. Broker's commission for services rendered with respect to any listing is solely a matter of negotiation between Broker and Seller and is not fixed, controlled, recommended or maintained by the Indiana Commercial Board ofor Realtors, Inc., the Michigan Association of Realtors or any person not a party to fl1e Contract. The compensation paid by a listing Broker to cooperating buyer/tenant agents and/or brokers acting in a legally recognized non-agency capacity shall be between 0 and 50 percent of the total commission and will be established by the listing Broker and is not fixed, controlled, recommended or maintained by any persons other than the listing Broker. Said buyer/tenant agents or brokers, even if compensated by listing broker or Seller, may represent the interest of Buyers/Tenants. This Contract is agreed to this day of , ?009. Signature Page to Follo~~~ SALESPERSON AGENT Robert Bradley Associates. LLC d/b/a CB Richard Ellis I Bradley BROKER OR COMPANY NAME ACCEPTED BY: PRINCIPAL MANAGING BROKER MAILING ADDRESS S1-I.I,I;R S SIGNATURI DATE PRINTED MAILING ADDRESS ZIP CODE ZIP CODE (Area Code) TELEPHONE NUMBER/FAX NUMBER fArea Code) TELEPHONE NUMBER~FAX NUMBER SLI.LF.R'S SIGNATURI2 PRINTED MAILING ADDRESS ZIP CODE (Area Code> TELEPHONE NUMBERFAX NUMBER Exhibit A CB Richard Ellis ~ Bradley Agency Disclosure Office Policy 8.17 DISCLOSURE OBLIGATIONS All Sales Professionals will ensure the following disclosures are made in every real estate transaction: A. A;enc~- Disclosure: Real Estate law requires that real estate practitioners abide by the laws of agency. Each Sales Professional is expected to be fully informed on the real estate and agency law. The Company has the following policy on agency disclosure; 1) All Sales Professional shall promptly disclose the agency relationship(s) when dealing with prospective purchasers or sellers, aid optioners and optionees in the following ways: 2) As soon as the Sales Professional has substantive discussions about specific property(s) with a prospect, the Sales Professional will disclose to the prospect whom the Sales Professional represents in aprincipal-agency relationship, and: 3) This disclosure will be made in writing at the earliest practical time, but in any case not later than the time when specific real estate assistance is first provided. This written disclosure shall be acknowledged by the prospect. Company disclosure forms are available for use for this purpose. 4) It is recommended that all contracts for purchase or option include agency disclosure language. 5) Listing agreements and buy/sell agreements must clearly indicate who the Company is representing. II. All Sales Professional shall promptly disclose their agency relationship(s) ~~~hen dealing with prospective leasers and lessees in the follo~i~ing ~i ays: 1) A disclosure statement shall be included in writing in all applications/proposals or in the lease itself whichever comes first. Company agency disclosure forms are available for use for this purpose. 2) It is recommended that all leases include agency disclosure language. 3) Listings and tenant representation agreements must clearly state agency relationships. III. Limited agency: 1) Disclosure on lease and sales transactions is required. Acceptance by both the Company and other fiduciary is necessary before proceeding in a dual agency situation. Disclosure may be made using a disclosure form or a letter from both clients acknowledging notification and acceptance of dual agency. 2) Contracts and leases should also disclose the existence and acceptance of limited agency. Exhibit B CB Richard Ellis ~ Bradley Property Information Tax ID Number Property Address Disposition price Size Zoning Historic District YIN Flood Plain YIN Colfax & Hill 18-5005-0128 517 E. Colfax 0.17 CBD N N 18-5005-0130 529 E. Colfax 0.22 CBD N N 18-5005-0129 211 Hill Street 0.11 CBD N N Total Price & Acreage: $ 135,700.00 0.5 xLocated in a Design Review Area as set forth in the South Bend Zoning Ordinance Disposition Historic Flood Tax ID Number Property Address price Size Zoning District Plain YIN Y/N Hotel LaSalle 18-1002-0040 237 N Michigan 0.25 CBD N N 18-1002-0041 Parking lot N of 237 Mich. 0.38 CBD N N 18-1002-0042 Parking lot N of 237 Mich. 0.13 CBD N N Total Price & Acreage: $ 400,500.00 0.76 *Located in a Design Review Area as set forth in the South Bend Zoning Ordinance