HomeMy WebLinkAbout2017-1941
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RESOLUTION NO. 2017-194
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING THE EXCLUSIVE RIGHT TO
REPRESENT OWNER FOR SALE OR LEASE OF REAL PROPERTY WITH LEE AND
ASSOCIATES COMMERCIAL REAL ESTATE SERVICES INC. RELATED TO
THEATER SQUARE, AND APPROVING CERTAIN RELATED ACTIONS
WHEREAS, pursuant to Health and Safety Code (the "HSC") § 34172 (a) (1), the
Redevelopment Agency of the City of San Bernardino was dissolved on February 1, 2012; and
WHEREAS, consistent with the provisions of the HSC, on January 9, 2012 the Mayor
and City Council of the City of San Bernardino elected to serve in the capacity of the Successor
Agency to the Redevelopment Agency of the City of San Bernardino (the "Successor Agency");
and
WHEREAS, the Oversight Board for the Successor Agency ("Oversight Board") has
been established pursuant to HSC § 34179 to assist in the wind -down of the dissolved
redevelopment agency; and
WHEREAS, on September 15, 2015, the Successor Agency submitted its Oversight
Board -approved Long -Range Property Management Plan (the "LRPMP") to the California
Department of Finance (the "DOF"); and
WHEREAS, on December 31, 2015, the DOF approved the Successor Agency's
LRPMP and notified the Successor Agency that pursuant to HSC § 34191.3, the approved
LRPMP shall govern, and supersede all other provisions relating to the disposition and use of all
the real property assets of the former redevelopment agency; and
WHEREAS, the approved LRPMP, which addresses the disposition and use of the real
property assets held by the Successor Agency, includes 230 parcels of land grouped into forty-
six (46) separate sites, eighteen (18) of which were designated as government use sites, seven
(7) of which are designated as future development sites and twenty-one (21) of which were
designated to be sold; and
WHEREAS, per the direction of DOF, on August 1, 2016, the Mayor and City Council
28 II adopted Resolution No. 2016-165, which authorized the transfer from the Successor Agency and
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the acceptance by the City of the seven (7) sites identified with the LRPMP as future
development sites subject to the City's compliance with the applicable provisions of the HSC
governing the later transfer of real property to third -party entities, instead of the Successor
Agency, just as though said real property had never been transferred to the City by the Successor
Agency in the first place; and
WHEREAS, consistent with the foregoing, the Successor Agency transferred the future
I development sites to the City via quitclaim deed on August 16, 2016 and the City is now
responsible for compliance with the applicable provisions of the HSC governing the later
I transfer of the future development sites to third -parties; and
WHEREAS, consistent with the foregoing, the City is the owner of that certain real
property consisting of approximately 5.5 acres of land located at 450 North "E" Street, which
includes the Regal Cinemas building, adjacent parking and undeveloped land (APNs 0134-121-25,
27, 28, 29, 35, 36 and 37) (the "Property"); and
WHEREAS, within the LRPMP the Property: i) is identified as a non-contiguous portion
I of Site No. 21 (i.e., also known as the Theater Square site); ii) is described as a public
I facility/commercial site; iii) is designated for future development; and iv) does not include those
portions of LRPMP Site No. 21 related to the California and Sturges Theatres; and
WHEREAS, on November 2, 2015, Mayor and City Council approved an Exclusive
Negotiation Agreement (the "ENA") with AECOM Technical Services, Inc. and the Fransen
Company, Inc. (the "AECOM/Fransen") with respect to the development and use of the
Carousel Mall and Theater Square sites and amended the ENA on August 15, 2016; and
WHEREAS, consistent with the ENA, on August 15, 2016, the Mayor and City
I Council also approved a Theater Square Development Services Agreement (the "DSA") with
AECOM/Fransen, which superseded the ENA with respect to the procedure for the sale and
development of the Property; and
WHEREAS, pursuant to the DSA, AECOM/Fransen has prepared the original and the
amended Theater Square Strategic Plan, both of which have been approved by the Mayor and
City Council; and
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WHEREAS, consistent with and for the purposes of implementing the amended
Theater Square Strategic Plan and with the express approval of AECOM/Fransen, it is necessary
to engage the services of a qualified real estate broker to assist AECOM/Fransen and the City
I with respect to the disposition of the Property at its market value; and
WHEREAS, consistent the DSA and amended Theater Square Strategic Plan,
AECOM/Fransen solicited proposals from qualified commercial real estate brokers, which
resulted in two real estate brokers submitting proposals; and
WHEREAS, based on a review of proposals by representatives of the City and
AECOM/Fransen and a follow-up confirming interview, it was determined that that Lee and
Associates Commercial Real Estate Services, Inc. (the "Lee and Associates") was the more
responsive real estate broker and better met the current needs of the City and AECOM/Fransen
with respect to the sale or lease of the City's Theater Square real property assets; and
WHEREAS, approval of this resolution will approve the Exclusive Right to Represent
Owner for Sale or Lease of Real Property (the "Listing Agreement") with Lee and Associates
with respect to the sale or lease of the City's Theater Square real property assets, a copy which is
attached hereto as Exhibit "A"; and
WHEREAS, this Resolution has been reviewed with respect to applicability of the
California Environmental Quality Act (the "CEQA"), the State CEQA Guidelines (California Code
of Regulations, Title 14, § 15000 et seq., hereafter the "CEQA Guidelines"), and the City's
environmental guidelines; and
WHEREAS, this Resolution does not constitute a "project" for purposes of CEQA, as that
1 term is defined by CEQA Guidelines § 15378, because this Resolution constitutes general policy
and procedure making and organizational or administrative activity that will not result in a direct or
indirect physical change in the environment, per § 15378 (b) (2) and (5) of the CEQA Guidelines;
and
WHEREAS, all of the prerequisites with respect to the approval of this Resolution have
I been met.
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NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
Section 1. The foregoing recitals are true and correct and are a substantive part of this
Resolution.
Section 2. The Listing Agreement with Lee and Associates with respect to the sale or
lease of the City's Theater Square real property assets, attached hereto as Exhibit "A," is hereby)
approved.
Section 3. The City Manager, or designee, is authorized and directed to execute the
Listing Agreement and to take such other actions and execute such other documents as are
necessary to fulfill the intent of this Resolution.
Section 4. This Resolution is not a "project" for purposes of CEQA, as that term is
defined by Guidelines § 15378, because this Resolution is an organizational or administrative
activity that will not result in a direct or indirect physical change in the environment, per § 15378'
(b) (5) of the Guidelines.
Section 5. This resolution shall take effect upon its adoption and execution in the
manner as required by the City's Municipal Code.
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING THE EXCLUSIVE RIGHT TO
REPRESENT OWNER FOR SALE OR LEASE OF REAL PROPERTY WITH LEE AND
ASSOCIATES COMMERCIAL REAL ESTATE SERVICES INC. RELATED TO
THEATER SQUARE, AND APPROVING CERTAIN RELATED ACTIONS
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor a
City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 4`h day
October 2017, by the following vote, to wit:
Council Members:
MARQUEZ
BARRIOS
VALDIVIA
SHORETT
NICKEL
RICHARD
MULVIHILL
AYES NAYS
XS
X
XM
X
X
X
X
ABSTAIN ABSENT
Georgeann Hanna, CMC;'City Clerk
The foregoing Resolution is hereby approved this 4th day of October 2017.
�-- ( ), '0�
R.
Carey Davis, ayor
City of San Bernardino
Approved as to form:
Gary D. Saenz, City Attorney
By:
EXHIBIT "A"
Exclusive Right to Represent Owner for Sale or Lease of Real Property
("Listing Agreement")
with Lee and Associates
for the Sale or lease of Theater Square
(see attachment)
EXCLUSIVE RIGHT TO REPRESENT OWNER
FOR SALE OR LEASE OF REAL PROPERTY
(Non -Residential)
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 Parties: This agency Agreement ("Agreement"), dated for reference purposes only October 4, 2017, is
made by and between Cit} of San Bernardino _a California charter city, whose address is 290 North D Street, San
Bernardino, CA 92401, telephone number 909-384-5122, Fax No. 909-384-5138 ("Owner"), and Lee & Associates
Commercial Real Estate Services, Inc. - North San Diego County, whose address is__1900 Wright Place, Suite 200,
Carlsbad, CA 92008, telephone number 760-929-9700, Fax No. 760-929-9977, ("Lee & Associates").
1.2 Property/ Premises: The real property, or a portion thereof, which is the subject of this Agreement is
commonly known as (street address, city, state, zip) 450 North E Street,_ San Bernardino. CA, located in the County of San
Bernardino, and generally described as (describe briefly the nature of the property): _Parcels: 0134-121-25 & 27, 0134-
131-28, 29 & 30 and 35._ 36 & 37 ("Property"). The property includes unimproved land (the "Pads"), the Cinema,
and vacant space within the Cinema building that may be sold separately subject to the recordation of a condominium
map ("In Line Shops").
1.3 Term of Agreement: The term of this Agreement shall commence on October 4. 2017 and expire at 5:00
p.m. on Anril 3, 2018, except as it may be extended ("Term"). See also paragraph 4)
1.4 Transaction: The nature of the transaction concerning the Property for which Lee & Associates is appointed
agent is a sale and/or lease, during the Term or under the circumstances described in Section 7.3, on the price and terms
agreeable to.Ow.ner,_acting in its sole and absolute discretion ("Transaction");
2. EXCLUSIVE APPOINTMENT AS AGENT.
2.1 Owner hereby appoints Lee & Associates as Owner's sole and exclusive agent with respect to the Transaction
and Lee & Associates accepts such appointment and agrees to act as agent for Owner only and shall represent Owner in
the Transaction and to find buyers or lessees/tenants ("lessees"), as the case maybe, for the Property. Lee &
Associates shall use reasonably diligent efforts to find such buyers or lessees. All negotiations and discussions for a
Transaction shall be conducted by Lee & Associates on behalf of Owner. Owner shall promptly disclose and refer to
Lee & Associates all written or oral inquiries or contacts received by Owner from any source regarding a possible
Transaction.
2.2 Owner authorizes Lee & Associates to:
(a) Place advertising signs on the Property subject to city sign ordinance;
(b) Enter the In Line Shops and Cinema by appointment only. Lee & Associates to follow the City's
protocol for viewing the In Line Shops. Lee & Associates must obtain authorization from Regal to access the Cinema;
(c) Accept deposits from potential buyers or lessees; and
(d) Distribute information regarding the Property to participants in THE MULTIPLE ("MULTIPLE") of the
AIR and/or any other appropriate local commercial multiple listing service, to other brokers, and to potential buyers or
lessees of the Property. Owner shall identify as "confidential" any information provided to Agent that Owner considers
confidential and does not want disclosed. All other information provided by Owner may be disclosed as Lee & Associates
may deem appropriate or necessary. After consummation of a Transaction, Lee & Associates may publicize the terms of
such Transaction.
2.3 Lee & Associates shall comply with the Rules of Professional Conduct of the AIR, if a member or if not, the
Rules of Professional Conduct of the Society of Industrial and Office Realtors, and shall submit the Property to the
MULTIPLE. Lee & Associates shall cooperate with participants in the MULTIPLE and may, at Lee & Associates's election,
cooperate with other real estate brokers (collectively "Cooperating Broker").
2.4 Although Lee & Associates may represent and act as the agent for a buyer or lessee, Mathew Sullivan,
Randall Dalby, and Tom Gioia shall not directly represent any third party buyer or lessee with respect to the Transaction.
2.5 Owner agrees that Lee & Associates may, during the ordinary and normal course of marketing the Property,
respond to inquiries on the Property by showing and providing information on the Property, as well as on other competing
properties located outside the corporate limits of the City of San Bernardino to prospective buyers and lessees and that
such activities may result in the payment of a commission to Lee & Associates by a third party. However, during the
Term, Mathew Sullivan, Randall Dalby, and Tom Gioia, are each prohibited from showing competing properties to
prospective buyers or tenants that are located within the corporate limits of the City of San Bernardino without the
express written consent of the Owner.
3. PROPERTY.
3.1 Within five business days after the commencement of the Term hereof, Owner shall provide Lee & Associates
with the following:
(a) A duly completed and fully executed Property Information Sheet on the most current form published by
the AIR;
(b) Copies of all leases, subleases, rental agreements, option rights, rights of first refusal, rights of first
offer, or other documents containing any other limitations on Owner's right, ability and capacity to consummate a
Transaction, and
(c) If available to Owner, copies of building plans, and if the Transaction is a sale, title reports, boundary
surveys, and existing notes and trust deeds which will continue to affect the Property after consummation of a sale.
3.2 Lee & Associates shall have no responsibility for maintenance, repair, replacement, operation, or security of
the Property, all of which shall be Owner's sole responsibility. Unless caused by Lee & Associates' gross negligence,
Lee & Associates shall not be liable for any loss, damage, or injury to the person or property of Owner, any lessees of the
Property, any buyer, prospective buyer, lessee, or prospective lessee.
4. EXTENSION OF TERM. If the Transaction is a sale, and a sale is not consummated for any reason after Owner
accepts an offer to purchase the Property ("Sale Agreement"), then the expiration date of the Term of this Agreement
shall be extended by the number of days that elapsed between the date Owner entered into the Sale Agreement and the
later of the date on which the Sale Agreement is terminated or the date Owner is able to convey title to a new buyer free
and clear of any claims by the prior buyer of the Property; provided, however, in no event shall the Term be so extended
beyond one year from the date the Term would have otherwise expired.
S. COMMISSION.
5.1 Owner shall pay Lee & Associates commissions in accordance with the Schedule of Agreed Commissions
attached hereto and by this reference made a part hereof ("Agreed Commissions"), for a Transaction, whether such
Transaction is consummated as a result of the efforts of Lee & Associates, Owner, or some other person or entity. Lee &
Associates shall also be entitled to the Agreed Commissions if any of the Owner's representations and warranties
described in paragraph 8 are shown to be false. Such Agreed Commissions are payable:
(a) If the Transaction is a sale, (i) the Property is sold; (ii) Owner breaches any Sale Agreement, escrow
instructions or other documents executed by Owner regarding the sale of the Property; (iii) the Property or any interest
therein is voluntarily or involuntarily sold, conveyed, contributed or transferred; (iv) the Property or any interest therein is
taken under the power of Eminent Domain or sold under threat of condemnation, or (v) if Owner is a partnership, joint
venture, limited liability company, corporation, trust or other entity, and any interest in Owner is voluntarily or
involuntarily sold, contributed, conveyed or transferred to another person or entity that, as of the date hereof, does not
have any ownership interest in Owner;
(b) If the Transaction is a lease and a lease of the Property, or a portion thereof is executed; or
(c) If Owner (i) removes or withdraws the Property from a Transaction or the market; (ii) acts as if the
Property is not available for a Transaction; (iii) treats the Property as not available for a Transaction; (iv) breaches this
Agreement; (v) renders the Property unmarketable; or (vi) excepting as a result of the Owner's exercise of its regulatory
power, changes the status of the Property's title, leases, agreements, physical condition or other aspects thereof, which
such change adversely and materially impacts the value, use or marketability of the Property.
(d) If earnest money or similar deposits made by a prospective purchaser or tenant are forfeited, Lee &
Associates shall be entitled to one-half (1/2) thereof, but not to exceed the total amount of the commission that would
have been payable had the sale or lease transaction been consummated.
5.2 If the Transaction is a sale, the purchase agreement and/or escrow instructions to be entered into by and
between Owner and a buyer of the Property shall provide that:
(a) Owner irrevocably instructs the escrow holder to pay from Owner's proceeds accruing to the account of
Owner at the close of escrow the Agreed Commissions to Lee & Associates;
(b) A contingency to the consummation of the sale shall be the payment of the Agreed Commissions to
Lee & Associates at or prior to close of the escrow; and
(c) No change shall be made by Owner or buyer with respect to the time of, amount of, or the conditions
to payment of the Agreed Commissions, without Lee & Associates' written consent.
6. ALTERNATIVE TRANSACTION. If the Transaction changes to any other transaction, including, but not limited
to, a sale, exchange, option to buy, right of first refusal, ground lease, lease, sublease or assignment of lease (collectively
"Alternative Transaction"), then Lee & Associates shall automatically be Owner's sole and exclusive agent for such
Alternative Transaction and represent Owner in such Alternative Transaction, under the terms and conditions of this
Agreement. If, during the Term hereof, an Alternative Transaction is entered into, then Owner shall pay Lee & Associates
the Agreed Commissions. Lee & Associates will assist the City in connection with modifications/amendments to the Regal
Lease. Any such assistance shall not be considered a Transaction and/or Alternative Transaction, although Lee &
Associates shall be entitled to a commission based on increase in value, if any, created thereby.
7. EXCLUDED AND REGISTERED PERSONS.
7.1 Owner shall, within 5 business days after the date hereof, provide Lee & Associates, in writing, with the
names of those persons or entities registered with Owner by any other broker under any prior agreement concerning the
Property ("Excluded Persons", see paragraph 7.5). Owner shall also specify for each Excluded Person the type of
transaction the consummation of which during the Term of this Agreement entitles such other broker to any
compensation ("Excluded Transaction"). Lee & Associates may within 10 days of receiving such written list, either
(a) accept the Excluded Persons and Excluded Transactions, (b) cancel this Agreement, or (c) attempt to renegotiate this
portion of the Agreement with Owner. Once accepted by Lee & Associates, the written list shall automatically become an
exhibit to this Agreement. If Owner timely provides Lee & Associates with the names of the Excluded Persons and
specifies the Excluded Transaction for each Excluded Person, then the Agreed Commissions paid to Lee & Associates with
respect to consummation of such an Excluded Transaction with an Excluded Person shall be limited as follows: if such
Excluded Transaction is concluded within the first 30 days of the commencement of the Term hereof, then Lee &
Associates shall be paid a commission equal to the reasonable out-of-pocket expenses incurred by Lee & Associates in the
marketing of the Property during said 30 days; or if such Excluded Transaction is concluded during the remainder of the
Term hereof, then Lee & Associates shall be entitled to a commission equal to one-half of the Agreed Commissions. If
the specified information concerning Excluded Persons and Transactions is not provided as set forth herein, then it shall
be conclusively deemed that there are no Excluded Persons.
7.2 Lee & Associates shall, within 5 business days after the expiration of the Term hereof, provide Owner, in
writing, with the name of those persons or entities with whom Lee & Associates either directly or through another broker
had negotiated during the Term hereof ("Registered Persons", see paragraph 7.5), and specify the type of transaction
of the Property for which such negotiations were conducted ("Registered Transaction"). Those persons or entities
who submitted written offers or letters of intent shall, however, automatically be deemed to be Registered Persons for the
type of transaction which was the subject of such offer or letter of intent. If Lee & Associates fails to timely notify Owner
of the existence of any other Registered Persons, then it shall be conclusively deemed that there are no other Registered
Persons. A person or entity shall not be a Registered Person if Lee & Associates fails to timely specify a Registered
Transaction for such person or entity. The parties are aware that the registration of certain individuals and/or entities
might create a dual agency, and Owner hereby consents to any such dual agency.
7.3 If, within 180 days after the expiration of the Term hereof, Owner enters into a contract with a Registered
Person for consummation of a Registered Transaction, then Owner shall, upon consummation of such Registered
Transaction, pay Lee & Associates the Agreed Commissions for the Registered Transaction.
7.4 If, within 180 days after the expiration of the Term hereof, Owner enters into another owner -agency or listing
agreement with a broker other than Lee & Associates for any transaction concerning the Property, then Owner shall
provide to Owner's new broker the names of the Registered Persons and the Registered Transaction for each Registered
Person, and provide in such new agreement that the new broker shall not be entitled to receive any of the compensation
payable to Lee & Associates hereunder for consummation of a Registered Transaction with a Registered Person.
7.5 In order to qualify to be an Excluded Person or a Registered Person the individual or entity must have:
toured the Property, submitted a letter of interest or intent, and made an offer to buy or lease the Property. In addition,
Excluded Persons may only be registered by a broker who previously had a valid listing agreement covering the Property,
and such broker may only register individuals and entities actually procured by such listing broker.
8. OWNER'S REPRESENTATIONS.
Owner represents and warrants that:
(a) Each person executing this Agreement on behalf of Owner has the full right, power and authority to
execute this Agreement as or on behalf of Owner;
(b) Owner owns the Property and/or has the full right, power and authority to execute this Agreement and
to consummate a Transaction as provided herein, and to perform Owner's obligations hereunder, subject to conformance
with California Health and Safety Code §§ 34180 (f) (1) and 34191.3, the San Bernardino Successor Agency's approved
Long -Range Property Management Plan and any other legal requirements, as may be applicable;
(c) Neither Owner nor the Property is the subject of a bankruptcy, insolvency, probate or conservatorship
proceeding;
(d) Owner has no notice or knowledge that any lessee or sublessee of the Property, if any, is the subject of
a bankruptcy or insolvency proceeding;
(e) There are no effective, valid or enforceable option rights, rights of first refusal, rights of first offer or
any other restrictions, impediments or limitations on Owner's right, ability and capacity to consummate a Transaction,
except as disclosed in writing pursuant to Paragraph 3.1(b).
(f) That as of the date of this Agreement the asking sales price is not less than the total of all monetary
encumbrances on the Property.
9. OWNER'S ACKNOWLEDGMENTS. Owner acknowledges that it has been advised by Lee & Associates to consult
and retain experts to advise and represent it concerning the legal and tax effects of this Agreement and consummation of
a Transaction or Alternative Transaction, as well as the condition and/or legality of the Property, including, but not limited
to, the Property's improvements, equipment, soil, tenancies, title and environmental aspects. Lee & Associates shall have
no obligation to investigate any such matters unless expressly otherwise agreed to in writing by Owner and Lee &
Associates. Owner further acknowledges that in determining the financial soundness of any prospective buyer, lessee or
security offered, Owner will rely solely upon Owner's own investigation, notwithstanding Lee & Associates' assistance in
gathering such information.
io. MISCELLANEOUS.
10.1 This Agreement shall not be construed either for or against Owner or Lee & Associates, but shall be
interpreted, construed and enforced in accordance with the mutual intent of the parties ascertainable from the language
of this Agreement.
10.2 All payments by Owner to Lee & Associates shall be made in lawful United States currency. If Owner fails to
pay to Lee & Associates any amount when due under this Agreement, then such amount shall bear interest at the rate of
6% per annum or the maximum rate allowed by law, whichever is less.
10.3 In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party
shall be entitled to recover from the opposing Party all reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any
of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this
paragraph.
10.4 Owner agrees to indemnify, defend and hold harmless Lee & Associates from and against any claims or
liability asserted against Lee & Associates as a result of the failure of Owner to make a full and complete disclosure
pursuant to law and Paragraph 3.1(a) or as a result of the fact that any of the representations made by Owner were not
materially true and correct as of the date of this Agreement.
10.5 The parties hereby release each other with respect to consequential losses/damages and/or punitive
damages.
11. POLICE POWER.
11.1 The City shall retain its regulatory authority over the Property and nothing herein shall be construed as a
waiver or exercise of such regulatory authority.
12. INDEMNITY.
12.1 Subject to the limitations herein, each party agrees to and shall indemnify and hold the other, its elected
officials (if applicable), employees, agents, subcontractors, and/or representatives, free and harmless from all claims,
actions, damages and liabilities of any kind and nature to the extent arising from bodily injury, including death, or
property damage, based or asserted upon any actual or alleged act or omission of the indemnifying party, its elected
officials (if applicable), employees, agents, representatives, or subcontractors, relating to or in any way connected with
the accomplishment of the work or performance of services under this Agreement.
13. INSURANCE.
13.1 While not restricting or limiting the foregoing, during the term of this Agreement, Lee & Associates shall
maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of
$1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies
with the Owner's Risk Manager prior to undertaking any work under this Agreement. Owner shall be set forth as an
additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the
Owner shall require the insurer to notify Owner of any change or termination in the policy.
14. NON-DISCRIMINATION.
14.1 In the performance of this Agreement and in the hiring and recruitment of employees, Lee & Associates shall
not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons
because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition,
marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to
Section 12940 of the California Government Code.
15. INDEPENDENT CONTRACTOR.
15.1 Lee & Associates shall perform work tasks provided by this Agreement, but for all intents and purposes Lee &
Associates shall be an independent contractor and not an agent or employee of the Owner. Lee & Associates shall
secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability
Insurance Compensation, Unemployment Compensation, and other payroll deductions for Lee & Associates and its
officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be
performed hereunder.
16. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
16.1 Lee & Associates warrants that it possesses or shall obtain, and maintain a City of San Bernardino business
registration certificate and any other licenses, permits, qualifications, insurance and approval of whatever nature that are
legally required of Lee & Associates to practice its business or profession.
17. NOTICES.
17.1 Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service,
postage prepaid and addressed to the Owner or Lee & Associates at the addresses indicated above.
is. ASSIGNMENT.
18.1 Lee & Associates shall not voluntarily or by operation of law assign, transfer, or encumber all or any part of
the Lee & Associates' interest in this Agreement without the Owner's prior written consent. Any attempted assignment,
transfer, or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of
this Agreement. Regardless of Owner's consent, no assignment shall release Lee & Associates of Lee & Associates'
obligation to perform all other obligations to be performed by Lee & Associates hereunder for the term of this Agreement.
19. VENUE.
19.1 The Parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be
tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District
Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the
Parties to be mandatory and not permissive in nature.
20. GOVERNING LAW.
20.1 This Agreement shall be governed by the laws of the State of California.
21. SUCCESSORS AND ASSIGNS.
21.1 This Agreement shall be binding on and inure to the benefit of the Parties to this Agreement and their
respective heirs, representatives, successors, and assigns.
22. HEADINGS.
22.1 The subject headings of the sections of this Agreement are included for the purposes of convenience only
and shall not affect the construction or the interpretation of any of its provisions.
23. SEVERABILITY.
23.1 If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or
unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and
provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement
shall remain in full force and effect.
24. REMEDIES; WAIVER
24.1 All remedies available to either Party for one or more breaches by the other Party are and shall be deemed
cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either
Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a
waiver of future breaches, unless such waiver shall be in writing and signed by the Party against whom enforcement is
sought.
2s. Disclosures Regarding The Nature of a Real Estate Agency Relationship. When entering into an
agreement with a real estate agent an Owner should from the outset understand what type of agency relationship or
representation it has with the agent or agents in the transaction.
p) Owner's Agent. An Owner's agent may act as an agent for the Owner only. An Owner's agent or
subagent has the following affirmative obligations: To the Owner: A fiduciary duty of utmost care, integrity, honesty,
and loyalty in dealings. To a potential buyer/lessee and the Owner: a. Diligent exercise of reasonable skills and care in
performance of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts
known to the agent materially affecting the value or desirability of the property that are not known to, or within the
diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential
information obtained from the other Party which does not involve the affirmative duties set forth above.
(b) Agent Representing Both Parties. A real estate agent, either acting directly or through one or more
associate licenses, can legally be the agent of both Parties in a transaction, but only with the knowledge and consent of
the Parties. In a dual agency situation, the agent has the following affirmative obligations to both Parties: a. A fiduciary
duty of utmost care, integrity, honesty and loyalty in the dealings with either Party. b. Other duties to the Owner as
stated above in subparagraph (i). When representing both Parties, an agent may not without the express permission of
the respective Party, disclose to the other Party that the Owner will accept rent/purchase price in an amount less than
that indicated in the listing or that the buyer/lessee is willing to pay a higher rent/purchase price than that offered.
The above duties of the Lee & Associates, as agent, do not relieve Owner from the responsibility to protect its own
interests. Owner should carefully read all agreements to assure that they adequately express its understanding of the
transaction.
Date: ' v�
LEE & ASSOCIATES
Lee & Associates Commercial Real Estate Services, Inc. -
North San Di o un
By:
Name: David Howard
Title: President
BRE License #: 01096996
Address: 1900 Wright Place, Suite 200,
Carlsbad, CA 92008
Phone: 760-929-9700
Fax: 760-929-9977
Email: dhoward(J-1lee-associates.com
Date: 0( q
OWNER
The City of San Bernardino, a California charter city
By: r
Name: Andrea M. Miller
Title: City Manager
Approved as to form:
Gary D. Saenz, City Attorney
By.
ATTE
Georgeann Hanr4,70ty Clerk i
1^ LEE &
ASSOCIATES
COMMERCIAL REAL ESTATE SERVICES SCHEDULE OF AGREED COMMISSIONS
Address: 450 North E St.
San Bernardino, CA 92401
A. SALES AND LEASES
1. Cinema: 3% of the gross sale price with a co -broker (co -broker commission shall be payable
by Lee & Associates from its 3%); 3% of the gross sales price without a co -broker.
2. In Line Shops: 6% of the gross sales price broker (co -broker commission shall be payable
by Lee & Associates from its 6%).
3. Pads: 6% of the gross sales price broker (co -broker commission shall be payable by Lee &
Associates from its 6%).
B. PAYMENT OF EARNED COMMISSIONS
1. Commissions shall be paid through escrow upon the closing of sales and exchange
transactions. Absent an escrow, commission shall be paid upon recordation of a deed or
upon delivery of such deed or other conveyance if recordation is deferred more than one
month thereafter. In the event of a contract or agreement of sale, joint venture agreement,
business opportunity or other transaction not involving the delivery of a deed, commissions
shall be paid upon execution and delivery of the instrument or conveyance or establishment
of the entitlement of ownership.
2. Leasing commissions shall be paid 1/2 upon a lease being signed by both parties and 1/2
upon the tenant opening for business.
The undersigned hereby acknowledge and confirm this Schedule of Agreed Commissions:
Dated: 1 C f 26(q
I
,fib
OWNER: `
By: Andrea MNMer, City Manager
Attest: ,
t�
Georgeann Hanna, City Clerk
Address: 290 North D Street
San Bernardino, California 92401
Approved as to form:
Gary D. Saenz, City Attorney
By:
Tel:7� 9-384- 22 Fax: 909-384-5138
Dated: 161Z,311'7
B
By: David Howard, President
Address: 1900 Wright Place, Suite 200
Carlsbad, California 92008
Tel: 760-929-9700 Fax: 760-929-9977