HomeMy WebLinkAbout21- Professional Services Agreement - Sterling BZN - Sale of Fire Station 1Professional Services Agreement for Marketing Agreement for Sale of Fire Station #1
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of July, 2021 (“Effective
Date”), by and between the CITY OF BOZEMAN, MONTANA,a self-governing municipal
corporation organized and existing under its Charter and the laws of the State of Montana, 121
North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT
59771, hereinafter referred to as “City,” and, Sterling BZN, LLC, a Montana limited liability
company, hereinafter referred to as “Contractor.” The City and Contractor may be referred to
individually as “Party” and collectively as “Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1.Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Exhibit Aand by this reference made
a part hereof.
2.Term/Effective Date: This Agreement is effective upon the Effective Date and
will expire on the July 31, 2022, unless earlier terminated in accordance with this Agreement.
3.Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4.Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City,
and will become an additional charge over and above the amount listed in the Scope of Services.
The City must agree in writing upon any additional charges.
5.Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this
Agreement, the Scope of Services, and with all local conditions and federal, state and local laws,
ordinances, rules, and regulations that in any manner may affect cost, progress or performance of
the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and
ability to perform the services required by this Agreement; that it will perform the services in a
professional, competent and timely manner and with diligence and skill; that it has the power to
enter into and perform this Agreement and grant the rights granted in it; and that its performance
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of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6.Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City’s personnel policies handbook and may not be considered a City employee for workers’
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage
for all members and employees of Contractor’s business, except for those members who are
exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1)a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time,
Contractor specifically agrees to take immediate steps, at its own expense and without expectation
of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The
specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however,
that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate
relief to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes arising from Contractor’s performance of the Services.
7.Indemnity/Waiver of Claims/Insurance: To the fullest extent permitted by law,
Contractor agrees to indemnify and hold the City harmless against claims, demands, suits,
damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by
the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of
the City and Contractor as indemnitee(s) which would otherwise exist as to such indemnitee(s).
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Each Party’s indemnity under this Section shall be without regard to and without any right
to contribution from any insurance maintained by the other Party.
Should either Party be required to bring an action against the other Party to assert its right
to defense or indemnification under this Agreement or under such Party’s applicable insurance
policies required below, such Party shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of competent
jurisdiction determines the other Party was obligated to defend the claim(s) or was obligated to
indemnify such Party for a claim(s) or any portion(s) thereof.
In the event of an action filed against the City resulting from the City’s performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City. Contractor
shall furnish to the City an accompanying certificate of insurance and accompanyingendorsements
in amounts not less than as follows:
Workers’ Compensation – statutory;
Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
Automobile Liability - $1,000,000 property damage/bodily injuryper accident; and
Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8.Termination for Contractor’s Fault:
a.If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and the
Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to
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Contractor’s Fault”). The City may then take over the work and complete it, either with its own
resources or by re-letting the contract to any other third party.
b.In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c.Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d.In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9.Termination for City’s Convenience:
a.Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement, the City may terminate
this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”).
The termination shall be effective in the manner specified in the Notice of Termination for City’s
Convenience and shall be without prejudice to any claims that the City may otherwise have against
Contractor.
b.Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under this
Agreement and make every reasonable effort to refrain from continuing work, incurring additional
expenses or costs under this Agreement and shall immediately cancel all existing orders or
contracts upon terms satisfactory to the City. Contractor shall do only such work as may be
necessary to preserve, protect, and maintain work already completed or immediately in progress.
c.In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment as provided in the Scope of Work.
d.The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be
entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any nature
arising, or claimed to have arisen, as a result of the termination.
10.Limitation on Contractor’s Damages; Time for Asserting Claim:
a.In the event of a claim for damages by either Party under this Agreement,
such damages shall be limited to contract damages and each Party hereby expressly waives any
right to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any nature
or kind.
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b.In the event either Party wants to assert a claim for damages of any kind or
nature, such Party shall provide the other Party with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages sought
by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the
event a Party fails to provide such notice, such Party shall waive all rights to assert such claim.
11.Representatives and Notices:
a.City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Chuck Winn, Assistant City Manager or such other individual as City shall
designate in writing. Whenever approval or authorization from or communication or submission
to City is required by this Agreement, such communication or submission shall be directed to the
City’s Representative and approvals or authorizations shall be issued only by such Representative;
provided, however, that in exigent circumstances when City’s Representative is not available,
Contractor may direct its communication or submission to other designated City personnel or
agents as designated by the City in writing and may receive approvals or authorization from such
persons.
b.Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be Ryan Springer or such other individual as Contractor shall
designate in writing. Whenever direction to or communication with Contractor is required by this
Agreement, such direction or communication shall be directed to Contractor’s Representative;
provided, however, that in exigent circumstances when Contractor’s Representative is not
available, City may direct its direction or communication to other designated Contractor personnel
or agents.
c.Notices: All notices required by this Agreement shall be in writing and
shall be provided to the Representatives named in this Section. Notices shall be deemed given
when delivered, if delivered by courier to Party’s address shown above during normal business
hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report)
to the email address or fax number provided by the Party’s Representative; or on the fifth business
day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid.
12.Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13.Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City,
County, and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
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14.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor
will not refuse employment to a person, bar a person from employment, or discriminate against a
person in compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal
Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that
Contractor has been found guilty of within 60 days of such finding for violations occurring during
the term of this Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing
services under this Agreement.
15.Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol
or illegal drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the
U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
16.Modification and Assignability: This Agreement may not be enlarged, modified
or altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of the City. Any subcontractor or assignee will be
bound by all of the terms and conditions of this Agreement.
17.Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that
the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law.
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Except as provided in the Scope of Work, the Contractor shall not issue any statements, releases
or information for public dissemination without prior approval of the City.
18.Non-Waiver: A waiver by either party of any default or breach by the other party
of any terms or conditions of this Agreement does not limit the other party’s right to enforce such
term or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
19.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
20.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21.Dispute Resolution:
a.Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level personnel
from each party duly authorized to execute settlement agreements. Upon mutual agreement of the
parties, the parties may invite an independent, disinterested mediator to assist in the negotiated
settlement discussions.
b.If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute mayonly be resolved in a court of competent
jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22.Survival: Contractor’s indemnification shall survive the termination or expiration
of this Agreement for the maximum period allowed under applicable law.
23.Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24.Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
25.Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26.Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
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28.Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29.Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part
of this Agreement by reference.
30.Consent to Electronic Signatures: The Parties have consented to execute this
Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act,
Title 30, Chapter 18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA
____________________________________
CONTRACTOR (Type Name Above)
By________________________________
By__________________________________
Jeff Mihelich, City Manager
Print Name: ________________________
Print Title: __________________________
APPROVED AS TO FORM:
By ________________________________
Greg Sullivan, Bozeman City Attorney
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Ryan Springer
Sterling BZN LLC
Supervising Broker,Principal
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SCOPE OF WORK
Except as otherwise provided herein, this Scope of Work supplements the Professional
Services Agreement (the “Agreement”) dated July ___, 2021 between the Seller and Broker (as
defined below). Terms not otherwise defined herein shall have the meaning provided in the
Agreement.
1.BASIC PROVISIONS (“Basic Provisions”).
“Seller”:Name: City of Bozeman
Address: 121 N Rouse Avenue
Bozeman, MT
“Broker”:Name: Sterling BZN LLC
Address: 895 Technology Blvd, Suite 101
Bozeman, MT 59718
“Property/Premises”:Street Address: 34 N Rouse Avenue, Bozeman MT 59715
Legal Address: ROUSE 1ST ADD, S07, T02 S, R06 E, BLOCK F,
Lot 15 - 19, LESS HWRW
“Term” of Agreement:“Expiration Date”: 12 Full months from Full
Execution.(7/31/2022)
“Transaction”:Sale of Property based on the parameters described in Schedule 1.
a.Property/Premises:The real property, or a portion thereof, which is the
subject of this Agreement is commonly known as the Property. (See also Paragraph 3).
b.Term of Agreement: The Term of this agreement shall commence on the
Effective Dateand expire on the Expiration Date,except as it may be extended. (See also paragraph
4).
c.Transaction: The nature of the transaction concerning the Property for
which Broker is employed is a sale for the price and terms described in Transaction above, or for
such other price and terms agreeable to Seller.
2.EXCLUSIVE ENGAGEMENT AND RIGHTS
a. Seller hereby engages Broker as Seller’s sole and exclusive real estate
Agent to represent Seller in the Transaction and to find a buyer for the Property. Broker shall use
reasonably diligent efforts to find a buyer. Unless otherwise agreed to by the Seller and Broker, all
negotiations and discussions for a Transaction shall be conducted by Broker on behalf of Seller.
Seller shall promptly disclose and refer to Broker all written or oral inquires or contacts received
by Seller regarding a possible Transaction.
b. Seller authorizes Broker to:
i. Place advertising signs on the property;
ii. Accept deposits from potential buyers; and
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iii. Distribute information regarding the Property to participants in
appropriate local commercial multiple listing service, to other brokers, and to potential buyers of
the Property. Seller shall identify as “confidential” any information provided to Broker may deem
appropriate or necessary. After consummation of a Transaction, Broker may publicize in terms of
such Transaction.
c. Broker shall comply with the Rules of Professional Conduct of the Society
of Industrial and Office Realtors, and shall submit the Property to various internet listing portals.
Broker may cooperate with other real estate brokers (collectively “Cooperating Broker”).
d. If a Cooperating Broker finds a buyer, then Broker shall act as Broker for
Seller only, the Cooperating Broker shall act as Broker for the buyer only, and the Cooperating
Broker shall not be Seller’s Broker, even though the Cooperating Broker may share in the
commission paid by Seller to Broker. A Cooperating Broker shall not be a Broker or subagent of
Seller or Broker. If the Broker finds a buyer, Broker shall represent Seller only.
e. Broker recognizes the Property is currently occupied by the Seller’s fire
department. With proper notice to Seller and complying with all requirements of the Seller, Broker
may, during the ordinary and normal course of marketing the Property, respond to inquiries on the
Property by showing and providing information on the Property, as well as on other competing
properties, to prospective buyers Seller understands that Broker may also represent other
lessors/sellers with competing properties.
3.PROPERTY
a. The term “Property” shall include all of the following which are currently
located on the Property and owned by Seller: permanent improvements, electrical distribution
systems (power panels, buss ducting, conduits, disconnects, lighting fixtures, etc.), telephone
distribution systems (lines, jacks and connections), space heaters, air conditioning equipment, air
lines, carpets, window coverings, wall coverings, partitions, doors, suspended ceilings, and built-
ins such as cabinets. The term “Property”shall additionally include, to the extent owned by Seller,
oil and mineral rights, but not water rights which will be retained by the City, leases and other
agreements which will continue in effect after Seller’s transfer of title to the Property.
b. Within five business days after the commencement of the Term hereof,
Seller shall provide Broker with the following:
i. A duly completed and fully executed Property Information Sheet on
the most current form provided by Broker;
ii. If available to Seller, copies of building plans, and if the Transaction
is a sale, title reports, boundary surveys, and encumbrances which will continue to affect the
Property after consummation of a sale.
c. Broker shall have no responsibility for maintenance, repair, replacement,
operation, or security of the Property, all of which shall be Seller’s sole responsibility. Unless
caused by Broker’s negligence, Broker shall not be liable for any loss, damage, or injury to the
person or property of Seller, any lessees of the Property, any buyer, prospective buyer, lessee, or
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prospective lessee, including, but not limited to, those which may occur as a result of Broker’s use
of a lock box.
4.EXTENSION OF TERM. If a sale is not consummated for any reason after Seller
accepts an offer to purchase the Property (“Sale Agreement”), then the expiration date of the
Term of this Agreement shall be extended by the number of days that elapsed between the date
Seller entered into the Sale Agreement and the later of the date on which the Sale Agreement is
terminated or the date Seller is able to convey title to a new buyer free and clear of any claims by
the prior buyer of the Property; provided, however, in no event shall the Term be so extended
beyond one year from the date the Term would have otherwise expired.
5.COMMISSION
a.Seller shall pay Broker a maximum commission in theamount FivePercent
(5 %) (“Agreed Commission”), of the sale price.
b.The purchase agreement and/or escrow instructions to be entered into by
and between Seller and a buyer of the Property shall provide that:
i.Seller irrevocably instructs the escrow holder to pay from Seller’s
proceeds accruing to the account of Seller at theclose of escrow the Agreed Commission to Broker;
ii.A contingency to the consummation of the sale shall be the payment
of the Agreed Commission to Broker at or prior to close of the escrow; and
iii.No change shall be made by Seller or buyer with respect to the time
of, amount of, or the conditions to payment of the Agreed Commission, without Broker’s written
consent.
6.SELLER’S REPRESENTATIONS. Seller represents and warrants that:
a.Each person executing this Agreement on behalf of Seller has the full right,
power and authority to execute this Agreement as or on behalf of Seller;
b.Seller owns 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
Seller’s obligations hereunder;
c.Neither Seller nor the Property is the subject of a bankruptcy, insolvency,
probate or conservatorship proceeding;
d.Seller has no notice or knowledge that any lessee or sublessee of the
Property, if any, is the subject of a bankruptcy or insolvency proceeding;
e.There are no effective, valid or enforceable option rights, rights of first
refusal, rights of first offer or any other restrictions, impediments or limitations on Seller’s right,
ability and capacity to consummate a Transaction, except as disclosed in writing pursuant to
Paragraph 3b.
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f.That as of the date of this Agreement the asking sales price is not less than
the total of all monetary encumbrances on the Property.
7.SELLER’S ACKNOWLEDGMENTS. Seller acknowledges that it has been
advised by Broker to consult and retain experts to advise and represent it concerning the legal and
tax effects of this Agreement and consummation of a Transaction or Alternative Transaction, as
well as the condition and/or legality of the Property, including, but not limited to, the Property’s
improvements, equipment, soil, tenancies, title and environmental aspects. Broker shall have no
obligation to investigate any such matters unless expressly otherwise agreed to in writing by Seller
and Broker. Seller further acknowledges that in determining the financial soundness of any
prospective buyer, lessee or security offered, Seller will rely solely upon Seller’s own
investigation, notwithstanding Broker’s assistance in gathering such information.
8.MISCELLANEOUS.
a.This Agreement shall not be construed either for or against Seller or Broker,
but shall be interpreted, construed and enforced in accordance with the mutual intent of the parties
ascertainable from the language of this Agreement.
b.All payments by Seller to Broker shall be made in lawful United States
currency.
9.ADDITIONAL PROVISIONS.Additional provisions of this Agreement are set
forth in the following blank lines or in an addendum attached hereto and made a part hereof
consisting of paragraphs 11.a through 11.a.:
10.DISCLOSURES REGARDING RELATIONSHIPS AND CONSENTS IN
REAL ESTATE TRANSACTIONS. When entering into an agreement with a real estate Broker
a Seller should from the outset understand what type of agency relationship or representation it
has with the Broker or Brokers in the transaction.
a.A “Seller Agent”is obligated to the Seller to:
i.Act solely in the best interests of the seller, except that a seller agent,
after written disclosure to the seller and with the seller’s written consent, may represent multiple
sellers of property or list properties for sale that may compete with the seller’s property without
breaching any obligation to the seller;
ii.Obey promptly and efficiently all lawful instructions of the Seller
iii.Disclose all relevant and material information that concerns the real
estate transaction and that is known to the seller agent and not known or discoverable by the Seller
unless the information is subject to confidentiality arising from a prior or existing agency
relationship on the part of the seller agent with a buyer or another seller;
iv.Safeguard the seller’s confidences;
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v.Exercise reasonable care, skill, and diligence in pursuing the seller’s
objectives and in complying with the terms established in the listing agreement;
vi.Fully account to the seller for any funds or property of the Seller that
comes into the Seller Agent’s possession; and
vii.Comply with all applicable federal and state laws, rules and
regulations.
b.A Seller Agent is obligated to the Buyer to:
i.Disclose to a buyer or the buyer agent any adverse material facts that
concern the property and that are known to the Seller Agent, except that the Seller Agent is not
required to inspect the property or verify any statements made by the Seller;
ii.Disclose to a buyer agent when the seller agent has no personal
knowledge of the veracity of information regarding adverse material facts that concern the
property;
iii.Act in good faith with a buyer and a buyer agent; and
iv.Comply with all applicable federal and state laws, rules and
regulations
c.A “Buyer Agent” is obligated to the Buyer to:
i.Disclose to a buyer or the buyer agent any adverse material facts that
concern the property and that are known to the seller agent, except that the seller agent is not
required to inspect the property or verify any statements made by the seller;
ii.Disclose to a buyer or the buyer agent when the seller agent has no
personal knowledge of the veracity of information regarding adverse material facts that concern
the property;
iii.Act in good faith with the buyer and a buyer agent; and
iv.Comply with all federal and state laws, rules and regulations.
d.A “Buyer Agent” is obligated to the Seller to:
i.Disclose any adverse material facts that are known to the buyer
agent and that concern the ability of the buyer to perform on any purchase offer;
ii.Disclose to the seller or the seller agent when the buyer agent has
not personal knowledge of the veracity of the information regarding adverse material facts that
concern the buyer;
iii.Act in good faith with a seller and seller agent, and
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iv.Comply with all applicable federal and state laws, rules, and
regulations.
e.An “Adverse Material Fact”means a fact that should be recognized by a
broker or salesperson as being of enough significance as to affect a person’s decision to enter into
a contract to buy or sell real property and may be a fact that:
i.Materially affects the value, affects structural integrity, or presents
a documented health risk to occupants of the property; and
ii.Materially affects the buyer’s ability or intent to perform the buyer’s
obligations under a proposed or existing contract.
iii.“Adverse Material Fact” does not include the fact that an occupant
of the property has or has had a communicable disease or that the property was the site of a suicide
or felony.
The above duties of the Broker do not relieve Seller from the responsibility to protect its
own interests. Seller should carefully read all agreements to assure that they adequately express its
understanding of the transaction.
Schedule 1—Transaction Parameters
[Price and Land Use considerations broker should be guided by, and also sale process—
auction (with format info) or open bid period. ]
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