HomeMy WebLinkAbout13- Exclusive Sales Listing Agreement between CBRE, INC and City of Bozeman for marketing of the North Park Property �CBRE
Exclusive Sales Listing Agreement
1 In consideration of the listing for sale of the real property hereinafter described (the
"Property") by CBRE, INC. ("Broker"), and Broker's agreement to market the Property
actively and diligently with a goal of effecting a sale of same as expeditiously as possible,
the City of Bozeman, a self-governing municipal government ("Owner"), hereby grants to
Broker the exclusive right to sell the Property for a period commencing August 30t", 2013
and ending midnight August 29�" .2014 (the "Initial Term" and together with any
extension(s), the "Term"), at a price of $]= upon the following terms: at sellers sole
discretion. If the Property remains unsold at the end of the Initial Term, Owner may, in its
discretion extend the Initial Term an additional period of one (1) year ending midnight
August 29�, 2015. Owner shall not unreasonably withhold its consent to such extension.
The Property is situated in the city of Bozeman, county of Gallatin, state of Montana, and is
further described as located north of Interstate 90 between the North 7th Street and
North 19th Street Interstate 90 interchanges and include parcels,:,S36, T01 S, R05 E,
C.O.S. 2163, PARCEL TRACT 1-A ACRES 22.223:.S36, T01 S, R05 E, C.O.S. 2153,
PARCEL TRACT 2-A, ACRES 10.002• S361 T01 S, R06 E, C.O.S. 2153, PARCEL TRACT
3-A, ACRES 24.761; S36, T01 S, R06 E, C.O.S. 2153, PARCEL TRACT 4-A, ACRES
28.36. References herein to the Property shall be understood to include portions of the
Property.
2. Owner agrees to pay Broker a sales commission in accordance with Broker's Schedule of
Sale and Lease Commissions (the "Schedule"), a copy of which is executed by Owner and
Broker, attached hereto and hereby made a part hereof. This commission shall be earned
for services rendered if, during the Term, the Property is sold to a purchaser procured by
Broker, Owner or anyone else, subject to any exclusions set forth in the Schedule. Broker is
authorized to cooperate and to share its commission with other licensed real estate brokers,
regardless of whether said brokers represent prospective purchasers or act as Broker's
subagents.
3. As used in this Agreement the term "sale" shall include an exchange of the Property, and
also the granting of an option to purchase the Property. Owner agrees that in the event
such an option is granted, Owner shall pay Broker a sales commission in accordance with
the Schedule on the price paid for the option and for any extensions thereof. This
commission shall be paid upon receipt by Owner of any such payment(s). In the event such
an option is exercised, whether during the Term or thereafter, Owner shall also pay Broker a
sales commission on the gross sales price of the Property in accordance with the Schedule.
Notwithstanding the foregoing, to the extent that all or part of the price paid for the option or
any extension thereof is applied to the sales price of the Property, then any commission
previously paid by Owner to Broker on account of such option payments shall be credited
against the commission payable to Broker on account of the exercise of that option.
4. Owner further agrees to pay Broker a commission in accordance with the Schedule if, within
ninety (90) calendar days after the earlier of the expiration of the Term or termination of this
Agreement, the Property is sold to, or Owner enters into a contract of sale of the Property
with, or negotiations continue, resume or commence and thereafter continue leading to a
sale of the Property to any person or entity (including his/her/its successors, assigns or
affiliates) with whom Broker has negotiated (either directly or through another broker or
agent) or to whom the Property has been submitted prior to the expiration or termination of
the Term. Broker is authorized to continue negotiations with such persons or entities.
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Broker agrees to submit a list of such persons or entities to Owner no later than fifteen (15)
calendar days following the expiration or termination of the Term, provided, however, that if
a written offer has been submitted then it shall not be necessary to include the offeror's
name on the list.
5. OWNER FURTHER AGREES THAT (a) IF A LEASE OF THE PROPERTY IS ENTERED
INTO DURING THE TERM TO ANYONE, OR (b) IF, WITHIN ONE HUNDRED TWENTY
(120) CALENDAR DAYS AFTER THE EXPIRATION OF THE TERM OR TERMINATION OF
THIS AGREEMENT, THE PROPERTY IS LEASED TO, OR OWNER ENTERS INTO A
CONTRACT TO LEASE THE PROPERTY WITH„ OR NEGOTIATIONS CONTINUE,
RESUME OR COMMENCE AND THEREAFTER CONTINUE LEADING TO THE LEASE OF
THE PROPERTY TO ANY PERSON OR ENTITY AS DESCRIBED IN PARAGRAPH 4
ABOVE, OWNER SHALL PAY BROKER A LEASING COMMISSION IN ACCORDANCE
WITH THE SCHEDULE. Notwithstanding the foregoing, Broker shall not be entitled to
payment of a commission if Owner enters into leases (or renewals or extensions of existing
leases) or conveys easements or other similar property rights for agricultural use of the
Property, cell tower and other communication facility sites, siting of signs, installation of
utilities, and rights of way.
6. Commissions shall be payable hereunder at closing of escrow, recordation of deed, or lease
execution.
7. Unless otherwise provided herein, the terms of sale shall be, at the option of the purchaser,
either cash or cash to any existing loan. Any offer may contain normal and customary
contingencies such as those relating to the condition of the Property, title report, and timing
of closing. In any contract for the sale or lease of the Property, Owner may condition its
obligation to perform upon obtaining all necessary governmental approvals and upon
compliance with all applicable laws governing the sale, lease or other disposition of city-
owned property.
8. Owner and Broker agree that the Property will be offered in compliance with all applicable
anti-discrimination laws. In the fulfillment of this Agreement and in any contract for the sale
or lease of the Property arising therefrom, Owner and Broker agree to not discriminate on
the basis of race, color, religion, creed„ sex, age, marital status, national origin, or actual or
perceived sexual orientation, gender identity or disability.
9. Owner agrees to cooperate with Broker in bringing about a sale of the Property and to refer
immediately to Broker all inquiries of anyone interested in the Property. All negotiations are
to be through Broker. Broker is authorized to accept a deposit from any prospective
purchaser and to handle it in accordance with the instructions of the parties unless contrary
to applicable law. Broker is exclusively authorized to advertise the Property and,
exclusively, to place a sign(s) on the Property if, in Broker's opinion, such would facilitate the
sale of the Property. Owner and its counsel will be responsible for determining the legal
sufficiency of a purchase and sale agreement and other documents relating to any
transaction contemplated by this Agreement.
% In the event the Property is removed form the market due to the opening of an escrow or
acceptance of an offer to purchase the Property during the Term, or any extension thereof,
and the sale is not consummated for any reason then, in that event, the Term shall be
extended for a period of time equal to the number of days that the escrow had been opened
and/'or the Property had been removed from the market, whichever is longer, provided that,
in no event shall such extension(s) exceed one hundred eighty (180) calendar days in the
aggregate.
11. Owner agrees to disclose to Broker and to prospective purchasers at such purchasers'
written request any and all information which Owner has regarding present and future
zoning and environmental matters affecting the Property and regarding the condition of the
Property, including, but not limited to structural, mechanical and soils conditions, the
presence and location of asbestos, PCB transformers, other toxic, hazardous or
contaminated substances, and underground storage tanks, in, on, or about the Property as
well as whether the Property is or may be situated in a flood zone. Broker is authorized to
disclose any such information to prospective purchasers or tenants.
12. Owner represents that it is the owner of the Property.
13. To the extent permitted by applicable law, Broker is authorized to deduct its commissions
from any deposits, payments or other funds, including proceeds of sale or rental payments,
paid by a purchaser or tenant in connection with a transaction contemplated by this
Agreement, and Owner hereby irrevocably assigns said funds and proceeds to Broker to the
extent necessary to pay said commissions. Broker is authorized to provide a copy of this
Agreement to any escrow or closing agent working on such transaction, and such escrow or
closing agent is hereby irrevocably instructed by Owner to pay Broker's commissions from
any such funds or proceeds available. Owner shall remain liable for the entire amount of
said commissions regardless of whether Broker exercises its rights under this paragraph.
14. Agency Disclosure. Mike Elliott of CBRE, Inc ("Salesperson(s)") solely represent Owner
under this Agreement. Owner acknowledges that Broker is a national brokerage firm and
that in some cases Broker and Salesperson(s) may represent prospective purchasers and
tenants. Owner desires that the Property be presented to such persons or entities and
consents to the dual representation created thereby; provided, however, that Broker shall
notify Owner in writing of any and all instances in which Broker and/or Salesperson(s) also
represent a prospective purchaser or tenant of the Property. Broker shall not disclose the
confidential information of one principal to the other.
15. In the event that the Property comes under the jurisdiction of a bankruptcy court, Owner
shall immediately notify Broker of the same, and shall promptly take all steps necessary to
obtain court approval of Broker's appointment, unless Broker shall elect to terminate this
Agreement upon said notice.
16. In the event that the Property becomes the subject of foreclosure proceedings prior to the
expiration of this Agreement, then this Agreement shall be deemed suspended until such
time as Owner may reacquire the Property within the Term. If this Agreement is suspended
pursuant to this paragraph,. Broker shall be free to enter into a listing agreement with any
receiver, the party initiating the foreclosure, the party purchasing the Property at a
foreclosure sale, or any other person having an interest in the Property.
17, Any claim, controversy or dispute between Owner and Broker relating to this Agreement, the
Property or Owner's or Broker's performance hereunder shall be resolved first by negotiation
between senior-level personnel from each party duly authorized to execute settlement
agreements.. Upon mutual agreement of Owner and Broker, the parties may invite an
independent, disinterested mediator to assist in the negotiated settlement discussions. If
the parties are unable to resolve the dispute within thirty (30) days from the date the dispute
was first raised, then such dispute shall be resolved ima court of competent jurisdiction
located in the State of Montana. The prevailing party in court proceedings shall be entitled to
recover its expenses, including its costs and reasonable attorneys' fees.
18. This Agreement and any disputes arising hereunder GhG|| be governed hereafter and
construed and enforced in accordance with the |evvs of the State of Montana, without
reference to principles of choice or conflicts of laws.
19. In the event that {]vvn*r lists the Property with another broker after the expiration or
termination of this Agreement, Owner agrees to provide in the subsequent listing agreement
that a commission will not be payable to the new broker with respect 10 transactions for
which Dvvmer remains obligated to pay m commission to Broker under paragraph 4 or 5
hereof. Owner's failure to do Go' however, shall not affect [)vVD8r'8 obligation to Broker
under paragraph 4V[5.
20. Each siQnatV[to this Agreement represents and warrants that he0rshe has full authority 10
sign this Agreement on behalf of the party for whom he or she signs and that this Agreement
binds such party.
21. This Agreement constitutes the entire agreement between <Jvvne[ and Broker and
supersedes all prior discussions, negotiations and @gnBennHOtG, whether 0Ra| or written. No
amendment, alteration, cancellation or withdrawal of this Agreement shall be valid or binding
unless made in writing and signed by both Owner and Broker. This Agreement shall be
binding upoD, and shall beneht, the heirs, omoceosnns and assignees of the parties. In the
event any c|GU68' provision, paragraph or term of this Agreement aho|| be deemed t0 be
unenforceable or void based on any controlling state or federal law, the remaining provisions
hereof, and each part, shall remain unaffected and shall continue in full force and effect.
22. The parties hereto GQnae to comply with all applicable federal, state and i0nG| |avvo,
regulations, codes, ordinances and administrative orders having jurisdiction over the parties,
property O[the subject matter Vf this Agreement.
23. Except ae otherwise provided henain. Broker shall not assign Broker's rightm, duties or obligations
under this Agreement, in whole or in part, without the prior written consent of Owner.
24. Under Montana law, 8 seller's agent has the following duties to a seller: /m\ act solely in the
best interests of the seller, except that a seller agent, after written disclosure to the SH||er
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; (b) obey promptly and efficiently all lawful instructions of the seller;
(C) disclose all relevant and material information that concerns the real estate transaction
and that is known to the seller agent and not kDnvvm or discoverable by the meUo[. 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 G9|[e[; (d) safeguard the seller's
confidences', /e\ exercise reasonable uane, skill, and diligence in pursuing the seller's
objectives and in complying with the terms established in the listing agreement; (f) fully
account tO the seller for any funds u[ property of the seller that comes into the seller agent's
possession; and (g) comply with all applicable federal and state |8»ws, rules, and regulations.
25. Under Montana law m seller's agent has the following duties t0the buyer: (a) disclose to 8
buyer nrthe buyer agent any adverse material facts that concern the property and that are
known to the seller agent, except that the seller agent ie not required to inspect the property
or verify any statements made by the seller; (b) 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; (c) act in good faith with a buyer and a buyer agent;
and (d) comply with all applicable federal and state laws, rules, and regulations.
IF A SELLER AGENT IS ALSO REPRESENTING A BUYER OR A BUYER AGENT IS ALSO
REPRESENTING A SELLER WITH REGARD TO A PROPERTY, THEN A DUAL AGENCY
RELATIONSHIP MAY BE ESTABLISHED. IN A DUAL AGENCY RELATIONSHIP, THE DUAL
AGENT IS EQUALLY OBLIGATED TO BOTH THE SELLER AND THE BUYER. THESE
OBLIGATIONS MAY PROHIBIT THE DUAL AGENT FROM ADVOCATING EXCLUSIVELY ON
BEHALF OF THE SELLER OR BUYER AND MAY LIMIT THE DEPTH AND DEGREE OF
REPRESENTATION THAT YOU RECEIVE. A BROKER OR A SALESPERSON MAY NOT ACT
AS A DUAL AGENT WITHOUT THE SIGNED, WRITTEN CONSENT OF BOTH THE SELLER
AND THE BUYER. Broker shall comply with the notification provision set forth in paragraph 14
before acting as a dual agent under this Agreement.
Under Montana law, an "'adverse material fact" is defined as 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: (f) materially affects the value,
affects structural integrity, or presents a documented health risk to occupants of the property; or
(ii) materially affects the buyer's ability or intent to perform the buyer's obligations under a
proposed or existing contract. The term 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.
26 This Agreement (and any amendment hereto) may be executed in any number of
counterparts, all of which when taken together will constitute one and the same instrument,
A counterpart signed and delivered by facsimile transmission copy thereof or via electronic
means in portable document format (.pdf) shall be as valid and effectual as the original of
that counterpart
IN WITNESS WHEREOF, the parties have executed this Exclusive Sales Listing Agreement
effective as of the date of Owner's signature below.
Broker: Owner:
CBRE, Inc. City of Bozeman
Licensed Real Estate Broker
Signed: 1W Signed:
By: Mike Elliott By: Chris A. Kukulski
Title: Senior Vice President Title. City Manager
Date: September 23 , 2013 Date:: September , 2013
Address: 122517 th Street, Suite 2950 Address: 121 North Rouse Avenue
Denver, CO 80202 Bozeman, Montana 59715
Telephone: 303-628-1741 Telephone: 406-582-2305
CONSULT YOUR ADVISORS — This document has legal consequences. No representation or
recommendation is made by Broker as to the legal or tax consequences of this Agreement or the transaction(s)
which it contemplates. These are questions for your attorney and financial advisors.
CBRE
Schedule ofSale and Lease Commission
Property- located north of Interstate 90 between the North 7th Street and, North 19th
Street Interstate 90 interchancies and include parcels: S36, TOIS, R05 E, CQ.S. 2153,
A. SALES:
As to sales of improved real property, Broker's commission shall be 6% of the gross sales price, As to
sales of unimproved real property, Broker's commission shall be 6% of the gross sales price. Gross sales
price shall include any and all consideration received or receivable, in whatever form, including but not
limited to assumption |emoe of existing liabilities, For the purpose of this Schedule, the Property is
deemed tnbe Fl improved orHunimproved
B. LEASES:
Owner and Broker presently donot anticipate that the unimproved Property will be �eaned during the term
of this Ust|og, except for conveyance of leases (or renewals or extensions of existing |omneo), easements
or other similar property rights for agricultural use ofthe Prnpody, cell tower and other communication
facility sites, siting of signs, installation of utilities, and rights ofway, all of which do not require payment of
a commission pursuant to Section 5 of the Exclusive Sales Listing Agreement (the "Listing Agreement").
1f, however, a lease transaction acceptable to Owner is presented and negotiated during the term of the
Listing Agreement (including the protection period set forth in Section 4)-4orexample, if Owner desires
to enter into a long-term ground lease of the Property—then Owner and Broker agree to negotiate in good
faith to arrive at a reasonable and fair commission to be paid to Broker. The negotiation shall occur, and
the amount of Broker's commission and its manner of payment nhm|f be determined, prior to lease
signing.
C. EXCLUSIONS:
Notwithstanding any other provision of the Listing Agreement and this 5nhoduke, the provisions of this
Section C shall apply if one of the following prospective purchasers enters into and closes an agreement
to purchase or lease the Property: Space Bank' Ltd, 3202 East Foothill Blvd., Pasadena, CA 91107. or
any assignee of Space Bank, Ltd.' provided that the assignee controls, is controlled by' or is under
common control with Space Bank, Lid. If such prospective purchaser enters into and closes an
agreement to purchase or lease the Property during the term of the Listing Agreement, Broker shall be
entitled to (i) a commission of 3% of the gross sales price in the case of a sale, or (fl) a commission to be
negotiated ao described in Section Bim the case ofalease.
The provisions hereof are subject to the terms and provisions of the Exclusive Sales Listing Agreement to
which this Schedule|s attached and which ia executed by the parties hereto.
[Signatures on next page]
Broker: Owner:
CBRE, Inc. City of Bozeman
Licensed Real Estate Broker
Signed: Signed:
By: Mike Elliott By: Chris A. Kukulski
Title: Senior Vice President Title: City Manager
Date: 2013 Date: _q 3 , 2013
Address.- 1225 17'" Street, Suite 2950 Address: 121 North Rouse Avenue
Denver, CO 80202 Bozeman, Montana 59715
Telephone: 303-628-1741 Telephone: 406-582-2306
SCHEDULE OF SALE AND LEASE COMMISS1ONS....... ......... ....... ............... ............... .........PAGE 2 OF 2
ORIGIN41 FC OR E-
Exclusive Sales Listing Agreement
1. In consideration of the listing for sale of the real property hereinafter described (the
"Property") by CBRE, INC. ("Broker"), and Broker's agreement to market the Property
actively and diligently with a goal of effecting a sale of same as expeditiously as possible,
the City of Bozeman, a self-governing municipal government ("Owner"), hereby grants to
Broker the exclusive right to sell the Property for a period commencing August 30th, 2013
and ending midnight August 29th, 2014 (the "Initial Term' and together with any
extension(s), the 'Term"), at a price of = upon the following terms: at sellers sole
discretion. If the Property remains unsold at the end of the Initial Term, Owner may in its
discretion extend the Initiaf Term an additional period of one (1) year ending midnight
August 29, 2015. Owner shall not unreasonably withhold its consent to such extension,
The Property is situated in the city of Bozeman, county of Gallatin, state of Montana, and is
further described as located north. Of Interstate 9,0 between the North 7th Street and
North 19th Street Interstate 90 interchanges and lnqIyde_pa.rqeIs:-S36 T01 S. R05 E,
C.O.S. 2153, PARCEL TRACT 1-A, ACRES 22.223,- S369 T01 S. R06 E C.O.S. 2163,
PARCEL TRACT 2-A. ACRES 10.002• S36,301 S. RO 53
,_PARCEL TRACT
3-A, ACRES 24.761; S36 T01 S, R05 E, C.O.S. 2163L PARCEL TRACT 4-A. ACRES
28.36. References herein to the Property shall be understood to include portions of the
Property.
2. Owner agrees to pay Broker a sales commission in accordance with Broker's Schedule of
Sale and Lease Commissions (the "Schedule"), a copy of which is executed by Owner and
Broker, attached hereto and hereby made a part hereof. This commission shall be earned
for services rendered if, during the Term, the Property is sold to a purchaser procured by
Broker, Owner or anyone else, subject to any exclusions set forth in the Schedule. Broker is
authorized to cooperate and to share its commission with other licensed real estate brokers,
regardless of whether said brokers represent prospective purchasers or act as Broker's
subagents.
3. As used in this Agreement the term "sale" shall include an exchange of the Property, and
also the granting of an option to purchase the Property. Owner agrees that in the event
such an option is granted, Owner shall pay Broker a sales commission in accordance with
the Schedule on the price paid for the option and for any extensions thereof. This
commission shall be paid upon receipt by Owner of any such payment(s). In the event such
an option is exercised, whether during the Term or thereafter, Owner shall also pay Broker a
sales commission on the gross sales price of the Property in accordance with the Schedule,
Notwithstanding the foregoing, to the extent that all or part of the price paid for the option or
any extension thereof is applied to the sales price of the Property, then any commission
previously paid by Owner to Broker on account of such option payments shall be credited
against the commission payable to Broker on account of the exercise of that option.
4. Owner further agrees to pay Broker a commission in accordance with the Schedule if, within
ninety (90) calendar days after the earlier of the expiration of the Term or termination of this
Agreement, the Property is sold to, or Owner enters into a contract of sale of the Property
with, or negotiations continue, resume or commence and thereafter continue leading to a
sale of the Property to any person or entity (including his/her/its successors, assigns or
affiliates) with whom Broker has negotiated (either directly or through another broker or
agent) or to whom the Property has been submitted prior to the expiration or termination of
the Term. Broker is authorized to continue negotiations with such persons or entities.
a.
Broker agrees to submit a list of such persons or entities to Owner mo later than fifteen (15)
calendar days following the expiration or termination of the Term, provided, hnwxaver, that if
avvhMam offer has been submitted then it shall not be necessary to include the ofepmr'a
name om the list,
5. OWNER FURTHER AGREES THAT (e) IF /\ LEASE OF THE PROPERTY IS ENTERED
INTO DURING THE TERM TOANYONE, OR (b) |F. WITHIN ONE HUNDRED TWENTY
(120) CALENDAR DAYS AFTER THE EXPIRATION {)F THE TERM OR TERMINATION (}F
THIS AGREEMENT, THE PROPERTY IS LEASED TO, OR OWNER ENTERS INTO A
CONTRACT TO LEASE THE PROPERTY WITH, OR mEG{)lr{AT}DNS CONTINUE,
RESUME OR COMMENCE AND THEREAFTER CONTINUE LEADING TO THE LEASE OF
THE PROPERTY TO ANY PERSON OR ENTITY AS DESCRIBED IN PARAGRAPH 4
ABOVE, OWNER SHALL PAY BROKER /\ LEASING CC}K8K8|S8KC)N IN ACCORDANCE
WITH THE SCHEDULE, Notwithstanding the foregoing, Broker shall not be entitled to
payment Dfa commission if Owner enters into leases (or renewals or extensions of existing
leases) or conveys easements or other similar property rights for oghcuitWmaU use of the
F`roperty, cell tower and other communication facility oitee, siting of signs, installation of
utilities, and rights of way,
6. Commissions shall be payable hereunder at closing of escrow, recordation of deed, or lease
execution.
7. Unless otherwise provided herein, the terms of sale shall be, at the option of the purchmse,,
either cash or cash to any existing loan. Any offer may contain monna| and customary
contingencies such as those relating to the condition of the Property, title report, and timing
of closing. In any contract for the oa(g or lease of the Property. Owner may condition its
obligation to perform upon obtaining all necessary governmental approvals and upon
compliance with all applicable laws governing the ou|a, lease or other disposition of city-
owned property.
8^ (]wmar and Broker agree that the Property will be offered in compliance with all applicable
anti-discrimination laws. In the fulfillment of this Agreement and in any contract for the oo|e
or lease of the Property arising therefrom, Owner and Broker agree to not discriminate on
the bmo}a of race, c0|o[, reUgioA, creed, sex, age, marital adadus, national origin, or actual or
perceived sexual orientation, gender identity ordisability,
8. Owner agrees to cooperate with Broker in bringing about a sale of the Property and to refer
immediately to Broker all inquiries of anyone interested in the Property. All negotiations are
10 be through Broker. Broker is authorized 10 accept a deposit from any prospective
purchaser and to handle it in accordance with the instructions of the parties unless contrary
to applicable law. Broker is exclusively authorized to advertise the Property and.
excyusiVa|y. to place sign(s) on the Property if, in Broker's opinion` such would facilitate the
sale mf the Property, Owner and its counsel will be responsible for determining the legal
sufficiency of e purchase and sale agreement and other dmoornentm ma|sdimg to any
transaction contemplated by this Agreement,
10' in the event the Property is nonoowad form the market due to the opening of an escrow or
acceptance of an offer to purchase the Property during the Tenn, or any extension thereof,
and the sale is not consummated for any reason then, in that event. the Term shall be
extended for a period of time equal to the number uf days that the escrow had been opened '
andfor the Property had been removed from the market, whichever is longer, provided that, /
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in no event shall such extenoion(s) mxoaed one hundred eighty (188) calendar days in the
aggregate.
11 Owner agrees 10 diimn/ooa to Broker and to prospective purchasers at such purchasers'
written request any and all information which Owner has regarding present and future
zoning and environmental matters affecting the Property and regarding the condition ofthe
Property, inc|mdimg, but not limited to structural, mechanical and nn||o conditions, the
presence and location of aabeutoa. PCB transformers, other toxio, hazardous or
contaminated substances, and underground storage tanks, in, on, or about the Property am
well as whether the Property is or may be situated in a flood zone. Broker is authorized to
disclose any such information hn prospective purchasers ortenants.
12, Owner represents that d |o the owner mf the Property.
13Tothe extent permitted by applicable |mw. Broker is authorized to deduct its commissions
from any deposits, payments or other funds, including proceeds of sale or mantal payments,
paid by a purchaser or tenant in connection with a transaction contemplated by this
Agreement, and Owner hereby irrevocably assigns said funds and proceeds to Broker tothe
extent necessary to pay said oocnrn|msionn Broker is author�aed to provide e copy of this
Agreement to any escrow or closing agent working on such transaction, and such escrow or
closing agent is hereby irrevocably instructed by Owner to pay Broker's commissions from
any such funds or proceeds available. {}vvnar ehs|| remain liable for the entire amount of
said commissions regardless of whether Broker exercises its rights under this paragraph,
14.Agency Disclosure. 'Sa/eoperaon(s)') solely represent Owner
under this Agreement, Owner acknowledges that Broker is o national brokerage firm and
that |nsome cases Broker and GmVespersnn(s) may represent prospective purchasers and
tenants. (lwmar desires that the Property be presented to such persons or entities and
consents to the dual representation created thereby; provided, however. that Broker shall
notify Owner in writing of any and all instances in which Broker and/or Salesperson(s) also
represent a prospective purchaser or tenant of the Property. Broker ehoN not disclose the
confidential information of one principal tn the other.
15, In the event that the Property comes under the jurisdiction of a bankruptcy court. Owner
shall immediately notify Broker of the sanle, and shall promptly take all steps necessary to
obtain court approval of Broker's appointment, om1ese Broker shall elect to terminate this
Agreement upon said notice
15� In the event that the Property becomes the subject of foreclosure proceedings prior to the
expiration of this Agreemmnt, then this Agreement shall be deemed suspended until such
time as Owner may reacquire the Property within the Term, /f this Agreement issuspended
pursuant to this paraQrmph. Broker shall be free to enter into a listing agreement with any
receiver, the party initiating the fonec(oaure, the party purchasing the Properly at a
foreclosure sa|e, or any other person having an interest in the Property.
17. Any claim, controversy or dispute between Owner and Broker relating to this Agreement, the
Property orOwner's or Broker's performance hereunder shall bn resolved first bynegotiation
between senior-level personnel from each party duly authorized to execute settlement
agreements.. Upon mutual agreement of Owner and Broker, the parties may invite an
independent, disinterested mediator to assist in the negotiated settlement discussions. If �
the parties are unable to resolve the dispute within thirty (30) days from the date the dispute �
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was first naised, then such dispute shall be resolved in a court of competent jurisdiction
located in the State of Montana, The prevailing party in court proceedings shall be entitled to
recover its expenses, including its costs and reasonable attorneys' fees.
18, This Agreement and any disputes arising hereunder shall be governed hereafter and
construed and enforced in 0000ndaooe with the laws of the State of Montana, wRhout
reference to principles ofchoice or conflicts of laws.
19. |n the event that Owner lists the Property with another broker after the expiration or
termination of this Agreement, Owner agrees to provide in the subsequent listing agreement
that e commission will not be payable to the now broker with respect to transactions for
which Owner remains obligated to pay a commission to Broker under paragraph 4 or 5
hereof. Owner's failure to do so, however, shall not affect Owner's obligation to Broker
under paragraph 4 or 5.
20. Each signator to this Agreement represents and warrants that he or she has full authority to
sign this Agreement nn behalf of the party for whom heorshe signs and that this Agreement
binds such party.
21 This Agreement constitutes the entire agreement between Owner and Broker and
supersedes all prior discussions, negotiations and agreements, whether oral or written. No
amendmeo1, mltena1ion, cancellation or withdrawal uf this Agreement shall be valid or binding
unless made in writing and signed by both Owner and Broker. This Agreement shall be
binding upon, and shall benefit, the heira, successors and assignees of the parties. In the
event any c|euse, provision, paragraph or term of this Agreement shall be deemed to be
unenforceable or void based on any controlling state or federal law, the remaining provisions
hereof, and each part, shall remain unaffected and shall continue in full force and effect,
22 The parties hereto agree to comply with eh/ applicable federal, state and local |awa,
regulations, codes, ordinances and administrative orders having jurisdiction over the parties,
property or the subject matter of this Agreement.
21 Except as otherwise provided herein, Broker shall not assign Broker's rights, duties ormb|igotmna
under this Agreement, in whole or in part, without the prior written consent of Owner.
24. Under Montana law, a seller's agent has the following duties toa seller (a) act solely inthe
best interests of the mmUer, except that a seller agent, after written disclosure to the seller
and with the sellers written oonsemt, may represent multiple omUe,a of property or list
properties for sale that may compete with the seBer^s property without breaching any
nb|jQaUom to the seUer� (b) obey promptly and efficiently all |avvfU| instructions of the seller;
(n) disclose all relevant and rneteha| information that concerns the real estate transaction
and that is knownƒothe seller agent and not known or discoverable by the seller, unless the
information is subject to ounf|damda0ty arising from a prior or existing agency relationship on
the part of the seller agent with a buyer or another oe||e/� (d) safeguard the seller's
confidences; (a) exercise reasonable cane, skiU, and diligence in pursuing the sn|[er`o
objectives and in complying with the terms established in the listing agreement-, (f) fully
account tothe seller for any funds or property ofthe seller that comes into the seller agent's
possession; and (g) comply with all applicable federal and state hawm, ruloo, and oygu|udnno.
25 Under Montana |avv a seller's agent has the following dot|am to the buyer: (a) 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; (b) 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 (c) act in good faith with a buyer and a buyer agent;
and (d) comply with all applicable federal and state laws, rules, and regulations.
IF A SELLER AGENT IS ALSO REPRESENTING A BUYER OR A BUYER AGENT IS ALSO
REPRESENTING A SELLER WITH REGARD TO A PROPERTY, THEN A DUAL AGENCY
RELATIONSHIP MAY BE ESTABLISHED. IN A DUAL AGENCY RELATIONSHIP, THE DUAL.
AGENT IS EQUALLY OBLIGATED TO BOTH THE SELLER AND THE BUYER, THESE
OBLIGATIONS MAY PROHIBIT THE DUAL AGENT FROM ADVOCATING EXCLUSIVELY ON
BEHALF OF THE SELLER OR BUYER AND MAY LIMIT THE DEPTH AND DEGREE OF
REPRESENTATION THAT YOU RECEIVE. A BROKER OR A SALESPERSON MAY NOT ACT
AS A DUAL AGENT WITHOUT THE SIGNED, WRITTEN CONSENT OF BOTH THE SELLER
AND THE BUYER. Broker shall comply with the notification provision set forth in paragraph 14
before acting as a dual agent under this Agreement.
Under Montana Paw, an "adverse material fact is defined as 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; or
(ii) materially affects the buyer's ability or intent to perform the buyer's obligations under a
proposed or existing contract. The term 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.
26 This Agreement (and any amendment hereto) may be executed in any number of
counterparts, all of which when taken together will constitute one and the same instrument,
A counterpart signed and delivered by facsimile transmission copy thereof or via electronic
means in portable document format (,pdf) shall be as valid and effectual as the original of
that counterpart
IN WITNESS WHEREOF, the parties have executed this Exclusive Sales Listing Agreement
effective as of the date of Owner's signature below.
Broker: Owner:
CBRE, Inc. City of Bozeman
Licensed Real Estate Broker
Signed: Signed:
N"- Aoj�, �,
By: Mike Elliott By: Chris A. Kukulski
Title: Senior Vice President Title: City Manager
Date: September 23 , 2013 Date: September , 2013
Address: 122517 1h Street, Suite 2950 Address: 121 North Rouse Avenue
Denver, CO 80202 Bozeman, Montana 59715
Telephone: 303-628-1741 Telephone: 406-582-2306
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CONSULT YOUR ADVISORS — This document has legal consequences No representation or
recommendation is made by Broker as to the legal or tax consequences of this Agreement or the transaction(s)
which it contemplates. These are questions for your attorney and financial advisors,
^
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Schedule of Sale and Lease Commissions B- ----
Properby: located north of Interstate 90 betmeen the North 7th Street and North 19th
Street Interstate 90 interchanges and includtpArcels: S36jol S, R05 E, C.O.S. 2163,
PARCEL TRACT 1-A,ACRES 22.2-23, S36, Tol S
A. SALES:
As to sales of improved real property, Broker's Commission shall ba8% nfthe gross sales price, As to
sales of unimproved real property, Broker's commission shall be69& of the gross sales price. Gross sales
price shall include any and all consideration received orreceivable, in whatever form, including but not
limited to assumption or release of existing liabilities. For the purpose of this Schedule, the Property is
deemed toUeLJ improved or 0un|mpnowod
B. LEASES:
Owner and Broker presently do not anticipate that the unimproved Property will be leased during the term
of this listing, except for conveyance of leases (or renewals or extensions of existing leases), easements
or other similar property rights for agricultural use of the Property, ca|| tower and other communication
facility sites, siting of signs, installation of utilities, and rights of way, all of which do not require payment of
a commission pursuant to Section S of the Exclusive Sales Listing Agreement (the "Listing Agreement").
|f, however, e lease transaction acceptable to Owner is presented and negotiated during the term of the
Listing Agreement (including the protection period set forth in Section 4)—'for example, if Owner desires
to enter into a long-term ground lease of the Property—then Owner and Broker agree to negotiate in good
faith 0o arrive at m reasonable and fair commission to be paid to Broker. The negotiation shall occur, and
the amount of Broker's commission and its manner of payment shall be determined, prior to lease
signing,
C. EXCLUSIONS:
Notwithstanding any other provision of the Listing Agreement and this Sohodu|a, the provisions of this
Section C shall apply if one of the following prospective purchasers enters into and closes an agreement
ta purchase or lease the Property: Space Bank, Lbd, 32O2 East Foothill B|vd.. Pasadena, CA011D7. or
any assignee of Space 8unN. 11d, provided that the assignee uunt/ols, is controlled by` or is under
common ouo\nd with Space Bank. Ltd. If such prospective purchaser smhom into and closes an
agreement to purchase or lease the Property during the term of the Listing Agreement, Broker shall be
entitled io (1) a commission oy3% of the gross sales price in the case o/a sale, or (/i) a commission tobe
negotiated as described in Section Bin the case cda lease
The provisions hereof are subject to the terms and provisions of the Exclusive Sales Listing Agreement to
which this Schedule is attached and which is executed by the parties hereto,
(Signatures on next page]
SCHEDULE OF SA(F AND LEASE tmwMI*nomo ....----' --....... _ ........ -- _-'-- -- .......--'PAoe1wpo �
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Broker: Owner:
CBRE, Inc. City of Bozeman
Licensed Real Estate Broker eq
Signed-, Signed:
By- Mike Elliott By: Chris A, Kukulski
Title: Senior Vice President Title: City Manager
Date: J 2 2013 Date:
-_ 13 2013
Address: 1225 171" Street, Suite 2960 Address: 121 North Rouse Avenue
Denver, CO 80202 Bozeman,Montana 59715
Telephone: 303-628-1741 Telephone:406-582-2306
SCHEDULE OF SALE ANo LEASE COMMISSIONS ............ ...... PAGE 2 OF 2