Ormond Beach Brokerage Commission Program Non-Exclusive Open Listing Agreement This agreement is made and entered into this day of, 20 by and between the CITY OF ORMOND BEACH, Florida, a body corporate and politic and a subdivision of the State of Florida, located at 22 South Beach Street, Ormond Beach, Florida 32174 ( City ) and a licensed Florida Real Estate Broker ( Broker ) located at. Whereas, the City owns several lots at the Ormond Beach Airport Business Park and parcels at the southwest quadrant area of the Ormond Beach Airport in Ormond Beach, Florida, (the Property ) as depicted on Exhibit 1 and, Whereas, it is in the best interests of the City to market and sell the Property for the established price, as calculated and pursuant to economic development goals and objectives to retain, expand and attract targeted industrial businesses to the City of Ormond Beach as indicated in Exhibit 2. This program shall be advertised in a local newspaper for two (2) consecutive weeks; and Whereas, it is in the best interest of the City to retain the services of experienced and knowledgeable real estate brokers to market and assist in the sale of the Property to maximize the number full-time, high wage jobs, to the City resulting in the development of the Property: and Whereas, the Broker is a licensed, experienced and knowledgeable real estate broker and desires to market the property under the terms and conditions of this Agreement. Now therefore, in consideration of the promises and premises set forth herein, and for other good and valuable consideration, the City and the Broker agree as follows: 1. Listing Term: The City agrees to list the property with the Broker on a nonexclusive basis for a period of one year from the date hereof (the Listing Term ). The Listing Term may be extended for up to three additional one year terms by written consent of both parties prior to the expiration of the then current term. 2. Registration of Clients: Any and all potential purchasers of the Property to whom the Broker intends to market the Property shall be registered with the City (a Registered Client ), which registration shall include the client s name, and the signature of the authorized representative, and shall be in the form attached hereto as Exhibit 3. Broker agrees to provide the City with a copy of the State of Florida Brokerage Relationship Disclosure Notice signed by the Registered Client. Page 1 of 5
3. Commission: The City agrees to pay the Broker a commission of five percent (5%) of the gross sales price. Said commission is payable after the sale has been consummated and the title transferred to the Broker s Registered Client. 4. Non-exclusive: The City retains the right to lease or sell the Property directly on its own behalf with no sales commission to the Broker, so long as the Broker did not find the purchaser. The City further has the right to list the property with other brokers, in the City s sole discretion. If a sale is made within three (3) months after this Agreement terminates to parties found by the Broker during the term of this Agreement, and wherein such buyer has been disclosed in writing to the City prior to the termination of the Listing Term, the City shall pay the commission specified above. Further detail is described in Exhibit 4, Contract for Sale and Purchase. 5. Forfeit of Deposit: If a deposit of money is forfeited by a registered purchaser produced by Broker, one half of the deposit shall be retained by the Broker, providing that this amount does not exceed the commission, and one half shall be paid to the City. Determination of forfeiture shall be in the sole discretion of the City, and in the event the City elects to return the deposit, the Broker shall have no claim whatsoever for any part of such deposit. 6. As Is Condition of Property: Broker understands and agrees that the Property shall be sold in as is condition with no representations or warranties other than typical for an open market transaction. Broker further covenants and agrees that it will indemnify and hold the City harmless from any misrepresentations made by Broker, or its officers, agents, or employees. 7. Miscellaneous Provisions: a) Recitals: The Recitals set forth in this Agreement are hereby ratified and confirmed, and shall be deemed a material part of the Agreement. b) Termination for Convenience: This Agreement may be terminated for convenience by action of the City upon not less than thirty (30) days written notice to Broker. c) No Third Party Beneficiaries: Nothing in this Agreement shall inure to the benefit of any third party for the purpose of allowing any claim against the City which would otherwise be barred under the Doctrine of Sovereign immunity or by operation of law. d) Notice: All notice required under this Agreement shall be in writing and shall be sent by certified United States Mail or national parcel service, postage prepaid, return receipt requested, or by hand-delivery with a written receipt of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the Broker Page 2 of 5
designates the address set forth in the first paragraph of this agreement and the City designates the following: Director Ormond Beach Economic Development 22 S. Beach Street Phone: 386-676-3266 Fax: 386-676-3330 with copies to: City Manager 22 S. Beach St. and: City Attorney 173 S. Beach St. Any changes in address shall be provided in accordance with this notice provision. e) Governing Law: This agreement shall be governed by the laws of the State of Florida and the Code of Ordinances of the, Florida. f) Venue and Jurisdiction: All legal proceedings brought in connection with this agreement may only be brought in a state court located in the State of Florida unless the cause of action is only cognizable in federal court. Venue in state court shall be exclusively in Volusia City, Florida. Venue in a federal court shall be exclusively in the United States District Court, Middle District of Florida, Orlando Division. Each party hereby agrees to submit to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under or in connection with this Agreement. g) Attorneys Fees and Costs: Each party shall pay its own costs and attorney s fees relating to any dispute, mediation or litigation arising out of this Agreement. h) Waiver: Failure by either party or both parties to enforce any provision of the Agreement shall not be deemed a waiver of such provision or modification of the agreement. A waiver of any breach of a provision of this Agreement shall not be Page 3 of 5
deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of the Agreement. i) Amendment: No modification, amendment, change order, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same formality as this Agreement and executed by a duly authorized official of each party. Page 4 of 5
Ormond Beach Airport Business Park Non-exclusive Open Listing Agreement In witness whereof: The City and the Broker have executed this Agreement as of the date and year set forth above. City Commission By: Fredrick Costello, Ormond Beach Mayor Attest: Joyce A. Shanahan, City Manager (Seal) Broker By: Name: Title: (Seal) Page 5 of 5