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HomeMy WebLinkAboutResolution No. 2019-75thui'tJo/ KENAl,AWKA "V Sponsored by: Administration CI TY OF KENAI RESOLUTION NO. 2019-75 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AWARDING A CONTRACT FOR CITY-OWNED LANDS APPRAISAL SERVICES WHEREAS, after advertising a Request for Proposals , the following proposals were rece ived and ranked by City Administrat ion on October 25, 2019 : BIDDER RANKING TOTAL BASIC BID MacSwain Associates, LLC 1 $32 ,000 Rikrland Valuation 2 $58 ,895 Services WHEREAS, MacSwain Associates , LLC provides the best option for City based on evaluation criteria of the proposer's experience, qualifications of key staff, proposal quality, understanding of the work to be performed , and cost; and, WHEREAS, the recommendation from City Administration is to award the contract to MacSwain Associates, LLC; and , WHEREAS , sufficient funds are appropriated. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA: Section 1. That the contract for City-Owned Lands Real Estate Appraisal Services is awarded to MacSwain Associates, LLC for the total amount of $32,000 . Section 2. That this resolution takes effect immediately upon passage . PASSED BY THE COUNCIL OF THE CITY OF KENAI , ALASKA, this 61h day of November, 2019. BRIAN GABRIEL, SR., MAYOR ATTEST: 'ti/fl'~ «1/th, a Paif~ Ot'tf «1/th a /"u.tvn," 210 Fidalgo Ave , Kenai , Alaska 99611 -7794 Telep ho ne : (907) 283-7535 I Fa x : (90 7) 2 83 -3014 www. kena i.c ity MEMORA NDUM TO : THROUGH: FROM: DATE: SUBJECT: Mayor Brian Gabriel and Kenai City Council Paul Ostrander, City Manager Elizabeth Appleby, City Planner October 29 , 2019 Resolution No. 2019 -75 -Awarding a Contract for City-Owned Lands Appraisal Services City Administration requested proposals from qualified independent real estate appraisers certified by the State of Alaska under AS 08.87 to provide appraisals for a number of City-owned properties to determine the fair market value of the properties as if vacant (site value). Many of the parcels are improved to their highest and best use and are encumbered by land lease agreements or are available for lease . The City determines annual rent by computing a lease rate percentage of the fair market value of the land . The parcels included in the appraisal are those requiring a determination of fair market value on a five-year cycle in order to compute a lease rate. Maps of the 41 specific properties requiring appraisal are included as an attachment to this memorandum . The City received two proposals to perform the required appraisals for City-owned lands. One proposal was from MacSwain Associates , LLC, and the other proposal was from Rikrland Valuation Services . A selection committee scored each proposal on the evaluation criteria outlined in the Request for Proposals (RFP). The evaluation criteria included the proposer's experience , qualifications of key staff, proposal quality, the understanding of work to be performed , and cost. City Administration recommends awarding the contract to MacSwain Associates , LLC for the total cost of $32,000 . Sufficient funds were appropriated for the project in the FY20 budget. If City Council approves the contract award with Resolution No . 2019-75 , the attached draft Professional Services Agreement will be executed . Thank you for your consideration . PROFESSIONAL SERVICES AGREEMENT (Real Estate Appraisal Services) THIS AGREEMENT is made th is __ day of , 2019, between the City of Kenai (City), whose address is 210 Fidalgo , Kenai, AK 99611, and MacSwain Associates , LLC (Contractor), whose address is 4401 Business Park Boulevard, Suite 22, Anchorage, AK 99503. WITNESSETH WHEREAS , the City desires to obtain professional real estate appraisal services to determine the fair market value of certain City-owned lands for purposes of setting lease rental rates; and , WHEREAS, Contractor submitted a proposal to provide professional real estate appraisal services to the City of Kenai and the 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 MacSwain Associates, LLC, 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 March 2, 2020 , 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 $32,000. 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 amount that has been appropriated by the City Council and obligated for ex penditure for purposes of this Agreement. 4. PAYMENT. Payment w ill 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, requ ired documentation owned by the City and to be supplied by Contractor. Unless otherwise agreed , payment will be based on a properly- documented billing statement. Professional Services Agreement Page 1 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 real estate appraisal services based on approved standards and instructions, as specifically described in the Request for Proposals (RFP) 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 October 7, 2019 and contract documents. ii. Contractor shall provide the City with a Draft Appraisal Report no later than February 28, 2020 . iii. Contractor shall provide the City with five (5) bound copies and one (1) electronic pdf copy of the Final Appraisal Report no later than March 2, 2020. B. 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 February 28, 2020. The Final Appraisal Report shall be due to the City no later than March 2, 2020. 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 March 2 , 2020, Contractor shall pay as liquidated damages and not as penalty $200 per day for each day after March 2, 2020, that Contractor fails to deliver the Final Appraisal Report . 9. PERSONNEL. A. The Project work and services provided by the Contractor will be performed by: MacSwain Associates, LLC . The following personnel are considered to be essential to the provision of adequate services by Contractor: Steve MacSwain , Dan Shantz, and Alex Kleinke . Professional Services Agreement Page 2 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 origina ls 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 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. Professional Services Agreement Page 3 B . Specific Indemnification for Patents. Trademarks. and Copyrights . 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 i nfringes 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, withi n 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 wi t h 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 C ity 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 insurance, 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, ii. Worker's compensation insurance with cove rage for all employees engaged in work under this Agreement as required by AS 23.30 .045 (Proposer is responsible for worker's compensat ion insurance for any sub-proposer who directly or indirectly provides services under t he Agreement); and , iii. Comprehensive automobile liability insurance covering all owned, hired, and non-owned vehicles with coverage limits not less than $1 ,000,000 combined single limit per occurrence , and , iv. For comprehensive general liability and automobile liability insurance, name the City of Kenai as an additional insured ; and, v. For workers compensation insurance, general liability, and automobile liability insurance, where possible , include a wai ver of subrogation so that the insurer Profe ss ional Serv ices Agreement Page 4 waives all rights of subrogation against the City of Kenai for payments made under the policy; and, vi. Prov ide Owner with at least 30 days' written notice before any termination, cancellation , or material change in insurance coverage is effective; and , vii. Be issued by a company/corporation currently rated "A-" or better by AM. Best. Proposer must indemnify, defend , and hold harmless the City and its agents , employees, and/or insurers from claim , loss, damage, liability, including injury and death, or expense in any way related to any act or omission of Proposer or Proposer's employees, agents, or invitees arising out of Proposer's performance of services under the Agreement, except to the extent any negligence of City or its employees or agents is a proximate cause of any injury or damage. If a third party asserts a claim against Proposer and City, Proposer and the City shall seek in good faith to achieve Agreement to an apportionment of fault as between them without an independent of litigation. This provision shall survive expiration or termination of any Agreement. 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 provisions of the Agreement and fails to correct such noncompliance with in 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 , Professional Services Agreement Page 5 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 not ice. 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 w ithout written consent of the City. This consent shall not be unreasonably 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: City Planner 210 Fidalgo Avenue Kenai, AK 99611 Professional Services Agreement Page 6 To Contractor: MacSwain Associates, LLC 4401 Business Park Boulevard, Suite 22 Anchorage, AK 99503 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. 22. VALID ITY 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 Ci ty 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 mod ified 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 obl igations of the parties to this Agreement. See also , paragraph 8, above, Liquidated Damages. 26. GOVERN ING LAW. The laws of State of Alaska will dete rmine 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 Sta te 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 Professional Services Agreement Page 7 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. 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. STATE OF ALASKA ) ) SS THIRD JUDICIAL DISTRICT ) CITY OF KENAI: By: _________ _ Paul Ostrander Its: City Manager MACSWAIN ASSOCIATES: By: ___________ _ Steve MacSwain Its: Owner THIS IS TO CERTIFY that on this _ day of , 2019, PAUL OSTRANDER, 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: _________ _ STATE OF ALASKA ) ) SS THIRD JUDICIAL DISTRICT ) Professional Services Agreement Page 8 THIS IS TO CERTIFY that on this _ day of , 2019, STEVE MACSWAIN , Owner of MacSwain Associates, LLC, 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 MacSwain Associates , LLC. Notary Public for Alaska My Commission Expires: _________ _ Professional Services Agreement Page 9