HomeMy WebLinkAboutHeritage-Moultray Real Estate Services, LLC - Disposition of three parcels 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 Heritage - Moultray Real Estate
Services, LLC ( "Broker "), a limited liability company licensed to do business in Washington.
WHEREAS, the City desires to engage the Broker to perform professional real estate
services for the disposition of City property identified as three parcels approximately 1.67
acres, total, of B -1, Professional Business, zoned land on West Nob Hill Boulevard and 34
Avenue, being commonly known as Yakima County Assessor's Parcel Numbers 181327-
41490, 181327 - 41489, and 181327 - 41491, and such other properties hereafter from time to
time deemed by the City to be appropriate for disposition; 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 — Listinq Price. The Broker shall provide commercial real estate
services to the City for the disposition of three adjoining parcels of property generally located
south of West Nob Hill Boulevard near the intersection of 34 Avenue, and further described
below by reference to such parcels' Yakima County Assessor's Parcel Numbers:
Parcel No.181327 -41490
Parcel No.181327 -41489
Parcel No.181327 -41491
Listinq Price: The above - described parcels will be listed as a package for the combined
sales price of $425,000.00. Notwithstanding this provision, the City may accept any offer for
the sale of such parcels, or any of them, for any different amount deemed acceptable by City.
The parties may at any time by separate memorandum revise the listing price for such
parcels, or any of them. Upon execution, such memorandum shall be appended to this
Agreement and shall be deemed incorporated herein by this reference.
Listing of Other Properties: The parties may agree to list other City properties for disposition
under the terms of this Agreement. In the event the parties agree to list such other City
properties for disposition under this Agreement, they shall enter into a written Addendum
describing the property to be :listed, the listing sales price for each property, and any other
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conditions or provisions specifically pertaining to such property or the disposition thereof.
Upon execution by both parties, such Addendum shall be attached to this Agreement and
shall be deemed incorporated herein 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. 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 of six percent (6 %) of the purchase price as
compensation for Broker's service, at the time of closing, or upon the occurrence of any action
provided for in this Section. 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.
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.
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
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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. 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. § 121.01 et seq. (ADA) and its implementing
regulations and Washington State's anti - discrimination law as contained in RCW
Chapter 49.60 and its 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
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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 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 elate 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 elate 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
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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 insurers 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 clays 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 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.
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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. Severabilitv. 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: City Manager
City of Yakima
129 North Second Street
Yakima WA 98901
TO BROKER: Russ Roberts, CCIM / Mike Abrams
Heritage - Moultray Real Estate Services, LLC
5625 Summitview Avenue
Yakima, WA 98908
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 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 i s 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.
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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 HERITAGE - MOULTRAY REAL ESTATE
SERVICES, LLC
A ,
By: AI ' By:
)'Ro'�ke, City Manager R ss Roberts, CCIM / Mike Abrams
c f Date: ' 13 l Date: 7 A
EST: -���i ATTEST:
_ * - � h,
City Clerk ' ‘ic 7
,." t , _ aaz�'y
City contract No. pler �/ Date:
City Resolution No., '/,r
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