HomeMy WebLinkAbout2012/05/22 Item 10,; ~ CITY COUNCIL
^~~/'i AGENDA S TAT E M E N T
~~~ CITY OF
~~ CHUTAVISTA
5/22/11, Item IQ
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ENTERING INTO AN EXCLUSIVE LISTING
AGREEMENT WITH VOIT REAL ESTATE SERVICES FOR 430 F
STREET AND A PORTION OF 1800,Fv AXWELL ROAD
~/
SUBMITTED BY: DIRECTOR OF PUBLIC WORK
ASSISTANT DIRECTOR OF EN E G
REVIEWED BY: CITY MANAGER ~ ~ ~
ASSISTANT CITY MANAGER 5 ~
4/STHS VOTE: YES ^ NO
SUMMARY
Over the past several years the City of Chula Vista has undergone significant downsizing. As a
result, the City currently has office space in excess of the capacity needed to conduct day-to-day
business. Staff has specifically identified the Ken Lee Building located at 430 F Street and
approximately 10,000 square feet of office space at the Lippitt Public Works Center located at
1800 Maxwell Road as sites that are not needed for City operations now or in the near future.
While the future need for these facilities is uncertain, the City is still incurring cost for
maintenance and utilities. In an effort to offset operating costs while still keeping open the
option of re-occupying these spaces at a later date, staff is recommending that a Real Estate
Broker be employed to list and market these sites for lease or potential sale.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance with the
California Environmental Quality Act (CEQA) and has determined that the activity is not a
"Project" as defined under Section 15378 of the State CEQA Guidelines because the activity
consists of a governmental fiscal and administrative activity involving approval of an agreement
for real estate services that will not result in direct or indirect physical changes to the
environment. Therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the
activity is not subject to CEQA. Thus, no environmental review is necessary.
RECOMMENDATION
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
10-1
05/22/11, Item l~
Page 2 of 3
DISCUSSION
Over the past several years the City of Chula Vista has undergone significant downsizing. As a
result the City currently has office space in excess of the capacity needed to conduct day to day
business. Non-safety employee operations have been largely consolidated to the City Hall
campus and the west half of the Lippitt Public Works Center. As a result, occupied space
available at the Ken Lee Building located at 430 F Street and approximately 10,000 square feet
office space at the Lippitt Public Works Center located at 1800 Maxwell Road. While space
remains vacant and the future need for these facilities is uncertain, the City is still incurring the
cost for maintenance and utilities. In an effort to offset these costs while still keeping open the
option of re-occupying these spaces at a later date, staff is recommending that a Real Estate
Broker be employed to list and mazket these sites for lease.
Staff solicited marketing proposals from four qualified commercial brokerages and received two
responses. The two firms, Voit Real Estate Services (Voit) and Cushman Wakefield were
interviewed. Based upon the interview, Voit by virtue of a more responsive approach to our
marketing goals as well as a lower fee schedule, was selected.
Staff is proposing to retain Voit for one six month listing period with an option for one additional
six month term. The exact tenancy details will be predicated upon the results of the marketing
program (i.e... type of tenant, cost and complexity of tenant improvements and length of lease
needed). Staff has provided Voit with general guidelines that best meet the City's needs.
Essentially, we are proposing a tenancy of about ten years at each site with a provision fora re-
evaluation at some point during the initial term. This provides the City and tenant with a basis to
renew for a longer period or not depending on the status of each. There is a possibility that a
potential tenant could make an offer to purchase the Ken Lee site. While we are not currently
looking to sell this property, we would be obligated to bring forward any purchase offer to
Council for consideration. For that reason the fee structure in the proposed contract accounts for
a sales commission.
Because of the unique nature of both sites and the relative instability of the current commercial
real estate market, it is unknown what type of response the City will receive, however based
upon the projections of both Brokers, it is estimated that the City will generate approximately
$55,000 per year in rental income from the Ken Lee facility and $90,000 per year from the lease
of the Lippitt Public Works Center. Additionally, the City would no longer be responsible for
the maintenance and utilities, which would provide significant savings.
Compensation for the Broker is in accordance with a Schedule of Commissions contained within
the Contract. The exact amount is dependant on the actual Lease negotiated. It is essentially a
sliding schedule of 7% of the rent going down to 3% by year 10. Staff will return to Council for
approval of the lease when tenants are found and the City will provide the actual fee structure. It
is important to note that, unlike traditional real estate transactions, no commissions will be owed
until Council approves the Lease Agreement.
10-2
05/22/11, Item ~N
Page 3 of 3
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council Members and has found that
Councilman Castaneda has property holdings within 500 feet of the boundaries of the property
which is the subject of this action.
CURRENT YEAR FISCAL IMPACT
Entering into this agreement will result in no net cost to the General Fund. Staff estimates that
rental of the Ken Lee Building will generate $55,000 annually and rental of the Lippitt Public
Works Center will generate $90,000 per year. The broker will be paid using a sliding scale upon
approval of the lease by the City Council.
ONGOING FISCAL IMPACT
Approval of the exclusive listing agreement with Voit Real Estate Services has no ongoing fiscal
impact to the City. The broker will be paid using a sliding schedule of 7% of the rent in year 1 to
3% of the rent by year 10.
ATTACHMENTS
Lease Agreement
Prepared by: Rick Ryals, Real Property Manager, Publrc Works Engineering
J: IEngineerlAGENDAICAS2012105-22-121Voit ListingAgendaREV.doc
10-3
RESOLUTION NO 2012-
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CHULA VISTA ENTERING INTO AN EXCLUSIVE
LISTING AGREEMENT WITH VOIT REAL ESTATE
SERVICES FOR 430 F STREET AND A PORTION OF
1800 MAXWELL ROAD
WHEREAS, the City of Chula Vista currently has office space significantly in
excess of the capacity needed to conduct the City's day to day business; and
WHEREAS, staff has specifically identified the Ken Lee Building located at 430
F Street and approximately 10,000 square feet office space at the Lippitt Public Works
Center located at 1800 Maxwell Road, that are not needed for City operations now or in
the near future; and
WHEREAS, while the future need for these facilities is uncertain, the City is still
incurring cost for maintenance and utilities; and
WHEREAS, it is desirable to find suitable tenants to occupy, maintain and pay
rent and utilities until such time as they are needed for City operations or can de declared
as permanent excess and disposed of; and
WHEREAS, City solicited proposals from three qualified commercial brokerages
to market these sites, interviewed the two responsive bidders and selected the successful
bidder based upon qualifications and the lowest price; and
WHEREAS, the Agreement contemplates leasing the properties; however, it also
includes terms related to the sale of property in the event that the property is determined
to be excess.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Chula Vista hereby agrees to enter into a Exclusive Listing Agreement with Voit Real
Estate Services to Lease City property as set forth in the Agreement attached hereto and
authorizes staff to execute said Agreement on the City's behalf.
Presented by Approved as to form by
Richard A. Hopkins
Director of Public Works
G1enR.Googins ~~Vl~(4~.Sc~~
City Attorney
10-4
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~i
Glen R. Googins ~,~-~J~~~t~(,`v ~ ~QJ'1
City Attorney ~J
Dated: S ~ ~ ~~ ~ ~-
AGREEMENT BETWEEN
THE CITY OF CHULA VISTA, AND
VOIT REAL ESTATE SERVICES
TO PROVIDE PROFESSIONAL REAL ESTATE SERVICES
10-5
Agreement between
City of Chula Vista
and
Voit Real Estate Services,
To
Provide Professional Real Estate Services
This agreement (Agreement) is between the City-related entity whose name and business
form is indicated on Exhibit A, Paragraph 2, (City), and the entity whose name, business form,
place of business and telephone numbers aze indicated on Exhibit A, Paragraphs 4 through 6,
(Consultant), and is made with reference to the following facts:
RECITALS
WHEREAS, the City of Chula Vista currently has office space significantly in excess of
the capacity needed to conduct the City's day to day business, and,
WHEREAS, staff has specifically identified the Ken Lee Building located at 430 F Street
and approximately 10,000 square feet office space at the Lippet Public Works Center located at
1800 Maxwell Road, that are not needed for City operations now or in the new future, and,
WHEREAS, while the future need for these facilities is uncertain, the City is still
incurring cost for maintenance, upkeep and utilities, and
WHEREAS, is desirable to find suitable tenants to occupy, maintain and pay rent and
utilities until such time as they needed for City operations or can de declared as permanent
excess and disposed of, and
WHEREAS, City solicited proposals for three qualified commercial brokerages to mazket
these sites, interviewed the two responsive bidders and selected the successful bidder based upon
qualifications and the lowest price.
[End of Recitals. Next Page Starts Obligatory Provisions.]
Page 1
Two Party Agreement Betweerx City of Chula Vista and [he Catlirzg Conepany
to Provide Professiwtal Real Estate Etppraisal Sen~ices ~ 0- 6
OBLIGATORY PROVISIONS PAGES
NOW, THEREFORE, for valuable consideration the City and Consultant do hereby mutually
agree as follows:
All of the Recitals above aze incorporated into this Agreement by this reference.
ARTICLE I. CONSULTANT'S OBLIGATIONS
A. General
1. General Duties. Consultant shall perform all of the services described on Exhibit A,
Paragraph 7 (General Duties).
2. Scope of Work and Schedule. In performing and delivering the General Duties,
Consultant shall also perform the services, and deliver to -City the "Deliverables"
described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according
to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the
essence of this agreement. The General Duties and the work and Deliverables required in
the Scope of Work and Schedule shall be referred to as the "Defined Services." Failure to
complete the Defined Services by the times indicated does not, except at the option of the
City, terminate this Agreement.
a. Reductions in Scope of Work. City may independently, or upon request from
Consultant, from time to time, reduce the Defined Services to be performed by the
Consultant under this Agreement. Upon doing so, City and Consultant agree to meet
in good faith and confer for the purpose of negotiating a corresponding reduction in
the compensation associated with the reduction.
b. Additional Services. In addition to performing the Defined Services, City may
require Consultant to perform additional consulting services related to the Defined
Services (Additional Services), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform same on a time and
materials basis at the rates set forth in the "Rate Schedule" in Exhibit A,
Pazagraph 10(C), unless a separate fixed fee is otherwise agreed upon. All
compensation for Additional Services shall be paid monthly as billed.
3. Standard of Care. The Consultant expressly warrants that the work to be performed
pursuant to this Agreement, whether Defined Services or Additional Services, shall be
performed in accordance with the standard of care ordinarily exercised by members of
the profession currently practicing under similaz conditions and in similar locations.
a. No Waiver of Standard of Care. Where approval by City is required, it is understood
to be conceptual approval on]y and does not relieve the Consultant of responsibility
for complying with all laws, codes, industry standazds, and liability for damages
caused by negligent acts, errors, omissions, noncompliance with industry standazds,
or the willful misconduct of the Consultant or its subcontractors.
Page 2
Two Party Agreement Between Cdty of Chz~[o Vista mad the Catling Company
to Provide Professional Real Estate Appraisal Services ~ ~-~
B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the
Consultant must comply with the federal or state law and implementing regulations. No
provision of this Agreement requires the Consultant to observe or enforce compliance with
any provision, perform any other act, or do any other thing in contravention of federal, state,
temtorial, or local law, regulation, or ordinance. If compliance with any provision of this
Agreement violates or would require the Consultant to violate any law, the Consultant agrees
to notify City immediately in writing. Should this occur, the City and the Consultant agree
that they will make appropriate arrangements to proceed with or, if necessary, amend or
terminate this Agreement, or portions of it, expeditiously.
1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that
all participants utilized by the Consultant to complete its obligations under this
Agreement, such as subcontractors, comply with all applicable laws, regulations,
ordinances, and policies, whether federal, state, or local, affecting Project
implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of
the Consultant under this Agreement, the Consultant shall ensure that the subcontractor
carries out the Consultant's responsibilities as set forth in this Agreement.
C. Insurance
1. General. Consultant must procure and maintain, during the period of performance of this
Agreement, and for twelve months after completion, policies of insurance from insurance
companies to protect against claims for injuries to persons or damages to property that
may arise from or in connection with the performance of the work under this Agreement
and the results of that work by the Consultant, his agents, representatives, employees or
subcontractors, and provide documentation of same prior to commencement of work.
2. Minimum Scope of Insurance. Coverage must be at least as broad as:
a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence
Form CG0001).
b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile
Liability, Code 1 (any auto).
c. WC. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to
the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to
include contractual liability.
Page 3
Two Parry Agreement Be[ween City of Chula Visda and the Cat[ing Company
to Provide Professional Real Estate Appraisal Services ~ ~-$
3. Minimum Limits of Insurance. Consultant must maintain limits no less than those
included in the table below:
i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury,
(Including (including death), and property damage. If Commercial General
operations, Liability insurance with a general aggregate limit is used, either
products and the general aggregate limit must apply separately to this
completed Projectllocation or the general aggregate limit must be twice the
operations, as required occurrence limit.
a licable
ii. Automobile $1,000,000 per accident for bodily injury, including death, and
Liability: property damage.
iii. Workers' Self employed, none required
Compensation
Employer's
Liability:
iv. Professional $1,000,000 each occurrence
Liability or Errors
& Omissions
Liability:
4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City. At the option of the City, either the insurer will
reduce or eliminate such deductibles or self-insured retentions as they pertain to the City,
its officers, officials, employees and volunteers; or the Consultant will provide a financial
guarantee satisfactory to the City guaranteeing payment of losses and related
investigations, claim administration, and defense expenses.
5. Other Insurance Provisions. The general liability, automobile liability, and where
appropriate, the worker's compensation policies are to contain, or be endorsed to contain,
the following provisions:
a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents,
and volunteers are to be named as additional insureds with respect to all policies of
insurance, including those with respect to liability arising out of automobiles owned,
leased, hired or borrowed by or on behalf of the Consultant, where applicable, and,
with respect to liability arising out of work or operations performed by or on behalf of
the Consultant, including providing materials, parts or equipment furnished in
connection with such work or operations. The general liability additional insured
coverage must be provided in the form of an endorsement to the Consultant's
insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement
must not exclude Products/Completed Operations coverage.
Page 4
Two Party Agreensent Between City of Chttia Vista and the Catlireg Convpany
to Provide R~ofessionad Real Estate Appraisal Services ~ Q-9
b. Primary Insurance. The Consultant's General Liability insurance coverage must be
primary insurance as it pertains to the City, its officers, officials, employees, agents,
and volunteers. Any insurance or self-insurance maintained by the City, its officers,
officials, employees, or volunteers is wholly sepazate from the insurance of the
Consultant and in no way relieves the Consultant from its responsibility to provide
insurance.
c. Cancellation. The insurance policies required by this Agreement shall not be canceled
by either party, except after thirty days' prior written notice to the City by certified
mail, return receipt requested. The words "will endeavor" and "but failure to mail
such notice shall impose no obligation or liability of any kind upon the company, its
agents, or representatives" shall be deleted from all certificates.
d. Active Negligence. Coverage shall not extend to any indemnity coverage for the
active negligence of the additional .insureds in.any case where an agreement to
indemnify the additional insured would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
e. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in
favor of the City for each required policy providing coverage for the term required by
this Agreement.
6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or
Errors & Omissions coverage are written on a claims-made form:
a. Retro Date. The "Retro Date" must be shown, and must be before the date of the
Agreement or the beginning of the work required by the Agreement.
b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance
must be provided for at least five years after completion of the work required by the
Agreement.
a Cancellation. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a "Retro Date" prior to the effective date of the
Agreement, the Consultant must purchase "extended reporting" coverage for a
minimum of five yeazs after completion of the work required by the Agreement.
d. Copies. A copy of the claims reporting requirements must be submitted to the City
for review.
Page 5
Two Parry Agreement Behveen Ciry ojChu[a Yista and the Catling Conepany
to Provide Professional Real Est¢te Appraisal Services ~ Q- ~ Q
7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to
transact business in the State of Califomia with a current A.M. Best's rating of no less
than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the
State of California List of Eligible Surplus Lines Insurers (LESLI) with a current A.M.
Best's rating of no less than A X. Exception may be made for the State Compensation
Fund when not specifically rated.
8. Verification of Coverage. Consultant shall furnish the City with original certificates and
amendatory endorsements effecting coverage required by Section LC. of this Agreement.
The endorsements should be on insurance industry forms, provided those endorsements
or policies conform to the requirements of this Agreement. All certificates and
endorsements are to be received and approved by the City before work commences. The
City reserves the right to require, at any time, complete, certified copies of all required
insurance policies, including endorsements evidencing the coverage required by these
specifications.
9. Subcontractors. Consultant must include all subconsultants as insureds under its policies
or furnish separate certificates and endorsements for each subconsultant. All coverage for
subconsultants is subject to all of the requirements included in these specifications.
10. Not a Limitation of Other Oblieations. Insurance provisions under this Article shall not
be construed to limit the Consultant's obligations under this Agreement, including
Indemnity.
D. Security for Performance
1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide a Performance Bond (indicated by a check mark in the
parenthetical space immediately preceding the subparagraph entitled "Performance
Bond"), then Consultant shall provide to the City a performance bond, in the amount
indicated at Exhibit A, Pazagraph 18, in the form prescribed by the City and by such
sureties which are authorized to transact such business in the State of Califomia, listed as
approved by the United States Department of Treasury Circulaz 570,
http://www.fms.treas.eov/c570, and whose underwriting limitation is sufficient to issue
bonds in the amount required by the Agreement, and which also satisfy the requirements
stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise
by laws or regulations. All bonds signed by an agent must be accompanied by a certified
copy of such agent's authority to act. Surety companies must be duly licensed or
authorized in the jurisdiction in which the Project is located to issue bonds for the limits
so required. Form must be satisfactory to the Risk Manager or City.
2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical
space immediately preceding the subparagraph entitled "Letter of Credit"), then
Consultant shall provide to the City an irrevocable letter of credit callable by the City at
its unfettered discretion by submitting to the bank a letter, signed by the City Manager,
Page 6
74do Party Agreement Behveen City of Chula Vista and the Catlnxg Comparry
to Provide Professional Real Estate Appraisal Services ~ Q_
stating that the Consultant is in breach of the terms of this Agreement. The letter of
credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk
Manager or City Attorney which amount is indicated in the space adjacent to the term,
"Letter of Credit " in Exhibit A, Pazagraph ] 8.
3. Other Security. In the event that Exhibit A, at Pazagraph 18, indicates the need for
Consultant to provide security other than a Performance Bond or a Letter of Credit
(indicated by a check mazk in the pazenthetical space immediately preceding the
subparagraph entitled "Other Security"), then Consultant shall provide to the City such
other security therein listed in a form and amount satisfactory to the Risk Manager or
City Attorney.
E. Business License. Consultant agrees to obtain a business license from the City and to
otherwise comply with Title 5 of the Chula Vista Municipal Code.
ARTICLE II. CITY OBLIGATIONS
A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule, and to provide direction and
guidance to achieve the objectives of this Agreement. The City shall allow Consultant access
to its office facilities, files and records, as deemed necessazy and appropriate by the City,
throughout the term of this Agreement. In addition, City agrees to provide the materials
identified at Exhibit A, Pazagraph 9, with the understanding that delay in the provision of
those materials beyond thirty days after authorization to proceed, shall constitute a basis for
the justifiable delay in the Consultant's performance.
B. Compensation.
Following Receipt of Billing. Upon receipt of a properly prepared bill from Consultant,
submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event more
frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17,
City shall compensate Consultant for all services rendered by Consultant according to the
terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing
compensation relationship indicated by a "checkmazk" next to the appropriate
arrangement, subject to the requirements for retention set forth in Pazagraph 18 of
Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in
Exhibit A, Paragraph 11.
2. Suuporting_hiformation. Any billing submitted by Consultant shall contain sufficient
information as to the propriety of the billing, including properly executed payrolls, time
records, invoices, contracts, or vouchers describing in detail the nature of the charges to
the Project in order to permit the City to evaluate that the amount due and payable is
proper, and such billing shall specifically contain the City's account number indicated on
Exhibit A, Paragraph 17(C) to be charged upon making such payment.
Page 7
Two Party ggreement Behveen City oJChula Vista and the Carling Company
to Provide Professional Real Estate .4ppraisa[ Services ~ Q- ~ Q
3. Exclusions. In determining the amount of the compensation City will exclude any cost:
1) incurred prior to the effective date of this Agreement; or 2) arising out of or related to
the errors, omissions, negligence or acts of willful misconduct of the Consultant, its
agents, employees, or subcontractors.
a. Errors and Omissions. In the event that the City Administrator determines that
the Consultant's negligence, errors, or omissions in the performance of work
under this Agreement has resulted in expense to City greater than would have
resulted if there were no such negligence, errors, omissions, Consultant shall
reimburse City for any additional expenses incurred by the City. Nothing in this
paragraph is intended to limit City's rights under other provisions of this
Agreement.
4. Payment Not Final Approval. The Consultant understands and agrees that payment to the
Consultant for any Project cost does not constitute a City final decision about whether
that cost is allowable and eligible for payment under the Project and does not constitute a
waiver of any violation of Consultant of the terms of the Agreement. The Consultant
acknowledges that City will not make a final determination about the eligibility of any
cost until the final payment has been made on the Project or the results of an audit of the
Project requested by the City has been completed, whichever occurs latest. If City
determines that the Consultant is not entitled to receive any portion of the compensation
due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant
agrees that Project closeout will not alter the Consultant's responsibility to return any
funds due City as a result of later refunds, corrections, or other similar transactions; nor
will Project closeout alter the right of City to disallow costs and recover funds provided
for the Project on the basis of a later audit or other review.
a. Consultant's Obligation to Pay. Upon notification to the Consultant that specific
amounts are owed to City, whether for excess payments or disallowed costs, the
Consultant agrees to remit to City promptly the amounts owed, including applicable
interest.
ARTICLE III. ETHICS
A. Financial Interests of Consultant
1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A,
Pazagraph 14, as an "FPPC filer," Consultant is deemed to be a "Consultant" for the
purposes of the Political Reform Act conflict of interest and disclosure provisions, and
shall report economic interests to the City Clerk on the required Statement of Economic
Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if
none are specified, then as determined by the City Attorney.
2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in any way attempt to use
Consultant's position to influence a governmental decision in which Consultant knows or
Page 8
Two Parry flgreement Between City of Chula Vista and the Catlu:g Company
to Provide Professiorwl Real Estate flppraisal Services ~ 0- ~ '3
has reason to know Consultant has a financial interest other than the compensation
promised by this Agreement.
3. Seazch to Determine Economic Interests. Regardless of whether Consultant is designated
as an FPPC Filer, Consultant warrants and represents that Consultant has diligently
conducted a search and inventory of Consultant's economic interests, as the term is used
in the regulations promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's knowledge, have an
economic interest which would conflict with Consultant's duties under this Agreement.
4. Promise Not to Ac~c uire Conflicting Interests. Regardless of whether Consultant is
designated as an FPPC Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during the term of this
Agreement which would constitute a conflict of interest as prohibited by the Fair Political
Practices Act.
5. Duty to Advise of Conflictinp_ Interests. Regardless of whether Consultant is designated
as an FPPC Filer, Consultant further wazrants and represents that Consultant will
immediately advise the City Attorney if Consultant learns of an economic interest of
Consultant's that may result in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
6. Specific Warranties Against Economic Interests. Consultant warrants, represents and
agrees that:
a. Neither Consultant, nor Consultant's immediate family members, nor Consultant's
employees or agents (Consultant Associates) presently have any interest, directly or
indirectly, whatsoever in any property which may be the subject matter of the Defined
Services, or in any property within 2 radial miles from the exterior boundaries of any
property which may be the subject matter of the Defined Services, (Prohibited
Interest), other than as listed in Exhibit A, Paragraph 14.
b. No promise of future employment, remuneration, consideration, gratuity or other
reward or gain has been made to Consultant or Consultant Associates in connection
with Consultant's performance of this Agreement. Consultant promises to advise City
of any such promise that may be made during the Term of this Agreement, or for
twelve months thereafter.
c. Consultant Associates shall not acquire any such Prohibited Interest within the Term
of this Agreement, or for twelve months .after the expiration of this Agreement,
except with the written permission of City.
d. Consultant may not conduct or solicit any business for any party to this Agreement,
or for any third party that may be in conflict with Consultant's responsibilities under
this Agreement, except with the written pernission of City.
Page 9
Two Party Agreenaen[ Between City of Chula VisKa and the Catling Conaparry
to Provide Professional Real Esm[e Appraisal Services ~ Q _ ~ 4
IV. LIQUIDATED DAMAGES
A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate
is provided in Exhibit A, Pazagraph 13.
L Estimating Damages. It is acknowledged by both parties that time is of the essence in the
completion of this Agreement. It is difficult to estimate the amount of damages resulting
from delay in performance. The parties have used their judgment to arrive at a reasonable
amount to compensate for delay.
2. Amount of Penalty. Failure to complete the Defined Services within the allotted time
period specified in this Agreement shall result in the following penalty: For each
consecutive calendar day in excess of the time specified for the completion of the
respective work assignment or Deliverable, the Consultant shallpay to the City, or have
withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A,
Paragraph 13 (Liquidated Damages Rate).
3. Request for Extension of Time. If the performance of any act required of Consultant is
directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual
governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other
causes beyond the reasonable control of the Consultant, as determined by the City,
Consultant shall be excused from performing that act for the period of time equal to the
period of time of the prevention or delay. In the event Consultant claims the existence of
such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in
writing of that fact within ten calendaz days after the beginning of any such claimed
delay. Extensions of time will not be granted for delays to minor portions of work unless
it can be shown that such delays did or will delay the progress of the work.
ARTICLE V. INDENINIFICATION
A. Defense, Indemnity, and Hold Harmless.
1. General Requirement. Except for liability for Design Professional Services covered
under Article V., Section A.2., Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers, agents and employees, from and
against any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to any alleged acts, omissions, negligence, or
willful misconduct of Consultant, its officials, officers, employees, agents, and
contractors, arising out of or in connection with the performance of the Defined Services
or this Agreement. This indemnity provision does not include any claims, damages,
liability, costs and expenses (including without limitations, attorneys fees) arising from
the sole negligence, active negligence or willful misconduct of the City, its officers,
employees. Also covered is liability arising from, connected with, caused by or claimed
to be caused by the active or passive negligent acts or omissions of the City, its agents,
Page 10
Two Parry Agreeneent Between City of Chula Vista and the Catling Company
to Provide Professional Rea[Estate Appraisal Services ~ ~-~ 5
officers, or employees which may be in combination with the active or passive negligent
acts or omissions of the Consultant, its employees, agents or officers, or any third party.
2. Design Professional Services. If Consultant provides design professional services, as
defined by California Civil Code section 2782.5, as may be amended from time to time,
Consultant shall defend, indemnify and hold the City, its officials, officers, employees,
volunteers, and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or relating
to the negligence, recklessness, or willful misconduct of Consultant, its officials, officers,
employees, agents, consultants, and contractors arising out of or in connection with the
performance of Consultant's services. Consultant's duty to defend, indemnify, and hold
harmless shall not include any claims or liabilities arising from the sole negligence, active
negligence or willful misconduct of the City, its agents, officers or employees. This
section in no way alters, affects or modifies the Consultant's obligations and duties under
this Agreement.
3. Costs of Defense and Award. Included in the obligations in Sections A.1 and A.2, above,
is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any
and all suits, actions or other legal proceedings, that may be brought or instituted against
the City, its directors, officials, officers, employees, agents and/or volunteers, subject to
the limitations in Sections A.1. and A.2. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against City or its directors, officials, officers,
employees, agents and/or volunteers, for any and all related legal expenses and costs
incurred by each of them, subject to the limitations in Sections A.1. and A.2.
4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials, officers,
employees, agents, and/or volunteers.
5. Declarations. Consultant's obligations under Article V shall not be limited by any prior
or subsequent declaration by the Consultant.
6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the
indemnity and defense provisions set forth in Article V.
7. Survival. Consultant's obligations under Article V shall survive the termination of this
Agreement.
ARTICLE VL TERMINATION OF AGREEMENT
A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and
propermanner Consultant's obligations under this Agreement, or if Consultant shall violate
any of the covenants, agreements or stipulations of this Agreement, City shall have the right
to terminate this Agreement by giving written notice to Consultant of such termination and
specifying the effective date thereof at least five (5) days before the effective date of such
Page 11
Two Party Agreement Between Ciry of Chula Vista and the Catling Company
to Provide Professional Real Estate Appraisal Services '~ Q- ~ 6
termination. In that event, all finished or unfinished documents, data, studies, surveys,
drawings, maps, reports and other materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be entitled to receive just and
equitable compensation, in an amount not to exceed that payable under this Agreement and
less any damages caused City by Consultant's breach, for any work satisfactorily completed
on such documents and other materials up to the effective date of Notice of Termination,.
B. Termination of Agreement for Convenience of City. City may terminate this Agreement
at any time and for any reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least thirty (30) days before the
effective date of such termination. In that event, all finished and unfinished documents and
other materials described hereinabove shall, at the option of the City, become City's sole and
exclusive property. If the Agreement is terminated by City as provided in this paragraph,
Consultant shall be entitled to receive just and equitable compensation, in an amount not to
exceed that payable under this Agreement, for any satisfactory work completed on such
documents and other materials to the effective date of such termination. Consultant hereby
expressly waives any and all claims for damages or compensation arising under this
Agreement except as set forth in this section.
ARTICLE VII. RECORD RETENTION AND ACCESS
A. Record Retention. During the course of the Project and for three (3) years following
completion, the Consultant agrees and to maintain, intact and readily accessible, all data,
documents, reports, records, contracts, and supporting materials relating to the Project as City
may require.
B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit,
and require its subcontractors to permit City or its authorized representatives, upon request,
to inspect all Project work, materials, payrolls, and other data, and to audit the books,
records, and accounts of the Contractor and its subcontractors pertaining to the Project.
C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting
and record retention requirements of this Agreement.
ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT
A. Project Completion. Within ninety (90) calendar days following Project completion or
termination by City, Consultant agrees to submit a final certification of Project expenses and
audit reports, as applicable.
B. Audit of Consultants. Consultant agrees to perform financial and compliance audits the
City may require. The Consultant also agrees to obtain any other audits required by City.
Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit
costs are allowable Project costs.
Page 12
Two Party Agreement Between City of Chula Vista and the Catling Company
to Provide Professiona(Real Estate Appraisal Services ~ Q- ~ 7
C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has
closed the Project, and either forwazds the final payment or acknowledges that the Consultant
has remitted the proper refund. The Consultant agrees that Project closeout by City does not
invalidate any continuing requirements imposed by the Agreement or any unmet
requirements set forth in a written notification from City
ARTICLE IX. MISCELLANEOUS PROVISIONS
A. Assignability. The services of Consultant are personal to the City, and Consultant shall not
assign any interest in this Agreement, and shall not transfer any interest in the same (whether
by assignment or notation), without prior written consent of City.
1. Limited Consent. City hereby consents to the assignment of the portions of the Defined
Services identified in Exhibit A, Pazagraph 16 to the subconsultants identified as
"Permitted subconsultants."
B. Ownership, Publication, Reproduction and Use of Material. All reports, studies,
information, data, statistics, forms, designs, plans, procedures, systems and any other
materials or properties produced under this Agreement shall be the sole and exclusive
property of City. No such materials or properties produced in whole or in part under this
Agreement shall be subject to private use, copyrights or patent rights by Consultant in the
United States or in any other country without the express written consent of City. City shall
have unrestricted authority to publish, disclose (except as may be limited by the provisions of
the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in
part, any such reports, studies, data, statistics, forms or other materials or properties produced
under this Agreement.
C. Independent Contractor. City is interested only in the results obtained and Consultant shall
perform as an independent contractor with sole control of the manner and means of
performing the services required under this Agreement. City maintains the right only to
reject or accept Consultant's work products. Consultant and any of the Consultant's agents,
employees or representatives aze, for all purposes under this Agreement, independent
contractors and shall not be deemed to be employees of City, and none of them shall be
entitled to any benefits to which City employees are entitled including but not limited to,
overtime, retirement benefits, worker's compensation benefits, injury leave or other leave
benefits. Therefore, City will not withhold state or federal income tax, social security tax or
any other payroll tax, and Consultant shall be solely responsible for the payment of same and
shall hold the City harmless with regard to them.
Actions on Behalf of City. Except as City may specify in writing, Consultant shall have
no authority, express or implied, to act on behalf of City in any capacity whatsoever, as
an agent or otherwise. Consultant shall have no authority, express or implied, to bind
City or its members, agents, or employees, to any obligation whatsoever, unless expressly
provided in this Agreement.
Page 13
Two Party Agreement Between City of Chula Vista mid the Catiing Company
to Provide Professional Real Estate Appraisal Services ~ 0- ~ 8
2. No Obligations to Third Parties. In connection with the Project, Consultant agrees and
shall require that its agents, employees, subcontractors agree that City shall not be
responsible for any obligations or liabilities to any third party, including its agents,
employees, subcontractors, or other person or entity that is not a party to this Agreement.
Notwithstanding that City may have concurred in or approved any solicitation,
subagreement, or third party contract at any tier, City shall have no obligation or liability
to any person or entity not a party to this Agreement.
D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be
brought arising out of this Agreement, against City unless a claim has first been presented in
writing and filed with City and acted upon by City in accordance with the procedures set
forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be
amended, the provisions of which aze incorporated by this reference as if fully set forth
herein, and such policies and procedures used by City in the implementation of same. Upon
request by City, Consultant shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
E. Administration of Contract. Each party designates the individuals (Contract
Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator
who is authorized by the party to represent it in the routine administration of this Agreement.
F. Term. The term of this Agreement begins on June 1, 2012 and will expire at midnight
November 30 2012 or upon City entering into a lease with a qualified tenat, whichever
occurs first. The term may be extended for up to two additional 90 day periods upon mutual
consent of the parties.
G. Attorney's Fees. Should a dispute aiising out of this Agreement result in litigation, it is
agreed that the prevailing party shall be entitled to a judgment against the other for an
amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party"
shall be deemed to be the party who is awarded substantially the relief sought.
H. Statement of Costs. In the event that Consultant prepares a report or document, or
participates in the preparation of a report or document in performing the Defined Services,
Consultant shall include, or cause the inclusion of, in the report or document, a statement of
the numbers and cost in dollar amounts of all contracts and subcontracts relating to the
prepazation of the report or document.
I. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15
is marked, the Consultant and/or is principals is/aze licensed with the State of California or
some other state as a real estate broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor its principals are licensed real estate brokers or salespersons.
J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to
this Agreement must be in writing. All notices, demands and requests to be sent to any party
shall be deemed to have been properly given or served if personally served or deposited in
the United States mail, addressed to such party, postage prepaid, registered or certified, with
Page 14
Two Parry Agreement Between City ofChulo Virta and the Coding Company
to Provide Professional Real Estate Appraisal Services 1 0- ~ 9
return receipt requested, at the addresses identified in this Agreement as the places of
business for each of the designated parties.
K. Integration. This Agreement, together with any other written document referred to or
contemplated in it, embody the entire Agreement and understanding between the parties
relating to the subject matter hereof. Neither this Agreement nor any provision of it may be
amended, modified, waived or discharged except by an instrument in writing executed by the
patty against which enforcement of such amendment, waiver or discharge is sought.
L. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to
the other party that it has legal authority and capacity and direction from its principal to enter
into this Agreement, and that all necessary resolutions or other actions have been taken so as
to enable it to enter into this Agreement. City further warrants and represents that the
property that is the subject of this Agreement is the Property of the City.
M. Governing Law/Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. Any action azising under or relating to this
Agreement shall be brought only in the federal or state courts located in San Diego County,
State of California, and if applicable, the City of Chula Vista, or as close thereto as possible.
Venue for this Agreement, and performance under it, shall be the City of Chula Vista.
(End of page. Next page is signature page.)
Page 15
Two Parry Agreement Between Ciry ofChu]n Vista and the Catling Camparty
to Po~ovide Professional Real Estate Appraisal Services ~ ~- 20
Zfrm Alo. /o
/o -2l
Signature Page
to
Agreement between
City of Chula Vista and
Voit Real Estate Services
To
Provide Professional Real Estate Services
1N WITNESS WHEREOF, City and Consultant have executed this Agreement,
indicating that they have read and understood same, and indicate their full and complete consent
to its terms:
Dated:
City of Chula Vista
Bv:
Suzanne Brooks
Senior Procurement Specialist
Attest:
Donna Noms, Ciry Clerk
as to
R. Goo,~ins, Cit Attorney
1: [[5__ Z ~ / 2-
Voit R 1 Estate ervices
By:
C ~ ood
Managing Director
Exhibit List to Agreement (X) Exhibit A.
~D-2l
Page 16
Two Party Agreement Between Ciry ojChula Vista and the Catling Company
to Provide Professional Rea[ Estate Appraisal Services
I~t+Yr 1~0. l~
.~ !0-21
Signature Page
to
Agreement between
City of Chula Vista and
Voit Real Estate Services
To
Provide Professional Real Estate Services
IN WITNESS WHEREOF, City and Consultant have executed this Agreement,
indicating that they have read and understood same, and indicate their full and complete consent
to its terms:
Dated:
Attest:
Dated
City of Chula Vista = -
Bv:
Suzanne Brooks
Senior Procurement Specialist
Voit R 1 Estate ervices
By:
C ~ ood
. Managing Director
Exhibit List to Agreement (X) Exhibit A.
6 ~~2'r Page l6
Two Party Agreement Between City of Chula Vista and the Catling Company
to Provide Professional Real Estate Appraisal Services
Donna Norris, City Clerk
Exhibit A
to
Agreement between
City of Chula Vista
and
Voit Real Estate Services
1. Effective Date of Agreement: May 25, 2012
2. City-Related Entity:
(X )City of Chula Vista, a municipal chartered corporation of the State of California
3. Place of Business for City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
4. Consultant:
Voit Real Estate Services
5. Business Form of Consultant:
OSole Proprietorship
( )Partnership
(X) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
Voit Real Estate Services
4370 La Jolla Village Drive
Suite 990
San Diego, CA 92122
(858) 453-0505
(858) 4531981 Fax
7. General Duties:
Provide Real Estate marketing services for two City owned properties
8. Scope of Work and Schedule:
A. VRES'S SERVICES: VRES will enlist the efforts of its firm to secure a satisfactory
tenant(s) for the Property, and if VRES deems it necessazy, VRES will also solicit the
cooperation of other licensed real estate brokers. VRES will negotiate the terms of any
lease on behalf of City and in City's interest.
Page 17
Two Parry Agreement Between City of Chula Virta and the Catling Company
to Provide Professional Real Estate Appraisal Services ~ Q- 2 2
B. CITY REFERRALS: City will refer to VRES all inquiries and offerings received by City
regarding the Property, and all negotiations will be conducted solely by VRES or under
VRES's direction, subject to City's review and final approval.
C. ADVERTISEMENT. VRES, at its expense, will provide its standard signage and
flyer brochure advertising the Property. VRES, at its expense, will provide its standard
signage and flyer/brochure. Any additional advertising and promotion will be done at
City's expense pursuant to a program and budget agreed upon by City and VRES and
will identify VRES as exclusive agent for the Property. City authorizes VRES to
advertise and to place signage on the Property. All such advertisement shall comply with
applicable law.
D. PUBLICITY: City hereby consents to VRES's publicizing its role in any transaction
entered into, subject to City's reasonable editorial approval of such publicity.
E. PROPERTY INFORMATION: City agrees that it shall provide VRES all information
reasonably necessary such that VRES can perform its obligations under this Agreement.
In addition, City represents that it has no knowledge of toxic, contaminated or hazardous
substances, or defective conditions, at the Property except as City has informed VRES in
writing. City authorizes VRES to transmit such information to prospective tenants.
F. PROFESSIONAL ADVICE: VRES is not providing tax, legal or other professional
advice under the terms of this Agreement and recommends that City obtain legal, tax or
other professional advice relating to this Agreement and the proposed leasing of the
Property, as well as the condition and/or legality of the Property, including, but not
limited to, the Property's improvements, equipment, soil, tenancies, title, environmental
aspects, compliance with the Americans With Disabilities Act. VRES will have no
obligation to investigate any such matters unless expressly otherwise agreed to in writing
by City and VRES. City further agrees that in determining the financial soundness of any
prospective tenant, City will rely solely upon City's own investigation and evaluation,
notwithstanding VRES's assistance in gathering any financial information.
E. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
F. Date for completion of all Consultant services: Execution of Lease(s) or termination of
Listing Agreement.
Materials Required to be Supplied by City to Consultant:
N/A
10. Compensation:
In Accordance with the following Schedule of Commissions:
A. SALE
Page 18
7M~o Part) Agreement Between City of Chula Vista and the Carling Comparry
to Provide Professional Real Estate Appraisal Services ~ Q- 2.3
Commission Amount: Five percent of the total sales price. In the event the marketing
team represents the Buyer also, the commission shall be four percent of the sales price.
Time of Payment: The commission shall be paid in full at the time of the closing or
transfer of title to the property, except in the case of an installment purchase contract, in
which case the commission shall be paid in full at the time of the execution and delivery
of the installment purchase contract between Seller and Purchaser.
Computation of Sales Price: The commission shall be computed in accordance with the
above rate based upon the total sales price, which shall include any mortgages, loans or
other obligations of Seller which may be assumed by Purchaser or which Purchaser takes
title "subject to," any purchase money loans or mortgages taken back by Seller, the saes
price of any fixtures or other personal property sold by sepazate agreement between
Seller and Purchaser as part of the overall sales of the real property and current mazket
value of any other real or personal property transferred from Purchaser to Seller.
Purchase Option: If Seller grants a purchase option, Voit Real Estate Services ("VRES")
will be paid a commission at the above rate as and when amounts aze payable for the
option (and for extensions thereof). Upon closing of the sale, VRES will be paid a
commission at the above rate on the total sales price (excluding any amount paid for the
option and applied to the sales price).
Deposit: In the event title does not close and the deposit is retained by Seller, the
commission to be paid VRES shall be either 1/2 of the amount of the deposit, or the
regular commission computed as set forth above, whichever is less.
B. LEASE
Office/Commercial Property:
I. Gross Lease:
1st Yeaz:
2"a Year:
3`a Yeaz:
4a' Yeaz
6% of the Rent
6% of the Rent
5% ofthe Rent
4% of the Rent
St" Year:
6a' through 10th Yeaz:
11th through 30th Yeaz
Balance of the Term:
4% of the Rent
3% of the Rent
2% ofthe Rent
1% of the Rent
II. Net Lease
1st Yeaz: 7% of the Rent
2"a Year: 7% of the Rent
3ta Year: 6% of the Rent
4th Year 5% of the Rent
5`h Year:
6a' through 10th Year:
l la' through 30th Year
Balance of the Term:
5% of the Rent
3-1/2 % of the Rent
2-1/2% of the Rent
1 % of the Rent
VRES's fee for amonth-to-month tenancy is one average month's rental with a minimum
fee of $1,000.00.
Page 19
Two Pm~ty Agreement Between City of Chula Vista and the Catlin$$ Company
to Provide Professional Rea[ Estate Appraisal Services ~ Q-14
CONDITIONS REGARDING LEASES
Renewals; Extensions: Expansions: If a lease contains an option or other right to renew
or extend the term or to lease additional space, and if the lease is renewed or extended or
if a Tenant leases additional space, whether or not strictly pursuant to the option or right
contained in the lease, Landlord shall pay to VRES, at the time of the renewal, extension
or lease of additional space, an additional commission based on the aggregate rental for
the renewal or extension term, or for such additional space. In the case of a renewal or
extension, the commission shall be calculated at the above rates but at the percentage
level that would have applied if the renewal or extension period were in force at the time
the original lease was made.
Cancellation Clauses: VRES will be paid a commission based upon the entire lease term
notwithstanding any right of Landlord to cancel the lease. If Tenant has a right to cancel
the lease after the term has commenced (and for reasons unrelated to casualty,
condemnation, default and the like), the commission will initially be based upon the
rental for the non-cancelable portion of the lease term plus the amount of any cancellation
payment payable by Tenant; if such right is not thereafter exercised, Landlord will
promptly pay VRES the balance of the commission. A lease will be deemed canceled
only if Tenant vacates the premises. If a lease is terminated or amended and Tenant
remains under a new or different arrangement, VRES shall be paid the balance of its
commission. If a cancellation payment includes the unamortized commission, then
VRES will be paid a full commission as if no right of cancellation existed.
Computation of Commissions: Commissions shall be computed in accordance with the
above rates based upon the aggregate rental set forth in the lease, including rental
attributable to rent increases (but not tax or operating expense escalations) and to
additional space required to be leased by Tenant. If a rental concession is made by
Landlord allowing Tenant not to pay for rent for the initial months of the lease term, then
the commission shall be calculated on the average rental for the entire term with the first
year being deemed to commence on the first day of the lease term whether or not rent is
payable. If rental concessions are granted in lieu of Landlord performing construction or
alteration work and with respect to any other allowances or concessions granted to
Tenant whether in the form of a credit against rent, construction, decoration or otherwise,
there shall be no deduction from the aggregate rent set forth in the lease.
Percentage Leases: If there is a minimum rent, then the commission shall initially be
computed and paid based on the aggregate minimum rent set forth in the lease. If there is
no minimum rent, the commission shall initially be computed and paid as if the lease
contained a minimum rent equal to 1/2 of the Landlord's asking price. In both of the
above cases, thereafter, as and when percentage rental shall become payable to Landlord,
VRES shall be deemed to have earned a commission thereon calculated as if the
percentage rental had been known at the commencement of the lease term. Such
additional commissions shall be paid to VRES at the end of each year during the lease
term for which percentage rent is payable. Gross receipts reports are due 60 days after
the end of the lease year and the additional fee is due within 30 days after billing.
Page 20
Two Party Agreennent Between City of Chula Vista and the Catling Company
to Provide Professional Rea[ Estate Appraisal Services ~ Q-Q rj
Time of Payment: Commissions on leases shall be paid in full on the execution and
delivery of the lease between Landlord and Tenant. Broker is hereby authorized to deduct
its commission pursuant to the foregoing schedule from funds held in its trust account;
the Owner shall pay any differences in cash in accordance herewith. In the case of a
lease cancellation, the commission shall be paid in full on the execution of the document
canceling or terminating the lease.
Purchase O tp ion: If the lease contains an option or right to purchase, and if Tenant
purchases the property during the term of the lease, whether or not strictly pursuant to the
option or right, Landlord will pay to VRES, upon closing of the transaction, a sales
commission as provided in Section A of this Schedule. If the sale occurs during a period
of the lease term for which VRES has been paid a leasing commission, the portion of
VRES's shaze of the leasing commission attributable to the unexpired portion of the term
will be credited against the sales commission. VRES will riot be required to make a
refund should the sales commission be less than the amount of the credit.
Sale by Landlord: In the event of a sale, conveyance or other disposition of all or any
portion of Landlord's interest in the Property at which the lease is made, Landlord shall
remain responsible to pay VRES the commissions due and/or which may become due
hereunder, unless Landlord shall obtain from the grantee of its interest and deliver to
VRES an agreement, in form and substance and from a party acceptable to VRES,
whereby the grantee assumes Landlord's commission obligations hereunder.
C. GENERAL PROVISIONS REGARDING COMPENSATION
General: The term "lease" shall also be deemed to mean "sublease" and the terms
"Landlord" and "Tenant' shall also be deemed to mean "Sublandlord" and "Subtenant",
as the case may be, together with the terms "Purchaser" and "Seller", shall be deemed to
include any subsidiaries, affiliates, successors and nominees of any of same.
Outside Brokers: If VRES recognizes an outside broker representing the tenant in a
transaction for which a commission is payable hereunder, VRES will request such broker
to agree to accept an equitable portion (but not more than half) of the commission as its
compensation. If such broker so agrees, City will pay to VRES the commission provided
for herein, out of which VRES will pay to such broker its agreed share and retain the
balance as VRES's compensation. If such broker does not so agree, then negotiations
will be suspended until such agreement is obtained. VRES will not be liable for failure to
obtain such agreement.
Other Transactions: If a proposed transaction covered by this Agreement turns into any
other transaction, including, but not limited to, a sale, exchange, build to suit, option to
purchase, or right of first refusal, then VRES will automatically, without the necessity of
any further acts by City or VRES or an amendment to this Agreement, be City's sole and
exclusive agent for such transaction and will be entitled to a commission on such
transaction under the terms of this Agreement. If the commission computation is not
Page 21
Two Party Agreement Between City of Chula Vista and the Carling Cornparry
to Provide Professional Real Estate Appraisal Services 1 ~- 2 6
addressed in the attached Schedule of Commissions, then the City shall pay to VRES a
market rate commission as dictated by local custom.
All conditions set forth in this Section may be modified by Agreement of the Parties if
necessary to accommodate special conditions of a proposed Lease not anticipated herein.
1 L Materials Reimbursement Arrangement
(X) None, the compensation includes all costs.
12. Contract Administrators:
City: Richard A. Ryals, Real Property Manager
Consultant: Tracy Clark
13. Liquidated Damages Rate:
N/A
14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest
Code (Chula Vista Municipal Code chapter 2.02):
ONot Applicable. Not an FPPC Filer.
O FPPC Filer
OCategory No. 1. Investments, sources of income and business interests.
()Category No. 2. Interests in real property.
()Category No. 3. Investments, business positions, interests in real property, and
sources of income subject to the regulatory, permit or licensing authority of the
department administering this Agreement.
()Category No. 4. Investments and business positions in business entities and sources of
income that engage in land development, construction or the acquisition or sale of
real property.
OCategory No. 5. Investments and business positions in business entities and sources
of income that, within the past two years, have contracted with the City of Chula
Vista or the City's Redevelopment Agency to provide services, supplies, materials,
machinery or equipment.
()Category No. 6. Investments and business positions in business entities and sources of
income that, within the past two years, have contracted with the department
administering this Agreement to provide services, supplies, materials, machinery or
equipment.
Page 22
Two Parry Agreement Between City oJ~Chula Vista and the Coding Company
to Provide Professional Real Estate Appraisal Services ~ Q-Q 7
OList Consultant Associates interests in real property within 2 radial miles of Project
Property, if any:
15. (X) Consultant is Real Estate Broker and/or Salesman
16. Permitted Subconsultants:
None
17. Bill Processing:
A. Consultant's billing to be submitted for the following period of time:
OMonthly
( )Quarterly
(X )Other: Per Contract
B. Day of the Period for submission of Consultant's Billing:
N/A
C. City's Account Number: [TO BE ASSIGNED]
18. Security for Performance
N/A
Page 23
71vo Parry Agreement Between City ofGwla Vista and the Cat[ing Comparry
to Provide Professional Real Estate Appraisal Services ~ Q-Q 8
EXHIBIT "B"
Exclusive Listing agreement; Lease
Terms and Conditions
1) VRES'S SERVICES: VRES will enlist the efforts of its firm to secure a satisfactory
tenant(s) for the Property, and if VRES deems it necessary, VRES will also solicit the
cooperation of other licensed real estate brokers. VRES will negotiate the terms of any
lease on behalf of City and in City's interest.
2) CITY REFERRALS: City will refer to VRES all inquiries and offerings received by City
regarding the Property, and all negotiations will be conducted solely by VRES or under
VRES's direction, subject to City's review. and final approval.
3) ADVERTISING: City authorizes VRES to advertise and to place signage on the Property.
VRES, at its expense, will provide its standard signage and flyer/brochure. Any additional
advertising and promotion will be done at City's expense pursuant to a program and budget
agreed upon by City and VRES and will identify VRES as exclusive agent for the Property.
4) COMMISSION: If, during the term hereof, City enters into a lease of all or a portion of the
Property, City will pay to VRES a commission in accordance with the attached Schedule of
Commissions. Within 15 days after the end of the term, VRES will provide to City a list of
prospective tenant(s) to whom the Property was submitted (by VRES, City or any third
party) during the term. If City enters into a lease with a prospective tenant appearing on
said list within 180 days after the end of the term, City will pay a commission to VRES as
provided above. City agrees that such 180-day period will be extended for so long as
negotiations with a prospective tenant are continuing.
5) OUTSIDE BROKERS: If VRES recognizes an outside broker representing the tenant in a
transaction for which a commission is payable hereunder, VRES will request such broker to
agree to accept an equitable portion (but not more than half) of the commission as its
compensation. If such broker so agrees, City will pay to VRES the commission provided
for herein, out of which VRES will pay to such broker its agreed share and retain the
balance as VRES's compensation. If such broker does not so agree, then negotiations will
be suspended until such agreement is obtained. VRES will not be liable for failure to obtain
such agreement.
6) ALTERNATIVE TRANSACTION: If a proposed transaction covered by this Agreement
turns into any other transaction, including, but not limited to, a sale, exchange, build to suit,
option to purchase, or right of first refusal, then VRES will automatically, without the
necessity of any further acts by City or VRES or an amendment to this Agreement, be
City's sole and exclusive agent for such transaction and will be entitled to a commission on
such transaction under the terms of this Agreement. If the commission computation is not
addressed in the attached Schedule of Commissions, then the City shall pay to VRES a
market rate commission as dictated by local custom.
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7) PROPERTY INFORMATION: City represents that it has no knowledge of toxic,
contaminated or hazardous substances, or defective conditions, at the Property except as
City has informed VRES in writing. City authorizes VRES to transmit such information to
prospective tenants.
8) EXTENSION OF LISTING PERIOD: Upon expiration of the Listing Period as described
above, this Listing shall automatically renew and continue in full force and effect for
successive thirty (30) day periods without further written agreement unless either party
provides written notice to the other that the Listing shall terminate at the expiration of thirty
(30) days; provided, however, that the Listing Period shall automatically terminate one (1)
year after the end of the Listing Period described above unless prior to termination both
parties mutually execute a written agreement extending the Listing Period to another date.
9) OTHER CLIENTS: City acknowledges that VRES may represent potential tenants and
consents to such dual representation. The company, affiliates, or brokers or employees of
the company may directly or indirectly own or may acquire an interest in properties that the
client may consider competitive with the subject property.
10) DISPUTE RESOLUTION: Any dispute arising out of this Agreement and/or any sale, lease
or alternative transaction involving the property shall first be submitted to mediation
pursuant to California Evidence Code Sections 1115 to 1129. If such dispute is not
resolved in mediation then it shall be submitted to binding arbitration pursuant to California
Code of Civil Procedure Section 1280.
11) FEES AND EXPENSES: If either party institutes legal action, arbitration or mediation to
enforce its rights under this Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees and other costs so incurred. Any portion of a commission not
paid to VRES when due will bear interest from the due date until paid at the legal rate of
interest.
12) AUTHORITY: City represents that it is the City of 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 City's obligations hereunder. The individuals signing this
Agreement represent that they are authorized signatories.
13) PROFESSIONAL ADVICE: VRES recommends that City obtain legal, tax or other
professional advice relating to this Agreement and the proposed leasing of the Property, as
well as the condition and/or legality of the Property, including, but not limited to, the
Property's improvements, equipment, soil, tenancies, title, environmental aspects,
compliance with the Americans With Disabilities Act. VRES will have no obligation to
investigate any such matters unless expressly otherwise agreed to in writing by City and
VRES. City further agrees that in determining the financial soundness of any prospective
tenant, City will rely solely upon City's own investigation and evaluation, notwithstanding
VRES's assistance in gathering any financial information.
14) NON-DISCRIMINATION: It is unlawful for either City or VRES to discriminate against any
persons because of their race, color, religion, national origin, sex, disability or family status.
15) SURVIVAL: This Agreement is binding upon the parties and their respective successors
and assigns. The terms "City" and "Tenant" include affiliates, successors, assigns and
nominees and shall survive the execution of any sale, lease or alternative transaction.
16) PUBLICITY: City hereby consents to VRES's publicizing its role in any transaction entered
into, subject to City's reasonable editorial approval of such publicity.
10-30
17) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall be
considered one and the same agreement.
18) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between City
and VRES and supersedes all prior discussions. No modification of this Agreement will be
effective unless made in writing and signed by both City and VRES. City acknowledges
receipt of a copy of this Agreement and the Schedule of Commissions.
10-31