BROKER REFERRAL AGREEMENT
This Broker Referral Agreement (“Agreement”) is made this ____ day of 08 August, 2007, by and between Destination Sales and Marketing, Inc., a California corporation (“DSM”) and _________________________________________ (“Broker”).
A. Broker intends to refer to DSM potential purchasers of property located in the Montesoro project and/or any other project which DSM is providing sales and marketing services; and
B. In return for referring potential purchasers to DSM, DSM agrees to pay to Broker a “Referral Fee” (as defined below), under and upon the terms and conditions set forth in this Agreement.
FOR true and valuable consideration, DSM and Broker agree as follows:
1. Term. The term of this Agreement shall be twelve (12) months from the date hereof provided that DSM shall have the unilateral right at any time to terminate this Agreement for any reason by providing written notice to Broker. The term of this Agreement may be renewed for additional one (1) year periods with the written approval of the parties.
2. Referred Purchaser. Broker shall present DSM with potential purchasers who have engaged and have an agreement with Broker relating to the purchase of property (each a “Referred Purchaser”). Broker shall register all Referred Purchasers with DSM or Montesoro.
Potential purchasers, clients, or customers previously registered with DSM (or Montesoro) and existing homeowners within Montesoro are not eligible to become a Referred Purchaser.
3. Referral Fee. The amounts to be paid by DSM to Broker pursuant to this Agreement shall be as follows: a sum (herein called the “Referral Fee”) equal to four percent (4%) of the net sales price for any land purchases, 3% of the net sales price for any Carrizo Home/Home site purchases. DSM shall pay Broker the Referral Fee for any Broker Referral within five (5) business days following the successful closing of the property corresponding with such Referral Fee. In the case of Sienna Homes, Inc., Broker shall be paid within 30 days of the construction completion date. No other compensation or reimbursement shall be due or owed by DSM to Broker hereunder.
4. Not Agent. Broker is not, and at no time shall Broker be deemed in any way, to be DSM’s agent, and DSM shall not be bound by or liable for any representations made by Broker.
5. Indemnification. Broker hereby agrees to, and hereby does, hold DSM harmless and agrees to indemnify and defend DSM, from and against all claims, demands, actions, suits, liabilities, damages, costs, and expenses (including attorneys’ fees and costs) in any manner arising out of, caused by or related to any representations made by Broker and/or the claim of any other broker, salesperson, individual or entity claiming a commission, fee or other compensation from the sale of property to a Referred Purchaser.
6. Notice. Any notices, demands, requests, or other communications to either party required or permitted under this Agreement shall be in writing and may be given (i) by personal delivery, (ii) by mail, certified, postage prepaid with return receipt requested, or (iii) by Federal Express or other reputable courier service providing evidence of delivery. Mailed or couriered notices shall be addressed to the parties at the respective addresses of the parties to this Agreement, but each party may change his or its address by written notice in accordance with this Paragraph:
All notices given pursuant to this Paragraph shall be deemed to have been given (a) if delivered personally on the date of delivery or on the date delivery was refused by the addressee, or (b) if delivered by United States mail or by overnight courier, on the date of delivery as established by the return receipt or courier service confirmation (or the date on which the return receipt or courier service confirms that acceptance of delivery was refused by the addressee).
7. Confidential. This Agreement and all related information, discussion, memoranda, and documents of any kind concerning or relating to DSM are strictly confidential and shall not be used or discussed by Broker in any manner outside of the scope of Broker’s services being provided under this Agreement.
8. Dispute Resolution. It is the desire and intention of the parties to agree upon a procedure whereby any controversy, breach, or dispute arising out of this Agreement will be resolved in a prompt and expeditious matter. Accordingly, any controversy, breach, or dispute arising out of this Agreement, or relating to the interpretation of any term or provision of this Agreement, shall be heard by a reference pursuant to the provisions of the California Code of Civil Procedure, Sections 638-645.1 inclusive (or any successor statute). DSM and Broker both acknowledge that they are waiving any right to have any claims covered by this Paragraph tried by a court or jury. The parties understand that any claims covered by this Paragraph will be heard and resolved by the referee selected in accordance with this Agreement. The parties shall promptly and diligently cooperate with one another and the referee, and shall perform such acts as may be necessary to obtain a prompt and expeditious resolution of the dispute or controversy in accordance with the terms hereof. The parties shall agree upon a single referee who shall then try all issues, whether of fact or law, report a finding and judgment thereon, and issue all legal and equitable relief appropriate under the circumstances before him/her. If the parties are unable to agree upon a referee within twenty (20) days of a written request to do so by any party, then any party may thereafter seek to have a referee appointed pursuant to the California Code of Civil Procedure Sections 638 and 640 (or any successor statute). The cost of such proceeding shall initially be borne equally by the parties, but shall ultimately be borne by the party who does not prevail. In addition, the prevailing party in the judicial reference shall be entitled to have its reasonable attorneys’ fees and costs paid for by the non-prevailing party. The prevailing party shall be the party determined by the referee to be the party more successful in the action in light of the issues.
9. California Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without respect to its conflicts of laws principles.
10. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous agreements or understanding, inducements or conditions, express or implied, written or oral, between the parties with respect hereto and thereto.
11. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
12. No Third Party Beneficiary. This Agreement and every provision hereof is for the exclusive benefit of the parties to this Agreement and not for the benefit of any third party.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
DSM: DESTINATION SALES AND MARKETING, INC., a California corporation