Broker Agreement

Sample Broker Agreement

1.     Term:

In consideration for [Name of Broker] (Broker) listing of the real property (Property) hereinafter described and Broker’s agreement to use its best efforts to effect a lease of the Property, the undersigned Lessor (Lessor) hereby grants to Broker the exclusive right to negotiate the lease of the Property for the period commencing at 12:00 a.m. on June 1, 2011 and ending at 12:00 p.m. on May 31, 2012.  If Lessor enters into a letter of intent, agreement in principle, option or similar contract concerning a lease of the Property during the time period identified above, Broker’s exclusive right to negotiate the lease of the Property is automatically extended by the number of days that the letter of intent, agreement in principle, option or similar contract is in effect. The period of Broker’s exclusive right to negotiate the lease and/or sale of the Property, including extensions thereof, is hereinafter referred to as “the Exclusive Period.”  Upon the expiration date, and providing the contract has not been previously cancelled, this exclusive listing shall continue on a month to month basis, and may thereafter be cancelled by either party upon thirty (30) days written notice to the other party.

2.     Lease Rates And Terms:

The rental rate(s) and term(s) in the lease(s) shall be not less than Lessor may accept.

3.     Property:

The real property is situated in the City of [City], [County], State of California, and is located at [Street Address].  The real property is further described as follows: [Description of Property].

4.     Lessor’s Obligations/Authorizations:

Lessor agrees to cooperate with Broker in leasing and/or selling the Property during the life of this Agreement. During the Exclusive Period, Lessor shall immediately refer to Broker all inquiries of any person or entity interested in the Property and Lessor shall conduct all negotiations through Broker. Without limiting Broker’s actions hereunder, during the term of this Agreement, Broker is authorized to (i) accept a deposit from any prospective tenant, and (ii) advertise the Property and place a sign or signs on the Property.

5.     Dual Agency:

Lessor agrees that Broker may be the agent of both Lessor and any prospective lessees.  In a dual agency situation Broker has a fiduciary duty of utmost care, honesty and loyalty in the dealings with each party.  In representing both parties, Broker will not without the permission of the respective party, disclose to the other party that the party will accept a price or terms less than the listing price and terms or that the other party will accept a price or terms greater than the price and term offered.

6.     Agreement To Pay Commission:

Lessor agrees to pay Broker a leasing commission (Commission) in accordance with Broker’s Schedule of Lease Commissions specified in paragraph 12. Lessor agrees that the Commission will be paid to Broker for services rendered during the Exclusive Period if, prior to the expiration of the Exclusive Period:  (a) The Property is leased, whether by or through Broker, Lessor or anyone else or (b) An offer to lease the Property is submitted directly or indirectly to Lessor by an offeror who is ready, willing and able to lease the Property on terms agreeable to Lessor whether said offeror is procured by or through Broker, Lessor or anyone else.

7.     Payments Upon Expiration Or Termination:

Lessor also agrees that the above commission will be paid to Broker for services rendered during the Exclusive Period if, within 180 days after the expiration of the Exclusive Period the Property is leased and/or sold whether by or through Broker, Lessor or anyone else due to negotiations commenced with any person or entity with whom Broker negotiated or to whom Broker submitted the Property during the Exclusive Period. For purposes of this paragraph, Broker is conclusively presumed to have negotiated with or submitted the Property to any person or entity who (i) submitted an offer to lease the Property during the Exclusive Period or (ii) whose name appears on a list delivered to Lessor by Broker within ten business days immediately following the expiration of the Exclusive Period.

8.     Interest On Payments:

Any amounts due and unpaid hereunder shall bear interest at the rate of 8% per annum, simple interest, or at the maximum amount then allowed by law, whichever is lower.

9.     Brokers Disclaimer:

Lessor acknowledges that Broker has not made an independent investigation or determination of the physical or environmental condition or adequacy of the Property, including, but not limited to, the size or value of the Property, the existence or nonexistence of any underground tanks, sumps, piping, toxic or hazardous substances on the Property. Lessor agrees that it will rely solely upon its own investigation and/or the investigation of professionals retained by Lessor, at Lessor’s sole expense, and Lessor shall not rely upon Broker to determine the physical and environmental condition of the Property and to determine whether, to what extent or in what manner, such condition must be disclosed to potential tenants, purchasers or other interested parties.

10.  Lessor’s Release And Indemnification:

Lessor releases Broker of and from any and all losses, claims, causes of action, liabilities and damages arising out of or connected with the physical or environmental condition, size or value of the Property, conditions of title, zoning, accuracy or completeness of reports or permitted uses. Lessor shall defend, indemnify, and hold Broker harmless from and against any and all losses, claims, causes of action, liabilities and damages (including, but not limited to, reasonable attorney’s fees and costs), arising out or in connection with information about the Property which is supplied by Lessor or Lessor’s agents or representatives or any material fact about the Property which is known by Lessor or Lessor’s agents or representatives and which Lessor fails to disclose to Broker or prospective tenants or purchasers.

11.  Non-Discrimination:

It is understood that it is illegal for either Lessor or Broker to refuse to display, lease or sell the property to any person because of race, color, religion, national origin, sex, sexual orientation, marital status or disability.

12.  Commission Schedule:

[Option 1 - Comissions Based on % of Rent][Commissions payable shall be paid upon the calculation from the “Full Service or NNN Schedules” of the effective monthly rental over the term of the lease multiplied by the commission percentage for the appropriate period.  The “Effective Monthly Rental” (“EMR”) is defined as the total amount payable over the term of the lease divided by the number of months in the total term of the lease.  Fixed rental increases during the term of the lease and any extensions, and any other increases that are reasonably determinable, shall be included in the calculations.

Gross/NNN Schedule:

Procuring Broker: 5% of the EMR through the first 60 months of the Lease term; plus 2% of the EMR for all remaining months.

Listing Broker: 3% of the EMR through the first 36 months of the Lease term; plus 2.5% of the EMR for months 37 through 60; plus 1.5% of the EMR for all remaining months.

Additional Space: In the event the Lessee occupies additional space in the Subject Property, a commission shall be paid in accordance with the above Schedule adjusted upward at the time such additional space is taken.

The Lease Commission due hereunder shall be paid ½ upon execution of a Lease or other agreement by Lessor (or a duly authorized agent of Lessor) and the Lessee, and ½ upon Lease commencement.]

[Option 2][Commission Based on $/sqft Temporary Omitted]

13.  Entire Agreement:

No amendment, alteration, modification or termination of this Agreement shall be valid or binding unless made in writing and signed by both Lessor and Broker.

14.  Attorney’s Fees:

Except in the case of arbitration, as provided below, if any party files any action or brings any proceedings against the other arising out of this Agreement or arising out of any transaction resulting from this Agreement, or to enforce an arbitration award, then the prevailing party shall be entitled to recover as an element of its cost of suit, and not as damages, reasonable attorney’s fees in addition to any other relief to which it is entitled. This Agreement shall be governed by the laws of the State of California, without giving effect to the conflict of law principles thereof.

15.  Requirement To Arbitrate:

Any dispute or claim in law or equity arising out of this Agreement or any transaction resulting from this Agreement shall be decided by neutral binding arbitration in accordance with the California Code of Civil Procedure, Part III, Title 9. A judgment may be entered on the arbitrator’s award in any court with jurisdiction to enforce the arbitrator’s award. The parties shall have the right to discovery pursuant to California Code of Civil Procedure, Section 1283.05. If the parties cannot agree on the selection of an arbitrator, the Presiding Judge of the Superior Court having jurisdiction to enforce the arbitrator’s award shall select the arbitrator. The arbitrator’s fee shall either be paid by the losing party or the losing party shall reimburse the prevailing party for its portion of the arbitrator’s fee. Notwithstanding the foregoing, each party shall bear its own costs relating to counsel or attorney’s fees.

notice: by initialing in the space below you are agreeing to have any dispute arising out of the matters included in the “requirement to arbitrate” provision decided by neutral binding arbitration as provided by california law and you are giving up any rights you might possess to have the dispute litigated in a court or jury trial. by initialing in the space below, you are giving up your judicial rights to discovery and appeal unless such rights are specifically preserved in the “requirement to arbitrate” provision. if you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate pursuant to the provisions of the california code of civil procedure. your agreement to arbitrate is voluntary.

we have read and understand the foregoing and agree to submit disputes arising out of the matters included in the “requirement to arbitrate” provision to neutral binding arbitration.

initials  _________            initials  _________

The undersigned Lessor hereby acknowledges receipt of a copy of this Exclusive Authorization to Lease Agreement and agrees that it shall be binding upon the heirs, successors and assigns of the undersigned.