HomeMy WebLinkAboutR-2008-161 Almon Real Estate Broker Service ContractA RESOLUTION
RESOLUTION NO. R-2008-161
of the City of Yakima, Washington directing the City Manager or
his designee to approve and sign a professional services contract
for real estate broker services for the disposition of City property
as needed.
WHEREAS, the City of Yakima, at various times, possesses real property that is no
longer needed and it is in the public interest to dispose of the real property on the open
market following standard real estate practices in the area; and
WHEREAS, the City of Yakima is best served by retaining an expert in professional real
estate broker services and in commercial property development to facilitate the
disposition of such property; and
WHEREAS, the City of Yakima issued a Request for Proposals (RFP) in the community
for professional real estate broker services and based on the criteria set forth in the
RFP, a real estate expert was selected to provide the professional services required;
NOW, THEREFORE,
BE IT RESOLVED by the Council of the City of Yakima, Washington:
The City Council directs the City Manager or his designee to approve and sign the
professional real estate broker services agreement attached hereto and incorporated
herein by this reference with Bill Almon Jr. to facilitate the disposition of City property in
accordance with the provisions of the contract.
ADOPTED BY THE CITY COUNCIL this 18th day of November, 2008.
ATTEST:
City Clerk
avid Edler, Mayor
Almon Commercial Real Estate
Subsidiary of ATV, LLC
111 University Parkway, Suite 100
Yakima, WA 98901-1471
Phone (509) 966-3800
Fax (509) 965-5225
EXCLUSIVE AGENCY LISTING AGREEMENT
In consideration of the services to be performedby the undersigned Broker, the undersigned City
of Yakima ("Owner") hereby grants to Broker commencing with date hereof and expiring at
midnight on December 31st, 2009, the exclusive and irrevocable right to sell (see definitions
below) and to receipt for deposit in connection therewith, the following described "property"
situated in the City of Yakima, Yakima County,. Washington; commonly known as 3202 W. Nob
Hill Blvd. and legally described _X_ as follows as attached hereto. (Owner authorizes
Broker to insert or correct legal description over Owner's signature.)
Lots 1, 2 and 3, H.L. Smith Addition, recorded in Volume "Y" of plats, page 47, records of
Yakima County, Washington.
Selling Price $ 585,448
Possession: Closing
Terms: Cash or other terms to be negotiated, in Owner's sole discretion. Owner
reserves the right to approve or reject all offers, regardless of terms.
1. DEFINITIONS. The term "sell" (and similar phrases) as used in this Agreement, shall
mean and include sell, contract to sell, exchange, lease, and/or an option to purchase, whether the
Property be real property, business opportunity, or a mixture of both and/or personal property.
The phrase "this Agreement" and "during the term hereof " include written extensions hereof.
AGENCY/DUAL AGENCY. Owner authorizes Broker to appoint Bill Almon Jr., CCIM to act
as Owner's Listing Agent(s). It is, understood and agreed that this Agreement creates an agency
relationship with Listing Agent(s) and Broker only, not with any other salesperson of Broker:
provided, Owner authorizes Broker to appoint other salespersons affiliated with Broker as
subagents to act on Owner's behalf as and when needed, at Broker's discretion. Any other broker
or salesperson, other than Broker or Listing Agent(s), will not be representing Owner and may
represent the Buyer. Accordingly, for purposes of this Agreement, "Broker" means Listing
Agent(s), including any subagents, and Listing Agent's Broker, Designated Broker or Branch
Manager, unless expressly stated otherwise. Owner further authorizes Broker to enter into
cooperative brokerage agreements.
Owner agrees that if the Property is sold to a buyer represented by one of Broker's salespersons
other than Listing Agent(s), then Owner consents to Broker acting as a dual agent. Owner further
agrees that if the property is sold to a buyer who Listing Agent also represents, then Owner
Revision date 1/14/09
Form 245-3
consents to listing Agent(s) and Broker acting as dual agents. Owner agrees that different
salespersons affiliated with Broker may represent different sellers in competing transactions
involving the same buyer and that this shall not be considered action by Broker that is adverse or
detrimental to the interests of either seller, nor shall it be considered a conflict of interest on the
part of Broker. Owner acknowledges receipt of the pamphlet entitled "The Law of Real Estate
Agency."
If Broker acts as a dual agent, then Broker shall be entitled to the entire commission payable
under this Agreement plus any additional compensation Broker may have negotiated with the
buyer.
3. OWNER'S PROPERTY INFORMATION. Owner acknowledges receipt of a copy of
this Agreement, with the property information in this Agreement fully filled in. Owner warrants
that the property information is correct to the best of its knowledge. Owner understands that
Broker and other members of the Multiple Listing Services will make representations to
prospective buyers based solely on the property information in this Agreement. Owner confirms
that following closing, the amount of the purchase price and any other terms of the sale of the
property shall not be deemed confidential information and Owner authorizes disclosure of the
same. Owner states that, to the best of Owner's knowledge the Property does not have any
environmental contamination.
4. TITLE AND CLOSING COSTS. Owner warrants that he/she has the right to sell the
property on the terms herein, and agrees to furnish and pay for a purchaser's policy of title
insurance showing marketable title to the property. Owner agrees to pay real estate excise tax,
deed revenue stamps and one-half of any escrow fees. Rents, insurance, taxes, utilities, interest
and reserves on assumed encumbrances are to be prorated between Owner and Buyer as of the
date of closing.
5. COMMISSION. If: (1) Broker procures a buyer on the terms of this Agreement, or on
other terms acceptable to Owner; (2) Owner sells the property directly or indirectly or through
any person or entity other than Broker during the term hereof; or (3) Owner shall, within six
months after the expiration of this Agreement, sell said property to any person to whose attention
the property was brought through the signs, advertising or other action of Broker, or on
information secured directly or indirectly from or through Broker during the term of this
Agreement; Owner will pay broker a commission as follows: _7% of the purchase price or
$ - (if fixed amount is agreed upon) as compensation for Broker's service, at the time
of closing, or upon the occurrence of any action provided for in this Section. In the case of a
lease, the total commission shall be the same percentage as stated above, of the total base rent
stream provided in the agreement between Owner and tenant for the first ten years of the lease,
payable upon entry into possession by tenant, or upon execution of written lease, whichever first
occurs. If such lease agreement provides for renewal options, and any such option is (are)
exercised, an additional commission of the same percentage of the total base rents payable during
each such renewal period shall be paid in cash upon exercise of each renewal option; provided,
however, that the total commission shall not exceed that due for a ten year period, including
initial term and all renewal terms.
Revision date 1/14/09
Form 245-3
It is agreed that the term of this Listing Agreement shall be deemed to continue co-
extensive with the actual or contracted closing date, whichever is later, of any pending
transaction entered into in conjunction with the Agreement.
6. BROKER/MULTIPLE LISTING. Upon acceptance of this Agreement as indicated by
signature of Broker's authorized representative below, Broker shall cause this listing to be
published by Commercial Brokers Association ("CBA") for distribution to all CBA members
through CBA's listing catalog and online computer system and/or, at Broker's discretion, via the
services of Yakima Multiple Listing Service. Broker shall cooperate with all other members of
said Multiple(s) in working toward the sale of the property. Owner understands and agrees that
all property information contained in this Agreement or otherwise given to the Multiple(s)
becomes the property of the Multiple(s), is not confidential, and will be given to third parties,
including prospective Buyers, other cooperating members of the Multiple(s) who do not
represent the Owner and, in some instances, may represent the Buyer and other parties granted
access to the Multiple(s)' online computer system. Regardless of whether a cooperating member
is the Broker of the Buyer, the Owner, neither or both, the member shall be entitled to receive the
selling office's share of the commission as designated by the listing office. IT IS UNDERSTOOD
THAT EACH MULTIPLE LISTING ASSOCIATION THROUGH WHICH BROKER
DISSEMINATES INFORMATION IS NOT A PARTY TO THIS AGREEMENT, AND ITS
SOLE FUNCTION IS TO FURNISH THE DESCRIPTIVE INFORMATION SET FORTH IN
THIS LISTING TO ITS MEMBERS, WITHOUT VERIFICATION AND WITHOUT
ASSUMING ANY RESPONSIBILITY FOR SUCH INFORMATION OR IN RESPECT TO
THIS AGREEMENT.
7. ATTORNEY'S FEES. In the event a dispute arises regarding the terms of this Agreement
that results in litigation, the parties agree the court may award attorney fees as provided by
Washington law.
8. ADDITIONAL TERMS. The following attached hereto are part of this Agreement:
MLS input forms initialed by Owner and Listing Agent. This document contains the entire
understanding of the parties as to the subject matter hereof. No addition to nor modification
hereof shall be enforceable unless in writing, signed by the parties.
Dated this (a- day of %t-62 r , 2009.
City of Yakima
129 N. 2nd Street
Yakima, WA 98901
Revision date 1/14/09
R.A. Zais, .l r.
City Manager
CITY CONTRACT Na !`0'�A -4? 7
RFeni i . .�,- R-L-�O - ,10
3 Form 245-3
In consideration of Owner's execution of this Agreement, the undersigned hereby agrees to act as
Owner's agent to sell the property.
Almon Commercial Real Estate By:
Its authorized representative (not Listing Agent)
The undersigned designated Listing Agent agrees to serve in such capacity upon acceptance of
this Agreement by a duly authorized representative of Broker:
Listing Agent
Date: U / , 2009.
[NOTE: THIS AGREEMENT IS NOT ACCEPTED NOR ENFORCEABLE UNLESS SIGNED.
BY ITS COMMERCIAL MANAGER, GENERAL MANAGER, DESIGNATED BROKER OR
MEMBER OF ATV, LLC. THE NAMED LISTING AGENT'S SIGNATURE SHALL NOT
BIND THE BROKER WITHOUT WRITTEN CONCURRENCE OF SUCH AUTHORIZED
REPRESENTATIVE]
Revision date 1/14/09 4 Form 245-3
PROFESSIONAL REAL ESTATE BROKER
SERVICES AGREEMENT
THIS PROFESSIONAL REAL ESTATE BROKER SERVICES AGREEMENT (hereinafter
"Agreement") is made and entered into by and between the City of Yakima, a Washington
municipal corporation (hereinafter the "City"), and Almon Commercial Real Estate ("Broker"), a
company licensed to do business in Washington.
WHEREAS, the City of Yakima desires to engage the Broker to perform professional real
estate services for the disposition of City property; and
WHEREAS, the Broker has the experience and expertise necessary to provide said
independent real estate services and is willing to provide such services in accordance with the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements
set forth herein, it is agreed by and between the City and the Broker as follows:
1. Scope of Services: The Broker shall provide commercial real estate services to the City
consistent with the City's Request for Proposals ("RFP"), Exhibit "A", Broker's response to the
RFP, Exhibit "B", both attached and incorporated by this reference. The scope of services is
described in more detail in Exhibit "C", attached and incorporated by this reference.
2. Term. The term of this Agreement shall commence upon execution hereof and shall
continue for one year, with renewal by the City Manager annually for a period of up to five years
total, unless terminated sooner by either party in accordance with Sectionl8.
3. Consideration. The City shall pay the Broker for services rendered hereunder in
accordance with the payment schedule set forth in Exhibit "D" attached and incorporated by
this reference. Unless this Agreement is otherwise modified by the parties, the total
compensation paid to the Broker for all services provided under this Agreement shall not exceed
the amount provided in Exhibit "D". The Broker shall submit to the City monthly invoices
itemizing tasks accomplished. The broker shall submit to the. City monthly invoices itemizing
tasks accomplished. Payment shall take place at the close of each transaction or conclusion of
each lease or specific project; provided, however, that all payments are expressly conditioned
upon the Broker's providing services that are satisfactory to the City. The Broker shall maintain
adequate files and records to substantiate all amounts itemized on the monthly invoices. In the
event that either party exercises its right to terminate this Agreement in accordance with
Section 18, the Broker shall be compensated in accordance with the above terms for all
satisfactory services provided to the City up to the effective Agreement termination date.
4. Information Provided by the City. The Broker shall provide guidance to the City in
determining the data required for purposes of the contemplated services. The City agrees to
use reasonable efforts to provide data and information specifically requested by the Broker.
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5. Status of Broker. The Broker and the City understand and expressly agree that the
Broker is an independent contractor in the performance of each and every part of this
Agreement. No officer, employee, volunteer, and/or agent of Broker shall act on behalf of or
represent him or herself as an agent or representative of the City. The Broker, as an
independent contractor, assumes the entire responsibility for carrying out and accomplishing
the services required under this Agreement. The Broker expressly represents, warrants and
agrees that its status as an independent contractor in the performance of the work and services
required under this Agreement is consistent with and meets the six -part independent contractor
test set forth in RCW 51.08.195. The Broker and its officers, employees, volunteers, agents
and/or subcontractors shall not make any claim of City employment nor shall make any claim
against the City for any related employment benefits, social security and/or retirement benefits.
Nothing contained herein shall be interpreted as creating a relationship of servant, employee,
partnership or agency between the Broker and the City.
6. Inspection and Audit. The Broker shall maintain books, accounts, records, documents
and other evidence pertaining to the costs and expenses allowable and consideration paid
under this Agreement in accordance with generally accepted accounting practices. All such
books of account and records required to be maintained by this Agreement shall be subject to
inspection and audit by representatives of the City and/or the Washington State Auditor at all
reasonable times, and the Broker shall afford the proper facilities for such inspection and audit.
Such books of account and records may be copied by representatives of the City and/or the
Washington State Auditor where necessary to conduct or document an audit. The Broker shall
preserve and make available all such books of account and records for a period of three (3)
years after final payment under this Agreement.
7. Taxes and Assessments. The Broker shall be solely responsible for compensating his
employees, agents and/or subcontractors and for paying all related taxes, deductions, and
assessments, including but not limited to federal income tax, FICA, social security tax,
assessments for unemployment and industrial injury, and other deductions from income which
may be required by law or assessed against either party as a result of this Agreement. In the
event the City is assessed a tax or assessment as a result of this Agreement, the Broker shall
pay the same before it becomes due.
8. Nondiscrimination Provision. During the performance of this Agreement, the Broker
shall not discriminate on the basis of race, age, color, sex, religion, national origin, creed,
marital status, political affiliation, or the presence of any sensory, mental or physical handicap.
This provision shall include but not be limited to the following: employment, upgrading,
demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of
compensation, selection for training and the provision of services under this Agreement.
9. The Americans with Disabilities Act. The Broker shall comply with the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA) and its implementing regulations and
Washington State's anti -discrimination law as contained in RCW Chapter 49.60 and its
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Real Estate Broker Professional Services Agreement
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implementing regulations with regard to the activities and services provided pursuant to this.
Agreement. The ADA provides comprehensive civil rights to individuals with disabilities in the
area of employment, public accommodations, public transportation, state and local government
services and telecommunications.
10. Compliance with Law. The Broker agrees to perform those services under and pursuant
to this Agreement in full compliance with any and all applicable laws, rules, and regulations
adopted or promulgated by any governmental agency or regulatory body, whether federal, state,
local or otherwise.
11. No Conflict of Interest. Broker covenants that neither he nor his employees have any
interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in
any manner or degree with the performance of this Agreement. The Broker further covenants
that it will not hire anyone or any entity having such a conflict of interest during the performance
of this Agreement.
12. No Insurance. It is understood the City does not maintain liability insurance for the
Broker and its officers, directors, employees and agents.
13. Indemnification.
a. The Broker agrees to hold harmless, indemnify and defend the City, its elected
officials, officers, employees and agents from and against any and all suits, actions, claims,
liability, damages, judgments, costs and expenses (including reasonable attorney's fees) which
result from or arise out of the negligence of the Broker, its officers, agents, employees or
subcontractors in connection with or incidental to the performance or non-performance of this
Agreement.
b. In the event that both the Broker and the City are negligent, each party shall be liable
for its contributory share of negligence for any resulting suits, actions, claims, liability, damages,
judgments, costs and expenses (including reasonable attorney's fees).
c. The foregoing indemnity is specifically and expressly intended to constitute a waiver
of the Broker's immunity under Washington's Industrial Insurance Act, RCW Title 51, as
respects the other party only, and only to the extent necessary to provide the indemnified party
with a full and complete indemnity of claims made by the Broker's employees. The parties
acknowledge that these provisions were specifically negotiated and agreed upon by them.
d. Nothing contained in this Section or this Agreement shall be construed to create a
liability or a right of indemnification in any third party.
e. This Section of the Agreement shall survive the term or expiration of this Agreement
and shall be binding on the parties to this Agreement.
14. Insurance Provided by Broker.
a. Professional Liability Insurance. On or before the date this Agreement is fully
executed by the parties, the Broker shall provide the City with a certificate of insurance as
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Real Estate Broker Professional Services Agreement
Disposition of City Property
evidence of professional liability coverage with a limit of at least One Million Dollars
($1,000,000.00) for each wrongful act and an annual aggregate limit of at least Two Million
Dollars ($2,000,000.00). The certificate shall clearly state who the provider is, the amount of
coverage, the policy number and when the policy and provisions provided are in effect. The
insurance shall be with an insurance company rated "A" or higher in Best's Guide. If the policy
is on a claims made basis, the retroactive date of the insurance policy shall be on or before the
date this contract is executed by both parties hereto, or shall provide full prior acts coverage.
The insurance coverage shall remain in effect during the term of this Agreement and for a
minimum of three (3) years following the termination of this Agreement.
b. Commercial Liability Insurance. On or before the date this Agreement is fully
executed by the parties, the Broker shall provide the City with a certificate of insurance as proof
of commercial liability insurance with a minimum liability limit of One Million Dollars
($1,000,000.00) per occurrence/aggregate limit bodily injury and property damage. The
certificate shall clearly state who the provider is, the amount of coverage, the policy number and
when the policy and provisions provided are in effect. Said policy shall be in effect for the
duration of this Agreement. The policy shall name the City, its elected officials, officers, agents,
and employees as additional insureds and shall contain a clause that the insurer will not cancel
or reduce in limits the insurance without first giving the City thirty (30) calendar days prior
written notice. The insurance shall be with an insurance company or companies rated "A" or
higher in Best's Guide and admitted in the State of Washington.
c. Commercial Automobile Liability Insurance. On or before the date this Agreement is
fully executed by the parties, the Broker shall provide the City with a certificate of insurance as
proof of commercial automobile liability insurance with a minimum liability limit of One Million
Dollars ($1,000,000.00) per occurrence/aggregate limit bodily injury and property damage. The
certificate shall clearly state who the provider is, the amount of coverage, the policy number and
when the policy and provisions provided are in effect. Said policy shall be in effect for the
duration of this Agreement. The policy shall name the City, its elected officials, officers, agents
and employees as additional insureds and shall contain a clause that the insurer will not cancel
or reduce in limits the insurance without first giving the City thirty (30) calendar days' prior
written notice. The insurance shall be with an insurance company or companies rated "A" or
higher in Best's Guide and admitted in the State of Washington.
d. Insurance Provided by Subcontractors. The Broker shall ensure that all
subcontractors it utilizes for work/services required under this Agreement shall comply with all
of the above insurance requirements.
15. Delegation of Professional Services. The services provided for herein shall be
performed by the Broker and no person other than regular associates or employees of the
Broker shall be engaged upon such work or services except upon written approval of the City.
16. Assignment. This Agreement, or any interest herein or claim hereunder, shall not be
assigned or transferred in whole or in part by the Broker to any other person or entity without
the prior written consent of the City. In the event that such prior written consent to an
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Real Estate Broker Professional Services Agreement
Disposition of City Property
assignment is granted, then the assignee shall assume all duties, obligations and liabilities of
the Broker stated herein.
17. Waiver of Breach. A waiver by either party hereto of a breach by the other party hereto
of any covenant or condition of this Agreement shall not impair the right of the party not in
default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party
to insist upon strict performance of any agreement, covenant or condition of this Agreement, or
to exercise any right herein given in any one or more instances, shall not be construed as a
waiver or relinquishment of any such agreement, covenant, condition or right.
18. Termination. Either party may terminate this Agreement at any time, with or without
cause, by providing the other party with written notice of termination sixty (60) calendar days
prior to the termination. date.
19. Severability. If any portion of this Agreement is changed per mutual agreement or any
portion is held invalid, the remainder of the Agreement shall remain in full force and effect.
20. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and
sent or hand delivered to the parties to their addresses as follows:
TO CITY:
Richard A. Zais, Jr.
City Manager
City of Yakima
129 North Second Street
Yakima WA 98901
Dave Zabel!
Assistant City Manager
City of Yakima
129 North Second Street
Yakima, WA 98901
TO BROKER: Bill Almon, Jr.
Almon Commercial Real Estate
111 South 33rd Street, Suite 100
Yakima, WA 98901
Phone: (509) 966-3800
or to such other addresses as the parties may hereafter designate in writing. Notices and/or
demands shall be sent by registered or certified mail, postage prepaid or hand delivered. Such
notices shall be deemed effective when mailed or hand delivered at the addresses specified
.above.
21. Third Parties. The City and the Broker are the only parties to this Agreement and are the
only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or
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Real Estate Broker Professional Services Agreement
Disposition of City Property
shall be construed to give or provide any right or benefit, whether directly or indirectly or
otherwise, to third persons.
22. Drafting of Agreement. Both the City and the Broker have participated in the drafting of
this Agreement. As such, it is agreed by the parties that the general contract rule of law that
ambiguities within a contract shall be construed against the drafter -of a contract shall have no
application to any legal proceeding, arbitration and/or action in which this Agreement and its
terms and conditions are interpreted and/or enforced.
23. Integration. This written document constitutes the. entire Agreement between the City
and the Broker. There are no other oral or written agreements between the parties as to the
subjects covered herein. No changes or additions to this Agreement shall be valid or binding
upon either party unless such change or addition be in writing and executed by both parties.
24. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
25. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the
Superior Court of Washington for Yakima County, Washington.
26. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same
Agreement.
CITY OF YAKIMA
By:
R. A. Zais, Jr., City Manager
Date: /1-- Z,( U 8
ATTEST:
City Clerk
City Contract No. 2008-127
City Resolution No. R-2008-161
Real Estate Broker Professional Services Agreement
Disposition of City Property
ALMON COMMERCIAL REAL ESTATE
By:
Bill Almon, Jr.
Date:
ATTEST:
C
6 /1 6Z
Date: -)1 r0
Page 6 of 6
BUSINESS OF THE CITY COUNCIL
YAKI 1A, WASHINGTON
AGENDA STATEMENT
Item No. S
For Meeting of November 18, 2008
ITEM TITLE: Consideration of a Resolution Authorizing the Execution of Professional
Real Estate Broker Services Agreement between the City of Yakima and Almon Commercial
Real Estate for the Purpose of Providing Commercial Real Estate Broker Services.
SUBMITTED BY: Dave Zabell, Assistant City Manager
CONTACT PERSON/TELEPHONE: Dave Zabell — 575-6040
Sue Ownby, Purchasing Manager — 576-6695
SUMMARY EXPLANATION:
In June, 2008 the City issued a Request for Proposal5l in the community to hire a firm to
conduct miscellaneous Commercial Real Estate Broker Services for the City. Though there
seemed to be much interest in the real estate community, only one firm responded to the
advertised RFP, that being Almon Commercial Real Estate, under the auspices of Bill Almon,
Jr. Almon was both responsive and responsible to the RFP and has a long history in the
Yakima Valley as being a well-respected commercial real estate firm. The attached resolution
would authorize the City of Yakima to enter into an agreement with Almon Commercial Real
Estate for the purpose of disposing of real property that is no longer needed and is in the
public interest to dispose of the real property on the open market following standard real
estate practices in the area. Additionally, the resolution would authorize the City Manager to
sign and execute the Agreement on behalf of the City.
Resolution X Ordinance Other (Specify)
Contract - X Mail to (name and address):
Phone:
Funding Source
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Staff recommends approval.
COUNCIL COMMITTEE/BOARD/COMMISSION RECOMMENDATION: The Council
Economic Development Committee approved this item at their November, 5, 2008 meeting.
COUNCIL ACTION: