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HomeMy WebLinkAboutContract 47899 CITY SECRETAW miiL CONTRACT M0. REAL ESTATE LISTING AGREEMENT (Residential) This Residential Real Estate Listing Agreement("Agreement") is entered into as of June 22, 2016 between City of Fort Worth,a Texas municipal corporation of 1000 Throckmorton St., Fort Worth, Texas 76102 ("City") and Sherley Spears D/B/A Spears Real Estate Group of 6731 Bridge Street, Suite 59, Fort Worth, Texas 76112-0817 ("Broker"). WHEREAS, the City owns the property located at Lot 11, Block 5, Greenway Place Addition, City of Fort Worth, Tarrant County, Texas, known as 1800 Greenfield Avenue, Fort Worth, Texas 76102 ("Property"); and WHEREAS, pursuant to Texas Local Government Code Section 253.014, the City desires to contract with Broker to sell the Property under the term and conditions set forth herein. For and in consideration of services to be performed by Broker, City, by this agreement, designates Broker as City's sole and exclusive real estate agent to sell the Property, subject to the following terms and conditions. Section I. Obligations of Broker Broker will undertake to find a buyer for the Property. Broker will (1) include the Property with the other listings maintained by her on the multiple listing service for a minimum of thirty (30) days, regardless of any offers received within the thirty (30) day period, (2) place a suitable sign on the premises, (3) notify City promptly of prospective buyers, (4) show the Property to prospective buyers not through a scheduling company, but through appointments scheduled directly with Broker's office, and (5) show the Property to prospective buyers including interested prospective buyers who Broker represents. Prior to allowing any person in and on the Property or disclosing the code to the key box, Broker will obtain an executed waiver of liability in the form attached hereto as Exhibit "A". Broker will pursue these duties and obligations with diligence. Section II. Broker's Commission Broker will receive a commission of 6% of the selling price if City actually sells the Property to a purchaser procured by Broker or by any other real estate agent during the term of this listing, even if closing occurs up to ninety (90) days after the term of this Agreement. Broker's commission is payable upon closing. Broker acknowledges that City is statutorily required to accept the highest cash offer for the Property, subject to the approval of City's City Council, which may take approximately 8-12 weeks to be considered. City understands that procurement of a ready, willing, and able buyer by Broker will entitle Broker to the commission specified in this agreement even if City fails to convey for any reason. The parties to this agreement understand and acknowledge that real estate commissions are negotiable and they affirm that the commission specified above is a negotiated rate. OFFICIAL RECORD CITY SECRETARY Page 1 of 6 FT. WORTH, TX Section III. Listing (a) Broker will file this listing with one or more Multiple Listing Services (MLS) within five (5) days after the Effective Date this Agreement. (b) The listing shall contain the following information for prospective buyers: (1) The City is a governmental entity and offers are subject to City Council approval; (2) The Property is sold as-is and a seller's disclosure will not be provided; and (3) Only cash offers will be considered. (c) This listing is and will be considered by the parties to be an exclusive listing, and Broker's right to a commission will arise on the sale of the Property to a buyer who is procured by any real estate agent, but will not accrue if the buyer is procured by City. Section IV. Term of Listing This Agreement shall have a term("Term") commencing on June 22, 2016 ("Effective Date"), and expiring on June 22, 2017. Section V. Miscellaneous (a) Termination. Either party may terminate this Agreement at any time, with or without cause, by providing the other party with thirty (30) days' written notice of termination (b) Agreement Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. (c) Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. (d) Force Maieure. If either party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections;riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. (e) Fiscal Funding Limitation. In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments due under this contract,then the City will immediately notify Broker of such occurrence and this contract shall be terminated on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except to the portions of payments herein agreed upon for which funds shall have been appropriated. Page 2 of 6 (f) Right to Audit. Broker agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the Broker involving transactions relating to this Agreement. Broker agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Broker reasonable advance notice of intended audits. Broker further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor, involving transactions to the subcontract, and further,that City shall have access during normal working hours to all subcontractor facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article. City shall give subcontractor reasonable advance notice of intended audits. (g) Independent Agreement. Broker shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. Broker shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between the City and Broker, its officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between the City and Broker. (h) No Third-party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and Broker, and any lawful assign or successor of Broker, and are not intended to create any rights, contractual or otherwise, to any other person or entity. (i) Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 0) Applicable Law. This Agreement shall be construed under and in accordance with Texas law. (k) Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: Page 3 of 6 City: City of Fort Worth Department of Neighborhood Services Attn: Aubrey Thagard, Director 1000 Throckmorton Street Fort Worth, Texas 76102 With a copy to: City Attorney Same Address Broker: (1) Paragraph Headings. The paragraph headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. (m) Assignment and Successors. Broker shall not assign or subcontract all or any part of its rights, privileges, or duties under this Agreement without the prior written consent of City. Any attempted assignment of subcontract without the City's prior written approval shall be void and constitute a breach of this Agreement. (n) Compliance with Laws, Ordinances, Rules and Regulations. Broker, its officers, agents, servants, employees, and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances,rules and regulations of City. It is agreed and understood that, if City calls to the attention of Broker any such violation on the part of Broker or any of its officers, agents, servants, employees, or subcontractors,then Broker shall immediately desist from and correct such violation. (o) Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. (p) Liability and Indemnification. BROKER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF BROKER, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. Page 4 of 6 BROKER AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LA WSUITS,ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCL UDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY(INCLUDING DEATH) THAT MAYRELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I) BROKER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF BROKER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANYLIABILITYRESUL TING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH BROKER AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED ASA WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LA WS OF TEXAS. This section shall survive the expiration or termination of this Agreement. (q) Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. (r) Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. (s) Signature Authority. The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. (t) Entire Agreement. This written instrument(together with any attachments, exhibits,and appendices) constitutes the entire understanding between the parties concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. (u) Governmental Powers. Both parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. (v) Non-Waiver. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's or Broker's right to assert or rely on any such term or right on any future occasion. Page 5 of 6 (w) Dlsclosur a of Conflicts. Broker hereby warrants to the City that Broker has made full disclosure in writing of any existing or potential conflicts of interest related to Broker's provision of the Services. In the event that any conflicts of interest arise after the execution of this Agreement, Broker hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict. BROKER Sh"4& By Na k3 Title: —Ck, CITY City of Fort Worth By: � Name: Fernando Costa Title: Assistant City Mv,^-ae -2 f APPROVED AS TO FORM AND LEGALITY ) 0 rl�-�1� Assistant City Porn Suti5s �7 M&C: N/A 1295: N/A ATTEST FORS. Mary'J. ay , S etary7� NO M&C REQUIRED OFFICIAL RECORD Page 6 of 6 CITY SECRETARY FT. WORTH, TX EXHIBIT "A" WAIVER AND RELEASE , an individual, does hereby FOREVER RELEASE AND WAIVE all claims against the City of Fort Worth, as well as its officers, agents and employees (collectively, the "City"), for injuries, death or property damage which may arise from the undersigned's entry into 1800 Greenfield Avenue, Fort Worth, TX (hereinafter, the "Property"). This waiver and release is intended to release and forever discharge the City from any and all claims, actions, causes of action, damages, losses or expenses, including attorney's fees, whether real or asserted, of every kind or character, arising out of the undersigned's entry onto the Property. The Release and Waiver is given in exchange for permission to enter onto the Property. The undersigned hereby assumes the risk of all dangerous conditions or occurrences that may be encountered during said entry and waives any and all specific notice of the existence of such conditions or occurrences. This waiver is intended to release the City even if said injuries, death or other damages are caused in whole or in part by the alleged acts of commission, omission, negligence or fault of the City. The undersigned hereby assumes all responsibility and liability for such injuries or damages, including death, and hereby covenants not to sue the entities and parties names above for such injuries or damages. The undersigned has read this Waiver and Release and fully understands its terms, provisions and conditions. The undersigned has not been influenced to any extent whatsoever by any representations or statements not contained within this agreement. Dated this day of , 2016. By: Printed Name: