non-exclusive - listing agreement for sale or lease

NON-EXCLUSIVE

LISTING AGREEMENT

FOR SALE OR LEASE-v10-Clean-EV_09.23.21

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NON-EXCLUSIVE

LISTING AGREEMENT

FOR SALE OR LEASE

Date: ___________________

Owner: TexAmericas Center, a political subdivision of the State of Texas

Owner’s Mailing Address, Telephone, Facsimile Numbers and Email Address:

TexAmericas Center

107 Chapel Lane

New Boston, Texas 75570

Telephone: 903-223-9841

Facsimile: 903-223-8742

Eric.Voyles@TexAmericasCenter.com

Broker: _________________________________

Broker’s Mailing Address, Telephone, Facsimile Numbers and Email Address:

_______________________________________

Property: All real property owned by Owner in Bowie County, Texas, as shown as available

for sale or lease upon the website of Owner at

www.texamericascenter.com, or represented by

Owner to Broker in writing as available for sale or lease on the Commencement Date. The

amount of, and location of, Property subject to this Agreement shall change upon sales and/or

leases of property by Owner subsequent to the date of this Agreement.

Commencement Date: ____________________

Term: One (1) year, with two (2) possible one (1) year extensions.

Broker’s Fee: See Section 4 of this Agreement.

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Agreement

In consideration of services to be performed by Broker, Owner appoints Broker as

Owner’s nonexclusive agent to sell and/or lease the Property for a price and on the terms

acceptable to Owner, it being understood and agreed that Owner reserves the right to sell,

exchange, lease, or otherwise dispose of the Property to a buyer or lessee procured by Owner or

another broker without the assistance of Broker.

1. Agreement and Term. This agreement will commence on the Commencement

Date and will continue for a term of one (1) year that will expire at 11:59 P.M. local time on the

last day of the Term. However, if there is a pending contract in effect on the Termination Date

between Owner and a buyer/lessee procured by Broker and that transaction has not been closed

and funded, this agreement will continue in effect beyond the Termination Date solely with

respect to that contract until the earlier of the closing and funding of the transaction described in

the contract or the termination of the contract in a manner permitted in the contract. The term of

this agreement is subject to early termination as provided in Section 9 of this agreement. By

mutual written agreement of Broker and the Executive Director of Owner, this agreement may be

extended for two additional terms of one (1) year each.

2. Listing Price and Terms. Owner agrees to sell the Property at a price that Owner

may accept in its sole discretion. Unless otherwise agreed by Owner, the Property will be sold

for cash, and Owner will not provide any financing with respect to the sale. Owner will pay the

typical transaction and closing costs borne by or charged to Owners of real property in Bowie

County, Texas.

3. Exclusive Agency Relationship. Unless otherwise specified by written agreement

between Seller and Broker, it is understood and agreed that Broker will act solely as Seller’s

agent in connection with the sale of the Property and that Broker is not authorized to act as an

intermediary between Seller and any buyer of the Property.

4. Broker’s Fee. The terms under which Broker shall be compensated shall be

governed by the following provisions:

a. The Broker’s Fee will be earned when the sale or lease of the Property to a

buyer or lessee procured by Broker, individually or in cooperation with

another broker, under a contract executed by Owner is finally closed and

funded, whether this occurs during the term of this agreement or after the

termination of this agreement. In the event a lease is executed by Owner

with a Lessee procured by Broker and the Lease contains one or more

options to extend the Lease, Broker’s commission for each exercised

option term shall be earned upon exercise of the option and payment of the

first month’s rent due for the extended term. Renewal or extensions of

leases by Owner which are not provided for in the original lease procured

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by Broker shall not result in a commission to Broker unless specifically

approved by Owner in writing. The term “procured by Broker” means

that the Broker submitted a written proposal from the buyer/lessee to

Owner (or, the Broker submitted to Owner a request for Proposal based

upon the buyer/lessee’s written site characteristics or requirements) which

ultimately resulted in a written contract between the buyer/lessee and

Owner during the term or the Protection Period.

b. Unless otherwise provided in this agreement, the Broker’s Fee will be

determined on the basis of the sale price (the “Sale Price”) or aggregate

base lease rentals specified in the contract between Owner and the buyer.

If the transfer or lease of the Property is by a no-cost economic

development incentive transfer or lease by Owner, no commission shall be

paid by Owner to Broker, which may collect a commission from the

Purchaser, or Lessee.

c. If a buyer procured by Broker with whom Owner has entered into a

contract for the sale of the Property during the term of this agreement

breaches that contract and Owner receives the buyer’s earnest money or a

portion thereof as liquidated damages, Owner will pay Broker the lesser of

one-half of the amount of the liquidated damages or the Broker’s Fee.

d. If litigation, mediation, or arbitration is instituted with respect to a contract

between Owner and a buyer procured by Broker for the sale of the

Property that is executed during the term of this agreement, and Owner

collects all or a portion of the Sale Price or damages by judgment,

compromise, settlement, or otherwise, Owner will pay Broker the lesser of

(i) one-half of the amount collected after deduction of attorney’s fees and

other expenses of collection or (ii) the Broker’s Fee (determined after

reducing the Sale Price by the amount of attorney’s fees or other expenses

of collection).

e. Owner will not owe Broker the Broker’s Fee if a sale or lease of the

Property does not close or fund.

f. Owner will not owe Broker a Broker’s Fee in connection with any

transaction in which the buyer or other party to the transaction was

procured by Owner directly or procured by another broker.

g. The Broker’s fee shall be determined and paid based upon the sales or

lease price as follows:

(1) For Sales, Six Percent (6%) of the first $1,000,000.00 of the sales

price, and Three percent (3%) of the amount over $1,000,000.00.

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(2) Broker’s fee for Sales shall be paid at Closing of the Sale.

(3) For Leases, Six Percent (6%) of base aggregate rent (excluding

common area maintenance, taxes, insurance, and Owner paid

leasehold improvements amortized over the term of the Lease as

rent) for the primary term, up to $25,000.00 in commissions, and

thereafter Four Percent (4%); commissions for any extended or

option terms (as stated in Section 4.a. above) shall be at the rate of

Two Percent (2%).

(4) Broker’s fee for Leases shall be paid as follows:

(a) upon execution of the Lease, payment of the first month’s

rent, and when lessee has paid to Owner all deposits as

required by the Lease Agreement, Broker shall be paid the

fee based upon the aggregate rent payable during the first

year of the lease term;

(b) thereafter, Broker shall be paid the fee for each subsequent

year’s aggregate rent on the later of the anniversary date of

the lease or receipt of an invoice from Broker.

h. In the event that Broker and an outside broker each claim entitlement to a

Broker’s Fee for the sale or lease of Owner’s property, or a portion

thereof, (including but not limited to claims arising due to or during the

Protection Period), Broker, Owner and the outside broker shall attempt to

mediate or otherwise amicably resolve said dispute or conflicting claims

without resorting to litigation. In the event said dispute or conflicting

claims are not resolved within ninety (90) days after the end of the

Protection Period, Owner may interplead an amount equal to the Broker’s

Fee if paid only to a single Broker into the registry of the District Court of

Bowie County, Texas, pursuant to applicable Texas Statutes. Under no

circumstances shall Owner be responsible for paying two Broker’s Fees

for the sale or lease of a single tract of Owner’s property. The term

“outside broker” shall mean any broker or sales person other than Broker.

5. Protection Period. Subject to the conditions set forth in paragraph 4. above, if,

within ninety (90) days after the termination of this agreement (the “Protection Period”), Owner

enters into a contract to sell or lease the Property to a buyer or lessee registered by Broker,

Owner will pay Broker the Broker’s Fee as provided in Section 4.g..

a. For purposes of this Section 5, the Broker’s Registered Buyers or Lessees

will consist only of those persons registered by Broker in writing to Owner

within ten (10) days after termination of this Agreement.

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b. Broker may only register with Owner, those individuals and entities with

whom Broker has actually negotiated the sale, exchange, or lease of the

Property or a part thereof during the term of this Agreement. For

example, Broker may not register individuals or entities to whom Broker

has only supplied information regarding the property by written

advertisement, emails, texts, data compilations of potential buyers/lessees

or on-line listings, but with whom Broker has not actually negotiated the

terms of a proposal regarding the Property or part thereof.

c. It is specifically understood and agreed, however, that the foregoing

provisions regarding the Protection Period will not be applicable with

respect to any sale, exchange, lease, or other transfer of the Property that

occurs after the termination of this agreement where Owner is obligated to

pay a Broker’s fee to another realtor or Broker.

6. Broker’s Duties and Authorities. During the term of this agreement, Broker will

be authorized and required to take the following actions:

a. Broker will make reasonable efforts and act diligently to sell or lease the

Property in accordance with the terms of this agreement. Owner authorizes

Broker and Broker’s associates, at Broker’s sole cost and expense, to (i)

advertise the Property by the means and methods Broker reasonably

determines to be appropriate for the Property based on then-current market

practices for properties substantially similar to the Property; (ii) furnish

comparative marketing and sale information about other properties to

prospective buyers; (iii) disseminate information about the Property to

other brokers and their associates through a multiple-listing service or

such other means as Broker reasonably determines to be appropriate; (iv)

enter the Property, and accompany other brokers and their associates who

wish to enter the Property, at reasonable times on reasonable advance

notice, and coordination with Owner to show the Property to prospective

buyers or lessees, and; (v) authorize property inspectors, appraisers, and

repair personnel to enter the Property at reasonable times on reasonable

notice and coordination with Owner for pertinent purposes.

b. Broker is not authorized to (i) execute any document in the name of or on

behalf of Owner with respect to the Property, (ii) authorize any repairs to

the Property without Owner’s prior written consent, (iii) authorize the

expenditure of any funds on behalf of Owner without Owner’s prior

written consent, (iv) negotiate any earnest money deposit or other

instrument in connection with the Property, (v) use a “lock-box” for keys

to the Property, or (vi) place any “For Sale” signs on the Property or

remove other signs offering the Property for sale or lease without Owner’s

prior written consent.

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c. Broker will not be obligated to market the Property after Owner has

entered into a binding contract unless the contract provides otherwise. If

Broker is obligated to submit subsequent or backup offers, Owner will

specifically provide in the contract for the sale of the Property with a

buyer that Owner may continue to market the Property so that Broker may

receive subsequent or backup offers, which will be submitted to Owner as

received for consideration by Owner when the prior contract is terminated

or renegotiated. If Owner enters into a contract to sell the Property that

does not provide for the submission of backup offers, and Broker

subsequently receives a subsequent or backup offer to purchase the

Property, Broker will inform Owner and submit the subsequent or backup

offer to Owner when the prior contract is terminated or renegotiated.

d. Broker will not be responsible in any manner for personal injury to Owner

resulting from acts of third parties or loss of or damage to personal or real

property due to vandalism, theft, freezing water pipes, or other causes,

except the negligence or misconduct of Broker. Broker will not be

responsible for the security of the Property or for inspecting the Property

on any periodic basis unless otherwise agreed in writing by Owner and

Broker.

7. Broker’s Representations and Covenants. Broker represents and warrants to,

and covenants with, Owner as follows:

a. Broker is duly licensed as a real estate broker authorized to provide real

estate brokerage services in accordance with this agreement by the Texas

Real Estate Commission (the “Commission”) under the Texas Real Estate

License Act (the “Act”), as amended, and will maintain that license in full

force and effect at all times during the term of this agreement. All

associates employed by Broker to assist with marketing and selling the

Property, and all other brokers with whom Broker cooperates in

connection with marketing and selling the Property, will be duly licensed

by the Commission as real estate brokers or agents in accordance with the

Act when any such services are rendered.

b. All activities by Broker and Broker’s associates hereunder will be

conducted in strict compliance with the Act, the rules and regulations of

the Commission, and all other provisions of applicable law, including,

without limitation, all fair housing laws.

8. Owner’s Representations and Covenants. Owner represents and warrants to, and

covenants with, Broker as follows:

a. Owner represents that (i) Owner has fee simple title to the Property,

peaceable possession of the Property and all improvements and fixtures on

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the Property unless rented, and the legal capacity to convey the Property;

(ii) no person or entity has any right to purchase, lease, or acquire the

Property by virtue of a contract, option, right of first refusal, or other

agreement; (iii) there are no delinquencies or defaults under any deed of

trust, mortgage, or other encumbrance on the Property; (iv) the Property is

not subject to the jurisdiction of any court whose permission or consent is

required for the execution of this agreement or the sale, exchange, or other

disposition of the Property; and (v) all information regarding the Property

that has been provided by Owner to Broker, or that may be provided by

Owner to Broker after the execution of this agreement, has been or will be,

to the best of Owner’s knowledge, true, correct, and complete in all

material respects.

b. Owner will cooperate fully and in good faith with Broker to facilitate the

showing and marketing of the Property at Broker’s sole cost and expense.

9. Termination. Either party is entitled to terminate this agreement before the

Termination Date if the other party fails to perform its obligations under the agreement and the

failure to perform is not cured to the reasonable satisfaction of the party giving written notice of

such failure within (30) thirty days after receipt of the notice. Either party is also entitled to

terminate this agreement without cause upon sixty (60) days notice to the other party. Except for

a termination due to Broker’s failure to be licensed under the Act, any such termination will not

be effective with respect to any contract for the sale, exchange, lease, or other disposition of the

Property previously executed by Owner and a buyer or lessee that is then pending closing.

10. Attorney’s Fees. If either party retains an attorney to enforce this agreement, the

party prevailing in litigation is entitled to recover reasonable attorney’s fees and court and other

costs.

11. Binding Effect. This agreement binds, benefits, and may be enforced by the

successors in interest to the parties.

12. Choice of Law. This agreement will be construed under the laws of the state of

Texas, without regard to choice-of-law rules of any jurisdiction. Venue is in the county or

counties in which the Property is located.

13. Counterparts. This agreement may be executed in any number of counterparts

with the same effect as if all signatory parties had signed the same document. All counterparts

will be construed together and will constitute one and the same instrument.

14. Waiver of Default. It is not a waiver of or consent to default if the nondefaulting

party fails to declare immediately a default or delays in taking any action. Pursuit of any

remedies set forth in this agreement does not preclude pursuit of other remedies in this

agreement or provided by law.

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15. Further Assurances. Each signatory party agrees to execute and deliver any

additional documents and instruments and to perform any additional acts necessary or

appropriate to perform the terms, provisions, and conditions of this agreement and all

transactions contemplated by this agreement.

16. Indemnity. Broker agrees to indemnify, defend, and hold harmless Owner from

any loss, attorney’s fees, expenses or claims arising out of the performance or non-performance

by Broker of its rights and obligations under this Agreement.

17. Entire Agreement. This agreement is the entire agreement of the parties. There

are no representations, agreements, warranties, or promises, and neither party is relying on any

statements or representations of any agent of the other party, that are not in this agreement.

18. Legal Construction. If any provision in this agreement is for any reason

unenforceable, to the extent the unenforceability does not destroy the basis of the bargain among

the parties, the unenforceability will not affect any other provision hereof, and this agreement

will be construed as if the unenforceable provision had never been a part of the agreement.

Whenever context requires, the singular will include the plural and neuter include the masculine

or feminine gender, and vice versa. Article and section headings in this agreement are for

reference only and are not intended to restrict or define the text of any section. The agreement

will not be construed more or less favorably between the parties by reason of authorship or origin

of language.

19. Notices. Any notice required or permitted under this agreement must be in

writing. Any notice required by this agreement will be deemed to be delivered (whether actually

received or not) when deposited with the United States Postal Service, postage prepaid, certified

mail, return receipt requested, and addressed to the intended recipient at the address shown in

this agreement. Notice may also be given by regular mail, personal delivery, courier delivery,

facsimile transmission, or other commercially reasonable means and will be effective when

actually received. Any address for notice may be changed by written notice delivered as

provided herein.

20. Recitals. Any recitals in this agreement are represented by the parties to be

accurate, and constitute a part of the substantive agreement.

21. Time. Time is of the essence. Unless otherwise specified, all references to

“days” mean calendar days. Business days exclude Saturdays, Sundays, and legal public

holidays. If the date for performance of any obligation falls on a Saturday, Sunday, or legal

public holiday, the date for performance will be the next following regular business day.

22. Owner’s Reserved Rights. Owner reserves the right to sell, lease, and/or renew

and extend leases, without a commission being due to Broker, with Owner’s current tenants and

with persons and or entities who have or may in the future deal directly with Owner, or other

brokers who may have a listing on the Property, without the participation of Broker.

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23. Governmental Immunity. By execution of this Agreement, TexAmericas

Center does not waive its governmental immunity except to the extent it is contractually liable

for the amount due under this Agreement. Damages in a suit to enforce this Agreement shall not

include consequential damages, or exemplary damages of any kind. This limited waiver of

governmental immunity shall not extend to, or for the benefit of, any third parties.

24. Commitment of Current Revenue. TexAmericas Center retains the right to

terminate this contract at the expiration of each budget year (September 30 of each year)

occurring during the term of this contract. TexAmericas Center executes this contract

conditioned on the fact that it shall use its best efforts to obtain and appropriate funds during

each budget year for payment of the sums payable by TexAmericas Center under this contract.

This contract is a commitment of current revenues only.

TEXAMERICAS CENTER _______________________________

OWNER BROKER

By: __________________________ By: ____________________________

William Scott Norton, Name: _________________________

Executive Director, CEO Title: __________________________

Date: _________________ Date: ____________________