HomeMy WebLinkAbout11/18/2008 15 Commercial Real Estate Broker Services Agreement with Almon Commercial Real Estate BUSI; OF THE CITY COUNCIL
YAKIMA, 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 Proposals 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
40 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: ' ��c - 7:7 - 2_ 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:
S
• RESOLUTION NO. R -2008-
A RESOLUTION 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 18 day of November, 2008.
•
David Edler, Mayor
ATTEST:
City Clerk
410
•
• 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 ( "REP "), 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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• 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.
0 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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evidence of professional liability coverage with a limit of at least One Million Dollars
0
($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
el the prior written consent of the City. In the event that such prior written consent to an
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• 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 33 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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shall be construed to give or provide any right or benefit, whether directly or indirectly or 1110
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 ALMON COMMERCIAL REAL ESTATE
By: By:
R. A. Zais, Jr., City Manager Bill Almon, Jr.
Date: Date: (6/1s/ Z
ATTEST: ATTEST: 4-41Wi
City Clerk
City Contract No. Date: 1 o I IS/ a
City Resolution No.
IIII
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