HomeMy WebLinkAboutAGENDA REPORT 2021 0602 CCSA REG ITEM 09CCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of June 2, 2021
ACTION APPROVED STAFF
RECOMMENDATION.
C.Consider an Agreement with Lee & Associates – LA North/Ventura, Inc. for an
Exclusive Right to Represent the City for the Purchase or Lease of Real Property
to Relocate City Hall. Staff Recommendation: Authorize the City Manager to sign
an Exclusive Right to Represent Agreement for Purchase or Lease of Real
Property with Lee & Associates – LA North/Ventura, Inc. subject to final language
approval of the City Manager and City Attorney. (Staff: PJ Gagajena)
Item: 9.C.
Item: 9.C.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: PJ Gagajena, Assistant City Manager
DATE: 06/02/2021 Regular Meeting
SUBJECT: Consider an Agreement with Lee & Associates – LA North/Ventura,
Inc. for an Exclusive Right to Represent the City for the Purchase or
Lease of Real Property to Relocate City Hall
SUMMARY
Due to functional and operational limitations of the City Hall buildings, their end of useful
life, growing maintenance costs, and building code and Americans with Disabilities Act
(ADA) requirements, staff recommends searching for a new facility to relocate City Hall.
The City and community will benefit from increased capacity at the front counter and
waiting area, availability of publicly accessible restrooms, more business-friendly
meeting spaces, and safer and more appropriate working conditions for staff to perform
daily operations and better serve the public. To initiate the property search and
facilitate any future property transactions, staff recommends contracting with local
brokers, Mike Tingus and Grant Fulkerson, President and Principal of Lee &
Associates – LA North/Ventura, Inc., respectively.
BACKGROUND
For the past two decades, the City has worked on creating a new Civic Center campus,
including a new City Library and City Hall at its current location northwest of High Street
and Moorpark Avenue. Developing a new Civic Center was originally initiated because
City operations were outgrowing the existing City Hall buildings, significant maintenance
costs were being incurred, and extensive renovation work would be required to bring the
buildings up to current building code standards. The Community Center was the first
structure built by the County of Ventura in 1980 and served as the first office space for
City staff after the City’s incorporation in 1983. In 1987, the Administration building was
built. The Active Adult Center buildout and kitchen addition were completed in 1989.
Sometime in the mid to late 90’s the City added a triple wide modular unit, which
currently houses the Information Technology staff and storage area. In 2006, the office
space at City Hall was further expanded by leasing additional temporary modular office
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buildings to accommodate the Community Development and Public Works
Departments, and the relocated public counter, as well as an expanded breakroom and
file storage space. In 2010, in recognition of the fact that the need for the modular
buildings would exceed the initial lease term, the City purchased the modular office
buildings.
Over the years, due to the economy and other City priorities, a new Civic Center
campus was never developed. In 2018, the City Council directed staff to complete a
comprehensive Civic Center Master Plan to determine the location and orientation of
the City Hall buildings to occupy the site as a location for the new Library was being
determined. To that end, staff entered into an agreement with CWA AIA, Inc. (CWA) for
the design of a new Library and creation of the Civic Center Master Plan. The Civic
Center Master Plan process began in January 2019 with a detailed site analysis and
space needs study. CWA gathered data regarding the Civic Center site by reviewing
building plans for the existing Civic Center buildings, historical reports of the site and
surrounding developments, and conducting group and individual interviews with the City
Manager and Department Heads regarding their departmental functions.
Through the space needs study, CWA determined that a future City Hall building should
be approximately 22,000 square-feet in size to accommodate current and future staffing
needs, as well as a City Council Chamber. The current City Hall buildings and the
Apricot Room used for City Council meetings are approximately 27,260 square feet but
have limitations in terms of functional space. CWA also performed an extensive review
of the existing buildings on the site. Generally, their review indicated that the
Administration building, Library and the Community Center/Active Adult Center are
structurally sound, but would require electrical upgrades, HVAC, and ADA upgrades if
the buildings were to continue to be used by the City, or if the use and/or occupancy of
the buildings were to change or expand. The modular buildings, which currently house
the public front counter, Community Development and Public Works offices, break
room, employee restrooms, storage room, and Information Systems offices, have
outlived their useful life and are not recommended for any future re-use scenario.
Various concepts of a Civic Center Master Plan were presented by CWA to the City
Council on July 15, 2020, and the City Council approved the final Civic Center Master
Plan design with a determination made on the location of the new Library and agreed to
a phased approach to construct the new Library prior to construction of a new City Hall
building. This phased approach would allow staff an opportunity to evaluate funding
options to build a new Civic Center campus. In seeing no immediate funding source to
construct both the Library and City Hall, it makes more sense to focus on the Library in
the next three to five years while moving staff in the short term to an alternate location
until such time that a new Civic Center site can be built, purchased, or leased and/or the
existing site can be potentially developed for other uses.
There are approximately 19 employees currently working in the modular office buildings,
which includes Community Development and Public Works staff, Building and Safety
contract staff, and Information Systems employees. Four members of the Parks,
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Recreation & Community Services Department were already relocated to the Moorpark
Public Services Facility (Yard) during this past year to allow for social distancing due to
the COVID-19 pandemic. Three other positions are vacant and are in the process of
being backfilled for the Community Development and Public Works Departments.
There are approximately 16 employees currently working in the Administration building
that include staff from the City Manager’s Office and Finance Department. There are
three positions that are scheduled to be filled in the next three to six months between
the two departments.
DISCUSSION
Non-functional, obsolete, and unsafe City Hall facilities presents a major concern. The
modular buildings are either at or have exceeded their useful life, and major renovations
will be needed over the next five years to keep the buildings functional and to bring
them up to current building code standards. In addition, the City’s maintenance staff
currently spends a substantial amount of time during the year simply maintaining the
buildings to an acceptable standard. For instance, although the facilities are inspected
annually, leaking roofs, windows and doorways are a regular occurrence during
inclement weather. The wood decking and ancillary structures continuously need
repair, as much of the wood is rotted, and termites, pest infestations, and plumbing
problems associated with all the buildings are addressed on a regular occurrence. Staff
recently conducted an analysis of expenses related to Civic Center facilities. Over the
last three years, maintenance costs have averaged over $115,000 annually.
Additionally, staff has estimated that the continued use of the existing buildings over the
next five years will cost the City approximately $1.7 million dollars. The high costs are
primarily due to major infrastructure needs, such as roofing ($350,000); the replacement
of heating, ventilation and air conditioning (HVAC) systems ($425,000); as well as
electrical ($650,000), structural ($100,000) and plumbing ($175,000) upgrades. In
addition, the current buildings are in need of many upgrades to meet ADA requirements.
Currently, staff budgets $25,000 each year to complete ADA upgrades. However, the
full costs to meet these requirements are very high. Staff hired a consultant to prepare
a comprehensive ADA Transition Plan for the current Civic Center facilities and they
determined it would cost the City more than $725,000 to complete all the deficiencies
listed in the Plan.
In addition, the most public-facing space at City Hall, the public counter located in a
modular office building, has limited capacity in the waiting area, has a small counter that
is insufficient to review large plans, and lacks public restrooms. The meeting rooms in
the City Hall buildings also have limited capacity and do not offer a business-friendly
environment when meeting with developers and businesses or conducting job
interviews. Staff space is limited and will not accommodate future growth of the
organization. There are also health and safety concerns in the modular buildings since
there are at times smells of exhaust, and there is poor heating, ventilation, and air
conditioning. The modular building located directly adjacent to Walnut Canyon
Road/Moorpark Avenue is frequently exposed to noise pollution and vibrations due to
heavy vehicular and truck traffic, and is vulnerable to traffic collisions since it sits directly
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in the line of site of southbound motorists before the road sharply curves easterly and
then south to High Street. One such traffic collision into the building did occur in 2011.
These high maintenance and capital improvement costs, and poor working conditions
are no longer sustainable, and it is recommended the City search for new spaces or
buildings to lease or purchase in the short term rather than waiting until funding is
identified to build a new City Hall or a decision is made on the future of the Civic Center
campus. Once a new facility is identified, the costs for lease or purchase will be
weighed against remaining and existing City Hall facilities and will be presented to the
City Council along with cost implications. If it is decided to lease or purchase a new
facility, staff will return to the City Council to have thoughtful discussions on the future of
the City Hall properties and the Civic Center Master Plan, which provides a framework
for the Civic Center campus to help guide decisions on the site’s future development,
including private investment and economic development opportunities relative to its
surrounding residential and commercial land uses.
Staff seeks to enter into an exclusive agreement with Mike Tingus and Grant Fulkerson,
President and Principal of Lee & Associates – LA North/Ventura, Inc., respectively, to
initiate the property search process and help negotiate the best and most reasonable
terms for the City. Mr. Tingus and Mr. Fulkerson are uniquely qualified and have more
than 30 years of experience each in the real estate industry, are familiar with the City of
Moorpark, and have worked with other public agencies under similar circumstances.
Therefore, formal bidding is being waived for these services as provided for in City
Council Resolution No. 2019-3829 Governing Procurement of Professional Services,
Section 4.B.
Staff is requesting that the City Council approve the Agreement and grant signature
authority to the City Manager to sign an exclusive right to represent agreement with Lee
& Associates – LA North/Ventura, Inc.
FISCAL IMPACT
There is no fiscal impact associated with entering into an agreement with Lee &
Associates – LA North/Ventura, Inc. However, the City would pay a 3% commission of
the total lease or sales price to Lee & Associates – LA North/Ventura, Inc. in the event
the commission is not paid by the seller or lessor. Staff will return to the City Council at
a future date to address the potential costs for leasing or purchasing a new space or
building once that information is available, and prior to any transactions taking place.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
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STAFF RECOMMENDATION
Authorize the City Manager to sign an Exclusive Right to Represent Agreement for
Purchase or Lease of Real Property with Lee & Associates – LA North/Ventura, Inc.
subject to final language approval of the City Manager and City Attorney.
Attachment: Draft Agreement
149
ATTACHMENT
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF MOORPARK AND
LEE & ASSOCIATES – LA NORTH/VENTURA, INC. FOR
REAL ESTATE AND BROKERAGE SERVICES
THIS AGREEMENT, made and effective as of this _____ day of
________________________, 2021, between the City of Moorpark, a municipal corporation
(“City”) and Lee & Associates – LA North/Ventura, Inc., a corporation, (“Consultant”). In
consideration of the mutual covenants and conditions set forth herein, the parties agree
as follows:
WHEREAS, City has the need for real estate and brokerage services; and
WHEREAS, Consultant specializes in providing such services and has the proper
work experience, certifications, and background to carry out the duties involved; and
WHEREAS, Consultant has submitted to City a draft agreement dated May 18,
2021, which is attached hereto as Exhibit C.
NOW, THEREFORE, in consideration of the mutual covenants, benefits, and
premises herein stated, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be from the date of execution to completion of
the tasks, unless this Agreement is terminated or suspended pursuant to this
Agreement.
2. SCOPE OF SERVICES
City does hereby retain Consultant, as an independent contractor, in a
contractual capacity to provide real estate and brokerage services, as set forth in
Exhibit C. In the event there is a conflict between the provisions of Exhibit C and this
Agreement, the language contained in this Agreement shall take precedence.
Consultant shall perform the tasks described and set forth in Exhibit C.
Compensation for the services to be performed by Consultant shall be in
accordance with Exhibit C. Compensation shall be three percent (3%) of the total lease
consideration or sales price in the event a commission is not paid by the Lessor or
Seller. Payment by City to Consultant shall be in accordance with the provisions of this
Agreement.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of their ability,
experience, standard of care, and talent, perform all tasks described herein. Consultant
shall employ, at a minimum, generally accepted standards and practices utilized by
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persons engaged in providing similar services as are required of Consultant hereunder
in meeting its obligations under this Agreement.
4. MANAGEMENT
The individuals directly responsible for Consultant’s overall performance of the
Agreement provisions herein above set forth and to serve as principal liaisons between
City and Consultant shall be Mike Tingus and Grant Fulkerson, and no other individuals
may be substituted without the prior written approval of the City Manager.
The City’s contact person in charge of administration of this Agreement, and to
serve as principal liaison between Consultant and City, shall be the City Manager or the
City Manager’s designee.
5. PAYMENT
Taxpayer ID or Social Security numbers must be provided by Consultant on an
IRS W-9 form before payments may be made by City to Consultant.
The City agrees to pay Consultant a commission of three percent (3%) of the
total lease consideration or sales price in the event a commission is not paid by the
Lessor or Seller. Should a commission be paid by Lessor or Seller, the City shall only
be responsible for paying the difference, if any.
Consultant shall not be compensated for any services rendered in connection
with its performance of this Agreement, which are in addition to those set forth herein,
unless such additional services and compensation are authorized, in advance, in a
written amendment to this Agreement executed by both parties. The City Manager, if
authorized by City Council, may approve additional work not to exceed ten percent
(10%) of the amount of the Agreement.
In the event a commission is not fully or partially paid by the Lessor or Seller,
Consultant shall submit an invoice to the City within thirty (30) days of the lease or sales
transaction, or as soon thereafter as practical. Payment shall be made within thirty (30)
days of receipt of each invoice as to all non-disputed fees. Any expense or reimbursable
cost appearing on any invoice shall be accompanied by a receipt or other
documentation subject to approval of the City Manager or the City Manager’s designee.
If the City disputes any of Consultant’s fees or expenses, City shall give written notice to
Consultant within thirty (30) days of receipt of any disputed fees set forth on the invoice.
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6. TERMINATION OR SUSPENSION WITHOUT CAUSE
The City may at any time, for any reason, with or without cause, suspend, or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement, such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
The Consultant may terminate this Agreement only by providing City with written
notice no less than thirty (30) days in advance of such termination.
In the event this Agreement is terminated or suspended pursuant to this Section,
the City shall pay to Consultant only in the event a commission is not paid by the Lessor
or Seller and the lease or sales transaction has been completed. Upon termination or
suspension of the Agreement pursuant to this Section, the Consultant will submit an
invoice to the City pursuant to this Agreement.
7. DEFAULT OF CONSULTANT
The Consultant’s failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Consultant is in default for cause under the terms
of this Agreement, City shall have no obligation or duty to compensate Consultant and
can terminate or suspend this Agreement immediately by written notice to the
Consultant. If such failure by the Consultant to make progress in the performance of
work hereunder arises out of causes beyond the Consultant’s control, and without fault
or negligence of the Consultant, it shall not be considered a default.
If the City Manager or his/her designee determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have thirty (30) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within such period of time, the City shall have the right,
notwithstanding any other provision of this Agreement, to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
8. LIQUIDATED DAMAGES
There are no liquidated damages under this Agreement.
9. OWNERSHIP OF DOCUMENTS
Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
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such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or the City’s designees at reasonable times to
such books and records; shall give the City the right to examine and audit said books
and records; shall permit City to make transcripts therefrom as necessary; and shall
allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Notification of audit shall be provided at least thirty (30) days before any
such audit is conducted. Such records, together with supporting documents, shall be
maintained for a period of three (3) years after receipt of final payment.
Upon completion of, or in the event of termination or suspension without cause of
this Agreement, all original documents, designs, drawings, maps, models, computer
files, surveys, notes, and other documents prepared in the course of providing the
services to be performed pursuant to this Agreement shall become the sole property of
the City and may be used, reused, or otherwise disposed of by the City without the
permission of the Consultant. With respect to computer files, Consultant shall make
available to the City, at the Consultant’s office and upon reasonable written request by
the City, the necessary computer software and hardware for purposes of accessing,
compiling, transferring, and printing computer files.
10. INDEMNIFICATION AND HOLD HARMLESS
Indemnity for professional liability: When the law establishes a professional
standard of care for Consultant’s Services, to the fullest extent permitted by law,
Consultant shall indemnify, protect, defend and hold harmless City and any and all of its
officials, employees, and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including legal counsels’ fees and
costs to the extent same are caused in whole or in part by any negligent or wrongful act,
error or omission of Consultant, its officers, agents, employees or subconsultants (or
any agency or individual that Consultant shall bear the legal liability thereof) in the
performance of professional services under this Agreement.
Indemnity for other than professional liability: Other than in the performance of
professional services and to the full extent permitted by law, Consultant shall indemnify,
protect, defend and hold harmless City, and any and all of its officials, employees, and
agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including legal
counsels’ fees and costs, court costs, interest, defense costs, and expert witness fees),
where the same arise out of, are a consequence of, or are in any way attributable to, in
whole or in part, the performance of this Agreement by Consultant or by any individual
or agency for which Consultant is legally liable, including but not limited to officers,
agents, employees or subcontractors of Consultant.
Consultant agrees to obtain executed indemnity agreements with provisions
identical to those set forth here in this Section from each and every subcontractor, or
any other person or entity involved by, for, with, or on behalf of Consultant in the
performance of this Agreement. In the event Consultant fails to obtain such indemnity
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obligations from others as required here, Consultant agrees to be fully responsible
according to the terms of this Section. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a
waiver of any rights hereunder. This obligation to indemnify and defend City as set forth
here is binding on the successors, assigns, or heirs of Consultant and shall survive the
termination of this Agreement or this Section, for a period not to exceed twenty-four (24)
months.
City does not and shall not waive any rights that it may have against Consultant
by reason of this Section, because of the acceptance by City, or the deposit with City, of
any insurance policy or certificate required pursuant to this Agreement. The hold
harmless and indemnification provisions shall apply up to the limits of the required
insurance.
11. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit A attached hereto and
incorporated herein by this reference as though set forth in full.
12. INDEPENDENT CONSULTANT
Consultant is and shall at all times remain as to the City a wholly independent
Contractor. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control.
Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Consultant or any of Consultant’s officers, employees, or agents, except as
set forth in this Agreement. Consultant shall not at any time or in any manner represent
that it or any of its officers, employees, or agents are in any manner officers or
employees, or agents of the City except as set forth in this Agreement. Consultant shall
not incur or have the power to incur any debt, obligation, or liability against City, or bind
City in any manner.
No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Consultant
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
13. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of local, state, and federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations, including but not limited to the
Americans with Disabilities Act and Occupational Safety and Health Administration laws
and regulations. The Consultant shall comply with and sign Exhibit B, the Scope of
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Work Requirement for Professional Services Agreements Compliance with California
Government Code Section 7550, when applicable. The City, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Consultant
to comply with this Section.
14. ANTI DISCRIMINATION
Neither the Consultant, nor any subconsultant under the Consultant, shall
discriminate in employment of persons upon the work because of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, or military and veteran status; or any other basis protected by
applicable federal, state, or local law, except as provided in Section 12940 of the
Government Code. Consultant shall have responsibility for compliance with this Section.
15. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure is used
against or in concert with any officer or employee of the City in connection with the
award, terms, or implementation of this Agreement, including any method of coercion,
confidential financial arrangement, or financial inducement. No officer or employee of
the City will receive compensation, directly or indirectly from Consultant, or any officer,
employee, or agent of Consultant, in connection with the award of this Agreement or
any work to be conducted as a result of this Agreement. Violation of this Section shall
be a material breach of this Agreement entitling the City to any and all remedies at law
or in equity.
16. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of the City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the
Services during his/her tenure or for one year thereafter, shall have any interest, direct
or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be
performed in connection with the Services performed under this Agreement.
17. CONFLICT OF INTEREST
Consultant covenants that neither they nor any officer or principal of their firm
have any interests, nor shall they acquire any interest, directly or indirectly, which will
conflict in any manner or degree with the performance of their services hereunder.
Consultant further covenants that in the performance of this Agreement, they shall
employ no person having such interest as an officer, employee, agent, or subconsultant.
Consultant further covenants that Consultant has not contracted with nor is performing
any services directly or indirectly, with the developer(s) and/or property owner(s) and/or
firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or
processing an entitlement application for property in the City or its Area of Interest, now
or within the past one (1) year, and further covenants and agrees that Consultant and/or
its subconsultants shall provide no service or enter into any contract with any
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developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public
agency(ies) owning property and/or processing an entitlement application for property in
the City or its Area of Interest, while under contract with the City and for a one (1) year
time period following termination of this Agreement.
18. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such
notices and any other document to be delivered shall be delivered by personal service
or by deposit in the United States mail, certified or registered, return receipt requested,
with postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
To: President
Lee & Associates
5707 Corsa Avenue, Suite 200
Westlake Village, CA 91362
Either party may, from time to time, by written notice to the other, designate a
different address or contact person, which shall be substituted for the one above
specified. Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the third (3rd) day after deposit in the United States
mail.
19. CHANGE IN NAME
Should a change be contemplated in the name or nature of the Consultant's legal
entity, the Consultant shall first notify the City in order that proper steps may be taken to
have the change reflected in the Agreement documents.
20. ASSIGNMENT
Consultant shall not assign this Agreement or any of the rights, duties, or
obligations hereunder. It is understood and acknowledged by the parties that Consultant
is uniquely qualified to perform the services provided for in this Agreement.
21. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force
and effect, all licenses required of it by law for the performance of the services in this
Agreement.
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22. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions, or covenants referred to herein
shall be filed in the applicable court in Ventura County, California. The City and
Consultant understand and agree that the laws of the state of California shall govern the
rights, obligations, duties, and liabilities of the parties to this Agreement and also govern
the interpretation of this Agreement.
23. COST RECOVERY
In the event any action, suit or proceeding is brought for the enforcement of, or
the declaration of any right or obligation pursuant to this Agreement or as a result of any
alleged breach of any provision of this Agreement, the prevailing party shall be entitled
to recover its costs and expenses, including attorneys’ fees, from the losing party, and
any judgment or decree rendered in such a proceeding shall include an award thereof.
24. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto contain the entire
understanding between the parties relating to the obligations of the parties described in
this Agreement. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this Agreement and
shall be of no further force or effect. Each party is entering into this Agreement based
solely upon the representations set forth herein and upon each party’s own independent
investigation of any and all facts such party deems material.
25. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, and Exhibits of
this Agreement are for convenience and identification only and shall not be deemed to
limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof.
26. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by both parties to this Agreement.
27. PRECEDENCE
In the event of conflict, the requirements of the City’s Request for Proposal, if
any, and this Agreement shall take precedence over those contained in the Consultant’s
Proposal.
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28. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is
deemed that this Agreement was prepared by the parties jointly and equally, and shall
not be interpreted against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
29. WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision. No waiver
shall be binding unless executed in writing by the party making the waiver.
30. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of the Consultant
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Consultant and has the authority to bind Consultant to the performance of
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK LEE & ASSOCIATES – LA
NORTH/VENTURA, INC.
__________________________________ __________________________________
Troy Brown, City Manager Mike Tingus, President
Attest:
__________________________________
Ky Spangler, City Clerk
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Lee & Associates – LA North/Ventura, Inc. Page 10 of 15
Exhibit A
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet requirements set forth here, Consultant agrees to amend, supplement, or endorse
the existing coverage to do so. Consultant acknowledges that the insurance coverage
and policy limits set forth in this section constitute the minimum amount of coverage
required. Any insurance proceeds available to the City in excess of the limits and
coverage required in this Agreement and which is applicable to a given loss, will be
available to the City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO)
“Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense
costs must be paid in addition to limits. There shall be no cross liability exclusion for
claims or suits by one insured against another. Limits are subject to review but in no
event less than $1,000,000 per occurrence for all covered losses and no less than
$2,000,000 general aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this
requirement may be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Consultant or Consultant’s employees will use personal autos
in any way on this project, Consultant shall provide evidence of personal auto liability for
each such person.
Workers’ Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designed to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this Agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay
on behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
Agreement.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Coverage shall be provided on a “pay on behalf” basis, with defense costs
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Lee & Associates – LA North/Ventura, Inc. Page 11 of 15
payable in addition to policy limits. Policy shall contain a provision obligating insurer at
the time insured’s liability is determined, not requiring actual payment by the insured
first. There shall be no cross liability exclusion precluding coverage for claims or suits by
one insured against another. Coverage shall be applicable to the City for injury to
employees of Consultant, subconsultants, or others involved in the Work. The scope of
coverage provided is subject to approval by the City following receipt of proof of
insurance as required herein. Limits are subject to review but in no event less than
$2,000,000 aggregate.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A- or better
and a minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and the City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds the City, its officials,
employees, and agents, using standard ISO endorsement CG 2010 and CG
2037 with edition acceptable to the City. Consultant also agrees to require all
contractors and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right
to subrogation prior to a loss. Consultant agrees to waive subrogation rights
against the City regardless of the applicability of any insurance proceeds, and to
require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to
the City or its operation limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include limiting endorsement of any kind that has not been
first submitted to the City and approved in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called “third party action over” claims, including any exclusion for
bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Consultant shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability
or reduction of discovery period) that may affect the City’s protection without the
City’s prior written consent.
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Lee & Associates – LA North/Ventura, Inc. Page 12 of 15
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Consultant’s general liability policy, shall be delivered to city at or
prior to the execution of this Agreement. In the event such proof of any insurance
is not delivered as required, or in the event such insurance is canceled or
reduced at any time and no replacement coverage is provided, the City has the
right, but not the duty, to obtain any insurance it deems necessary to protect its
interests under this or any other Agreement and to pay the premium. Any
premium so paid by the City shall be charged to and promptly paid by Consultant
or deducted from sums due Consultant, at the City’s option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to
the City of any cancellation or reduction of coverage. Consultant agrees to
require its insurer to modify such certificates to delete any exculpatory wording
stating that failure of the insurer to mail written notice of cancellation or reduction
of coverage imposes no obligation, or that any party will “endeavor” (as opposed
to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this Agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply
first and on a primary, non-contributing basis in relation to any other insurance or
self-insurance available to the City.
10. Consultant agrees to ensure that subcontractors, and any other party involved
with the Work who is brought onto or involved in the Work by Consultant, provide
the same minimum insurance required of Consultant. Consultant agrees to
monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subcontractors
and others engaged in the Work will be submitted to the City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, Architect, Engineer, or other
entity or person in any way involved in the performance of Work contemplated by
this Agreement to self-insure its obligations to the City. If Consultant’s existing
coverage includes a deductible or self-insured retention, the deductible or self-
insured retention must be declared to the City. At that time, the City shall review
options with the Consultant, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the Agreement to
change the amounts and types of insurance required by giving the Consultant
ninety (90) days advance written notice of such change. If such change results in
substantial additional cost to the Consultant, the City will negotiate additional
compensation proportional to the increased benefit to the City.
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Lee & Associates – LA North/Ventura, Inc. Page 13 of 15
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the
part of the City to inform Consultant of non-compliance with an insurance
requirement in no way imposes any additional obligations to the City nor does it
waive any rights hereunder in this or any other regard.
15. Consultant will renew the required coverage annually as long as the City, or its
employees or agents face an exposure from operations of any type pursuant to
this Agreement. This obligation applies whether or not the Agreement is canceled
or terminated for any reason. Termination of this obligation is not effective until
the City executes a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has
been ordered shall be submitted prior to expiration. A coverage binder or letter
from Consultant’s insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement as required in these
specifications applicable to the renewing or new coverage must be provided to
the City within five days of the expiration of coverage.
17. The provisions of any Workers’ Compensation or similar act will not limit the
obligations of Consultant under this Agreement. Consultant expressly agrees not
to use any statutory immunity defenses under such laws with respect to the City,
its employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits, or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a
given issue, and is not intended by any party or insured to be limiting or all-
inclusive.
19. These insurance requirements are intended to be separate and distinct from any
other provision in this Agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts or
impairs the provisions of this section.
21. Consultant agrees to be responsible for ensuring that no contract used by any
party involved in any way with the Work reserves the right to charge the City or
Consultant for the cost of additional insurance coverage required by this
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Lee & Associates – LA North/Ventura, Inc. Page 14 of 15
Agreement. Any such provisions are to be deleted with reference to the City. It is
not the intent of the City to reimburse any third party for the cost of complying
with these requirements. There shall be no recourse against the City for payment
of premiums or other amounts with respect thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this Agreement. The
City assumes no obligation or liability by such notice, but has the right (but not
the duty) to monitor the handling of any such claim or claims if they are likely to
involve the City.
163
Lee & Associates – LA North/Ventura, Inc. Page 15 of 15
Exhibit B
CITY OF MOORPARK
Scope of Work Requirement for Professional Services Agreements
Compliance with California Government Code Section 7550
Consultant shall sign and include this page in any document or written reports prepared by
Consultant for the City of Moorpark (City) to which California Government Code Section 7550
(Government Code § 7550) applies. Government Code §7550 reads:
“(a) Any document or written report prepared for or under the direction of a state
or local agency, that is prepared in whole or in part by nonemployees of the
agency, shall contain the numbers and dollar amounts of all contracts and
subcontracts relating to the preparation of the document or written report; if the
total cost for the work performed by nonemployees of the agency exceeds five
thousand dollars ($5,000). The contract and subcontract numbers and dollar
amounts shall be contained in a separate section of the document or written
report.
(b) When multiple documents or written reports are the subject or product of the
contract, the disclosure section may also contain a statement indicating that the
total contract amount represents compensation for multiple documents or written
reports.”
For all Professional Services Agreement with a total dollar value in excess of $5,000, a signed
and completed copy of this form must be attached to all documents or completed reports
submitted to the City pursuant to the Scope of Work.
Does the dollar value of this Professional Services Agreement exceed $5,000?
x Yes No
If yes, then the following information must be provided in compliance with
Government Code § 7550:
1. Dollar amount of Agreement/Contract: $ to be based on lease or sales price
2. Dollar amount of Subcontract: $ ____________
3. Does the total contract amount represent compensation for multiple
documents or written reports? Yes X No
I have read the foregoing Code section and will comply with Government Code §7550.
Lee & Associates – LA North/Ventura, Inc.
__________________________________
______________________
Mike Tingus, President Date
164
EXCLUSIVE RIGHT TO REPRESENT BUYER/LESSEE
FOR PURCHASE OR LEASE OF REAL PROPERTY
(Non-ResidenƟal/Allows forDual Agency)
1.BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 ParƟes: This agencyAgreement ("Agreement"),dated for reference purposes onlyasof May 18,2021 ,ismadebyandbetween CityofMoorpark
("Buyer/Lessee"),whose address is 799 MoorparkAvenue,Moorpark,CA93021 ,telephone number 805.517.6200 ,FaxNo. ,and Lee& Associates LA
North/Ventura,Inc.("Agent"), whose address is 5707 CorsaAve, Ste200, WestlakeVillage,CA 91362 , telephone number 818.223.4388 ,FaxNo.818.591.1450 .
1.2 Requirements: Buyer/Lessee intends to purchase orlease,preferably purchase lease,a propertyhaving the following characterisƟcs:To b e
determined
GenerallocaƟon:City ofMoorpark
Approximatebuilding size:To be Determined
Approximateland size:To be Determined
Other: ("Requirements").
1.3 Term ofAgreement: The termofthis Agreementcommences on May18,2021 ,and, unlessextended, expires at5:00 p.m.on November30, 2021
("Ter m").(See Paragraph 3)
1.4 TransacƟon: Agent shalluse reasonablydiligentefforts to find aproperty which meetsthe Requirements forBuyer/Lessee to purchase orlease (a
"TransacƟon"). However,Buyer/Lessee is under no obligaƟon to consummate any such Transac Ɵon.
2. EXCLUSIVEEMPLOYMENT ANDRIGHTS.
2.1 Buyer/Lessee hereby employs Agent as Buyer/Lessee's soleand exclusive agent to represent Buyer/Lessee in the TransacƟon and to find aproperty
meeƟng the Requirements. Agentshalluse reasonably diligent effortsto findandsubmit properƟes for Buyer/Lessee'sconsideraƟon. AllnegoƟaƟons anddiscussions
for aTransacƟon shall beconducted by Agent on behalfof Buyer/Lessee. Buyer/Lessee shallpromptly discloseand refer to Agent allwriƩen or oralinquiries or
contacts it receives from anysource regarding apossible TransacƟon.
2.2 Buyer/Lessee authorizes Agent to:
(a) Solicit informaƟonon listedandunlisted properƟes ("Property" or"ProperƟes") onBuyer/Lessee'sbehalf;
(b) Submit and obtain responses to requests for proposals from third parƟes;
(c) AtBuyer/Lessee's direcƟon, submit offersanddeposits onBuyer/Lessee's behalf; and
(d) Transmit informaƟon concerning Buyer/Lessee's Requirements to other brokers,owners ofpotenƟallysuitable property,governmental agencies,
municipaliƟes, and to parƟcipants inTHEMULTIPLE ofAIR CRE("MULTIPLE"and"AIR")and/or anyother appropriate localcommercial mulƟplelisƟng service.
Buyer/Lessee shall idenƟfyto Agent as "confidenƟal"anycommunicaƟons or informaƟon provided to Agent that Buyer/Lessee considers confidenƟaland desires not
to be disclosed by Agent. All othercommunicaƟon andinformaƟon provided byBuyer/Lessee maybe disclosedbyAgent asAgent maydeemappropriate or
necessary. In the event Agent acts as a dual Agent,theterms of Paragraph 2.5 shallbeapplicable.
(e) Agent is not,however, authorized to, inany way,bind Buyer/Lessee tobuy orleasea parƟcularproperty.
2.3 Agent shall comply with the Rules ofProfessional Conduct of theAIR,if amember or ifnot,theRules ofProfessional Conduct ofthe Societyof Industrial
andOffice Realtors.
2.4 Agent shall cooperate with parƟcipants in theMULTIPLE and may,at Agent's elecƟon,cooperatewith other Real Estate Brokers (the "CooperaƟng
Brokers"). Ifa CooperaƟng Brokerrepresents theowner ofa property, then Agent shallact asagentfor Buyer/Lesseeonly, theCooperaƟngBroker shallact asAgent
for the propertyowner only,and the CooperaƟng Broker shallnot beBuyer/Lessee's agent. A CooperaƟng Broker shall not be an agent of Buyer/Lesseeor asubagent
ofAgent.
2.5 IF AGENTALREADY HAS,OR SUBSEQUENTLYOBTAINS,WRITTEN CONSENTTO DUAL AGENCYFROM THEOWNER OFAPROPERTY WHICHBECOMES THE
SUBJECTOFATRANSACTION,AGENTSHALLNOTIFYBUYER/LESSEEIN WRITINGOF SUCHDUALAGENCY ANDOF SUCHOWNER'SCONSENT. BUYER/LESSEE AGREESTO
CONSENT IN WRITING TO SUCHDUALAGENCY ATTHE TIMEOF SUCHNOTIFICATION. INSUCH ADUALAGENCY SITUATION ,THE AGENTHASTHE FOLLOWING
AFFIRMATIVEOBLIGATIONS TOBOTH THEOWNERAND BUYER/LESSEE:A) AFIDUCIARY DUTYOFUTMOST CARE,INTEGRITY, HONESTYANDLOYALTY INTHE DEALINGS
WITHBOTH OWNER AND BUYER/LESSEE,ANDB) OTHER DUTIES INCLUDING:
(1) DILIGENT EXERCISEOFREASONABLE SKILLAND CAREINPERFORMANCE OFTHE AGENT'SDUTIES;
(2) A DUTYOF HONEST ANDFAIR DEALING ANDGOOD FAITH;
(3) A DUTYTODISCLOSE ALLFACTS KNOWNTOTHE AGENTMATERIALLY AFFECTINGTHEVALUE ORDESIRABILITY OFTHE PROPERTYTHATARE NOT
KNOWNTO,OR WITHIN THEDILIGENTATTENTION ANDOBSERVATION OF,THE PARTIES.
ANAGENT ISNOT OBLIGATEDTOREVEAL TOEITHER PARTYANY CONFIDENTIAL INFORMATIONOBTAINED FROMTHE OTHERPARTYWHICH DOESNOT INVOLVETHE
AFFIRMATIVEDUTIESSETFORTHABOVE.ASSUCH,THE AGENTMAY NOT,WITHOUTTHE EXPRESSPERMISSION OF THERESPECTIVE PARTY,REVEAL THATOWNER WILL
ACCEPTA PRICE/RENTALRATE THATISLESS THANADVERTISED ORTHAT BUYER/LESSEEWILLPAY AGREATER PRICE/RENTALRATETHAN THEPRICE/RENTAL RATETHAT
ISOFFERED. THE ABOVEDUTIESOF THEAGENT INA DUALAGENCYSITUATION DO NOT RELIEVETHEPARTIES FROMTHERESPONSIBILITYTO PROTECT THEIR OWN
INTERESTS. BUYER/LESSEEAND OWNERSHOULDCAREFULLY READALL AGREEMENTSTO ASSURETHATTHEY ADEQUATELYEXPRESS THEIRUNDERSTANDING OF THE
TRANSACTION. BUYER/LESSEEIS ADVISEDTO CONSULT COMPETENTPROFESSIONALS IF LEGAL,FINANCIALOR TAX ADVICEIS DESIRED.
IHAVE READAND UNDERSTANDTHEPRECEDING PARAGRAPHAND AGREETO CONSENTTOSUCH DUALAGENCY ASDESCRIBEDIN THISPARAGRAPH 2.5.
Buyer/Lessee'sIniƟals
2.6 Buyer/Lessee understands that Agent may also represent lessors/sellers and other buyers/lessees with regard to compeƟng properƟes ofinterest to this
Buyer/Lessee.
3.EXTENSION OF TERM.
3.1 If theTransacƟon includes the purchase ofa property, and itisnot consummated for anyreasonaŌer Buyer/Lessee'soffer to purchase the Property ("Sale
Agreement")is accepted,then theexpiraƟon date ofthe Termof this Agreement shall be extended by the number ofdays between thedate Buyer/Lesseeexecuted
theSale Agreementand thedatethe SaleAgreement isterminated orthedate that Ɵtle to the Property istransferred to Buyer; provided, however,unless otherwise
agreed to in wriƟng,theTermshall not be extended beyond oneyear from thedate theTermwould haveotherwise expired.
3.2 If theTransacƟon isa lease,andit isnot consummated forany reasonaŌer Buyer/Lessee'sofferto leasethe Propertyis accepted("AcceptedOffer to
Lease"),then theexpiraƟon dateofthe Termof this Agreement shallbeextended bythe number ofdays between the dateBuyer/Lesseeexecuted theLease and the
date on which the Accepted Offerto Leaseis terminated or the date Owner is able to giveLessee occupancy of theProperty, whichever generates the longer
extension;provided,however,unless otherwiseagreed to in wriƟng,theTerm shallnot be extended beyond oneyear from the date theTermwould haveotherwise
expired.
4.COMPENSATION.
4.1 Agent shall be enƟtledto bepaida commission inthe amountof Three percent(3%)of thetotal leaseconsideraƟon or salesprice inthe eventa
commissionis notpaid byLessoror Seller.Should acommission bepaidby Lessoror Seller,Buyer/Lesseeshall onlybe responsible forpaying thedifference, ifany.
Exhibit C
SCOPE OF SERVICES
165
in accordance with the commissionschedule aƩachedhereto ("AgreedCommission")if aTransacƟon isconsummated by Buyer/Lessee or byanyone having an
ownership interest in Buyer/Lessee,eg.ashareholder. Said Agreed Commission is payable without regard to whether theTransacƟon is consummated as aresult of
the efforts ofthe Agent,owner, lessor, Buyer/Lessee,or anyother personorenƟty. Agent shallendeavor to have the owner/lessor ofthe property which isthe
subject of theTransacƟon ("Owner")paythe commission owed to Agent for theTransacƟon. Agent mayelect,at Agent's sole discreƟon,to accept Owner's standard
commissionschedule inlieu oftheAgreed Commission. Buyer/Lesseehereby agreestouse itsbest efforts tosupport andassist AgentincollecƟng such brokerage
commission from Owner.
4.2 In the event Owneror Owner'sagentinsists ona commissionamountor commissionterms lessthanor materiallyless favorablethan theAgreed
Commission,Agent shallhave theright,in its sole discreƟon,to refuse acceptance of thereduced amount or less favorable terms. In such event,Buyer/Lessee hereby
agrees to:
(a) Refuse further consideraƟon ofthe subject Propertyfor aperiod ofoneyear aŌer expiraƟon oftheTerm ofthis Agreement;or
(b) Compensate Agent directly for thedifference in the commission amount(and/or indemnify Agentfrom lessfavorable terms)offeredby Ownerand
the Agreed Commission.
5. ALTERNATIVETRANSACTION.Ifthe TransacƟonchanges toanyother transacƟon, including, but not limitedto an exchange, opƟon tobuy, right of first refusal,
ground lease,sublease or assignment oflease (collecƟvely,an "AlternaƟve TransacƟon"),theAgent shall automaƟcally be Buyer/Lessee's soleand exclusive Agent for
suchAlternaƟve TransacƟon and represent Buyer/Lesseein suchAlternaƟve TransacƟon under the termsand condiƟons of thisAgreement. If,during theTermhereof,
an AlternaƟve TransacƟon is consummated,then Agent shallbe enƟtled to acommission fo r theAlternaƟve TransacƟon in accordance with Paragraph 4ofthis
Agreement.
6.EXCLUDEDAND REGISTEREDPROPERTIES.
6.1 Buyer/Lessee shall,within 5business days aŌer the date hereof, provide Agentwith awriƩen listofProperty addresses seƫng forth those ProperƟes
registered with Buyer/Lesseeby anyother broker under any prior agreement ofanykind ("Excluded ProperƟes"). Buyer/Lessee's wriƩen list shall also specify the
typeof transacƟon associated withtheExcluded ProperƟes("Excluded TransacƟon"). Agentmay,within 3business days ofreceiving such wriƩen list,either(a)
accept the Excluded ProperƟes or Excluded Transac Ɵons,(b)cancel this Agreement,or (c)renegoƟate this porƟon oftheAgreement with the Buyer/Lessee. Once
acceptedby Agent,the wriƩenlistshall automaƟcallybecome anexhibit tothisAgreement andaƩached hereto. If Buyer/Lessee Ɵmely provides Agentwith a
completelist ofthe Excluded ProperƟes and acomplete list of theExcluded Transac Ɵons and Agent accepts such wriƩen list pursuant to this Paragraph 6.1(a),then
Agentshall notbe enƟtledtoa commissionwith respectto the consummaƟon of anExcluded TransacƟon. If thespecified informaƟonconcerning Excluded ProperƟes
and Transac Ɵons is not provided as set forth herein then it shallbeconclusively deemed that there areno Excluded ProperƟes or Excluded Transac Ɵons.
6.2 Within 5business days aŌer theexpiraƟonof theTerm, Agentshallprovide Buyer/Lesseewith awriƩenlist ofthe ProperƟesAgent eitherdirectly,or
through another broker,negoƟated on Buyer/Lessee's behalf during the Termhereof ("Registered Property LisƟng"). The Registered PropertyLisƟng shallspecify the
nature of eachconsummated ornonconsummated TransacƟon. Those ProperƟes which Buyer/LesseeorAgent, during the Termhereof, submiƩed wriƩenoffers,
requests for proposals or leƩers ofintent on behalf ofBuyer/Lessee shallautomaƟcally be deemed,without further acƟon by Agent,apart ofthe Registered Property
LisƟng. Agent'sfailure to ƟmelynoƟfy Buyer/Lessee of the existence ofanyother ProperƟesshall meanthatsuch otherProperƟes shallnotbe included in the
Registered ProperƟes LisƟng.
6.3 If, within180 daysaŌer the expiraƟonof theTerm, Buyer/Lesseeentersinto acontract foraProperty specified on the Registered Property LisƟng,then
Agent shall,upon consummaƟon ofsuch transacƟon,be enƟtled to a commission for such transacƟon in accordance with Paragraph 4ofthis Agreement.
6.4 If, within180 daysaŌer the expiraƟon of theTerm, Buyer/Lesseeentersinto another agreement, whether ornot exclusive, with abroker otherthan Agent
for aTransacƟon or an AlternaƟve TransacƟon concerning Property specified on theRegistered Property LisƟng,then Buyer/Lessee shall provide to Buyer/Lessee's
new broker the addresses ofthe ProperƟes specifiedon the Registered PropertyLisƟng,and specify,in wriƟng, thatthe new broker shall not be enƟtledto receiveany
compensaƟon payable to Agent hereunder for the consummaƟon of anyTransacƟon or AlternaƟve TransacƟon specified in theRegistered Property LisƟng.
6.5 If Buyer/Lesseeis involvedin acƟve good faith negoƟaƟons or maintainsconƟnued interest inany Property specifiedin theRegistered PropertyLisƟng
beyond the Ɵmeperiods provided in this Paragraph 6,then the Ɵmeperiods set forth herein shallbeautomaƟcally extended so long as negoƟaƟons or interest
conƟnues. IfBuyer/Lessee noƟfiestheAgent inwriƟng andin good faiththat suchnegoƟaƟons orinterestis terminated, then suchnoƟceshall terminatethe
extension of the Ɵme period.
7.BUYER/LESSEE'SREPRESENTATIONS.Buyer/Lesseerepresents and warrants that:
(a) Each personexecuƟng thisAgreementon behalf of Buyer/Lessee has the full right, powerand authority to execute this Agreement onbehalf of
Buyer/Lessee;and
(b) Buyer/Lesseehas neitherbeen deemednoris itthe subject ofan actual or pending bankruptcy, insolvency, probate or conservatorship proceeding.
8.BUYER/LESSEE'SACKNOWLEDGEMENTS.Except to theextent arising fromAgent's gross negligence or willful misconduct,or Agent's failure to discloseor
perform its obligaƟons under applicable law,Agent shall not beliable toBuyer/Lesseefor any(a) claimsforpersonal injury, property damage,orloss invalue ofthe
Propertyarising from or related to the physical condiƟon ofthe Property,including,without limitaƟon,any soils,structural,or design problems; (b)claims or acƟon
arisingfrom ordue toanyinaccuracy ininformaƟon knownor unknown bythe selleror lessorofthe Property,or furnished orunfurnished bysaid selleror lessor;(c)
agreement entered into by Buyer/Lessee with respect to the Property and/or addenda thereto; (d) dispute or acƟon concerning or arising from Buyer/Lessee's
decision to consummate or not consummate a TransacƟon or AlternaƟve TransacƟon; (e)claims,disputes oracƟons orservicesincluding, but not limited to,the
inspecƟon,financing,purchase or leaseofthe Property;and (f)any responsibility for the compleƟon of repairs to the Property,including but not limited to,structural
pestcontrol work. Buyer/Lessee acknowledges that Buyer/Lessee has been advised byAgentto consult and retain experts to advise and represent itconcerning the
legal,financial and tax effects ofthis Agreement and theeffect ofconsummaƟng aTransacƟon or AlternaƟve TransacƟon,as wellas thecondiƟon of theProperty
and/or the legalityof the Propertyuses, including, but not limited to,the Property's improvements,equipment, soil,tenancies,Ɵtle and environmental aspects.
Agent shall have no obligaƟon to invesƟgate any such maƩers unless expressly otherwiseagreed to in wriƟng byBuyer/Lessee and Agent. Buyer/Lesseefurther
acknowledges that indetermining the financial soundness ofany prospecƟve Property, TransacƟonorAlternaƟve TransacƟon, Buyer/Lessee willrelysolely upon
Buyer/Lessee's own invesƟgaƟon,notwithstanding Agent's assistance in gathering such informaƟon.
9. MISCELLANEOUS.
9.1 This Agreement shall not be construed for or against Buyer/Lessee or Agent,but shallbe interpreted,construed and enforced in accordance with the
mutualintent ofthe parƟesascertainable from thelanguage ofthis Agreement. Signatures to this Agreementaccomplished by meansof electronic signature or
similar technology shallbe legaland binding.
9.2 All paymentsby Buyer/Lesseeto Agentshall be madein lawful United States currency. IfBuyer/Lesseefails topay toAgent anyamountwhen due under
this Agreement,then such amount shallbear interest at therate of15%per annum or themaximumrate allowed by law,whichever is less.
9.3 In the event ofliƟgaƟon orarbitraƟon between Buyer/Lessee and Agentarising under orrelaƟng tothisAgreement orthe Property,the prevailing party
shallbe paid its aƩorneys'fees and costs by the losing party. The term,"Prevailing Party"shallinclude,without limitaƟon,one who substanƟally obtains or defeats
the relief sought,as thecasemay be,whether bycompromise, seƩlement,judgment,or theabandonment bytheother partyof itsclaimor defense. TheaƩorneys'
fees awarded shallnot be computed in accordance with anycourt feeschedule,but shallbe in an amount to fully reimburse allreasonably incurred aƩorneys'fees.
9.4 In the event ofa sublease, allterms relaƟng to lesseeshall be deemed to include sublessee and allterms relaƟng to lessorshallbe deemed to include
sublessor and shallalso includemaster lessor.
9.5 Except asmay becaused byAgent'sgrossly negligentacts oromissions,Agent shallnot beliablefor anyloss, damage,or injury to the person or propertyof
Buyer/Lessee or Buyer/Lessee's employees or business partners during the Agent's transportaƟon ofsuch individuals to any propertyor to anymeeƟng or whileAgent
isshowing anyproperty orsitewhatsoever.
9.6 Buyer/Lessee agrees that no lawsuit or other legal proceeding involving anybreach of duty,error or omission relaƟng to the services to beperformed by
Agentpursuant tothis Agreementmaybe brought against Agentmore than oneyear aŌerthe expiraƟonofthe Termof thisAgreement(see paragraph1.3) andthat
the liability (including court costs and aƩorney's fees)of Agent with respect to any such lawsuit and/or legalproceeding shallnot exceed anyfee received by Agent
pursuantto thisAgreement; provided, however, that theforegoing limitaƟonon liabilityshallnot beapplicable toanygross negligenceor willfulmisconduct of Agent.
10.ARBITRATION OF DISPUTES.
10.1 ANY CONTROVERSYARISINGUNDER ORRELATING TOTHISAGREEMENT SHALLBE DETERMINEDBYBINDING ARBITRATIONTO BECONDUCTEDBY: THE
AMERICANARBITRATION ASSOCIATIONOR USINGTHE COMMERCIALRULES ESTABLISHEDBYSUCH ORGANIZATIONOR IFNONETHE AMERICAN
ARBITRATIONASSOCIATION'S COMMERCIALRULES. ARBITRATIONHEARINGS SHALLBE HELDIN THECOUNTYWHERE THEPROPERTY ISLOCATED. THEARBITRATORS
SHALLHEAR ANDDETERMINE SAIDCONTROVERSYIN ACCORDANCEWITH APPLICABLELAW ANDTHEINTENTION OF THE PARTIESASEXPRESSED INTHIS AGREEMENT,
ANDANY AMENDMENTS THERETO. PREARBITRATIONDISCOVERY SHALLBE PERMITTEDAS ISAUTHORIZEDUNDER THECOMMERCIAL RULESORSTATE LAW
APPLICABLETO ARBITRATIONPROCEEDINGS. JUDGMENTMAYBEENTEREDONTHEAWARDINANYCOURTOF COMPETENTJURISDICTIONNOTWITHSTANDING THE
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FAILURE O F APARTY DULYNOTIFIEDOF THEARBITRATION HEARING TO APPEAR.
10.2 NOTICE: BYINITIALINGIN THESPACE BELOW,YOUARE AGREEINGTO HAVEANYDISPUTE ARISINGOUT OFTHEMATTERS INCLUDEDIN THE"ARBITRATION
OF DISPUTES"PROVISIONDECIDED BYNEUTRALARBITRATION ASPROVIDED BYCALIFORNIA LAW. YOU AREGIVING UPRIGHTSYOU MIGHTPOSSESS TO HAVETHE
DISPUTERESOLVED INA COURTOFLAW. BY INITIALINGIN THESPACEBELOW, YOUARE GIVINGUPJUDICIAL RIGHTSTO DISCOVERYANDAPPEAL, UNLESSTHOSE
RIGHTSARE SPECIFICALLYINCLUDED INTHE"ARBITRATION OF DISPUTES"PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATIONAFTER AGREEING TO THIS
PROVISION,YOU MAYBE COMPELLEDTOARBITRATE UNDERTHE AUTHORITYOF THECALIFORNIACODE OFCIVIL PROCEDURE. YOUR AGREEMENTTO THIS
ARBITRATIONPROVISION ISVOLUNTARY.
10.3 WE HAVEREADAND UNDERSTANDTHE FOREGOINGANDAGREE TOSUBMIT DISPUTESARISINGOUT OFTHE MATTERSINCLUDEDIN THE"ARBITRATION OF
DISPUTES"PROVISION TO NEUTRAL ARBITRATION.
Buyer/Lessee's IniƟals Agent's IniƟals
10.4 THE PROVISIONSOF THE ABOVEARBITRATION CLAUSESHALLNOT BEBINDING ONEITHER PARTY UNLESSBOTH PARTIES HAVEPLACED THEIR INITIALS
UNDERPARAGRAPH 10.3.
11.AddiƟonal Provisions:AddiƟonal provisions regarding this Agreement may beset forth on the following blank lines or in an addendum (ifthereare no addiƟonal
provisions, write "NONE",if anaddendum is aƩached, check thisbox ):
12. Disclosures RegardingThe Natureofa RealEstate AgencyRelaƟonship.Whenentering intoan agreementwitha realestate agentaBuyer/Lessee shouldfrom
the outset understand what typeofagency relaƟonshipor representaƟon it has with the agent or agents in the transacƟon.
(i)Buyer/Lessee'sAgent. A Buyer/Lessee's agent mayactas anagent fortheBuyer/Lessee only. ABuyer/Lessee's agent orsubagent has the following
affirmaƟve obligaƟons: To theBuyer/Lessee: A fiduciary duty of utmost care,integrity,honesty,and loyaltyin dealings. To apotenƟalseller/lessor and the
Buyer/Lessee: a.Diligent exerciseofreasonable skillsand carein performanceofthe agent'sduƟes. b.A duty of honest and fair dealing and goodfaith. c.A duty to
discloseall facts known to theagent materiallyaffecƟng thevalue or desirability of the property that arenot known to,or within the diligent aƩenƟon and
observaƟonof, theParƟes. Anagent isnot obligated to reveal to either Party any confidenƟalinformaƟonobtained from the otherPartywhich doesnot involvethe
affirmaƟve duƟes set forth above.
(ii)AgentRepresenƟng Both ParƟes. Areal estateagent,either acƟng directly orthrough one ormore associatelicenses,can legallybe theagent ofboth
ParƟes in atransacƟon,but onlywith theknowledge and consent oftheParƟes. In adual agency situaƟon,the agent has the following affirmaƟve obligaƟons to both
ParƟes:a. A fiduciary duty ofutmost care, integrity, honesty and loyaltyin the dealings with eitherParty. b. Other duƟes tothe Buyer/Lesseeas statedabove in
subparagraph (i). When represenƟng both ParƟes,an agent may not without theexpress permission ofthe respecƟve Party,disclose to the other Party that the
Buyer/Lessee will acceptrent/purchase priceinan amountless than that indicated inthe lisƟngor thatthebuyer/lessee iswilling topaya higherrent/purchase price
than that offered.
The above duƟesof theAgentdo notrelieve Buyer/Lesseefrom theresponsibility to protectits owninterests. Buyer/Lesseeshould carefully readall agreementsto
assure that theyadequately express its understanding ofthe transacƟon.
BUYER/LESSEE
Date:
CityofMoorpark
By:
NamePrinted:
Title:
AGENT
Date:
Lee& Associates LANorth/Ventura,Inc.
By:
NamePrinted:Mike Tingus/ Grant Fulkerson,SIOR
Title:President/Principal
BrokerDRE License#:01191898
Agent DRE License#:01013724/ 01483890
Address:5707Corsa Ave,Ste 200,WestlakeVillage, CA91362
Phone:818.223.4388
Fax:818.591.1450
Email:mƟngus@leere.com/gfulkerson@leere.com
AIRCRE * hƩps://www.aircre.com * 2136878777 * contracts@aircre.com
NOTICE:Nopart of theseworks may be reproduced in any form without permission in wriƟng.
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