EXHIBIT 1
LISTING AGREEMENT FOR SALE AND LEASE
LISTING AGREEMENT
FOR SALE AND LEASE
THIS LISTING AGREEMENT ("Agreement") is made effective June 1, 2015 between the City of Alameda, a municipal corporation ('City") and Cushman & Wakefield of California, Inc., a California corporation ("C&W").
Recitals
A. City owns or leases with rights to sublease certain commercial property described in Exhibit A as Alameda Point Building List, Tideland Trust Leases, City of Alameda leases and CIC/FISC leases. Exhibit A is attached hereto and incorporated herein by reference and the properties identified in Exhibit A are collectively referred to herein as "Parcels". Also attached hereto and incorporated herein by reference is Exhibit A-/ which sets forth various Assessor's Parcel Numbers, as well as the Coast Guard Island, Bldg 54D and the Southernmost shoreline of East Bay Regional Park; properties set forth on Exhibit A-I shall also be collectively referred to herein as "Parcels."
B. City desires to either sell or lease the Parcels to maximize the overall economic return of the Parcels to the City.
C. C&V has the requisite real estate expertise and skill to find qualified buyers or tenants for the Parcels and, in consultation with City Staff, to negotiate transactions for submittal to the City Council for approval.
NOW, THEREFORE, in consideration of the mutual promises expressed herein, the parties agree as follows:
1. Listing Team. As of the effective date of this Agreement, John McManus, Theodore Anderson and Andrew Schmeider (the "Listing Team") shall comprise the team of C&W brokers assigned to perform pursuant to this Agreement. C&W may add or delete members from the Listing Team by notifying the City in writing of such addition or deletion. Any such additions to the Listing Team must be pre-approved by the City.
City appoints C&W through the Listing Team as its sole agents and grants to C&W the exclusive right to sell and lease the Parcels on the terms and condicions as provided below. It is understood and agreed that the City may add or delete Parcels or or other commercial properties from time to time. Any such additions or deletions shall be done upon 60 day prior written notice and any deletions shall be subject to the Registration List provisions of Paragraph 6. C&W shall render all services to City hereunder through the Listing Team.
Term. The term of this Agreement will commence on June I, 2015 and will expire on December 31, 2018, unless either party, with 60 days prior written notice, terminates the Agreement.
3. Services. The Listing Team will use its efforts to obtain a satisfactory purchasers) and/or lessee(s) for the Parcels at a sale price and lease rate to be determined by City and on such other terms as are acceptable to City. The Listing Team will negotiate the business terms of any purchase and sale agreement and lease on behalf of City and in City's best interest, subject to City's review and final approval. The Listing Team will cooperate with other licensed real estate brokers. Other C&W licensed real estate brokers, i.e., C&W licensed real estate brokers other than the Listing Team, may represent prospective tenants or purchasers of the Parcels, provided, however, (a) the Listing Team shall provide written notice to the City of this representation, (b) the Listing Team shall not represent the City in the negotiations (but shall be compensated pursuant to the provisions of Paragraph 6) and (c) the Listing Team shall create an ethical wall between its members and the other C&W
ALAMEDA POINT CUSHMAN & WAKEFIELD
LISTING AGREEMENT FOR SALE AND LEASE
licensed real estate brokers) such that no information the Listing Team has obtained from the City in confidence, including but not limited to the strengths and weaknesses of the City's position regarding the lease or sale of the Parcels, is communicated by the Listing Team to or shared with such brokers). Except for its representation of SRMErnst as to Building 9 within Alameda Point, no member of the Listing Team shall represent a prospective tenant or purchaser of any of the Parcels. For the purposes of this Agreement, the term "lease" shall include a "sublease" and the term "Tenant" shall include a "Subtenant".
4. Marketing. City authorizes C&W to advertise and place signage on the Parcels, subject to City's approval of any advertisements and signage. C&W, at its own expense, will place its standard sign on the Parcels and will prepare and distribute a standard brokerage flyer. All advertising whether prepared or issued by C&Wor by City will identify the Listing Teamas City's exclusive agent for the Parcels.
5. Referrals. During the term of this agreement, City will refer to the Listing Team all inquiries and offers received by City with respect to the Parcels, regardless of the source of such inquiries or offers.
6. Commission. Except as provided in the next two sentences, if, during the term hereof, City sells and/or leases any interest in a Parcel, City will pay to C&W a commission in accordance with the attached Schedule of Commissions. The Schedule of Commissions shall not apply to any transaction where a C&W licensed real estate broker who is not a member of the Listing Team has represented a tenant or purchaser as provided in paragraph 3. In those transactions, the City shall pay C&WV (with the intent to credit the licensed real estate broker who is not a member of the Listing Team) ½ of the commission that otherwise would be paid pursuant to the Schedule of Commissions and shall pay C&W (with the intent to credit the Listing Team), as a marketing fee, 2/5 of the commission that would otherwise be paid pursuant to the Schedule of Commissions.
Within 10 days after the end of the term, C&W will provide to City a list of prospective purchasers and tenants to whom a Parcel was submitted by any party during the term ("Registration List"). If a prospective purchaser or tenant, appearing on Registration List, enters into a purchase and sale agreement or lease within 180 days after the end of the term, and thereafter the sale is closed or the lease is fully executed and delivered, City will pay a commission to C&W as provided above. City agrees that such 180-day period will be extended for so long as negotiations with a prospective purchaser and tenant are continuing. Further, if the Listing Team has shown a Parcel which is removed from Exhibit A, C&W shall be entitled to submit a Regsitration List for such Parcel and if the City enters into a purchase and sale or lease agreement a prospect on such Registration List within 180 days of removing the Parcel from Exhibit A, City shall pay a commission to C&W as provided above.
7. Outside brokers. If there is an outside broker authorized to represent the purchaser or tenant in a transaction for which a commission is payable hereunder, the Listing Team and the outside broker shall split the commission equally, with fifty percent payable to each. City shall pay the full commission to C&W and C&W shall pay the outside broker when it receives the funds. If the outside broker requests more than fifty percent of the commission, the Listing Team shall notify the City and City will consider a request for an excess commission but in no event is the City obligated to pay any amount above the agreed Schedule of Commissions nor shall C&W be required to share more than fifty percent of the commission.
8. Conflicts of Financial Interest. The City and its agents, including C&W and the Listing Team, must comply with California laws prohibiting financial conflicts of interest. Each of the member of the Listing Team shall file with the City Clerk of the City of Alameda a conflict of interest form (Fair Political Practices Commission, Form 700). Any person who is added to the Listing Team shall comply with this Agreement. If any member of
ALAMEDA POINT CUSHMAN & WAKEFIELD
LISTING AGREEMENT FOR SALE AND LEASE
the Listing Team leaves the Listing Team but remains an employee or associated with C&W, C&W shall notify the City in writing of the name of the member and the person so leaving shall file a "leaving office" conflict of interest form. Such person thereafter shall not represent prospective tenants or purchasers of the Parcels for one year. If any member of the Listing Team is no longer employed by or associated with C&W, C&W shall notify the City in writing of the name of the member and shall request the person not to represent prospective tenants or purchasers of the Parcels for one year.
9. Authority. City represents that it in fact has legal rights to lease or sell the Parcels. The individuals signing below represent that they are authorized to sign this Agreement on behalf of the entity indicated.
10. Professional Advice. C&W recommends that City obtain legal, tax or other professional advice relating to this Agreement and the proposed sale and lease of the Parcels as well as the condition of the Parcels, including, but not limited to, the Parcels' improvements, equipment, soil, tenancies, title, environmental aspects and compliance with the Americans with Disabilities Act. C&W shall have no obligation to investigate such matters; however, to the extent that C&W and the Listing Team have been made specifically aware of any of the foregoing conditions they shall convey such conditions accurately to prospective purchasers and tenants. City agrees that in determining the financial soundness of any prospective purchaser or tenant, City will rely solely upon City's own investigation and evaluation, notwithstanding C&W's assistance in gathering any financial information.
1. OFAC. Each party represents and warrants to the other party that it, and all persons and entities owning (directly or indirectly) an ownership interest in it: (a) are not, and will not become, a person or entity with whom a party is restricted from doing business with under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including, but not limited to, those named on OFAC's Specially Designated and Blocked Persons list) or under any statute, executive order (including, but not limited to, the September 24, 200l, Executive Order 13224 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action; and (b) are not knowingly engaged in, and will not knowingly engage in, any dealings or transactions or be otherwise associated with such persons or entities described in clause (a) above.
12. Miscellaneous. This Agreement shall be governed by the laws of the State of California, without giving effect to principles of conflicts of law. This Agreement constitutes the entire agreement between the parties regarding the subject matter herein, and no amendments, changes or modifications may be made to this Agreement without the express written consent of each of the parties. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. No failure or delay by a party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or prohibit any other or further exercise of any right hereunder. This Agreement shall benefit and be binding upon the parties and their respective successors and assigns. This Agreement may be executed and delivered (including by facsimile, "pdf" or other electronic transmission) in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
[EXECUTION PAGE FOLLOWS]
ALAMEDA POINT CUSHMAN & WAKEFIELD
LISTING AGREEMENT FOR SALE AND LEASE
THE CITY OF ALAMEDA CUSHMAN & WAKEFIELD OF CALIFORNIA,
INC.
or her
Name: Elizabeth Warmerdam Name: Joseph J. Cook !!
Title: Interim City Manager Title: President, West Region Dare 8 70/15 Date:
Approved as to Form:
Name: Janet C. Kern
Title: City Attorney
Date: 3/13/15
ALAMEDA POINT CUSHMAN & WAKEFIELD
EXHIBIT A -Alameda Point Building List
Building # Address
950 W. Mall Square
Wing 3 2599 Lexington Street
Rm211 1025 W. Midway Avenue
A 1041 W. Midway Avenue
2550 Monarch Street
2651 Lexington Street
2701 Lexington Street
2401 Lexington Street (Shaw)
A 950 W. Ranger Avenue (Fire Dept.)
B 950 W. Ranger Avenue (Maintenance)
851 W. Midway Avenue
2350 Saratoga Street (Portion: Chabot Space & Science)
707 W. Tower Avenue (GRM)
2221 Lexington Street
1190 W. Tower Avenue (Trans-Freight)
Ste. 200 1190 W. Tower Avenue
1050 W. Tower Avenue
Ste. 100 2100 Ferry Point
Ste. 100 2100 Ferry Point
100/200 2100 Ferry Point (Pacific Pinball Museum)
400 2100 Ferry Point (Edge Innovation)
1800 Ferry Point (Navigator Systems)
1605 Ferry Point (NRC)
2600 Saratoga Street
700 W. Essex Drive
2700 Saratoga Street (Auctions by the Bay)
2175 Monarch Street (Makani Power)
2701 Monarch Street (Vigor Marine/Auctions)
2601 Monarch Street
2601 Monarch Street (St. George Spirits)
2501 Monarch Street (HESCO)
2401 Monarch Street (West Coast Novelties)
2401 Monarch Street
Bay 1 2301 Monarch Street (American Bus Repair)
Bay 2 & 3 2301 Monarch Street (Rock Wall Wine Co.)
A 1915 Monarch Street (Auctions by the Bay)
1951 Monarch Street
1951 Monarch Street
1701 Monarch Street (Dreyfuss Capital Partners)
2900 Navy Way
2451 Saratoga Street
2450 Pan Am Way (Allied)
1603 Ferry Point
950 W. Tower Avenue (Delphi Productions)
800 W. Tower Avenue (Bladium)
650 W. Tower Avenue (Alameda Naval Air Museum)
2480 Monarch Street (Pacific Fine Foods)
2440 Monarch Street (B. 43 & Associates/Woodmasters)
2400 Monarch Street
G: Banks/AP Buildings Number and Address Page 1 of 5
EXHIBIT A -Alameda Point Building List
45 A 2271 Ferry Point
45 2281 Ferry Point
60 641 W. Red Line Avenue (City of Alameda)
62 1040 W. Midway Avenue
63 2650 Monarch Street
64 1651 Ferry Point (NRC)
66 451 W. Atlantic Avenue
66 Ste. 102 451 W. Atlantic Avenue
66 Ste. 103 451 W. Atlantic Avenue
66 Ste. 118 451 W. Atlantic Avenue
66 Ste. 101 451 W. Atlantic Avenue
66 Ste. 110 451 W. Atlantic Avenue
66 450 W. Seaplane Lagoon
66 Ste. 124 451 W. Atlantic Avenue
66 Ste. 221 450 W. Seaplane Lagoon
67 401 W. Seaplane Lagoon (Puglia)
68 1610 Ferry Point (NRC)
75 707 W. Red Line Avenue
76 1111 W. Red Line Avenue (Swimming Pool)
77 2151 Ferry Point (Alameda Naval Air Museum)
78 475 Sunrise Court
86 (Sewage Pump Station #2) 501 Sunrise Court
90 101W. Atlantic Avenue (MRG)
91 651 W. Tower Avenue (Event Productions)
92 650 W. Ranger Avenue
94 2790 Saratoga Street
98 451 W. Seaplane Lagoon (Conmar)
101 751 W. Ranger Avenue
102 1280 W. Midway Avenue
112 399 W. Seaplane Lagoon (Shaw)
113 450 W. Atlantic Avenue
114 2450 Saratoga Street (ROIC Main Office Area
114 800 W. Midway Avenue
114 800 W. Midway Avenue
114 Ste. 100 800 W. Midway Avenue
114 Ste. 107 800 W. Midway Avenue
114 Ste. 110 800 W. Midway Avenue
114 Ste. 120 800 W. Midway Avenue
114 Ste. 130 801 W. Ranger Avenue
114 Ste. 140 801 W. Ranger Avenue
114 Ste. 145 801 W. Ranger Avenue
114 Ste. 150 801 W. Ranger Avenue
115 2601 Todd Street
116 2501 Todd Street
117 East 2251 Orion Street
117 West 2251 Orion Street
118 51 W. Trident Avenue (JK Communications)
118 East 51 W. Trident Avenue (Architectural Glass and Alum.) 119 151 W. Seaplane Lagoon
130 2599 Todd Street
133 501 Panoramic Rim
134 1101 W. Red Line Avenue (Gym - City: Rec&Park)
G:Banks/AP Buildings Number and Address Page 2 of 5
EXHIBIT A -Alameda Point Building List
135 750 W. Red Line Avenue
137 650 W. Red Line Avenue
152 2451 Hancock Street
162 East 400 W. Atlantic Avenue (AMP)
162 West 450 W. Atlantic Avenue
163 1800 Orion Street (Sustainable Technologies)
164 351 W. Ticonderoga Avenue
166 1501 Viking Street (Power Enginerring)
167 1500 Ferry Point (Nelsons Marine)
168 1651 Viking Street (MARAD)
169 1680 Viking Street. (GSA - S.F. Maritime)
170 A 1770 Viking Street (GFC Moving)
170 1770 Viking Street (SACCHI)
173 51 W. Seaplane Lagoon
180 1780 Ferry Point
271 421 W. Trident Avenue (City of Alameda)
275 821 W. Redline Avenue
287 (Sewage Pump Station #4) 1581 Viking Street
292 1450 Ferry Point (Bay Ship & Yacht)
302 1451 Skyhawk Street
337 221 W. Seaplane Lagoon
338 (Parking Lot) 1450 Skyhawk Street
338 51 W. Hornet Avenue (Container Storage)
346 1220 W. Midway Avenue
347 2396 Monarch Street
360 1900 Skyhawk Street
372 1770 Orion Street
377 2761 Monarch Street
377 2751 Monarch Street
377 2755 Monarch Street
385 670 W. Hornet Avenue
389 1005 W. Red Line Avenue
393 350 W. Trident Avenue
397 1690 Orion Street (City of Alameda - Storage)
398 399 W. Atlantic Avenue (Jetsmart)
399 401 W. Atlantic Avenue
400 1150 W. Tower Avenue
400 A 1090 W. Tower Avenue (Bay Ship & Yacht)
405 2350 Monarch Street
407 2275 Monarch Street (Bird Sanctuary)
410 250 W. Oriskany Avenue
414 1820 Orion Street
415 951 W. Tower Avenue
416 823 W. Red Line Avenue
•
422 F 1051 W. Red Line Avenue
423 F 715 W. Red Line Avenue
448 (Sewage Lift Station #20) 90 W. Hornet Avenue
449 (Sewage Lift Station #5) 1604 Ferry Point
458 A 815 W. Red Line Avenue
459 101 W. Tower Avenue (Turn Key Show Prod)
493 (Sewage Lift Station #3) 2844 Barbers Point Road
494 1851 Monarch Street (Police Department)
G: Banks/AP Buildings Number and Address Page 3 of 5
EXHIBIT A -Alameda Point Building List
500 2351 Lexington Street
517 150 W. Trident Avenue (Habitat for Humanity)
522 431 Stardust Pl. (Per Fire Department)
525 2751 Todd Street (Auctions by the Bay)
527 151 W. Atlantic Avenue
529 1501 Skyhawk Street
530 120 W. Oriskany Avenue
530 A 1550 Skyhawk Street
542 150 W. Hornet Avenue
544 2221 Ferry Point
551 625 W. Hornet Avenue
552 1990 Skyhawk Street
554 2651 Monarch Street
557 685 W. Hornet Avenue
562 1001 W. Red Line Avenue
564 190 W. Trident Avenue (Community Bible Church)
584 1402 Viking Street (Steam Plant)
585 2750 Todd Street
587 Vehicle Lot 1800 Viking Street
587 1850 Viking Street
587 Common Parking 1880 Viking Street
592 450 W. Hornet Avenue (Sewage Lift Slation #14)
601 1601 Ferry Point
607 677 W. Ranger Avenue (Alameda Point Collaborative)
608 50 W. Hornet Avenue (Container Storage)
608 54 W. Hornet Avenue
608 52 W. Hornet Avenue
608 48 W. Hornet Avenue
611 2440 Pan Am Way (Stafford-Sent Packing)
612 1450 Viking Street (Jim Bustos Plumbing)
451 Stardust PL. (Emergency Services Network)
613 450 W. Midway Avenue (Red Cross)
614 2390 Monarch Street
615 1051 W. Tower Avenue
616 1750 Orion Street (NRC)
800 W. Oriskany Avenue
181 W. Hornet Avenue
185 W. Hornet Avenue
1401 Skyhawk Street
270 W. Ticonderoga Avenue
1470 Viking Street
1472 Viking Street
607 W. Ranger Avenue (Alameda Point Collaborative)
Stockpile for Golf Course 3000 Perimeter Road
3100 Perimeter Road
825 W. Red Line Avenue
817 W. Red Line Avenue
Bunkers for EBMUD 463 Panoramic Rim
Car Storage 51 W. Oriskany Avenue
Cellular One Site 25 W. Pacific Avenue
Dog Park 3000 Main Street
Floating Dock - Nelson's 651 W. Oriskany Avenue
G:\Banks/AP Buildings Number and Address Page 4 of 5
EXHIBIT A -Alameda Point Building List
Main St. Greenway 2000 Main Street
Guard Shacks 2900 Navy Way
Hornet (Ship) 707 W. Hornet Avenue
620 W. Hornet Avenue
Mini-Storage 50 W. Oriskany Avenue
Parcels #60 & #65 1001 W. Red Line Avenue
1599 Ferry Point
1499 Ferry Point
1399 Ferry Point
Fields 424 &425 (Soccer) 2655 Lexington Street
Storm Water Pump #1 2998 Barbers Point Road
Tank #1 21 W. Seaplane Lagoon
71 W. Seaplane Lagoon
Tank #282 2330 Saratoga Street
Tank #342 A 410 W. Hornet Avenue
Tank #400 1090 W. Tower Avenue
Tank #342 B 390 W. Hornet Avenue
Taxiway #7 2001 Ferry Point
Tower #1 2300 Pan Am Way
Tower #2 2400 Pan Am Way
Vacation Lot Next to 621 150 W. Ticonderoga Avenue
Water Meter for Greenway
Enterprise Lot 575 W. Hornet Avenue
G:IBankslAP Buildings Number and Address Page 5 of 5
EXHIBIT A
CITY OF ALAMEDA LEASES
Location Tenant Sq. Ft.
2319 Central Avenue Burgermeister 1,850
2315 Central Avenue Alameda Wine Co. 700
EXHIBIT A
CIC/FISC Leases
2 Bay 82 Bobac o.F.sant 72000
Bobac C.F.S. 216,000
Starlight Marine Services
TIDELANDS TRUST LEASES
Sq.Ft.
14,962.95 sq. ft.
8.7 acres
3.5 acres
0.015 acres
7.312 acres/ 318,511 sq. ft.
18.183 acres
10,647 acres
19,800 sq. ft.
0.816 acres
4 acres
EXHIBIT A1
ASSESSOR'S PARCEL NUMBERS
74-890-1-24 74-1368-8 074-0905-002-03
74-890-1-17 74-1368-9 074-0905-002-01
74-1367 74-1368-10 074-0905-032-01
74-1367-1 74-1368-11 071-0288-001-02
74-1367-2 74-1368-12 071-0257-002
74-1367-3 74-1368-13 071-0257-003
74-1367-4 74-1368-14 074-1025-004
74-1367-5 74-1368-15 072-0382-003
74-1367-6 74-1369-1 072-0382-004
74-1367-7 74-1369-2 072-0381-004
74-1367-8 74-1369-3 072-0382-005
74-1367-9 74-1369-4 Coast Guard Island, Bldg 54D
74-1367-10 74-1369-5 Southern most shoreline of East Bay Regional Park 74-1367-11 74-1369-6 071-0203-020-01
74-1367-12 74-1369-7 071-0203-019-01
74-1367-13 74-1369-8
74-1367-14 74-1369-9
74-1367-15 74-1369-10
74-1367-16 74-1369-11
74-1367-17 74-1369-12
74-1367-18 74-1369-13
74-1367-19 74-1369-14
74-1367-20 74-1369-15
74-1367-21 74-1369-16
74-1367-22 74-1369-17
74-1367-23 74-1369-18
74-1368-1 74-1369-19
74-1368-2 74-1369-20
74-1368-3 74-1369-21
74-1368-4 74-1369-22
74-1368-5 74-1369-23
74-1368-6 74-1369-24
74-1368-7 74-1369-25
LISTING AGREEMENT FOR SALE AND LEASE
SCHEDULE OF COMMISSIONS FOR SALE AND LEASE
A. SALES
Five percent (5%) 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 Parcel, 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 City and purchaser.
Computation of Sales Price: The commission shall be computed in accordance with the above rate(s) based upon the total sales price, which shall include any mortgages, loans or other obligations of City which may be assumed by the purchaser or which the purchaser takes title "subject to," any purchase money loans or mortgages taken back by City, the sales price of any fixtures or other personal property sold by separate agreement between City 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 the purchaser to City.
Purchase Option: If City grants a purchase option, C&W will be paid a commission at the above rates) as 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 City, the commission to be paid C&W 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
Five percent (5%) of the total rental for the first five (5) years or any fraction thereof, plus Two and one-half percent (2.5%) of the total rental for years six (6) through ten (10) or any fraction thereof.
C&W's fee for a month-to-month tenancy is one average month's rental with a minimum fee of $1,000.00.
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, City shall pay to C&W, at the time of the renewal or extension, an additional commission at one-half (50%) of the above rate for the renewal or extension term. In the event Tenant leases additional space, that space shall be subject to the rates listed above with no discount.
ALAMEDA POINT CUSHMAN & WAKEFIELD 6
LISTING AGREEMENT FOR SALE AND LEASE
Cancellation Clauses: C&W will be paid a commission based upon the entire lease term notwithstanding any right of City to cancel the lease. If a 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 noncancellable portion of the lease term plus the amount of any cancellation payment payable by tenant; if such right is not thereafter exercised, City 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: If a rental concession is made City allowing a tenant not to pay rent for the initial months of the lease term, then the commission shall be calculated on 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 City performing construction or alteration work and with respect to any other allowances or concessions granted to a tenant whether in the form of a credit against rent, construction, decoration or otherwise, there shall be no deduction from the commission calculation above.
Net Leases: Should there be a clause in a lease whereby a tenant is obligated to pay the real property taxes, operating expenses, insurance and/or City's mortgage interest, such items shall be considered as rent on which C&W's commission is payable. In making the computation, the amounts of such items for the current year, if fixed, shall be used; if not fixed, the amounts of such items for the previous year shall be used, however, where new construction is involved that portion of the commission applicable thereto shall be computed and paid on the basis of the final tax assessment, actual operating expenses, actual insurance costs, and actual mortgage interest on the new building after its completion. It is understood that the amount of such items for the first year of the lease term shall be deemed to be the amount for all subsequent years of the lease term for the purposes of computing the commission and no subsequent increases shall be subject to commission
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 City's asking price. In both of the above cases, thereafter, as and when percentage rental shall become payable to City, 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 earned, due and paid in full upon execution and delivery of the lease between City and tenant.
Purchase Option: If a lease contains an option or right to purchase, and if Tenant purchases a Parcel during the term of the lease, whether or not strictly pursuant to the option or right, City will pay to C&W, upon closing of the transaction, a sales commission as provided in Section A of this Schedule. If
ALAMEDA POINT CUSHMAN & WAKEFIELD
LISTING AGREEMENT FOR SALE AND LEASE
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 City: In the event of a sale, conveyance or other disposition of all or any portion of City's interest in a Parcel at which the lease is made, City shall remain responsible to pay C&W the commissions due and/or which may become due hereunder, unless City shall obtain from the grantee of its interest and deliver to C&W an agreement whereby the grantee assumes City's commission obligations hereunder.
C. Broker Regulatory or Statutory Provisions: The following provisions must be included in brokerage agreements in the State of California:
• It is illegal for either party to discriminate against any person because of one's membership in a protected class (e.g., race, color, religion, national origin, sex, ancestry, age, marital status, physical or mental handicap, familial status, or any other class protected by law). • City acknowledges receipt of a copy of Notice to Owners, Buyers and Tenants Regarding Environmental Matters, Americans With Disabilities Act and Related Laws, Flood Disclosure, Zoning/Use Disclosure and Alquist-Priolo Special Earthquake Fault Zoning Act.
With respect to sale of a Parcel only, City and C&W each acknowledge that they are required to make certain "natural hazard disclosures" to prospective purchasers prior to closing. City and C&W each hereby represent that they have no actual knowledge that a Parcel is located within a special flood hazard area, a potential flood (dam failure) inundation area, a very high fire hazard severity zone, a wildland fire zone, an earthquake fault zone or a seismic hazard zone, except as City has informed C&W or C&W has informed City in writing. City 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. City hereby agrees to indemnify, defend and hold C&W harmless of and from any and all claims from prospective purchasers of the Parcel arising from any error or omission in such reports or arising from any disclosure obligation of City.
City acknowledges receipt of a copy of the Agreement and this Schedule of Commissions.
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LISTING AGREEMENT FOR SALE AND LEASE
NOTICE TO OWNERS, BUYERS AND TENANTS REGARDING
ENVIRONMENTAL MATTERS,
AMERICANS WITH DISABILITIES ACT AND RELATED LAWS,
FLOOD DISCLOSURE, ZONING/USE DISCLOSURE AND
ALQUIST-PRIOLO SPECIAL EARTHQUAKE FAULT ZONING ACT
ENVIRONMENTAL MATTERS
It is essential that all parties to real estate transactions be aware of the health, liability and economic impact of nvironmental factors on real estate. Cushman & Wakefield does not conduct investigations or analyses nvironmental matters and, accordingly, urges the parties to a real estate transaction to retain qualifie environmental professionals to determine whether hazardous or toxic wastes or substances (such as asbestos, CBs and other contaminants or petro-chemical products stored in underground tanks) or other undesirable materials or conditions are present at the property and, if so, whether any health danger or other liability exists.
Such substances may have been used in the construction or operation of buildings or may be present as a result of previous activities at the property.
Various laws and regulations have been enacted at the federal, state and local levels dealing with the use, storage, handling, removal, transport and disposal of toxic or hazardous wastes and substances. Depending upon past, current and proposed uses of the property, it may be prudent to retain an environmental expert to conduct a site investigation and/or building inspection. If hazardous or toxic substances exist or are contemplated to be used at the property, special governmental approvals or permits may be required. In addition, the cost of removal and disposal of such materials may be substantial. Consequently, legal counsel and technical experts should be consulted where these substances are or may be present.
AMERICANS WITH DISABILITIES ACT AND RELATED LAWS
As an owner or tenant of real property, you may be subject to the Americans with Disabilities Act (the ADA), a Federal law codified at 42 US Section /2101 et seq. Among other requirements of the ADA that could apply to your property, Title Ill of the ADA requires owners and tenants of "public accommodations" to remove barriers to access by disabled persons and provide auxiliary aids and services for hearing, vision or speech impaired persons by January 26, 1992. The regulations under Title Ill of the ADA are codified at 28 CFR Part 36.
We recommend that you and your attorney review the ADA and the regulations, and, if appropriate, your proposed lease or purchase agreement, to determine if this law would apply to you, and the nature of the requirements. These are legal issues. Cushman & Wakefield cannot give you legal advice on these issues.
Furthermore, all California commercial leases regardless of size executed on or after July 1, 2013 must contain a provision disclosing whether the premises have been inspected by a government-approved Certified Access Specialist (CASp) and if so, whether the premises have been determined to be in compliance with all applicable construction-related disability accessibility standards. The law (California Civil Code §1938) does not require a landlord to conduct a CASp inspection of the property; however, it does require that the landlord disclose
ALAMEDA POINT CUSHMAN & WAKEFIELD
LISTING AGREEMENT FOR SALE AND LEASE
whether or not an inspection has been completed and if so, whether the property meets the applicable accessibility standards.
FLOOD DISCLOSURE
If the premises is located in a Federally Designated Flood Zone, the Tenant's real and personal property situated on or in the premises is not protected by the hazard insurance policy for the property carried by the Landlord.
The Tenant is responsible for investigating the Flood Zone status of the premises and obtaining insurance to cover the Tenant's property if it so desires.
ZONING/USE DISCLOSURE
Prior to executing a lease, the Tenant is responsible for determining that the zoning applicable to the property allows the Tenant to use the premises for the Tenant's intended use, and that all building codes, parking requirements, and other governmental requirements, improvements required, and permits necessary have been met or are available to Tenant. Cushman & Wakefield has made no representations, except in writing, if any, concerning the zoning and allowable use of the premises and any requirements that may be imposed upon the Tenant by any governmental agency. If the Tenant's use of the premises requires a Use Permit or other permits from a governmental authority it could take several months to obtain same, and Tenant may still be responsible for the payment of rent and other charges whether or not such permits are ultimately obtained.
ALQUIST-PRIOLO SPECIAL EARTHQUAKE FAULT ZONING ACT
The property may be situated in an Earthquake Fault Zone as designated under the Alquist-Priolo Earthquake Fault Zoning Act, Sections 262l-2630 inclusive, of the California Public Resources Code; and, as such the construction of development on the property of any structure for human occupancy may be subject to the findings of a geologic report prepared by a geologist registered with the State of California, unless such report is waived by the city or county under the terms of that Act. No representations on this subject are made by Cushman & Wakefield or its agents or employees, and the Tenant/Purchaser is advised to make its own inquiry into this situation prior to entering into a lease or sale agreement.
By your signature below, you acknowledge that you have read and understand this disclosure and have received a copy:
Received on _ 2015
Signature:
Printed Name:
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