Jon Wilcox
Senior Vice President
Lic. 01385852
CBRE, Inc.
Advisory & Transaction Services
Investment Properties
March 1, 2023
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Re: Exclusive Sales Listing Agreement
±10,210 Acres, East of Loyalton and West of Cold Springs, and is further identified by tax parcel numbers 147-040-02-11,147-050-02-11,147-050-03-11,147-050- 19-11,147-050-20-11,147-070- 04-11,147-070-05-11,147-080-01-11,147-080-03-11, 147-080-11- 11,147-080-14-11,147-080-15- 11,021-010-003,021-020-001,016-100-004, 016-090-059, 021-010- 006, 021-010-012, 016-100- 005, 016-080-008, 016-070-012, 016-090-011, 021-010-013, 016-100-001, 016-100-006 and 016- 080-007, Sierra and Lassen Counties, California (“Property”)
Dear :
Thank you for selecting CBRE, Inc. (“CBRE”, “us”, “we”, “our”) to represent the City of Santa Clara (“you”, “your”). The terms of this engagement are contained in this agreement (“Agreement”).
1. This Agreement shall terminate on February 28, 2024 (“Term”).
2. During the Term, you appoint us as your agent with the exclusive right to list and market the Property for sale and to negotiate agreements for the sale of the Property (which includes portions thereof). If, during the Term, the Property is removed from the market because escrow is opened or an offer to purchase the Property is accepted , and i f th at sale is not consummated for any reason, then the Term will be extended by the longer of the number of days that (i) escrow was open or (ii) the Property was removed from the market, but in no event more than 180 calendar days in the aggregate.
3. We will commit the appropriate number of qualified and licensed profe ssionals to this engagement. The “Listing Team” is comprised of Jon Wilcox and Brian Hutcherson . We will have the right to change members of the Listing Team as necessary and appropriate. The Listing Team shall owe you duties of trust, confidence and loyalty.
4. We will offer the Property at an initial listing price of $5,000,000.00. However, it is your right to:
(a) approve, modify, reject or disapprove any and all proposals and offers as well as any prospective purchasers for the Property and (b) adjust the terms and conditions of any offer made, including but not limited to, adjusting the Property’s listing price.
5. We will work with you to create and implement a sales strategy for the Property, including preparation of appropriate and customary marketing materials (s uch as an offering brochure). In developing the strategy, we will rely on (without requirement to verify) any information provided to us by you, your agents, affiliates and/or any of the Property’s managers. H owever, we will not 1512 Eureka Road, Ste. 100
Roseville, CA 95661
Lic. 00409987
+1 916 781 4860 Tel
+1 916 599 0019 Cell
[email protected]
www.cbre.com
2 issue any written marketing materials without your prior written approval. Further, you authorize us to place one or more signs on the Property as we deem appropriate. You agree to reimburse us for reasonable out-of-pocket marketing expenses approved by you in writing, up to a maximum of Dollars ($ ). Reimbursement is due upon the receipt of an invoice.
6. The success of this engagement relies, in part, on cooperation and communication between you and CBRE . Therefore, you agree to: (i ) provide us with all available information to assist us in marketing the Property; (ii) immediately refer to us all purchase inquiries for the Property; and (iii) conduct all negotiations with prospective purchasers exclusively through us.
7. You represent that you either are the fee owner of or otherwise h ave control over the Property.
You further represent that you have full authority to enter into this Agreement without violating anyone else’s rights, or any other agreements or contractual obligations.
8. We will present all offers to you and assist you in developing and negotiating counteroffers until a purchase and sale agreement (“ PSA”) is signed and all contingencies are satisfied or waived. You agree that you and/or your legal counsel are solely responsible for determining the legal sufficiency of any documents to be executed by you in any transaction contemplated by this engagement as well as the tax consequences of any such transaction. You are also responsible for evaluating any offers and determining with whom you will negotia te or enter into a transaction. While we may assist you in gathering reasonably available information, we cannot represent or warrant the creditworthiness of any prospect and/or their ability to satisfy their obligations under a PSA . All final business and legal decisions shall be made solely by you. Notwithstanding any designation of us as “agent” in this Agreement, we will have no right, power, or authority to enter into any agreement with a ny prospective purchaser , real estate broker, or any other person in the name of, on behalf of, or otherwise binding upon you.
9. We will earn, and you agree to pay us, a commission in accordance with this Agreement and the attached Exhibit A to this Agreement (“Commission Schedule”) if either of the following occur:
(a) during the Term, you enter into an agreement to sell the Property to a purchaser, whether procured by us, you or anyone else and the sale closes during or any time after the Term; or
(b) within o ne hundred twenty (120) days after the expiration of the Term or after the Agreement otherwise terminates (the “Post- Term”), the Property is sold to, or negotiations continue, resume or commence leading to a sale of the Property at any time during the Post Term to any person or entity (including his/her/its successors, assigns or affiliates) with whom, during the Term, CBRE either negotiated (either directly or through another broker or agent) or to whom the Property was submitted during the Term (“Existing Prospect”). You agree that CBRE is authorized to continue negot iations with Existing Prospects . We will submit to you a list of such Existing Prospects no later than fifteen (15) business days following the expiration or termination of the Term; provided, however, that if a written offer has been submitted prior to said expiration or termination date, then it shall not be necessary to include the offeror’s name on the list.
10. You agree that we are authorized to cooperate with and, if appropriate, share our commission with “Cooperating Brokers” (such as a broker representing a purchaser ). We will be responsible for paying the fee or commission due to the Cooperating Broker (if any) provided the Cooperating Broker: (i) represents the prospective purchaser pursuant to a written agreement, a copy of which is furnished to us prior to the execution of the transaction; (ii) is properly licensed; and (iii) executes and delivers to us an acceptable cooperating brokerage agreement. Market conditions may exist
3 whereby the Cooperating Broker receives an above- standard fee and/or broker bonus. If so, our commission shall be increased by, and you agree to pay , an amount such that we receive no less than 50% of the total fee in accordance with the Commission Schedule.
11. (a) The Listing Team are your agents to the exclusion of all of CBRE’s other licensees. All other CBRE licensees shall be referred to as “Non-Listing Team Agents” and shall be considered Cooperating Brokers. You acknowledge that CBRE is an international brokerage firm and that it may represent prospective purchasers, thereby creating a dual agency. You hereby consent to our representation of such prospects. You acknowledge that Non-Listing Team Agents owe duties of trust, confidence and loyalty exclusively to their clients. In the event that CBRE has a potential conflict of interest (such as CBRE proposing to act as a dual agent), then we will disclose the conflict to you and obtain your written consent to the conflict in advance of any negotiations with a potential purchaser. The Listing Team and Non-Listing Team Agents shall not disclose the conf idential information of one principal to the other.
(b) You also acknowledge that CBRE and its affiliates provide a wide range of real estate services and certain CBRE affiliates (including employees), may: (a) assist with the sale of the Property; (b) repres ent clients who have competing interests in such transaction(s), including assisting prospective purchasers with the financing or valuation of the Property, and (c) pay and/or receive referral fees and other compensation relating to the foregoing, including to and from CBRE.
12. Questions regarding environmental and zoning issues may arise during the course of our representation. CBRE is not obligat ed to perform, and has not made any investigatio n of the physical conditions or zoning issues relating to the Property. You agree to disclose to us and allow us to disclose to prospective purchasers everything you know (after reasonable inquiry by you) regarding present and future property issues including, but not limited to, structural, mechanical, hazardous materials, zoning and environmental matters affecting the Property and/or the Property’s condition.
13. If the Property becomes the subject of foreclosure proceedings before the expiration of the Term, then in our sole and absolute discretion we may: (a) suspend this Agreement until we may elect to reinstate it or (b) terminate this Agreement and enter into a listing agreement with any receiver, party initiating foreclosure, party purchasing the Property at a foreclosure sale, or any other third party.
14. While we are confident that this relationship will be mutually satisfacto ry, the parties agree to resolve any disputes subject to the following: if either party institutes a legal proceeding against the other party relating to this Agreement, the prevailing party shall recover from the non - prevailing party all of fees, costs, expenses to the extent allowed by law. .
15. You and CBRE agree to comply with all applicable laws, regulations, codes, ordinances and administrative orders governing each party’s respective participation in any transaction contemplated by this Agreement . Further, we both acknowledge that: (a) it is illegal to refuse to display or lease or sell to or from 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 applicable law and (b) the Property will be offered in compliance with all applicable anti-discrimination laws.
16. This Agreement is the entire agreement and supersedes all prior understandings between you and CBRE regarding this engagement . The Agreement is governed by the laws of the state where the
4 Property is located, without regard to its conflict of laws principles. This Agreement will be binding and inure to the benefit of your and CBRE’s lawful representatives, heirs, successors, designees and assignees. It may not be altered or terminated except in a writing signed by both you and CBRE. Neither party’s failure to exercise any of its rights under this Agreement will relieve the other party of its obligations hereunder. Nothing herein is or may be deemed a waiver or full statement of any of either party’s respective rights or remedies, whether at law or in equity, all of which are expressly reserved. If any provision of this Agreement is unenforceable or void under applicable law, the remaining provisions will continue to be binding. This Agreement and the rights, interests or obligations created h ereunder will not be assigned by either of the parties without the prior written consent of the other party. Each party agrees that each has participated equally in the negotiation and drafting of this Agreement. You acknowledge that the person signing thi s Agreement on your behalf has your full authority to execute it. This Agreement will be binding whether signatures are exchanged electronically or by hand, mail, fax, electronic transfer or image, photocopy or in counterparts.
Thank you again for this opportunity. We look forward to working with you.
Very truly yours,
CBRE, Inc.
Licensed Real Estate Broker
By:
Name: Jon Wilcox, Lic. 01385852
Title: Senior Vice President
AGREED:
City of Santa Clara
By:
Name: Manuel Pineda
Title: Chief Electric Utility Officer / Assistant City Manager Date:
5 EXHIBIT A – Commission Schedule
A. Sale. If the Property is sold , CBRE’s commission shall be Seven percent (7%) of the gross sales price to be split Five (5%) percent to CBRE, Inc. and two (2%) percent to an outside broker, if any. Gross sales price shall include any and all consideration received or receivable, in whatever form, including but not limited to assumption or release of existing liab ilities. In the event this sale is in connection with a “build to suit” transaction, the commission shall be calculated on the gross sale s price plus the gross construction cost of the building to be constructed on the Property. The commission shall be ear ned and paid on the date title to the Property is transferred to the purchaser; provided, however, that if the transaction involves an installment contract, then payment shall be made upon execution of such contract If you are a partnership, corporation, or other business entity, and an interest in the partnership, corporation or other business entity is transferred, whether by merger, outright purchase or otherwise, in lieu of a sale of the Property, and applicable law does not prohibit the payment of a commission in connection with such sale or transfer, the commission shall be calculated on the fair market value of the Property, rather than the gross sales price, multiplied by the percentage of interest so transferred, and shall be paid at t he time of the transfer.
1. Definitions. Under this Agreement the terms “sell,” “sale” or “sold” shall mean: (a) an exchange of the Property; (b) the granting of an option to purchase the Property; or (c) any other transfer, conveyance or contribution of a controlling interest in the Property or in the entity which owns the Property, including, but not limited to, situations where you are a corporation, partnership or other business entity and a controlling interest in such corporation, partnership or other business entity is transferred, whether by merger, outright purchase or otherwise, in lieu of a sale of the Property.