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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. 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 Page2of6 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. 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 Page3of6 Real Estate Broker Professional Services Agreement Disposition of City Property 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 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 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 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 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 Page 6 of 6 Real Estate Broker Professional Services Agreement Disposition of City Property