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Resolution No. 2011-074RESOLUTION NO. 2011-74 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN EXCLUSIVE LISTING AGREEMENT AND SCHEDULE OF COMMISSIONS BY AND BETWEEN THE CITY OF VERNON-AND CUSHMAN & WAKEFIELD OF CALIFORNIA, INC. TO SELL OR LEASE PROPERTY LOCATED AT 5611 DISTRICT BOULEVARD AND 4855 E. 52ND STREET WHEREAS, the City of Vernon (the "City") is interested in selling or leasing the property located at 5611 District Boulevard, 4855 E. 52nd Street, consisting of Assessor Parcel Numbers 6314-019- 900, and 6314-022-900 (collectively, the "Property") owned by the City and is in need of 'obtaining professional industrial real estate advice and assistance concerning the sale or lease of the Property; and WHEREAS, Cushman & Wakefield of California, Inc. ("Cushman") is an experienced industrial real estate brokerage firm; and WHEREAS, the City of Vernon desires to retain the services of Cushman to act as the City's broker in connection with the sale or lease of the Property under the terms and conditions of an exclusive listing agreement for the sale or lease transaction and an agreement setting forth the schedule of commissions for the sale or lease of the Property (collectively, the "Agreements"); and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (b)(1) and (b)(7) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into an agreement with Cushman because Cushman can provide professional industrial real estate services in an efficient and effective manner for the City of Vernon. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Agreements, in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Agreements for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby authorizes the City Administrator, or his designee, to take whatever action is deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized. SECTION 5: The City Council of the City of Vernon hereby directs the City Clerk, or the City Clerk's designee, to send a fully executed Agreement to: Cushman & Wakefield of California, Inc. Attn. John McMillan, Executive Director 601 S. Figueroa St., 47th Floor Los Angeles, CA 90017. 2 SECTION 6: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 3r6 day of May, 2011, Name: Hilario Gonzales Title: Mayor / - oz _3_ STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution. No. 2011-74, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, May 3, 2011, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of May, 2011, at Vernon, California. W llard a gu City Clerk (SEAL) 4 EXHIBIT A EXCLUSIVE LISTING AGREEMENT SALE OR LEASE TRANSACTION The undersigned Owner hereby appoints Cushman & Wakefield of California, Inc. ("C&W") as its sole agent and grants to C&W the exclusive right to sell or lease the real property located at APN#: 6314-019-900: 6314-022-900 (see Exhibits A & B), Vernon, California 90058 (the "Property"). 1) TERM: The term of this Agreement begins on the date of Owner's signature below and will end at midnight twelve (12) months thereafter. 2) C&W'S SERVICES: C&W will enlist the efforts of its firm to secure a satisfactory purchaser(s) and/or tenant(s) for the Property, and if C&W deems it necessary, C&W will also solicit the cooperation of other licensed real estate brokers. At Owner's request, C&W will assist Owner in negotiating the terms of any sale or lease on behalf of Owner and in Owner's interest. The Property will be marketed for sale or lease on terms and conditions as agreed to in writing by the Owner, and such terms and conditions will not be modified by C&W without the prior consent of Owner. 3) OWNER REFERRALS: Owner will refer to C&W all inquiries and offerings received by Owner regarding the Property, and all negotiations will be, conducted solely by C&W or under C&W's direction, subject to Owner's review and final approval. 4) ADVERTISING: Owner authorizes C&W to advertise and to place signage on the Property. All advertising, publicity releases, marketing brochures, signs, and other marketing materials shall be subject to Owner's prior approval, which may be withheld in Owner's sole discretion. 5) COMMISSION: If, during the term hereof, Owner sells or leases any interest in the Property, Owner will pay to C&W a commission in accordance with the attached Schedule of Commissions. Within 15 days after the end of the term, C&W will provide to Owner a list of prospective purchaser(s) or tenant(s) to whom the Property was submitted by C&W, Owner or any third party during the term. If a prospective purchaser or tenant, appearing on said list, enters into a purchase contract, lease or option within 180 days after the end of the term, and the purchase thereafter closes or lease is executed, Owner will pay a commission to C&W as provided. above. Owner agrees that such 180-day period will be extended for so long as negotiations with a prospective purchaser or tenant are continuing. 6) OUTSIDE BROKERS: If C&W recognizes an outside broker representing the purchaser or tenant in a transaction for which a commission is payable hereunder, C&W 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, Owner will pay to C&W the commission provided for herein, out of which C&W will pay to such broker its agreed share and retain the balance as C&W's compensation. If such broker does not so agree, then negotiations will be suspended until such agreement is obtained. C&W will not be liable for failure to obtain such agreement. 7) ALTERNATIVE TRANSACTION: If a proposed transaction covered by this Agreement turns into any other transaction, including, but not limited to, an exchange, build to suit, option to purchase, right of first refusal, or ground lease, then C&W will automatically, without the necessity of any further acts by Owner or C&W or an amendment to this Agreement, be Owner'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 Owner shall pay to C&W a market rate commission as dictated by local custom. 8) PROPERTY INFORMATION: Owner represents that it has no actual knowledge of toxic, contaminated or hazardous substances, or defective conditions, at the Property except as Owner has informed C&W in writing or as disclosed in any materials provided by the Owner to C&W or a potential purchaser or tenant. C&W shall not transmit such information or any such materials to prospective purchasers or tenants -without prior consent of Owner. With respect to sale of the Property only, Owner and C&W each acknowledge that they are required to make certain "natural hazard disclosures" to prospective purchasers prior to closing. Owner agrees, at its sole cost and expense, to retain the services of a third party professional consultant to determine whether, based on available mapping, disclosure is required, who will issue a report with respect thereto, which report will be delivered to the prospective purchaser. Owner hereby agrees to indemnify, defend and hold C&W harmless of and from any and all claims from prospective purchasers of the Property arising from any error or omission in such reports or arising from any disclosure obligation of Owner. G:/grpfiles/McMglan Sham/McMillan/02009/aclusiws/EASL.5119,5201,5241 District Blvd. & 4601 E. 52" SL V- 04.18 2010.doc 9) OTHER CLIENTS: Owner acknowledges that C&W may represent potential purchasers or tenants and consents to such dual representation. 10) FEES AND EXPENSES: If either party institutes legal action 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, _when due will bear interest from the due date until paid at the rate of 1.0% per annum. 11) ASSIGNMENT: C&W may not assign its rights or obligations hereunder, in whole or in part, without the prior consent of Owner, which consent may be given or withheld in Owner's sole and absolute discretion. 12) AUTHORITY: Owner represents that it is the owner of the Property and Owner and C&W each represent to the other that it has the full right, power and authority to execute this Agreement and to consummate a transaction as provided herein, and to perform their respective obligations hereunder. The individuals signing this Agreement on behalf of Owner and C&W represent that they are authorized signatories. 13) PROFESSIONAL ADVICE: C&W recommends that Owner obtain legal, tax or other professional advice relating to this Agreement and the proposed sale or lease 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 and compliance with the Americans With Disabilities Act. C&W will have no obligation to investigate any such matters unless expressly otherwise agreed to in writing by Owner and C&W. Owner further agrees that in determining the financial soundness of any prospective purchaser or tenant, Owner will rely solely upon Owner's own investigation and evaluation, notwithstanding C&W's assistance in gathering any financial information. 14) NON-DISCRIMINATION: It is unlawful for either Owner or C&W 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 hereto and their respective successors and assigns. The terms "Owner," "Purchaser" and "Tenant" include affiliates, successors, assigns and nominees. 16) PUBLICITY: Owner hereby consents to C&W's publicizing its role in any transaction entered into, subject.to Owner's reasonable editorial approval of such publicity. 17) COUNTERPARTS: This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement. 18) ENTIRE AGREEMENT: This Agreement and the Schedule of Commissions attached hereto constitute the entire agreement between Owner and C&W and supercedes all prior discussions. No modification of this Agreement will be effective unless made in writing and signed by both Owner and C&W. 19) APPLICABLE LAW: The law governing this agreement shall be that of the State of California. CITY OF VERNON ("OWNER" By: Print Name: Hilario Gonzales Title: Mayor Address:: 4305 Santa Fe Avenue Vernon. CA 90058 Date: Address:: 601 S. Figueroa Street, Suite 4700 Los Ancieles. CA 90017 Date: .2 G:/grpriles/McMillan Slave/McMillan/02009/Exclusives/EML-5119,5201,5241 District Blvd. & 4601 E 52` St V- 04.18.2010.doc ATTEST: By: Print Name: Title: City Clerk APPROVED AS TO FORM: By: Print Name: Title: City Attorney G:/grpBles/McMillm ShmetMcMillan/02009/Enci.iues/EASL-5119,5201,5241 DiMid Blvd. & 4601 E. 52' St. V--- 04.18.2010.d. SCHEDULE OF COMMISSIONS INDUSTRIAL PROPERTY PROPERTY: APN#: 6314-019-900: 6314-022-900 (see Exhibits A & B), Vernon, California 90058 A. SALES 5% of the total sales price. Should a member of the Marketing Team (John McMillan, Jeff Sanita, Tim Wallace) also represent the Buyer, said commission shall be reduced to 4% of the total 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 rates 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 sales price of any fixtures or other personal property sold by separate agreement between Seller and Purchaser as part of the overall sales of the real property, and the current market value of any other real or personal property transferred from Purchaser to Seller. Purchase Option: If Seller grants a purchase option, C&W will be paid a commission at the above rate if and when amounts are payable for the option (and for extensions thereof). Upon closing of the sale, C&W 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 C&W shall be either 'Y2 the amount of deposit, or the regular commission computed as set forth above, whichever is less. Joint Venture: If a joint venture is effected in lieu of a sale, a commission computed in accordance with the above rates shall be paid on the value of the property as determined for purposes of the joint venture agreement, and the percentage interest thereof which is being conveyed to the joint venture, or the joint ventures as the case may be. The commission shall be paid upon execution and delivery of the instrument of conveyance, or establishment of the entitlement of ownership. B. LEASES GROSS LEASE 7% of the rent for the first year; 6% of the rent for the second year; 5% of the rent for the third year; 4% of the rent for the fourth year; 4% of the rent for the fifth year; 3% of the rent for the next five years; 2% of the rent for the balance of the term NET LEASE 7% of the rent for the first year; 7% of the rent for the second year; 6% of the rent for the third year; 5% of the rent for the fourth year; 5% of the rent for the fifth year; 4% of the rent for the next five years; 3% of the rent for the balance of the term Ground Leases• The commission rates above shall also apply to a ground lease, however, the maximum lease term for which a commission will be paid shall be fifty (50) years. Month -to -Month Transactions: The commission for a month -to -month tenancy is one month's rental. In the event a month -to -month Tenant subsequently executes a lease, either direct with Landlord or through C&W, within 24 months from the date of occupancy by the month -to -month Tenant, then C&W shall receive a leasing commission in accordance with the provisions of this schedule. Said schedule shall be applied retroactively to include the complete month -to -month term. The initial month -to -month commission already paid by Landlord, shall be deducted from the total leasing commission due to C&W. G:/grpfiles/McMUlan Share/McMillan/02009/Exelusives/EASL5119,5201,5241 District Blvd. & 4601 E. 52!tl Sl V-04.18.2010.doc 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 C&W, 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: C&W 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 C&W 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, C&W shall be paid the balance ofits commission. If a cancellation payment includes the unamortized commission, then C&W 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 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 theform 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, C&W 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 C&W 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. Time of Payment: Commissions on leases shall be paid in full on the execution and delivery of the lease between Landlord and Tenant. Purchase Option: 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 C&W, 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 C&W has been paid a leasing commission, the portion of C&W's share of the leasing commission attributable to the unexpired portion of the term will be credited against the sales commission. C&W will not 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 C&W the commissions due and/or which may become due hereunder, unless Landlord shall obtain from the grantee of its interest and deliver to C&W an agreement, in form and substance and from a party acceptable to C&W, whereby the grantee assumes Landlord's commission obligations hereunder. G:/ppfiles/McM0im Shue/McMillan/02009/Eniusims/EASI.5119,5201,5241 District Blvd. & 4601 E. 52` SL Vemon 04.18.2010.doe General: The term "lease" as used herein 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, and, together with the terms "Purchaser' and "Seller", shall be deemed to include any subsidiaries, affiliates, successors and nominees of any of same. OWNER: CITY OF VERNON By`. Print Name: Hilario Gonzales Date: ATTEST: By: Print Name: Title: Date: APPROVED AS TO FORM: By: Print Name: Title: Date: AG C)d'SHM4A & WAK ELD OF CALIFORNIA, INC. Print Name: Joe Vargas Dater G:/gtpfiles/McMillan ShareMlcMillan/02009/Erclusiws/WL-5119,5201,5241 District Blvd.&4601 B. SfSt. Vemon04.18.2010.doc Page 1 of 4 Juarez, Debbie From: Enomoto, Kristen Sent: Tuesday, May 03, 2011 2:46 PM To: Juarez, Debbie Subject: Matheson Listing Agreement and Thermador PSA Attachments: Listing Agreement for Matheson Site 05-03-11.pdf Debbie, Forgot to cc you on the following. McMillan took the original of the attached today, 5/3/11. The Thermador PSA is in the Mayor's basket for signature, so that he can initial each page. Please make sure this one goes out this week. Thanks. Kristen From: Enomoto, Kristen Sent: Tuesday, May 03, 2011 2:42 PM To: 'John McMillan' Cc: Whitworth, Mark; Kung, Alex Subject: Matheson Listing Agreement and Thermador PSA John, Attached is the signed copy of the Listing Agreement. I'll bring the original down to you shortly. Alex and I will follow up with Mark this afternoon on the LOI from Centerpointe. Thank you. Kristen From: John McMillan[mailto:John.McMillan@cushwake.com] Sent: Tuesday, May 03, 2011 1:10 PM To: Enomoto, Kristen Cc: Whitworth, Mark; Kung, Alex Subject: Matheson Listing Agreement and Thermador PSA I will be at city hall today at 145 as I have a meeting with Kevin at 2pm. Does that work? John McMillan Executive Director, Lic.#01103292 Industrial Brokerage I Global Supply Chain Solutions Cushman &Wakefield of California Inc, Lic.#00616335 601 S. Figueroa Street 47th Floor Los Angeles, CA 90017 PH: 213-955-6494 FX: 213-947-1772 5/5/2011 Page 2 of 4 From:Enomoto, Kristen <Kenomoto@ci.vernon.ca.us> To: John McMillan Cc: Whitworth, Mark <MWhitworkh@ci.vernon.ca.us>; Kung, Alex <akung@ci.vernon.ca.us> Sent: Tue May 03 15:00:22 2011- Subject: Matheson Listing Agreement and Thermador PSA Hi John, I understand you followed up with Mark by email on the Listing Agreement for the Matheson site. It was approved at today's Council meeting, as was the PSA for the Thermador site. Debbie is not in today, but should be able to get you everything tomorrow. If you need to pick up the originally executed Matheson Listing Agreement today, please let me know, and we will make that happen. Otherwise, I can send you a fully executed PDF today, and you can pick up the original from Debbie tomorrow, just to ensure that the documents are running through their normal protocols on our end. Thank you. Kristen From: John McMillan[mailto:John.MeMillan@cushwake.com] Sent: Wednesday, April 27, 2011 2:08 PM To: Enomoto, Kristen Cc: Jeff Sanita; Tim Wallace; Whitworth, Mark; Yamaguchi, Willard; Juarez, Debbie Subject: Matheson Listing Agreement and Thermador PSA Sounds good. We will wait to hear from Debbie. Thank you. John McMillan, SIOR Executive Director, Lie. #01103292 Industrial Brokerage I Global Supply Chain Solutions Cushman & Wakefield of California Inc, Lie # 00616335 601 S. Figueroa Street, 47th Floor Los Angeles, CA 90017 PH: 213-955-6494 FX: 213-947-1772 McMillan Team Brochure 102011 From: Enomoto, Kristen [mailto:Kenomoto@ci.vernon.ca.us] Sent: Wednesday, April 27, 2011 12:09 PM To: John McMillan Cc: Jeff Sanita; Tim Wallace; Whitworth, Mark; Yamaguchi, Willard; Juarez, Debbie Subject: Matheson Listing Agreement and Thermador PSA Hi John, 5/5/2011 Page 3 of 4 Tim just dropped off the signed originals for the Matheson listing; thanks for getting that to us today. Debbie Juarez in the City Clerk's Office handles the signatures and dissemination of all items approved by City Council, so you can expect to receive fully executed PDF copies of both documents from her and she will notify you when your Matheson original is ready to be picked up. Please feel free to continue to contact me with any questions or concerns. Thank you. Kristen From: John McMillan[mailto:John.MeMillan@cushwake.com] Sent: Wednesday, April 27, 2011 9:27 AM To: Enomoto, Kristen Cc: Jeff Sanita; Tim Wallace; Whitworth, Mark Subject: Matheson Site: Exclusive Listing Agreement - CIty of Vernon Kristen: Tim will drop off the originals today. Attached is a PDF of the agreement, executed by C&W mgmt.. We only need one original back. Let us know when we can come pick it up. A scanned PDF fully executed version would be great too. Thanks. John McMillan, SIOR Executive Director, Lic. #01103292 Industrial Brokerage I Global Supply Chain Solutions Cushman & Wakefield of California Inc, Lic # 00616335 601 S. Figueroa Street, 47th Floor Los Angeles, CA. 90017 PH: 213 '955-6494 FX: 213-947-1772 McMillan Team Brochure IQ2011 The information contained in this communication is confidential, may be privileged and is intended for the exclusive use of the above named addressee(s). If you are not the intended recipient(s), you are expressly prohibited from copying, distributing, disseminating, or in any other way using any information contained within this communication. If you have received this communication in error please contact the sender by telephone or by response via mail. We have taken precautions to minimize the risk of transmitting software viruses, but we advise you to carry out your own virus checks on any attachment to this message. We cannot accept liability for any loss or damage caused by software viruses. CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e- mail messages attached to it may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are 5/5/2011 Page 4 of 4 hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner. 5/5/2011 EXCLUSIVE LISTING AGREEMENT SALE OR LEASE TRANSACTION The undersigned Owner hereby appoints Cushman & Wakefield of California, Inc. ("C&W") as its sole agent and grants to C&W the exclusive right to sell or lease the real property located at APN#: 6314-019-900: 6314-022-900 (see Exhibits A & B). Vernon, California 90058 (the "Property"). 1) TERM: The term of this Agreement begins on the date of Owner's signature below and will end at midnight twelve (12) months thereafter. 2) C&W'S SERVICES: C&W will enlist the efforts of its firm to secure a satisfactory purchaser(s) and/or tenant(s) for the Property, and if C&W deems it necessary, C&W will also solicit the cooperation of other licensed real estate brokers. At Owner's request, C&W will assist Owner in negotiating the terms of any sale or lease on behalf of Owner and in Owner's interest. The Property will be marketed for sale or lease on terms and conditions as agreed to in writing by the Owner, and such terms and conditions will not be modified by C&W without the prior consent of Owner. 3) OWNER REFERRALS: Owner will refer to C&W all inquiries and offerings received by Owner regarding the Property, and all negotiations will be conducted solely by C&W or under C&W's direction, subject to Owner's review and final approval. 4) ADVERTISING: Owner authorizes C&W to advertise and to place signage on the Property. All advertising, publicity releases, marketing brochures, signs, and other marketing materials shall be subject to Owner's prior approval, which may be withheld in Owner's sole discretion. 5), COMMISSION: If, during the term hereof, Owner sells or leases any interest in the Property, Owner will pay to C&W a commission in accordance with the attached Schedule of Commissions. Within 15 days after the end of the term, C&W will provide to Owner a list of prospective purchaser(s) or tenant(s) to whom the Property was submitted by C&W, Owner or any third party during the term. If a prospective purchaser or tenant, appearing on said list, enters into a purchase contract, lease or option within 180 days after the end of the term, and the purchase thereafter closes or lease is executed, Owner will pay a commission to C&W as provided above. Owner agrees that such 180-day period will be extended for so long as negotiations with a prospective purchaser or tenant are continuing. 6) OUTSIDE BROKERS: If C&W recognizes an outside broker representing the purchaser or tenant in a transaction for which a commission is payable hereunder, C&W 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, Owner will pay to C&W the commission provided for herein, out of which C&W will pay to such broker its agreed share and retain the balance as C&W's compensation. If such broker does not so agree, then negotiations will be suspended until such agreement is obtained. C&W will not be liable for failure to obtain such agreement. 7) ALTERNATIVE TRANSACTION: If a proposed transaction covered by this Agreement turns into any other transaction, including, but not limited to, an exchange, build to suit, option to purchase, right of first refusal, or ground lease, then C&W will automatically, without the necessity of any further acts by Owner or C&W or an amendment to this Agreement, be Owner'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 Owner shall pay to C&W a market rate commission as dictated by local custom. 8) PROPERTY INFORMATION: Owner represents that it has no actual knowledge of toxic, contaminated or hazardous substances, or defective conditions, at the Property except as Owner has informed C&W in writing or as disclosed in any materials provided by the Owner to C&W or a potential purchaser or tenant. C&W shall not transmit such information or any such materials to prospective purchasers or tenants -without prior consent of Owner. With respect to sale of the Property only, Owner and C&W each acknowledge that they are required to make certain "natural hazard disclosures" to prospective purchasers prior to closing. Owner agrees, at its sole cost and expense, to retain the services of a third party professional consultant to determine whether, based on available mapping, disclosure is required, who will issue a report with respect thereto, which report will be delivered to the prospective purchaser. Owner hereby agrees to indemnify, defend and hold C&W harmless of and from any and all claims from prospective purchasers of the Property arising from any error or omission in such reports or arising from any disclosure obligation of Owner. G /grpf 1cs/MCMJ[an Sham/McMillan/02009/Fcclusi)vs/EASL-5119,5201,5241 District Bird. & 4601 E, 52"' SL V—.04.18, 2010.doc 9) OTHER CLIENTS: Owner acknowledges that C&W may represent potential purchasers or tenants and consents to such dual representation. 10) FEES AND EXPENSES: If either party institutes legal action 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 C&W when due will bear interest from the due date until paid at the rate of 1..0% per annum. 11) ASSIGNMENT: C&W may not assign its rights or obligations hereunder, in whole or in part, without the prior consent of Owner, which consent may be given or withheld in Owner's sole and absolute discretion. 12) AUTHORITY: Owner represents that it is the owner of the Property and Owner and C&W each represent to the other that it has the full right, power and authority to execute this Agreement and to consummate a transaction as provided herein, and to perform their respective obligations hereunder. The individuals signing this Agreement on behalf of Owner and C&W represent that they are authorized signatories. 13) PROFESSIONAL ADVICE: C&W recommends that Owner obtain legal, tax or other professional advice relating to this Agreement and the proposed sale or lease 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 and compliance with the Americans With Disabilities Act. C&W will have no obligation to investigate any such matters unless expressly otherwise agreed to in writing by Owner and C&W. Owner further agrees that in determining the financial soundness of any prospective purchaser or tenant, Owner will rely solely upon Owner's own investigation and evaluation, notwithstanding C&W's assistance in gathering any financial information. 14) NON-DISCRIMINATION: It is unlawful for either Owner or C&W 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 hereto and their respective successors and assigns. The terms "Owner," "Purchaser" and "Tenant" include affiliates, successors, assigns and nominees. 16) PUBLICITY: Owner hereby consents to C&W's publicizing its role in any transaction entered into, subject -to Owner's reasonable editorial approval of such publicity. 17) COUNTERPARTS: This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement. 18) ENTIRE AGREEMENT: This Agreement and the Schedule of Commissions attached hereto constitute the entire agreement between Owner and C&W and supercedes all prior discussions. No modification of this Agreement will be effective unless made in writing and signed by both Owner and C&W. 19) APPLICABLE LAW: The law governing this agreement shall be that of the State of California. CITY OF VERNON ("OWNER" By: Print Name: Hilario Gonzales Title: Mayor Address:: 4305 Santa Fe Avenue Vernon, CA 90058 Date: s-/ 3I I Address:: 601 S. Fiqueroa Street, Suite 4700 Los An eles, CA 90017 Date: Glgpli1es/McMH1an ShareMcMillan/02009/F clusi%vs/EASI,5119,5201,5241 District BIA & 4601 E. 52" � St V- 04.18.2010.Uoc ATTEST: By: Print Name: Willard G. Ya a chi Title: CitV Clerk APPROVED AS T ORM: By: Print Name: Willard 61 a gu Interim Title: CitV Attorney G:/gpGles/McMillan Sh.c/McMill.WO2009/Gclusi,vs/EASL-5119,5?01,5?41 District Blvd. & 4601 E. 52" St. VC-04.18.2010.doc SCHEDULE OF COMMISSIONS INDUSTRIAL PROPERTY PROPERTY: APN#: 6314-019-900: 6314-022-900 (see Exhibits A & B), Vernon, California 90058 A. SALES 5% of the total sales price. Should a member of the Marketing Team (John McMillan, Jeff Sanita, Tim Wallace) also represent the Buyer, said commission shall be reduced to 4% of the total 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 rates 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 sales price of any fixtures or other personal property sold by separate agreement between Seller and Purchaser as part of the overall sales of the real property, and the current market value of any other real or personal property transferred from Purchaser to Seller. Purchase Option: If Seller grants a purchase option, C&W will be paid a commission at the above rate if and when amounts are payable for the option (and for extensions thereof). Upon closing of the sale, C&W 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 C&W shall be either 'Y2 the amount of deposit, or the regular commission computed as set forth above, whichever is less. Joint Venture: If a joint venture is effected in lieu of a sale, a commission computed in accordance with the above rates shall be paid on the value of the property as determined for purposes of the joint venture agreement, and the percentage interest thereof which is being conveyed to the joint venture, or the joint ventures as the case may be. The commission shall be paid upon execution and delivery of the instrument of conveyance, or establishment of the entitlement of ownership. B. LEASES GROSS LEASE 7% of the rent for the first year; 6% of the rent for the second year; 5% of the rent for the third year; 4% of the rent for the fourth year; 4% of the rent for the fifth year; 3% of the rent for the next five years; 2% of the rent for the balance of the term NET LEASE 7% of the rent for the first year; 7% of the rent for the second year; 6% of the rent for the third year; 5% of the rent for the fourth year; 5% of the rent for the fifth year; 4% of the rent for the next five years; 3% of the rent for the balance of the term Ground Leases: The commission rates above shall also apply to a ground lease, however, the maximum lease term for which a commission will be paid shall be fifty (50) years. Month -to -Month Transactions: The commission for a month -to -month tenancy is one month's rental. In the event a month -to -month Tenant subsequently executes a lease, either direct with Landlord or through C&W, within 24 months from the date of occupancy by the month -to -month Tenant, then C&W shall receive a leasing commission in accordance with the provisions of this schedule. Said schedule shall be applied retroactively to include the complete month -to -month term. The initial month -to -month commission already paid by Landlord, shall be deducted from the total leasing commission due to C&W. G:/ppfiles/McMdlan ShareMcMillaN02009/EseWsi�es/EASL5119,5201,5291 District Blvd. &. 4601 E. 52" A V— 04.18 2010.d- 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 C&W, 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: C&W 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 C&W 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, C&W shall be paid the balance of its commission. If a cancellation payment includes the unamortized commission, then C&W 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 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 yform 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, C&W 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 C&W 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. Time of Payment: Commissions on leases shall be paid in full on the execution and delivery of the lease between Landlord and Tenant. Purchase Option: 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 C&W, 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 C&W has been paid a leasing commission, the portion of C&W's share of the leasing commission attributable to the unexpired portion of the term will be credited against the sales commission. C&W will not 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 C&W the commissions due and/or which may become due hereunder, unless Landlord shall obtain from the grantee of its interest and deliver to C&W an agreement, in form and substance and from a party acceptable to C&W, whereby the grantee assumes Landlord's commission obligations hereunder. G:/gpliles/McMtlL n Share/McMillan/02009/E<clusis25/EASL-5119,5201,5241 Dislricl Blvd. & 4601 E. 52"' St. Vemon 04. 18,2010_doe General: The term "lease" as used herein shall also be deemed to mean "sublease" and the terms "Landlord" and 'Tenant' shall also be deemed to mean "SublandlorT and "Subtenant', as the case may be, and, together with the terms "Purchaser" and "Seller", shall be deemed to include any subsidiaries, affiliates, successors and nominees of any of same. OWNER: CITY OF VERNON By: Print Name: Hilario Gonzales Date: 3 /t AG Qd'SHMAN & WAK ELD OF CALIFORNIA, INC. Print Name: Joe Vargas Date: �. ATTEST: r By: . Print Name: Willard G. Ya a hi Title: City Clerk Date: � � � I l l APPROVED AS TO By: Print Name: Willard G. Yafnag6chi Title: Interim City Attorney Date: � 1 s / � l G/@rpliilesMCMilIan SbawMcMillan/02009/Exclusives/EASL-5119,5201,5241 District Blvd-&4G01 E. 52'SI. V-0n04.I82010.dac EXHIBIT A EXHIBIT B . , v .. .. . .. �•�y%& Vp STAFF REPORT CITY ADMINISTRATION DATE: April 26, 2011 TO: Honorable Mayor and City Council FROM: Mark C. Whitworth, City Administrator RE: Cushman & Wakefield Listing Agreement for Matheson Site It is recommended that the attached Exclusive Listing Agreement with Cushman & Wakefield of California, Inc. for the property located at 5611 District Boulevard and 4855 E. 52"d Street be approved and. executed at the May 3, 2011 City Council meeting.