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Exclusive Tenant Contract (All Types Of Premises) Form. This is a Colorado form and can be use in Real Estate Statewide.
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Tags: Exclusive Tenant Contract (All Types Of Premises), ETC59, Colorado Statewide, Real Estate
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The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate
Commission. (ETC59-10-05) (Mandatory 1-06)
THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND
THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING.
Compensation charged by real estate brokerage firms is not set by law. Such charges are established by
each real estate brokerage firm.
DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE
LANDLORD AGENCY, TENANT AGENCY, SELLER AGENCY, BUYER AGENCY OR
TRANSACTION-BROKERAGE.
EXCLUSIVE TENANT CONTRACT
(FOR ALL TYPES OF PREMISES)
TENANT AGENCY
TRANSACTION-BROKERAGE
Date:
1.
AGREEMENT. Tenant and Brokerage Firm enter into this exclusive, irrevocable contract as of
the date set forth above.
2.
BROKER AND BROKERAGE FIRM.
a.
Multiple-Person Firm. If this box is checked, the individual designated by Brokerage
Firm to serve as the broker of Tenant and to perform the services for Tenant required by this contract is
called Broker. If more than one individual is so designated, then references in this contract to Broker
shall include all persons so designated, including substitute or additional brokers. The brokerage
relationship exists only with Broker and does not extend to the employing broker, Brokerage Firm or to
any other brokers employed or engaged by Brokerage Firm who are not so designated.
b.
One-Person Firm. If this box is checked, Broker is a real estate brokerage firm with
only one licensed natural person. References in this contract to Broker or Brokerage Firm mean both the
licensed natural person and brokerage firm, who serve as the broker of Tenant and perform the services
for Tenant required by this contract.
3.
DEFINED TERMS.
a.
Tenant:
,
and any other person or entity on whose behalf the named party acts, directly or indirectly, to Lease the
Premises.
b.
Brokerage Firm:
c.
Broker:
d.
Premises. Premises means real estate which substantially meets the following
requirements or similar real estate acceptable to Tenant:
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.
e.
Lease.
(1)
Lease of the Premises or Lease means any lease of an interest in the Premises.
(2)
If this box is checked, Tenant authorizes Broker to negotiate a purchase of the
Premises. Purchase of the Premises or Purchase means the acquisition of any interest in the Premises or
the creation of the right to acquire any interest in the Premises (including a contract or lease). It also
includes an agreement to acquire any ownership interest in an entity that owns the Premises.
f.
Term. The Term of this contract shall begin on
, and shall
continue through the earlier of (1) completion of the Lease or purchase of the Premises or (2)
. Broker
shall continue to assist in the completion of any transaction for which compensation is payable to
Brokerage Firm under § 8 of this contract.
g.
Applicability of Terms. A check or similar mark in a box means that such provision is
applicable. The abbreviation “N/A” means not applicable. The abbreviation "MEC" (mutual execution
of this contract) means the latest date upon which both parties have signed this contract. For purposes of
this agreement, "landlord" includes sublandlord and "tenant" includes subtenant.
4.
BROKERAGE SERVICES AND DUTIES. Brokerage Firm, acting through Broker, shall
provide brokerage services to Tenant. Broker, acting as either a Transaction-Broker or a Tenant’s Agent,
shall perform the following Uniform Duties when working with Tenant:
a.
Broker shall exercise reasonable skill and care for Tenant, including but not limited to the
following:
(1)
Performing the terms of any written or oral agreement with Tenant;
(2)
Presenting all offers to and from Tenant in a timely manner regardless of whether
Tenant is already a party to a written agreement to Lease the Premises;
(3)
Disclosing to Tenant adverse material facts actually known by Broker;
(4)
Advising Tenant regarding the transaction and to obtain expert advice as to
material matters about which Broker knows but the specifics of which are beyond the
expertise of Broker;
(5)
Accounting in a timely manner for all money and property received; and
(6)
Keeping Tenant fully informed regarding the transaction.
b.
Broker shall not disclose the following information without the informed consent of
Tenant:
(1)
That Tenant is willing to pay more than the offered lease rate for the Premises;
(2)
What Tenant's motivating factors are;
(3)
That Tenant will agree to Lease terms other than those offered;
(4)
Any material information about Tenant unless disclosure is required by law or
failure to disclose such information would constitute fraud or dishonest dealing;
or
(5)
Any facts or suspicions regarding circumstances that could psychologically
impact or stigmatize the Premises.
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c.
Tenant consents to Broker’s disclosure of Tenant’s confidential information to the
supervising broker or designee for the purpose of proper supervision, provided such supervising broker
or designee shall not further disclose such information without consent of Tenant, or use such
information to the detriment of Tenant.
d.
Broker may show premises in which Tenant is interested to other prospective tenants
without breaching any duty or obligation to Tenant. Broker shall not be prohibited from showing
competing tenants the same property and from assisting competing tenants in attempting to lease a
particular property.
e.
Broker shall not be obligated to seek other properties while Tenant is already a party to a
lease or letter of intent to lease.
f.
Broker has no duty to conduct an independent inspection of the Premises for the benefit
of Tenant and has no duty to independently verify the accuracy or completeness of statements made by a
landlord or independent inspectors. Broker has no duty to conduct an independent investigation of
Tenant's financial condition or to verify the accuracy or completeness of any statement made by Tenant.
g.
Broker shall disclose to any prospective landlord all adverse material facts actually
known by Broker, including but not limited to adverse material facts concerning Tenant's financial
ability to perform the terms of the transaction.
h.
Tenant shall not be liable for the acts of Broker unless such acts are approved, directed or
ratified by Tenant.
5.
ADDITIONAL DUTIES OF TENANT’S AGENT. If the Tenant Agency box at the top of
page 1 is checked, Broker is a limited agent of Tenant, with the following additional duties:
a.
Promoting the interests of Tenant with the utmost good faith, loyalty and fidelity.
b.
Seeking lease rates and terms that are acceptable to Tenant.
c.
Counseling Tenant as to any material benefits or risks of a transaction that are actually
known by Broker.
6.
BROKERAGE RELATIONSHIP.
a.
If the Tenant Agency box at the top of page 1 is checked, Broker shall represent Tenant
as a Tenant's Agent. If the Transaction-Brokerage box at the top of page 1 is checked, Broker shall act
as a Transaction-Broker.
b.
In-Company Transaction – Different Brokers. When the landlord and Tenant in a
transaction are working with different brokers, those brokers continue to conduct themselves consistent
with the brokerage relationships they have established. Tenant acknowledges that Brokerage Firm is
allowed to offer and pay compensation to brokers within Brokerage Firm working with a landlord.
c.
In-Company Transaction – One Broker. If the landlord and Tenant are both working
with the same broker, Broker shall function as:
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(1)
TENANT’S AGENT. If the Tenant Agency box at the top of page 1 is checked,
the parties agree the following applies:
Check One Box Only
(a)
Tenant Agency. If this box is checked, Broker shall represent Tenant as
Tenant's Agent and shall treat the landlord as a customer. A customer is a party to a transaction with
whom Broker has no brokerage relationship. Broker shall disclose to such customer Broker's
relationship with Tenant.
(b)
Tenant Agency Unless Brokerage Relationship with Both. If this box
is checked, Broker shall represent Tenant as Tenant's Agent and shall treat the landlord as a customer,
unless Broker currently has or enters into an agency or Transaction-Brokerage relationship with the
landlord, in which case Broker shall act as a Transaction-Broker, performing the duties described in § 4
and facilitating lease transactions without being an advocate or agent for either party.
(2)
TRANSACTION-BROKER. If the Transaction-Brokerage box at the top of
page 1 is checked, or in the event neither box is checked, Broker shall work with Tenant as a
Transaction-Broker. If the landlord and Tenant are working with the same broker, Broker shall continue
to function as a Transaction-Broker.
7.
TENANT'S OBLIGATIONS TO BROKER. Tenant agrees to conduct all negotiations for the
Lease of the Premises only through Broker, and to refer to Broker all communications received in any
form from real estate brokers, prospective landlords, owners, or any other source during the Term of this
contract. Tenant represents that Tenant Is Is Not currently a party to any agreement with any
other broker to represent or assist Tenant in the location or Lease of the Premises.
8.
COMPENSATION TO BROKERAGE FIRM. In consideration of the services to be
performed by Broker, Tenant shall pay Brokerage Firm as set forth in this section, with no discount or
allowance for any efforts made by Tenant or any other person.
Check Compensation Arrangement:
a.
Listing Brokerage Firm, Landlord or Sublandlord May Pay. Tenant is NOT
Obligated to Pay. Broker is authorized to obtain payment of the Brokerage Firm’s fee from the listing
brokerage firm, landlord or sublandlord. Brokerage Firm shall be entitled to receive additional
compensation, bonuses, and incentives paid by listing brokerage firm, landlord or sublandlord. Broker
shall inform Tenant of the fee to be paid to Brokerage Firm and, if there is a written fee agreement,
Broker shall supply a copy to Tenant, upon written request of Tenant. Tenant shall not be obligated to
pay Brokerage Firm’s fee. This subsection shall apply to New Premises Tenant’s Existing
Premises Both.
b.
Listing Brokerage Firm, Landlord or Sublandlord May Pay. Tenant IS Obligated
to Pay. Broker is authorized and instructed to request payment of the Brokerage Firm’s fee from the
listing brokerage firm, landlord or sublandlord. Brokerage Firm shall be entitled to receive additional
compensation, bonuses, and incentives paid by listing brokerage firm, landlord or sublandlord. Broker
shall inform Tenant of the fee to be paid to Brokerage Firm and, if there is a written fee agreement,
Broker shall supply a copy to Tenant, upon written request of Tenant. Tenant shall be obligated to pay
any portion of Brokerage Firm's fee as described below which is not paid by the listing brokerage firm,
landlord or sublandlord. This subsection shall apply to New Premises Tenant’s Existing
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Premises Both.
(1)
Success Fee. Brokerage Firm shall be paid a fee of: (a) $
Per Square Foot per
, up to a maximum of
; or
(b) _____ % of the Net Gross amount of the rent payable under the lease up to a maximum
of
; or (c) $
. The Success Fee is earned by the Brokerage Firm upon
the execution of the Lease. One-half of this fee shall be paid upon the execution of the Lease and onehalf upon possession of the Premises by Tenant or as follows:
.
(2)
Hourly Fee. Brokerage Firm shall be paid $
per hour for time spent by
Broker pursuant to this contract, up to a maximum total fee of $ ________. This hourly fee shall be paid
to Brokerage Firm upon receipt of an invoice from Brokerage Firm.
(3)
Retainer Fee. Tenant shall pay Brokerage Firm a nonrefundable retainer fee of
$_________ due and payable upon signing of this contract. This amount Shall Shall Not be
credited against other fees payable to Brokerage Firm under this section.
(4)
Other Compensation.
c.
Purchase Fee. If the box in subsection 3e(2) is checked and if Brokerage Firm is unable
to obtain payment of Brokerage Firm’s entire fee from listing brokerage firm or seller, Tenant shall pay
the Brokerage Firm a fee equal to the greater of $
or
% of the purchase price for
the Premises, less any amounts paid by the listing brokerage firm or seller, payable upon delivery of
deed.
d.
Fee for Extension and Renewal. If the Lease, executed after the date of this contract,
contains an option to extend or renew, Brokerage Firm Shall Shall Not be paid a fee upon
exercise of such extension or renewal option. If Brokerage Firm is to be paid a fee for such extension or
renewal, the amount of such fee and its payment shall be as follows:
.
e.
Holdover Period. The Brokerage Firm’s fee shall apply to Premises leased [or
purchased if the subsection 3e(2) is checked] during the Term of this contract or any extensions and
shall also apply to the Premises leased or purchased within ______ calendar days after this contract
expires or is terminated (Holdover Period) if the Premises is one on which Broker negotiated and if
Broker submitted its address or other description in writing to Tenant during the Term. Provided,
however, if a commission is earned by another real estate brokerage firm acting pursuant to an exclusive
agreement with Tenant entered into during the Holdover Period, Brokerage firm shall be owed no
compensation to Brokerage Firm under subsections 8b(1), 8b(4), 8c or 8d above.
9.
LIMITATION ON THIRD-PARTY COMPENSATION. Neither Broker nor Brokerage
Firm, except as set forth in § 8, shall accept compensation from any other person or entity in connection
with the Premises without the written consent of Tenant. Additionally, neither Broker nor Brokerage
Firm shall be permitted to assess and receive mark-ups or other compensation for services performed by
any third party or affiliated business entity unless Tenant signs a separate written consent for such
services.
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10.
COSTS OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES.
Broker will not obtain or order products or services from outside sources unless Tenant has agreed to
pay for them promptly when due (examples: space planning, drawings, surveys, radon tests, soil tests,
title reports, engineering studies, property inspections). Neither Broker nor Brokerage Firm shall be
obligated to advance funds for Tenant. Tenant shall reimburse Brokerage Firm for payments made by
Brokerage Firm for such products or services authorized by Tenant.
11.
SHOWING PREMISES. Tenant acknowledges that Broker has explained the possible methods
used by listing brokers, landlords and sublandlords to show premises, and the limitations (if any) on
Tenant and Broker being able to access premises due to such methods. Broker's limitations on accessing
premises are as follows:
. Broker, through Brokerage
Firm, has access to the following multiple listing services and property information services:
.
12.
DISCLOSURE OF TENANT'S IDENTITY. Broker
Does
Does Not have
Tenant's permission to disclose Tenant's identity to third parties without prior written consent of Tenant.
13.
NONDISCRIMINATION. The parties agree not to discriminate unlawfully against any
prospective landlord because of the race, creed, color, sex, marital status, national origin, familial status,
physical or mental handicap, religion or ancestry of such person.
14.
RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document,
Tenant acknowledges that Broker has advised that this document has important legal consequences and
has recommended consultation with legal and tax or other counsel before signing this contract.
15.
MEDIATION. If a dispute arises relating to this contract, prior to or after possession of the
Premises, and is not resolved, the parties shall first proceed in good faith to submit the matter to
mediation. Mediation is a process in which the parties meet with an impartial person who helps to
resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. The
parties to the dispute must agree before any settlement is binding. The parties will jointly appoint an
acceptable mediator and will share equally in the cost of such mediation. The mediation, unless
otherwise agreed, shall terminate in the event the entire dispute is not resolved within 30 calendar days
of the date written notice requesting mediation is sent by one party to the other at the party’s last known
address.
16.
ATTORNEY FEES. In the event of any arbitration or litigation relating to this contract, the
arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including
attorney and legal fees.
17.
ADDITIONAL PROVISIONS. (The following additional provisions have not been approved
by the Colorado Real Estate Commission.)
18.
ATTACHMENTS. The following are a part of this contract:
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19.
NOTICE, DELIVERY AND CHOICE OF LAW.
a.
Physical Delivery. Except for the notice requesting mediation described in § 15, and
except as provided in § 19b below, any notice to the other party to this contract must be in writing and is
effective upon receipt.
b.
Electronic Delivery. As an alternative to physical delivery, any signed documents and
written notice may be delivered in electronic form by the following indicated methods only:
Facsimile E-mail None. Documents with original signatures shall be provided upon
request of any party.
c.
Choice of Law. This contract and all disputes arising hereunder shall be governed by
and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado
residents who sign a contract in this state for property located in Colorado.
20.
MODIFICATION OF THIS CONTRACT. No subsequent modification of any of the terms of
this contract shall be valid, binding upon the parties, or enforceable unless in writing and signed by the
parties.
21.
COUNTERPARTS. If more than one person is named as a Tenant herein, this contract may be
executed by each Tenant, separately, and when so executed, such copies taken together with one
executed by Broker on behalf of Brokerage Firm shall be deemed to be a full and complete contract
between the parties.
22.
ENTIRE AGREEMENT. This agreement constitutes the entire contract between the parties
and any prior agreements, whether oral or written, have been merged and integrated into this contract.
23.
COPY OF CONTRACT. Tenant acknowledges receipt of a copy of this contract signed by
Broker, including all attachments.
Brokerage Firm authorizes Broker to execute this contract on behalf of Brokerage Firm.
Date:
Date:
Tenant
Address:
Phone No.:
Email Address:
Tenant
Fax No.:
Date:
Broker
Broker’s Name:
Address:
Phone No.:
Email Address:
Fax No.:
Brokerage Firm’s Name:
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Address:
Phone No.:
Email Address:
Fax No.:
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