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5.h Assessment Services Agreement Staff Report Date of Meeting: April 17, 2018 To: City Council From: Neil Soltis, Administrator Re: Assessment Service Agreement Background: At the April 4 work session the Council accepted a proposal from Pauszek Inc. (Patrick Poshek) for assessment services for the period of May 1, 2018 through the Board of Appeals meeting in 2021. Based on the proposal and the previous agreement, City Attorney Andy Pratt has drafted the Assessment Service Agreement Issue: Should the Mayor and Administrator be authorized to execute the agreement on behalf of the City? Fiscal Impact: The fee for the assessment years 2019 through 2021 are fixed at $20,400 per year. There is adequate funding in the 2018 budget for the payments due in 2018 under the proposed agreement. Options: 1. Authorize the Mayor and Administrator to execute the agreement 2. Modify the agreement 3. Take no action on the agreement Recommendation: Option 1 Page 1 of 5 ASSESSMENT SERVICES AGREEMENT THIS ASSESSMENT SERVICES AGREEMENT (the “Agreement”), is entered into and made effective this 1st day of May, 2018 (the “Effective Date”), by and between the CITY OF SCANDIA, a Minnesota municipal corporation and political subdivision (the “City”), and PAUSZEK, INC., a Minnesota corporation, PATRICK A. POSHEK, Chief Executive Officer (the “Assessor”) (collectively, the “Parties”). The City Council of the City conducted a request for proposal process for assessor services in 2018, and approved the selection of the Assessor at a City Council meeting on April 4, 2018. The Parties hereby agree as follows: 1.0 Term; Services. The term of service will be for a period of three (3) years, commencing on May 1, 2018 and terminating on the date on which the Scandia Local Board of Appeal and Equalization Meeting, or any successor to its functions (the “Board”) adjourns in 2021, unless terminated earlier pursuant to the terms of this Agreement (the “Term”). For purposes of this Agreement, the phrase “Assessment Year” shall refer to each assessment year during the Term commencing the day following the adjournment of the Board for the prior assessment year and ending on the date on which the Board adjourns for the current assessment Year. During the Term, Assessor agrees to provide all assessment services for real property in the City for Assessment Years 2019 through 2021, including, without limitation: physical inspection of one- fifth (20%) of all properties within the City each Assessment Year; conducting market studies each Assessment Year, which include land sales, improved property sales, new construction sales, land residual/building residual analysis; complete divisions/combinations of tax parcels annually; review/read blueprints and provide on-site inspection work for new construction by January 2 of each Assessment Year; maintain good public relations by responding to inquiries regarding property tax rebates, tax estimates, and homestead applications; assist in the defense of challenged assessments at the local board of review, working closely with Washington County in the event of a Tax Court appeal (collectively, the “Services”), and such other tasks and responsibilities which are mutually agreed to relate to the Services as requested by the City from time to time. Assessor shall perform such Services in a professional, timely and workmanlike manner. 2.0 Independent Contractor Relationship. It is the intention of the Parties to establish by this Agreement an independent contractor relationship. Assessor is an independent contractor and is not an employee, partner, or joint venture of the City for any purpose. Assessor shall have no authority to bind the City or enter into any contract, obligation, or agreement on the City’s behalf except with the City’s written permission. The City and Assessor acknowledge that Assessor shall not be subject to the provisions of any employee handbook, personnel policy, procedure manual, rules or regulations applicable to employees of the City. Assessor is not entitled to receive, and hereby waives the right to participate in, any employer-paid or employer-sponsored employee welfare, retirement, and/or pension benefits of the City, including but not limited to, paid time off, paid vacation, paid sick leave, health insurance, dental insurance, retirement contributions, 401(k), etc. Assessor shall fulfill Assessor’s responsibility independent of, and without supervisory control by, the City and shall utilize his independent professional judgment in rendering services under this Agreement; provided, however, that the City shall be entitled to Page 2 of 5 exercise broad general powers of supervision and control over the results of work performed by Assessor to ensure satisfactory performance. 3.0 Compensation. The Assessor shall be compensated for the Services provided in this Agreement. Each Assessment Year during the Term, the City shall pay to the Assessor an annual fee in the amount of Twenty Thousand Four Hundred Dollars and 00/100 ($20,400.00) (the “Assessor’s Fee”). The Assessor’s Fee shall be paid in monthly installments of One Thousand and Seven Hundred Dollars ($1,700.00) commencing on June 10, 2018 and on the tenth day of each month thereafter. Such monthly payment shall compensate Assessor for the Services provided for the immediately preceding month. The Assessor shall provide the City an invoice for each month of Services, which shall include a brief summary of the work performed during the previous month. 4.0 Taxation. The City will issue to Assessor an IRS Form 1099 at the end of each calendar year for all payments provided to Assessor under this Agreement. The City shall not, and shall not be obligated to, withhold or contribute any payroll, federal, state, and/or local income taxes with respect to such payments. Assessor shall properly report all income received under this Agreement to the appropriate taxing authorities as required by applicable law and shall be solely responsible for paying, and hereby agrees to pay, all federal, state, and local income taxes, payroll taxes, self-employment taxes, and all other taxes and assessments with respect to all payments received by Assessor under this Agreement. Assessor shall indemnify and hold the City harmless from and against all taxes, penalties, assessments, fines, audits, liability, claims, damages, and other expenses, including reasonable attorney’s fees and costs, asserted against or incurred by the City due to Assessor’s failure to report or pay any taxes due and owing on account of Assessor’s receipt of payments under this Agreement. Assessor reserves, at his sole discretion, the right to assign payments due under this Agreement to another entity or third party. The covenants of this Section survive the termination or expiration of this Agreement for any reason. 5.0 Workers’ Compensation Insurance; Errors and Omissions Insurance. Assessor understands that the City will not provide workers’ compensation coverage for injury, death, disease, or occupational injury suffered by Assessor while performing the Services under this Agreement. Assessor shall be responsible for obtaining any required workers’ compensation insurance coverage for Assessor. Assessor agrees to indemnify, hold harmless, and protect the City and its shareholders, owners, officers, directors, employees, and insurers, and their successors and assigns, from and against any and all damages, liability, attorney’s fees, and costs arising from or related to any injury, death, disease, or occupational injury suffered by Assessor or his agents or employees, except to the extent caused by the grossly negligent, intentional, willful, or wanton acts of the City. Assessor shall obtain or otherwise maintain existing errors and omissions/malpractice insurance at all times during the Term of this Agreement. The insurance shall contain a coverage amount adequate, in the reasonable opinion of the City, to protect the City from any potential liability. Assessor shall provide a copy of his errors and omissions policy to the City as of the effective date of this Agreement. The covenants of this Section survive the termination or expiration of this Agreement for any reason. Page 3 of 5 6.0 Discretion and Judgment. The City is relying upon Assessor’s education, experience, skill, and wisdom in determining how to complete the Services under this Agreement. Assessor shall use Assessor’s independent judgment and discretion in the performance of the Services under this Agreement. 7.0 Warranty. Assessor warrants that Assessor will perform the Services hereunder using Assessor’s best efforts, in compliance with applicable laws and industry standards, and that to the best of Assessor’s knowledge, Assessor’s entering into this Agreement or performance of the Services called for by this Agreement does not and shall not violate any applicable law, rule, or regulation, or any contracts with or obligations to third parties. The covenants of this Section survive the termination or expiration of this Agreement for any reason. 8.0 Confidentiality. Assessor shall not alter, damage, destroy, delete, disable, conceal, corrupt, remove, download, reverse-engineer, transfer, transmit, disclose, disseminate, share, sell, use, transfer, disclose or give away any Confidential Information, except in the performance of the Services under this Agreement or as required by any applicable law or court order. Assessor shall return any and all such materials to the City immediately upon the request of the City and immediately upon termination of this Agreement. The covenants of this Section survive the termination or expiration of this Agreement for any reason. For purposes of this Agreement, “Confidential Information” shall mean all non-public information related to or obtained in connection with Services. 9.0 Indemnification by Assessor. Assessor agrees to protect, defend, indemnify and hold harmless the City from and against any and all claims, proceedings, and investigations, and all loss, costs, damages, liability and expenses (including court costs and reasonable attorney's fees) arising out of any negligent, grossly negligent, willful misconduct, or wanton actions of Assessor or his agents or employees, or arising out of any breach or violation of this Agreement by Assessor. The obligation of Assessor arising under this Section during the term of this Agreement shall survive its expiration or termination. 10.0 Early Termination. The term of this Agreement shall be as provided in Section 1.0 of this Agreement. City or Assessor may earlier terminate this Agreement for any reason upon the delivery of ninety (90) days written notice to the other. If this Agreement is terminated in accordance with this provision, City shall be obligated to pay only the outstanding fees and expenses due and owing through the effective date of termination, prorated daily for any partial Assessment Years. 11.0 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision contained in this Agreement, or the application thereof, shall be held invalid, illegal or unenforceable, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or this Agreement. 12.0 Entire Agreement. This Agreement and the Exhibit attached herein represents the entire agreement of the Parties regarding its subject matter and supersedes any prior verbal or written agreements, commitments, or communications regarding the same. The terms and Page 4 of 5 provisions of this Agreement may not be changed, waived, altered or amended except in a written agreement signed by both Parties. 13.0 Governing Law and Venue. The performance, construction, and interpretation of this Agreement and all disputes between the Parties that arise out of this Agreement or occur during the term of this Agreement shall be governed and construed in all respects by the laws of the State of Minnesota, without regard to its conflicts of law principles. The Parties acknowledge and agree that any disputes or litigation between the parties shall be brought exclusively in the state court situated in the County of Washington, State of Minnesota. The Parties agree that such courts are a convenient forum for the resolution of such disputes and waive the right to seek a change of venue to any different court or forum. 14.0 Assignment. Assessor may not transfer or assign Assessor’s rights or obligations contained in this Agreement unless approved in writing by the City, nor may Assessor subcontract for Services which Assessor is to provide pursuant to this Agreement, without prior written notification to the City. Any individual employed or subcontracted by Assessor for performance of Services will hold appropriate licensure as required by the Minnesota State Board of Assessors. 15.0 Ancillary Agreements. Termination of this Agreement shall have no impact or effect upon any other agreement entered into by City and Assessor or its affiliates. 16.0 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. [NO FURTHER TEXT ON THIS PAGE] Page 5 of 5 IN WITNESS WHEREOF, the Parties have executed this Assessment Agreement as of the date first set forth above. ASSESSOR: PAUSZEK, INC. PATRICK A. POSHEK CITY: APPROVED AS TO FORM: CITY OF SCANDIA By: __________________________ By: _________________________ Scandia City Attorney Date Its: Mayor Date By: _________________________ Its: City Administrator Date