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HomeMy WebLinkAboutResolution No. 2015-07Suggested by: Administration [heu�of CITY OF KENAI HENAIALA SHA RESOLUTION NO. 2015 -07 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AWARDING A CONTRACT TO MACSWAIN ASSOCIATES, LLC FOR CITY OWNED LANDS APPRAISAL SERVICES FOR TOTAL AMOUNT OF $49,000. WHEREAS, the following bids were received on January 26, 2015: BIDDER TOTAL BASIC BID MacSwain Associates, LLC $49,000 M1 WHEREAS, MacSwain Associates, LL is the lowest responsible bid and award to this bidder would be in the best interest of the City; and, WHEREAS, the recommendation from the City Administration is to award the contract to MacSwain Associates, LLC for the total cost of $49,000 and, WHEREAS, sufficient monies are appropriated. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, the contract for City Owned Lands Appraisal Services is awarded to MacSwain Associates, LLC for the total amount of $49,000. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 4th day of February, 2015. PAT PORTER, MAYOR ATT S`T:� and odigh, City Clerk Approved by Finance: M MEMO* ""Village with a Past, Gc�y with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -7535 / FAX: (907) 283 -3014 www.ci.kenai.ak.us TO: Terry Eubank, Action City Manager / �. FROM: Christine Cunningham, Assistant to (City ManagerU' d/ DATE: January 28, 2015 SUBJECT: Resolution No. 2015 -07 — City Owned Lands Appraisal Services Kenai kyl anm Vmw 'VIII 2011 The City of Kenai requested proposals from real estate appraisal firms to provide appraisals of approximately 100 municipal -owned properties to determine the fair market value of the properties for the purpose of establishing lease rates. Notice was published for two weeks. The City received one proposal from MacSwain Associates, LLC. The proposal was opened on January 27, 2015 at 8:00 a.m. and the met the evaluation criteria, including depth of market experience, past performance, proposal quality, and an understanding of the work to be performed. Sufficient funds were appropriated for the project in the FY 15 Budget. The City Attorney has reviewed the attached draft Professional Services Agreement and has no objection as to form. If Council approves Resolution No. 2015 -07, the agreement may be executed by the parties. Attachment DRAFT PROFESSIONAL SERVICES AGREEMENT (Land Appraisal Services) THIS AGREEMENT is made this XXX day of XXXXXX, 2015, between the City of Kenai (City), whose address is 210 Fidalgo,, Kenai, AK 99611, and XXXXXxxxXX (Contractor), whose address is WITNESSETH WHEREAS, the City desires to obtain professional appraisal services to determine the fair market value of certain City-owned lands for purposes of setting lease rental rates; and, WHEREAS, Contractor desires to provide professional appraisal services to the City of Kenai and Contractor has demonstrated qualifications to perform the work in a timely manner. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: 1. DEFINITIONS. A. "Agreement" means this Professional Services Agreement and all attachments hereto. B. "City," unless the context clearly suggests otherwise, means the City of Kenai, its officers, agents, employees, and representatives. C. "Contractor," unless the context clearly suggests otherwise, means the City of Kenai, its officers, agents, employees, and representatives. D. "Project" means the appraisal of a number of municipally -owned properties located in the City of Kenai and as described in the Scope of Work, below, and in the attachments hereto. 2. TERM. The Project shall begin on the effective date of this Agreement and the work shall be completed no later than April 10, 2015, unless sooner terminated according to the provisions of this Agreement. 3. COST. The total fee to be paid to the Contractor for this Agreement is a fixed fee of $ . At no time will any provision of this Agreement make the City liable for payment for performance of work under this Agreement in excess of the APPENDIX F — Draft Professional Services Agreement Page I amount that has been appropriated by the City Council and obligated for expenditure for purposes of this. Agreement. 4. PAYMENT. Payment will be made by the City within 30 working days after receipt and approval of Contractor's billing statement and following acceptance by the City of Contractor's Final Appraisal Report and all associated, required documentation owned by the City and to be supplied by Contractor. Unless otherwise agreed, payment will be based on a properly - documented billing statement. 5. TAXES. Contractor shall obtain all necessary licenses and permits, pay all taxes lawfully- imposed on its business and/or sales, and pay any other fee or charge assessed under any applicable public statute, regulation, or ordinance. 6. SCOPE OF WORK. A. The City and Contractor have agreed upon a scope of work described in the Contractor's proposal, Attachment A, to provide professional land appraisal services based on approved standards and instructions, as specifically described in Attachment B to this Agreement. In general, Contractor shall perform the following services and provide the following work product. i. Conduct appraisals on parcels of municipally -owned land as provided in the Request for Proposals issued January 13, 2015 and contract documents. ii. Contractor shall provide the City with three (3) copies of a Draft Appraisal Report in photocopy form no later than March 27, 2015. iii. Contractor shall provide the City with three (3) copies of the Final Appraisal Report no later than April 10, 2015. Of these three (3) copies, Contractor shall provide the City with at least one original with color photos in a three -ring binder and two spiral -bound photocopies. B. The City reserves the right to add or to delete parcels from the Agreement and Scope of Work. Provided that the additional parcels are similar in size and type, the unit fee to be paid for additions, including individual appraisals, will be the average contracted fee of all parcels. Other types of additions will be negotiated on a case -by- case basis. Where Contractor has not provided a price per unit or parcel of property, additions to the work will be negotiated on a case -by -case basis, but the average contracted fee for all parcels will guide these negotiations and the price to be paid by the City. The fee reduction for deleted parcels will be the contract unit price for the APPENDIX F — Draft Professional Services Agreement Page 2 deleted parcel. However, the City may not delete any parcels within fourteen (14) days of the required completion date. Costs incurred for deleted parcels for which a portion of the work has been done will be negotiated at the time of deletion. Where Contractor has not provided a price per unit or parcel of property, deletions to the work will be negotiated on a case -by -case basis, but the average contracted fee for all parcels will guide these negotiations and the price to be deleted from the Agreement. Adjustments may also be considered for the deletion of a parcel or group of parcels whose size, type, or neighborhood is significantly different from the majority of the parcels in the contract for that area if Contractor can demonstrate to the satisfaction of the City that the deletion will materially affect the effort necessary to complete other similar parcels. In no event will costs for a deleted parcel be more than 25% of the contracted fee for that parcel. C. Any work added or deleted from the Scope of Work shall be specified in a change order or addendum to this Agreement that will set forth the nature and scope of the deleted work and shall be signed by both parties to this Agreement. Work deleted under a change order shall not proceed thereafter. Performance of any work by Contractor shall waive any claim by Contractor for compensation of this deleted work. 7. COMPLETION DATES. A Draft Appraisal Report shall be due to the City no later than March 20, 2015. The Final Appraisal Report shall be due to the City no later than April 1, 2015. The Project shall be considered complete when the City has received and found acceptable all finished product of all work as described in contract documents, and in any authorized changes to this Agreement. 8. LIQUIDATED DAMAGES. Time is of the essence in performance of services under this Agreement. The City is timing matters relating to the Project and development of the Final Appraisal Report based upon and in reliance upon the Scope of Work dates and time schedules for performance by the Contractor. Contractor's failure to meet any such deadlines or required performance may adversely imperil other contractual obligations of the City. If Contractor fails to deliver the Final Appraisal Report by April 10, 2015, Contractor shall pay as liquidated damages and not as penalty $200 per day for each day after April 10, 2015, that Contractor fails to deliver the Final Appraisal Report. 9. PERSONNEL. A. The performed by: _ are considered to Project work and services provided by the Contractor will be . The following personnel be essential to the provision of adequate services by Contractor: APPENDIX F — Draft Professional Services Agreement Page 3 B. Contractor shall give the City reasonable advance notice of any necessary substitution of key personnel and shall submit justification therefore in sufficient detail to permit the City to evaluate the impact of such substitution on this Agreement. No substitutions shall be made without the written consent of the City. C. The City may, with reasonable cause, upon providing written notice to Contractor, cause to be removed immediately from the Project, or any phase thereof, any personnel whose continued involvement in the opinion of the City, is not in the best interest of the Project or the City. Contractor, upon receipt of such written notice to remove an individual(s), shall have five (5) business days to provide the City with the name and summary of credentials of proposed replacement(s) for those removed. The participation of those proposed personnel shall be subject to approval by the City. 10. OWNERSHIP OF WORK PRODUCT. Payment to Contractor for services hereunder include full compensation for all work products and other materials produced by the Contractor (and any subcontractors) pertaining to this Agreement. The originals of all material prepared or developed by Contractor, including documents, drawings, designs, calculations, maps, sketches, notes, reports, data, models, computer tapes, and samples shall become the property of the City when prepared, whether delivered or not, and shall, together with any materials furnished Contractor by the City hereunder, be delivered to the City upon request and/or upon termination or completion of this Agreement. Materials previously created and copyrighted by Contractor included in this Project will remain property of the Contractor although copies of said materials will be made available to the City upon request. Materials purchased from and copyrighted by third parties are not included in this provision. 11. STANDARD OF PERFORMANCE. Contractor accepts the relationship of trust and confidence established between it and the City by this Agreement. Contractor covenants with the City to furnish its best skill and judgment, and to further the interest of the City at all times through efficient business administration and management. Contractor shall provide all services in a competent manner. It is understood that some of the services to be rendered hereunder require professional judgment and skill and Contractor agrees to adhere to the professional standards and requirements applicable to Contractor's profession and the work to be provided under the Project. 12. INDEMNIFICATION. A. General. Contractor shall indemnify, defend, and hold harmless the City and its agents, employees, and insurers from claim, loss, damage, liability, or expense of APPENDIX F — Draft Professional Services Agreement Page 4 any kind alleged to arise out of or be related to any act or omission concerning the Project, this Agreement, and any work performed under or related to this Agreement, and caused in whole or in part by any act or omission of Contractor. This provision shall survive expiration or termination of this Agreement. This paragraph shall not be construed so as to require indemnification of the City from such claims, damages, death, losses, or expenses caused by or resulting from the sole negligence of the City. B. Specific Indemnification for Patents Trademarks and Co y 'ghts. Contractor agrees to defend, indemnify, and hold harmless the City, its agents, employees, and insurers harmless from and against any and all claims, loss, damage, liability, expense of any kind, and royalties of any kind of nature whatsoever which may arise out of or result from or be reasonably incurred in contesting any claim that the methods, processes, or acts employed by Contractor or its employees in connection with the performance of services under this Agreement infringes or contributes to the infringement of any letter patent, trademark, or copyright. In case such methods, processes, or acts are in suit held to constitute infringement and use is enjoined, Contractor, within reasonable time and at its own expense, will either secure a suspension of the injunction by procuring for the City a license or otherwise, or replace such method, process, etcetera, with one of equal efficiency. 13. INSURANCE. A. Contractor shall maintain in good standing the insurance described in subsection B of this Article. Before rendering any services under this Agreement, the Contractor will provide the City with proof of insurance coverage in the form of an insurance policy or a certificate of insurance, together with proof that the premiums have been paid, showing the types and monetary limits of coverage secured. All insurance requirements shall be subject to the sole determination of the City. The City Manager may, with the counsel of the City Attorney, waive or reduce the insurance requirements under (C) of this Article. B. Notwithstanding anything to the contrary, if Contractor fails or neglects to secure required insurance, or if said policy or policies are terminated, altered, or changed in any manner not acceptable to the City, then and in that event the City may cancel and/or terminate this Agreement, without penalty, on five (5) days' written prior notice to Contractor. C. Contractor shall provide the following insurance: i. Comprehensive general liability, including premises, all operations, property damage, personal injury and death, broad -form contractual coverage with a per occurrence limit of not less than $1,000,000 combined single limit; and, APPENDIX F — Draft Professional Services Agreement Page 5 ii. Comprehensive automobile liability with not less than $1,000,000 combined single limit per occurrence, to include owned, hired, and non -owned vehicles that Contractor utilizes on the Project; and, iii. Employer's liability and worker's compensation for Contractor employees as required under AS 23.30 and, where applicable, any other statutory obligations; and, iv. Professional services liability insurance appropriate to Contractor's profession (typically, such insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit). D. Each policy of insurance required by this section shall provide for no less than thirty (30) days' advance written notice to the City prior to cancellation or change in insurance amount and shall be written by an insurer rated A- or better by A. M. Best. Upon approval by City of all insurance.required, in the forms, kinds and amounts directed to be procured, Contractor shall deliver all policy originals or duplicate originals and endorsements thereto to the City for incorporation within this agreement as attachment thereto. E. The City shall be named as additional insured to the extent allowable on all policies (except Worker's Compensation) and subrogation must be waived against the City. F. Contractor expressly understands and agrees that any insurance protection furnished by Contractor hereunder shall in no way limit its responsibility to indemnify, defend, and hold harmless the City under the provisions of this Agreement G. Contractor shall promptly report all incidents of accident or injury at the Center in writing to the City's Lands Manager. 14. TERMINATION. A. Termination for Convenience. The City may terminate this Agreement, in whole or in part, at any time, by at least 15 days' written notice to the Contractor. No fee or other compensation for the uncompleted portion of the services will be paid, except for already incurred indirect costs which Contractor can establish and which would have been compensated for over the life of the phase of the appraisal underway, but because of the termination, would have to be absorbed by Contractor without further compensation. B. Termination for Cause. If Contractor fails to perform in the manner called for in this Agreement, or if Contractor fails to comply with any other APPENDIX F — Draft Professional Services Agreement Page 6 provisions of the Agreement and fails to correct such noncompliance within five (5) days' written notice thereof, the City may terminate this Agreement for cause. The City shall effect termination for cause by serving a notice of termination on the Contractor setting forth the manner in which Contractor is in default. Contractor will only be paid for services performed in accordance with the manner of performance set forth in this Agreement. If the City terminates this Agreement it will pay Contractor a sum equal to the percentage of work completed that can be substantiated by Contractor and the City. C. Activities Subsequent to Receipt of Notice of Termination. Immediately upon receipt of a notice of termination and except as otherwise directed by the City, Contractor shall: i. stop work performed under this Agreement on the date and to the extent specified in the notice; ii. terminate all orders and subcontracts to the extent that they relate to the performance of the work terminated or suspended by the notice; iii. place no further orders for materials, services, or facilities, except as may be necessary for completion of such portion of the work under this Agreement that is not terminated or suspended; and, iv. transfer title to the City (to the extent that title has not already been transferred) and deliver in the manner, at the times, and to the extent directed by the City's representative, work in progress, completed work, supplies, and other material produced as a part of, or acquired in respect of the performance of the work terminated or suspended by the notice. 15. DISCRIMINATION PROHIBITED. Contractor shall not discriminate in the conduct of its work on the Project and performance of services under this Agreement on the grounds of race, color, religion, national origin, ancestry, marital status or change in marital status, age, or gender. Contractor understands that any such discrimination shall be deemed to be a material breach of this Agreement. 16. SAFETY /PERFORMANCE. Contractor shall perform the work in a safe and workmanlike manner. Contractor shall comply with all federal and state statues, ordinances, orders, rules, and regulations pertaining to the protection of workers and the public from injury, death, or damage, and shall take all other reasonable precautions to protect workers and the public from injury, death, or damage. 17. NO ASSIGNMENT OR DELEGATION. The Contractor may not assign or delegate this Agreement, or any part of it, or any right to any of the money to be paid under it without written consent of the City. This consent shall not be unreasonably APPENDIX F — Draft Professional Services Agreement Page 7 withheld. 18. INDEPENDENT CONTRACTOR. The Contractor is an independent contractor in the performance of the work under this Agreement and is not be an employee of the City. 19. NO JOINT VENTURE. This Agreement is not intended to create, and nothing in this Agreement should convey or be construed to create, a joint venture between the City and Contractor. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization, limited liability company, partnership or corporation, nor shall any other person, firm, organization, limited liability company, partnership or corporation have any right or cause of action hereunder. 20. COMPLIANCE WITH LAWS. Contractor shall at all times comply with all federal, state, and municipal laws, ordinances, rules and regulations, all applicable safety orders, all orders or decrees of courts and administrative agencies or other legally constituted authorities having jurisdiction or authority over the Contractor, the City, or the services to be performed under this Agreement. 21. NOTICES. Any and all notices required or permitted under this Agreement shall be in writing and hand- delivered or mailed by certified mail, return receipt requested, or by overnight delivery to the following addresses: To City: City. of Kenai Attn: Lands Manager 210 Fidalgo Avenue Kenai, AK 99611 To Contractor: Either party may change its address for notice by giving notice as provided herein to the other party. Notice is effective upon hand delivery or deposit, postage prepaid, in the United States mail. APPENDIX F — Draft Professional Services Agreement Page 8 22. VALIDITY OF PARTS. If any term, condition, or provision of this Agreement is declared void or unenforceable, or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. 23. NO WAIVER. If the City does not insist in any one or more instances on the strict performance by the Contractor of any provision or article under this Agreement, it is not a waiver or relinquishment for the future, but the provision or article will continue in full force. A City waiver of any provision or article in this Agreement cannot be enforced nor relied on unless the waiver is in writing and signed on behalf of the City. 24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties. All negotiations, statements, representations, warranties, and assurances, whether oral or written, which are in any way related to the subject matter of this Agreement or the performance of either party hereto are merged and integrated into the terms of this Agreement. This Agreement may not be modified or amended except by a writing signed by both parties hereto, and any purported amendment or modification is without effect until reduced to a writing signed by both parties. 25. TIME OF ESSENCE. Time is of the essence in the performance of all rights and obligations of the parties to this Agreement. See also, paragraph 8, above, Liquidated Damages. 26. GOVERNING LAW. The laws of State of Alaska will determine the interpretation of this Agreement and performance thereof. 27. DISPUTES. In any dispute between the parties, the laws of the State of Alaska will govern. If any such dispute results in a lawsuit, the parties will bring the lawsuit before the courts of the State of Alaska in the Third Judicial District in Kenai. 28. ATTORNEY'S FEES AND COSTS. If any legal proceeding is brought for the enforcement of this Agreement, or because of a dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover from the other party, in addition to any other relief to which such party may be entitled to full, reasonable attorney's fees and other Alaska R. Civ. P. 79 costs incurred in that action or proceeding. 29. RIGHTS OR REMEDIES. No right or remedy herein conferred upon or reserved to each respective party is intended to be exclusive of any other right or remedy. Each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. APPENDIX F — Draft Professional Services Agreement Page 9 30. INTERPRETATION. Headings of paragraphs herein are solely for convenience of reference and shall not affect meaning, construction, or effect of this Agreement. Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa. Unless the context otherwise indicates, the use of the neuter, masculine, or feminine gender shall include the others as well. 31. EFFECTIVE DATE. This Agreement and all of its terms shall be effective upon the later of signature of both parties. 32. DUPLICATE ORIGINALS. This Agreement may be executed in duplicate originals. WITNESS WHEREOF, the parties have set their hands and day and year as stated in the acknowledgments below. CITY OF KENAI: Rick R. Koch Its: City Manager CONTRACTOR: Un Its: STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this — day of 12015, RICK R. KOCH, City Manager of the City of Kenai, Alaska, being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged the voluntary and authorized execution of the foregoing instrument on behalf of the City. Notary Public for Alaska My Commission Expires: APPENDIX F — Draft Professional Services Agreement Page 10 STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) . THIS IS TO CERTIFY that on this _ day of 2015 XXXXXX XXXXXX, XXXXXXXXXXXXX, of the XXXXXX, being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged the voluntary and authorized execution of the foregoing instrument on behalf of XXXXXX. Notary Public for Alaska My Commission Expires: APPENDIX F — Draft Professional Services Agreement Page 11 AMDChlniv f+ RRAI Appendix D - Land Appraisal Instructions The following provides guidelines and instructions for appraisals acceptable to the City of Kenai. PROJECT COORDINATION. The Contractor will: a. Meet with the City Manager, Land Manager, Airport Manager, and City Planner to establish a work schedule and to obtain all necessary maps and applicable lease information to complete the project. City will provide contractor (1) parcel maps, (2) access to all accessible data and information pertaining to subject properties for review; and (3) access to City -owned lands not under lease. b. Provide weekly personal, written or emailed status reports to the Lands Manager on the progress of the project, and a final written report. c. Offer each lessee a written invitation to accompany the Appraiser during inspection of the property to be appraised. A copy of such written notification shall be included in each Appraisal Report. In the event the contractor is unable to contact the lessee, documentation shall be included in the Appraisal Report setting forth the reason(s) why. d. Conduct a field inspection to become familiar with the subject area and properties, and obtain adequate representative photography of parcels being appraised for inclusion in a narrative appraisal report. e. Conduct a field inspection and photograph all comparable sales properties for inclusion in the narrative appraisal report. RIGHTS APPRAISED. Parcels shall be appraised in a manner that determines the fair market value of the fee simple interest in the land, unencumbered by the lease, including any improvements that have reverted to and are owned by the City of Kenai (which will be specifically delineated), and excluding any improvements owned by the lessee as of the appraisal date. Specifically, the appraisal should be of the unimproved land in its existing condition without liens or encumbrances, disregarding all building or structural improvements above grade but including at -grade and subsurface improvements, excluding structural foundations. The unimproved land, as defined, shall be appraised as if vacant and available for development to its highest and best use in accordance with the applicable local zoning ordinances. Current use is not necessarily to be considered highest and best use. In the event the City owns part or all of the building or structural improvements, a rental study needs to be incorporated to determine the fair market rent contributed by such improvements. In such instances, appraiser will provide both the market value of that improvement, the total market value of the property with improvements in place and the value of the vacant land without the improvements.