HomeMy WebLinkAbout2017 CON PA R.I. Properties dba Retail Insite - Sweetwater Road and Bonita Center Drive - Amendment #1NOTE TO FILE
07-17-2019
IN THE MATTER OF: (Parking Authority) The 2017 Exclusive Sales Listing
Agreement for Sweetwater Rd. and Bonita Center Dr. — Amendment #1.
Please note the following:
NO FULLY EXECUTED ORIGINAL AGREEMENT
WAS FILED WITH THE OFFICE OF THE CITY CLERK.
ORIGINATING DEPARTMENT:
NTF
CDC X Housing & Economic Development
City Attorney _ Human Resources
City Manager MIS
Community Svcs. Planning
Eng/PW Police
Finance
Fire
CITY OF NATIONAL CITY, CALIFORNIA
PARKING AUTHORITY AGENDA STATEMENT
MEETING DATE: May 16, 2017
AGENDA ITEM NO. 1
ITEM TITLE:
Resolution of the Parking Authority of the City of National City authorizing the Chairman to execute the
First Amendment to the Exclusive Sales Listing Agreement with R.I. Properties, Inc., doing business as
Retail Insite, extending the Exclusive Sales Listing Agreement through December 31, 2017, establishing
compensation for a remnant parcel, and authorizing the City Manager or designee the authority to extend
this Agreement.
PREPARED BY: Gregory Rose, Property Agent
PHONE: (619) 336-4266
EXPLANATION:
The Parking Authority entered into an Exclusive Listing Agreement with Retail Insite, dated as of October
16, 2013. Retail Insite was selected to provide real estate services for the sale of 15.08- acre parcel of land
located at the southwest corner of Sweetwater Road and Bonita Center Drive. Through the development of
the property with CarMax a Remnant Parcel of approximately 3.0 acres (Remnant Parcel) was created.
Retail Insite desires to amend the original agreement in order to provide an extension to the listing period
thru December 31, 2017 and establish compensation for the sale of the Remnant Parcel. This amendment
will allow CarMax to finish their due diligence on the property to consummate a sale and allow Retail Insite
to find a buyer for the Remnant Parcel. The sales commission for the CarMax portion of the property as
stated in the original agreement is equal to 5% of the accepted modified gross sales price but no less than
$75,000. The sales commission on the Remnant Parcel will be 5% of the accepted sales price. The
amendment would also delegate to the City Manager or Designee the authority to extend this Agreement.
Housing and Economic
DEPARTMENT: D ;�Q lop ent
APPROVED
FINANCIAL STATEMENT: APPROVED:
ACCOUNT NO. APPROVED:
Sales commission will be paid directly out of the sale's escrow.
Finance
MIS
ENVIRONMENTAL REVIEW:
This action is not considered a project as defined by the California Environmental Quality Act (CEQA), and is
therefore not subject to CEQA.
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adoption of the Resolution
BOARD / COMMISSION RECOMMENDATION:
Not Applicable
ATTACHMENTS:
1. Retail Insite Exclusive Sales Listing Agreement.
2. Amendment to the Exclusive Listing Agreement.
RE,So‘,VI 1 'lo. ra0\`l-1
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 thirty130) dav's written_nqtlfication by either
Party to the other
PROPERTY DESCRIPTION
Address: Southeast corner of Hichways 805 and 54
Description: 15.08 acres of vacant land known as APN# 564 471-11
TERM
As negotiated and accepted by the Parkino 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
MUaenloagf rneDaaldoeN+9ond City SEC Boo x bA sales ustroa Agreement mane (J)am
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.
CAUeeralaquireVesktapWallonel Qtr SEC S35 x 64 Soles Listing Agreement wane (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 1984 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 Disabiiittes Act
The undersigned Owner hereby acknowledges receipt of a copy of this Agreement.
ACCEPTED:
R.I. PROPERTIES, INC.
PARKING AUTHORITY OF THE CITY OF
BY: Br
Title: Secretary Title:
Chairperson
Address: 12264 El Camino Real. Suite 202 Address:
1243 National City Blvd
San Diego, CA 92130-081
Date: l i s / 20 i $
Date:
Telephone: Direct 858.523.2087 I Mein 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.
Attachment No. 1
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 RI. 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 fiun& 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 bold 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 Sake Listing Agreesnent
2 Renal matte andPeddng 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 the
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 V1II
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 /0/1 V /20 /3
BROKER
BY:
TITLE: Secretary
Addendum to 13xctnsive Sales Listing A,greuneat
2013 of theCity of National City
OWNER.
BY:
3 Retail Jolts andParking Authority
3.1
RETAIL INSITE
Attachment No. 2
Amendment to Exclusive Sales Listing Agreement dated April 9, 2013 between the Parking Authority
of the City of National City and R.I. Properties DBA Retail Insite.
The terms of the Agreement shall be amended as follows:
1. The expiration date shall be extended to December 31, 2017.
2. If all of the Property or less than all of the Property is sold to Carmax, Broker shall be paid the
sales commission set forth in Section 2 of the Agreement.
3. If less than all of the Property is sold to Carmax, Broker is authorized to solicit a buyer for any
portion of the property which is not sold to Carmax, which is anticipated to be the westerly
3.00-acre parcel under terms to be accepted by the Parking Authority of the City of National
City. In such event, Broker shall be paid an additional sales fee of 5% of the accepted sales price
for such portion of the property, in addition to the fee mentioned above.
AGREED TO AND ACCEPTED
By: By:
R.I. Properties Parking Authority
of the City of National City
Date: Date:
APPROVED AS TO FORM:
Christensen & Spath LLP
Special Counsel
By:
Walter F. Spath III
12264 El Camino Real, Suite 202, San Diego, CA 92130
3565 7th Ave, First Floor, San Diego, CA 92103
P: 858.523.2090 I retailinsite.net I Corporate Lic 401206760
S:\Files\C\Data\RI Documents\ AGREEMENTS -LISTINGS \Parking Authority Amendment to Exclusive Sales Listing Agreement 40913 Exp 12-31-17
c
RESOLUTION NO. 2017 —
RESOLUTION OF THE PARKING AUTHORITY
OF THE CITY OF NATIONAL CITY AUTHORIZING
THE CHAIRMAN TO EXECUTE THE FIRST AMENDMENT
TO THE EXCLUSIVE SALES LISTING AGREEMENT WITH
R.I. PROPERTIES, INC., DOING BUSINESS AS RETAIL INSITE,
TO EXTEND THE TERM OF THE EXCLUSIVE SALES LISTING
AGREEMENT THROUGH DECEMBER 31, 2017, ESTABLISHING
COMPENSATION FOR A REMNANT PARCEL, AND AUTHORIZING
THE CITY MANAGER OR DESIGNEE TO EXECUTE ANY FUTURE
AMENDMENTS TO EXTEND THE TERM OF THE AGREEMENT
WHEREAS, on October 15, 2013, the Parking Authority entered into an
Exclusive Listing Agreement with Retail Insite to provide real estate services for the sale of
a 15.08- acre parcel of land located at the southwest corner of Sweetwater Road and Bonita
Center Drive; and
WHEREAS, through the development of the property with CarMax, a
Remnant Parcel of approximately 3.0 acres ("Remnant Parcel") was created;
WHEREAS, Retail Insite desires to amend the original agreement in order to
provide an extension to the listing period thru December 31, 2017 and establish
compensation for the sale of the Remnant Parcel; and
WHEREAS, extending the term of the agreement will allow CarMax to finish
their due diligence on the property to consummate a sale, and allow Retail Insite to find a
buyer for the Remnant Parcel; and
WHEREAS, the sales commission for the CarMax portion of the property, as
stated in the original agreement, is equal to 5% of the accepted modified gross sales price,
but not less than $75,000; and
WHEREAS, the sales commission on the Remnant Parcel will be 5% of the
accepted sales price.
NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of
National City hereby authorizes the Chairman to execute the First Amendment to the Exclusive
Sales Listing Agreement with R.I. Properties, Inc., doing business as Retail Insite, to extend
the term of the Exclusive Sales Listing Agreement through December 31, 2017.
BE IT FURTHER RESOLVED that the City Council authorizes establishing
the compensation for the remnant parcel at 5% of the accepted sales price.
BE IT FURTHER RESOLVED that the City Council authorizes the City
Manager or her designee to execute any future amendments to extend the term of the
agreement.
[Signature Page to Follow]
Resolution No. 2017 —
Page Two
PASSED and ADOPTED this 16th day of May, 2017.
Ron Morrison, Chairman
ATTEST:
Leslie Deese, Secretary
APPROVED AS TO FORM:
Angil P. Morris -Jones
Legal Counsel
12-
RESOLUTION NO. 2017 — 1
RESOLUTION OF THE PARKING AUTHORITY
OF THE CITY OF NATIONAL CITY AUTHORIZING
THE CHAIRMAN TO EXECUTE THE FIRST AMENDMENT
TO THE EXCLUSIVE SALES LISTING AGREEMENT WITH
R.I. PROPERTIES, INC., DOING BUSINESS AS RETAIL INSITE,
TO EXTEND THE TERM OF THE EXCLUSIVE SALES LISTING
AGREEMENT THROUGH DECEMBER 31, 2017, ESTABLISHING
COMPENSATION FOR A REMNANT PARCEL, AND AUTHORIZING
THE CITY MANAGER OR DESIGNEE TO EXECUTE ANY FUTURE
AMENDMENTS TO EXTEND THE TERM OF THE AGREEMENT
WHEREAS, on October 15, 2013, the Parking Authority entered into an
Exclusive Listing Agreement with Retail Insite to provide real estate services for the sale of
a 15.08- acre parcel of land located at the southwest corner of Sweetwater Road and Bonita
Center Drive; and
WHEREAS, through the development of the property with CarMax, a
Remnant Parcel of approximately 3.0 acres ("Remnant Parcel") was created;
WHEREAS, Retail Insite desires to amend the original agreement in order to
provide an extension to the listing period thru December 31, 2017 and establish
compensation for the sale of the Remnant Parcel; and
WHEREAS, extending the term of the agreement will allow CarMax to finish
their due diligence on the property to consummate a sale, and allow Retail Insite to find a
buyer for the Remnant Parcel; and
WHEREAS, the sales commission for the CarMax portion of the property, as
stated in the original agreement, is equal to 5% of the accepted modified gross sales price,
but not less than $75,000; and
WHEREAS, the sales commission on the Remnant Parcel will be 5% of the
accepted sales price.
NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of
National City hereby authorizes the Chairman to execute the First Amendment to the Exclusive
Sales Listing Agreement with R.I. Properties, Inc., doing business as Retail Insite, to extend
the term of the Exclusive Sales Listing Agreement through December 31, 2017.
BE IT FURTHER RESOLVED that the City Council authorizes establishing
the compensation for the remnant parcel at 5% of the accepted sales price.
BE IT FURTHER RESOLVED that the City Council authorizes the City
Manager or her designee to execute any future amendments to extend the term of the
agreement.
[Signature Page to Follow]
Resolution No. 2017 — 1
Page Two
PASSED and ADOPTED this 16th day of May, 201
ATTEST:
Leslie Deese, Secretary
APPROVED AS TO FORM:
Si
/-
ngi sorris-J. •
Le►- ounsel
on Morrison, Chairman
0
Passed and adopted by the Parking Authority of the City of National City, California, on
May 16, 2017 by the following vote, to -wit:
Ayes: Boardmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Parking Authority
/t{.--
Secretary, Parking Authority
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2017-1 of the Parking Authority of the City of National City,
California, passed and adopted on May 16, 2017.
Secretary, Parking Authority
By:
Deputy