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HomeMy WebLinkAbout2013 CON PA R.I. Properties dba Retail Insite - Brogage Services Plaza Bonita ParcelRETAIL INSITE EXCLUSIVE SALES LISTING AGREEMENT 1. In consideration of the listing for sale of the real property commonly known as vacant land — Plaza Bonita Road in the City of National City, CA hereinafter described (the "Property") by R.I. PROPERTIES, INC., dba: RETAIL INSITE ("Broker") and Broker's agreement to use its best efforts to effect a sale of same, the undersigned hereby grants to Broker the exclusive right to negotiate a sale of the Property for a period described below and under the terms of this Agreement: LISTING TERM (hereinafter the "Term") Commencement October 16, 2013 Termination midnight June 15, 2014 or upon thirty (30) day's written notification by either party to the other PROPERTY DESCRIPTION Address: Southeast corner of Highways 805 and 54 Description: 15.08 acres of vacant land known as APN# 564-471-11 TERMS As negotiated and accepted by the Parking Authority of the City of National City ("Owner"). 2. Owner agrees to pay Broker a sales commission equal to the greater of (a) 5% of the accepted modified gross sales price or (b) the sum of $75,000.00. The accepted modified gross sales price shall be an amount equal to the actual sales price less the amount actually paid to the County of San Diego by Owner. In no event shall the sales commission be an amount greater than the accepted modified gross sales price. This commission shall be earned for services rendered if, during the Term the Property is sold to a buyer procured by Broker, Owner or anyone else, (b) any contract for the sale of the Property is entered into by Owner and the Property is in fact sold pursuant to such contract. In the event a deposit is made with respect to a contract for the sale of the Property and any deposit is retained by Owner because such sale is not consummated, then the deposit shall be equally divided between Owner and Broker, except that Broker's portion thereof shall not exceed the greater of (a) 5% of the accepted modified gross sales price or (b) the sum of $75,000.00. Said amount shall be due and payable upon close of Escrow. 3. Owner further agrees to pay Broker a commission in accordance with Section 2, above, if, within one hundred twenty (120) calendar days after the expiration or termination of the Term the Property is sold to, or negotiations continue, resume or commence and thereafter continue leading to the sale with any person or entity (including his/her/its successors, assigns or affiliates) with whom Broker has negotiated (either directly or through another broker or agent) or to whom the Property has been submitted prior to the expiration or termination of the Term. Broker is authorized to Cilisers\caguirrelDesktop1Nalional City SEC 805 x 54 Sales Listing Agreement redline (3).doc Attachment No. 1 continue negotiations with such persons or entities. Broker agrees to submit a reasonable list of such persons or entities to Owner not later than fifteen (15) calendar days following the expiration or termination of the Term, provided, however, that if a written offer has been submitted it shall not be necessary to include the offeror's name on the list. 4. Owner and Broker agree that the Property will be offered in compliance with all applicable federal state and local anti -discrimination laws and regulations. 5. Owner agrees to cooperate with Broker in effecting a sale of the Property and to refer to Broker all inquiries of anyone interested in the Property. In the event of an offer that is accepted by Owner, Broker is authorized to accept a deposit from the prospective purchaser and to handle it in accordance with the instruction of the parties unless contrary to applicable law. Broker is exclusively authorized to advertise the Property and exclusively authorized to place a sign(s) on the Property if, in Broker's opinion, such would facilitate the sale of the Property. Owner represents that it is the owner of the Property. Owner and its counsel will be responsible for determining the legal sufficiency of a Purchase Contract and any other documents relating to any transaction contemplated by this Agreement. 6. Owner agrees to disclose to Broker and to prospective purchasers any and all information which Owner has regarding present and future zoning and environmental matters affecting the Property and the condition of the Property, including, but not limited to structural, mechanical and soils conditions, the presence and location of asbestos, PCB transformers, other toxic, hazardous or contaminated substances, and underground storage tanks in, on or about the Property. Broker is authorized to disclose any such information to prospective buyers. 7. Owner agrees to disclose to Broker and to prospective purchasers any information which Owner may have as to whether the Property is or may be situated in a special studies zone as delineated under the Alquist-Priolo Earthquake Fault Zoning Act, Sections 2621-2630, inclusive, of the California Public Resources Code. 8. Owner acknowledges that Broker in some cases may represent prospective purchasers. Owner desires that the Property be presented to such persons or entities, and consents to the dual representation created thereby. In such event Broker shall disclose to Owner in writing that Broker represents the prospective purchaser. Brokers shall not disclose the confidential information of one principal to the other. 9. In the event that the Property comes under the jurisdiction of a bankruptcy court, Owner shall immediately notify Broker of the same, and shall promptly take all steps necessary to obtain court approval of Broker's appointment, unless Broker shall elect to terminate this Agreement upon said notice. 10. In the event that the Property becomes the subject of foreclosure proceedings prior to the expiration of the Agreement, then this Agreement shall be deemed suspended until such time as the Owner may reacquire his interest in the Property within the Term, if any. If this Agreement is suspended pursuant to this paragraph, Broker shall be free to enter into a Listing Agreement with any receiver, the party initiating the foreclosure, the party purchasing the Property at a foreclosure sale, or any other person having an interest in the Property. CiUserslcaguirre1Desktop1National City SEC 805 x 54 Sales Listing Agreement redline (3).doc Attachment No. 1 11. Each signatory to this Agreement represents and warrants that (s)he has full authority to sign this Agreement on behalf of the party for whom (s)he signs and this Agreement binds such party. 12. This Agreement, along with the attached Addendum, constitutes the entire agreement between Owner and Broker and supersedes all prior discussions, negotiations and agreements, whether oral or written. No amendment, alteration, cancellation or withdrawal of this Agreement shall be valid or binding unless made in writing and signed by both Owner and Broker. This Agreement shall be binding upon, and shall benefit, the heirs, successors and assignees of the parties. 13. The parties hereto agree to comply with all applicable federal, state and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, Property or the subject matter of this Agreement, including but not limited to, the 1964 Civil Rights Act and all amendments thereto, the Foreign Investment In Real Property Tax Act, the Comprehensive Environmental Response Compensation and Liability Act, and The Americans With Disabilities Act. The undersigned Owner hereby acknowledges receipt of a copy of this Agreement. ACCEPTED: R.I. PROPERTIES, INC. By: Don Title: Id R. Moser Secretary Address: 12264 El Camino Real, Suite 202 San Diego, CA 92130-3061 Date: Go ( ! s l 1 !3 PARKING AUTHORITY OF THE CITY OF NATION TY B Ron Morrison Title: Chairperson Address: 1243 National City Blvd Date: Telephone: Direct 858.523.2087 I Main 858.523.2090 Telephone: (619) 336-4233 CONSULT YOUR ADVISORS - This document has legal consequences. No representation or recommendation is made by Broker as to the legal or tax consequences of this Agreement or the transaction(s) which it contemplates. These are questions for your attorney and financial advisors. C:Userslcaguirre\Desktop\National City SEC 805 x 54 Sales Listing Agreement redline (3).doc ADDENDUM TO EXCLUSIVE SALES LISTING AGREEMENT BETWEEN R.I. PROPERTIES, INC., dba RETAIL INSITE AND THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY This Addendum to the Exclusive Sales Listing Agreement constitutes part of the Exclusive Sales Listing Agreement between R.I. Properties, Inc., dba Retail Insite ("Broker") and the Parking Authority of the City of National City ("Owner -)(the "Agreement"). The terms of this Addendum are incorporated into the Agreement for all purposes and references to the Agreement shall refer to the Agreement as modified by this Addendum. Unless modified by this Addendum, each term of the Agreement isunamended and in full force. The Broker and the Owner mutually agree that the following paragraphs are added to the Agreement: 1. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the Broker nor theBroker's employees are employees of the Owner or the City of National City, and are not entitled to any of the rights, benefits, or privileges of the City of National City's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the Broker and theBrokef s employees, and it is recognized by the parties that a substantial inducement to the Owner for entering into this Agreement was, and is, the professional reputation and competence of the Brokerand its employees. Neither this Agreement nor any interest herein may be assigned by the Broker without the prior written consent of the Owner. Nothing herein contained is intended to prevent the Broker from employing or hiring as many employees as the Broker may deem necessary for the proper and efficient performance of this Agreement. 2. NON-DISCRIMINATION PROVISIONS.The Brokershall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The Broker will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Broker agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the Owner setting forth the provisions of this non-discrimination clause. 3. INDEMNIFICATION AND HOLD HARMLESS. The Broker agrees to defend, indemnify and hold harmless the Owner and the City of National City, their officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the Broker's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the Owner or the City, their agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 4. WORKERS' COMPENSATION. The Broker shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the Owner and the City of National City and their officers and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the Owner or the City of National City or their officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the Broker under this Agreement. 5. INSURANCE.The Broker, at its sole cost and expense, shall purchase and maintain the following checked insurance policies: A. ® If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the Owner and the City of National City and their officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the Owner and the City of National City and their officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this Property and this Agreement. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of Broker's employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the Owner and the City of National City. Said endorsement shall be provided prior to commencement of work under this Agreement. Addendum to Exclusive Sales Listing Agreement 2 Retail Insite andParking Authority 2013 of theCity of National City If the Broker has no employees subject to the California Workers' Compensation and Labor laws, the Broker shall execute a Declaration to that effect. Said Declaration shall be provided to the Broker by the Owner. E. The aforesaid policies shall constitute primary insurance as to theOwner and the City of National City their officers, employees, and volunteers, so that any other policies held by the City of National City shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the Owner and the City of National City of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the Broker shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City of National City's Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City of National City's Risk Manager. If the Broker does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the Owner may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the City of National City. The Broker and the Owner have caused this ADDENDUM TO EXCLUSIVE SALES LISTING AGREEMENT to be signed on f p / I le 12201 ' BROKER BY: TITLE: Secretary OWNER BY: TITLE: Chairman proved as to Form: a, City Attorney Addendum to Exclusive Sales Listing Agreement 3 Retail Insite andParking Authority 2013 of theCity of National City RESOLUTION NO. 2013 — 1 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN EXCLUSIVE SALES LISTING AGREEMENT WITH R.I. PROPERTIES, INC., DOING BUSINESS AS RETAIL INSITE, ON A PARKING AUTHORITY -OWNED 15.08 VACANT PARCEL LOCATED AT THE SOUTHEAST CORNER OF HIGHWAYS 805 AND 54 FOR A SALES COMMISSION EQUAL TO 5% OF THE ACCEPTED MODIFIED GROSS SALES PRICE BUT NO LESS THAN $75,000. WHEREAS, the Parking Authority of the City of National City ("Parking Authority") is the owner of a 15.08-acre parcel of land located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11) and is desirous of selling said parcel of land for the development of a commercial project; and WHEREAS; a Request for Proposals to provide real estate services was issued for the vacant parcel, and five real estate firms responded in July 2008; and WHEREAS, R.I Properties, Inc., doing business as Retail Insite, was selected to provide real estate services for the disposition of said parcel; and WHEREAS, the economic downturn made it difficult to yield interest for the development of the vacant parcel from 2009 through 2012, and with changing economic conditions, the Parking Authority can now enter into an Exclusive Sales Listing Agreement to formally procure interest in the vacant parcel from prospective development entities. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute an Exclusive Sales Listing Agreement with R.I. Properties, Inc., doing business as Retail Insite, on a Parking Authority -owned 15.08 vacant parcel located at the southeast corner of Highways 805 and 54 for a sales commission equal to 5% of the accepted modified gross sales price, but no less than $75,000. ATTEST: PASSED and ADOPTED this 15th day of October, 2013. Leslie Deese, Secretary OVE P AS TO FORM: C Legal Co Silva on Morrison, Chairman Passed and adopted by the Parking Authority of the City of National City, California, on October 15, 2013 by the following vote, to -wit: Ayes: Boardmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Parking Authority LESLIE DEESE Secretary, Parking Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2013-1 of the Parking Authority of the City of National City, California, passed and adopted on October 15, 2013. fw . Secretary, Parking Autho ity By: Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT MEETING DATE: October 15, 2013' AGENDA ITEM NO. 1 ITEM TITLE: Resolution of the Parking Authority of the City of National City authorizing the Chairman to execute an Exclusive Sales Listing Agreement with R.I. Properties, Inc., doing business as Retail Insite, on a Parking Authority -owned 15.08 vacant parcel located at the southeast corner of Highways 805 and 54 for a sales commission equal to 5% of the accepted modified gross sales price but no less than $75.000. Housing, Grant Asset PREPARED BY: Carlos Aguirre DEPARTMENT: Management PHONE: (619) 336-4391 APPROVED BY: EXPLANATION: The Parking Authority entered into an Option to Purchase Agreement with the County of San Diego on March 20, 2007 that provided the Parking Authority the option to purchase the current Open -Space Easement attached to a 15.08-acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road to develop a commercial project. A Request for Proposals to provide real estate services was issued for the vacant parcel and five real estate firms responded in July 2008. Retail Insite was selected to provide real estate services for the site. The economic downturn made it difficult to yield interest for the development of the vacant site from 2009 through 2012. With changing economic conditions, the Parking Authority can now enter into an Exclusive Sales Listing Agreement to formally procure interest in the vacant parcel from prospective development entities. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Not Applicable ENVIRONMENTAL REVIEW: Not Applicable ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adoption of the Resolution BOARD / COMMISSION RECOMMENDATION: Not Applicable, ATTACHMENTS: Attachment No. 1 Retail Insite Exclusive Sales Listing Agreement Attachment No. 1 RETAIL INSITE EXCLUSIVE SALES LISTING AGREEMENT 1 In consideration of the listing for sale of the real property commonly known as vacant land — Plaza Bonita Road in the City of National City, CA hereinafter described (the "Property") by R.I. PROPERTIES, INC., dba: RETAIL INSITE ("Broker") and Broker's agreement to use its best efforts to effect a sale of same, the undersigned hereby grants to Broker the exclusive right to negotiate a sale of the Property for a period described below and under the terms of this Agreement: LISTING TERM (hereinafter the "Term") Commencement October 16, 2013 Termination midnight June 15, 2014 or upon thirty (30) day's written notification by either party to the other PROPERTY DESCRIPTION Address: Southeast corner of Highways 805 and 54 Description: 15.08 acres of vacant land known as APN# 564-471-11 TERMS As negotiated and accepted by the Parking Authority of the City of National City ("Owner"). 2. Owner agrees to pay Broker a sales commission equal to the greater of (a) 5% of the accepted modified gross sales price or (b) the sum of $75,000.00. The accepted modified gross sales price shall be an amount equal to the actual sales price less the amount actually paid to the County of San Diego by Owner. In no event shall the sales commission be an amount greater than the accepted modified gross sales price. This commission shall be earned for services rendered if, during the Term the Property is sold to a buyer procured by Broker, Owner or anyone else, (b) any contract for the sale of the Property is entered into by Owner and the Property is in fact sold pursuant to such contract. In the event a deposit is made with respect to a contract for the sale of the Property and any deposit is retained by Owner because such sale is not consummated, then the deposit shall be equally divided between Owner and Broker, except that Broker's portion thereof shall not exceed the greater of (a) 5% of the accepted modified gross sales price or (b) the sum of $75,000.00. Said amount shall be due and payable upon close of Escrow. 3. Owner further agrees to pay Broker a commission in accordance with Section 2, above, if, within one hundred twenty (120) calendar days after the expiration or termination of the Term the Property is sold to, or negotiations continue, resume or commence and thereafter continue leading to the sale with any person or entity (including his/her/its successors, assigns or affiliates) with whom Broker has negotiated (either directly or through another broker or agent) or to whom the Property has been submitted prior to the expiration or termination of the Term. Broker is authorized to C:\Users\caguirre\Desktop\National City SEC 805 x 54 Sales Listing Agreement redline (3).doc Attachment No. 1 continue negotiations with such persons or entities. Broker agrees to submit a reasonable list of such persons or entities to Owner not later than fifteen (15) calendar days following the expiration or termination of the Term, provided, however, that if a written offer has been submitted it shall not be necessary to include the offeror's name on the list. 4. Owner and Broker agree that the Property will be offered in compliance with all applicable federal state and local anti -discrimination laws and regulations. 5. Owner agrees to cooperate with Broker in effecting a sale of the Property and to refer to Broker all inquiries of anyone interested in the Property. In the event of an offer that is accepted by Owner, Broker is authorized to accept a deposit from the prospective purchaser and to handle it in accordance with the instruction of the parties unless contrary to applicable law. Broker is exclusively authorized to advertise the Property and exclusively authorized to place a sign(s) on the Property if, in Broker's opinion, such would facilitate the sale of the Property. Owner represents that it is the owner of the Property. Owner and its counsel will be responsible for determining the legal sufficiency of a Purchase Contract and any other documents relating to any transaction contemplated by this Agreement. 6. Owner agrees to disclose to Broker and to prospective purchasers any and all information which Owner has regarding present and future zoning and environmental matters affecting the Property and the condition of the Property, including, but not limited to structural, mechanical and soils conditions, the presence and location of asbestos, PCB transformers, other toxic, hazardous or contaminated substances, and underground storage tanks in, on or about the Property. Broker is authorized to disclose any such information to prospective buyers. 7. Owner agrees to disclose to Broker and to prospective purchasers any information which Owner may have as to whether the Property is or may be situated in a special studies zone as delineated under the Alquist-Priolo Earthquake Fault Zoning Act, Sections 2621-2630, inclusive, of the California Public Resources Code. 8. Owner acknowledges that Broker in some cases may represent prospective purchasers. Owner desires that the Property be presented to such persons or entities, and consents to the dual representation created thereby. In such event Broker shall disclose to Owner in writing that Broker represents the prospective purchaser. Brokers shall not disclose the confidential information of one principal to the other. 9. In the event that the Property comes under the jurisdiction of a bankruptcy court, Owner shall immediately notify Broker of the same, and shall promptly take all steps necessary to obtain court approval of Broker's appointment, unless Broker shall elect to terminate this Agreement upon said notice. 10. In the event that the Property becomes the subject of foreclosure proceedings prior to the expiration of the Agreement, then this Agreement shall be deemed suspended until such time as the Owner may reacquire his interest in the Property within the Term, if any. If this Agreement is suspended pursuant to this paragraph, Broker shall be free to enter into a Listing Agreement with any receiver, the party initiating the foreclosure, the party purchasing the Property at a foreclosure sale, or any other person having an interest in the Property. C:1Userslnaguirre\Desklop\National City SEC 805 , 54 Sales Listing Agreement redline (3).doc Attachment No. 1 11. Each signatory to this Agreement represents and warrants that (s)he has full authority to sign this Agreement on behalf of the party for whom (s)he signs and this Agreement binds such party. 12. This Agreement, along with the attached Addendum, constitutes the entire agreement between Owner and Broker and supersedes all prior discussions, negotiations and agreements, whether oral or written. No amendment, alteration, cancellation or withdrawal of this Agreement shall be valid or binding unless made in writing and signed by both Owner and Broker. This Agreement shall be binding upon, and shall benefit, the heirs, successors and assignees of the parties. 13. The parties hereto agree to comply with all applicable federal, state and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, Property or the subject matter of this Agreement, including but not limited to, the 1964 Civil Rights Act and all amendments thereto, the Foreign Investment In Real Property Tax Act, the Comprehensive Environmental Response Compensation and Liability Act, and The Americans With Disabilities Act. The undersigned Owner hereby acknowledges receipt of a copy of this Agreement. ACCEPTED: R.I. PROPERTIES, INC. PARKING AUTHORITY OF THE CITY OF NATIONAL CITY By: By: Title: Donald R. Moser Title: Secretary Address: 12264 El Camino Real, Suite 202 Address: Date: San Diego, CA 92130-3061 Date: Telephone: Direct 858.523.2087 I Main 858.523.2090 Telephone: CONSULT YOUR ADVISORS - This document has legal consequences. No representation or recommendation is made by Broker as to the legal or tax consequences of this Agreement or the transaction(s) which it contemplates. These are questions for your attorney and financial advisors. CAUserslcaguirre\Desktop\National City SEC 805 x 54 Sales Listing Agreement redline (3).doc Attachment No. 1 Addendum ADDENDUM TO EXCLUSIVE SALES LISTING AGREEMENT BETWEEN R.I. PROPERTIES, INC., dba RETAIL INSITE AND THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY This Addendum to the Exclusive Sales Listing Agreement constitutes part of the Exclusive Sales Listing Agreement between R.I. Properties, Inc., dba Retail Insite ("Broker") and the Parking Authority of the City of National City ("Owner")(the "Agreement"). The terms of this Addendum are incorporated into the Agreement for all purposes and references to the Agreement shall refer to the Agreement as modified by this Addendum. Unless modified by this Addendum, each term of the Agreement isunamended and in full force. The Broker and the Owner mutually agree that the following paragraphs are added to the Agreement: 1. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the Broker nor theBroker's employees are employees of the Owner or the City of National City, and are not entitled to any of the rights, benefits, or privileges of the City of National City's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the Broker and theBroker's employees, and it is recognized by the parties that a substantial inducement to the Owner for entering into this Agreement was, and is, the professional reputation and competence of the Brokerand its employees. Neither this Agreement nor any interest herein may be assigned by the Broker without the prior written consent of the Owner. Nothing herein contained is intended to prevent the Broker from employing or hiring as many employees as the Broker may deem necessary for the proper and efficient performance of this Agreement. 2. NON-DISCRIMINATION PROVISIONS.The Brokershall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The Broker will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Broker agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the Owner setting forth the provisions of this non-discrimination clause. 3. INDEMNIFICATION AND HOLD HARMLESS. The Broker agrees to defend, indemnify and hold harmless the Owner and the City of National City, their officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death Attachment No. 1 of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the Broker's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the Owner or the City, their agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 4. WORKERS' COMPENSATION. The Broker shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the Owner and the City of National City and their officers and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the Owner or the City of National City or their officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the Broker under this Agreement. 5. INSURANCE.The Broker, at its sole cost and expense, shall purchase and maintain the following checked insurance policies: A. ® if checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the Owner and the City of National City and their officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the Owner and the City of National City and their officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this Property and this Agreement. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of Broker's employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the Owner and the City of National City. Said endorsement shall be provided prior to commencement of work under this Agreement. Addendum to Exclusive Sales Listing Agreement 2 Retail lnsite andParking Authority 2013 of theCity of National City Attachment No. 1 If the Broker has no employees subject to the California Workers' Compensation and Labor laws, the Broker shall execute a Declaration to that effect. Said Declaration shall be provided to the Broker by the Owner. E. The aforesaid policies shall constitute primary insurance as to theOwner and the City of National City their officers, employees, and volunteers, so that any other policies held by the City of National City shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the Owner and the City of National City of cancellation or material change. F. if required insurance coverage is provided on a "claims made" rather than "occurrence" form, the Broker shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City of National City's Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City of National City's Risk Manager. If the Broker does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the Owner may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the City of National City. The Broker and the Owner have caused this ADDENDUM TO EXCLUSIVE SALES LISTING AGREEMENT to be signed on BROKER BY: OWNER BY: Signature Signature Type or Print Name Type or Print Name TITLE: TITLE: Addendum to Exclusive Sales Listing Agreement 3 Retail Insite andParking Authority 2013 of theCity of National City ' rI CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk November 26, 2013 Mr. Donald Moser R. I. Properties, Inc. 12264 El Camino Real, Suite 202 San Diego, CA 92130 Dear Mr. Moser, On October 15ih, 2013, Resolution No. 2013-1 was passed and adopted by the Parking Authority of the City of National City, authorizing execution of an Exclusive Sales Listing Agreement with R. I. Properties, Inc. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Agreement. Michael R. Dalla, CMC City Clerk Enclosures cc: Housing & Grants Dept.