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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. Page 1 of 6 Real Estate Broker Professional Services Agreement Disposition of City Property 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 Page 2 of 6 Real Estate Broker Professional Services Agreement Disposition of City Property 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 Page 3 of 6 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 Page4of6 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 Page 5 of 6 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: