HomeMy WebLinkAboutC-9049-1 - PSA for Surplus Auction ServicesPROFESSIONAL SERVICES AGREEMENT
WITH J.J. KANE ASSOCIATES, INC. FOR
SURPLUS AUCTION SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 30th day of September, 2022 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and J.J. KANE ASSOCIATES, INC., a New Jersey corporation ("Contractor"),
whose address on file with the Secretary of State is 33 Inverness Center Parkway,
Birmingham, Alabama 35242, and whose local business address is 4510 Muth Way,
Jurupa Valley, California 92509, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to perform Surplus Auction Services ("Project").
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on September 29, 2027, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Contractor shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Contractor to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3.4 For all time periods not specifically set forth herein, Contractor shall respond
in the most expedient and appropriate manner under the circumstances, by hand -delivery
or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Contractor's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Sixty Thousand Dollars
and 00/100 ($60,000.00), without prior written authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior written
approval of City.
4.2 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
J.J. Kane Associates, Inc. Page 2
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Gene Govreau to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Contractor is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's
Purchasing and Contracts Administrator or designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator shall represent City in all matters pertaining to the Services to be rendered
pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Contractor's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Contractor certifies that the Work conforms to the
J.J. Kane Associates, Inc. Page 3
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Contractor represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Contractor.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
J.J. Kane Associates, Inc. Page 4
status or other right of employment shall accrue to Contractor or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or any of
Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing the Work,
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Contractor on the Project.
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
J.J. Kane Associates, Inc. Page 5
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Contractor shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Contractor or any
other party. Additionally, all material posted in cyberspace by Contractor, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Contractor or any other party.
Contractor shall, at Contractor's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Contractor will be at City's sole risk and without liability to Contractor. Further, any and
all liability arising out of changes made to Contractor's deliverables under this Agreement
by City or persons other than Contractor is waived against Contractor, and City assumes
full responsibility for such changes unless City has given Contractor prior notice and has
received from Contractor written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
J.J. Kane Associates, Inc. Page 6
19. INTELLECTUAL PROPERTY INDEMNITY
Contractor shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Contractor's Documents provided under this Agreement.
20. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Contractor
under this Agreement. All such records and invoices shall be clearly identifiable.
Contractor shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Contractor shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Contractor
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Contractor shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Contractor,
the additional design, construction and/or restoration expense shall be borne by
Contractor. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
J.J. Kane Associates, Inc. Page 7
24. CONFLICTS OF INTEREST
24.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Contractor
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Contractor shall
indemnify and hold harmless City for any and all claims for damages resulting from
Contractor's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Attn: Purchasing and Contracts Administrator
Finance Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Gene Govoreau
J.J. Kane Associates, Inc.
J.J. Kane Auctioneers
4510 Muth Way
Jurupa Valley, CA 92509
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
J.J. Kane Associates, Inc. Page 8
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination, Contractor
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
J.J. Kane Associates, Inc. Page 9
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
J.J. Kane Associates, Inc. Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: i (Di i'L/zZ
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: By:
�.,_,�arn C. Harp to11+1a-4 wr(- is ael Gomez
i Attorney Interim Finance Director / Treasurer
ATTEST:
Date: 11
By: A C_J
Brwown-
City
U
P
C��/FORS`
CONTRACTOR: J.J. Kane Associates,
Inc., a New Jersey corporation
Date:
Signed in Counterpart
By:
Dennis W. McIntyre
Chief Executive Officer
Date:
Signed in Counterpart
By:
Christopher B. Harmon
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
J.J. Kane Associates, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: I (D/ CL/zZ
By: YY 'r" I
Var. n C. Harp
C Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
4rBy: VWA kq': 7
'Ur(- M is F ael Gomez
Interim Finance Director / Treasurer
CONTRACTOR: J.J. Kane Associates,
Inc., a New ��,511-7-2
ers�y corporation
Date: i%' /
Dennis W. McIntyre
Chief Executive Officer
Date:
By:
Christopher B. Harmon
Secretary
[END OF SIGNATURES]
Attachments- Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
J.J. Kane Associates, Inc. Page 12
EXHIBIT
SCOPE OF SERVICES
Introduction
Contractor shall provide auction services for obsolete and surplus personal property in
the possession and control of the City. Notwithstanding anything to the contrary set forth
herein, Contractor shall be responsible to ensure that its activities comply will all
applicable laws, rules, and regulations.
2. Overview
PERSONAL PROPERTY is held primarily at two City locations:
592 Superior Avenue (City Central Warehouse); or
870 Santa Barbara Drive (Police Department Headquarters).
Contractor may, as needed, be required to pick up items from other City locations or
facilities. Contractor shall pick up items from the City Central Warehouse at least once
per month, or as directed by the City's Project Administrator or designee, and from the
Police Department at least twice per month, or as directed by the City's Project
Administrator or designee. Items typically held at the Central Warehouse include vehicles,
equipment, and general City surplus. Items typically held at the Police Department
Headquarters may include jewelry, high -value items and other personal property.
3. Statement of Work
3.1 General Scope of Work
3.1.1 Contractor shall possess the necessary facilities, knowledge and
abilities to provide auction services for all PERSONAL PROPERTY
disposed of by City.
3.1.2 Contractor shall designate a point of contact to act as Contractor's
representative regarding all aspects of the performance of this
Agreement.
3.1.3 Definitions: For purpose of this Agreement PERSONAL PROPERTY
shall include, but is not limited to the following: vehicles, heavy
equipment, trucks, buses or other conveyances, bus parts, electronic
equipment, furniture, jewelry, personal property and other
miscellaneous equipment.
J.J. Kane Associates, Inc. Page A-1
3.2 Contractor's Responsibilities
3.2.1 Public Auction
3.2.1.1 Contractor shall conduct a public auction for the disposal of
PERSONAL PROPERTY.
3.2.1.2 None of the PERSONAL PROPERTY assigned to the
Contractor pursuant to this Agreement may be sold before
the auction without prior written agreement of City.
3.2.2 Performance Specifications
3.2.2.1 Arrange for PERSONAL PROPERTY to be picked up from
City location specified.
3.2.2.2 Contractor or their designee shall work with City to arrange
an acceptable time for pick up.
3.2.2.3 Store PERSONAL PROPERTY until sold.
3.2.2.4 Public viewing of items available for auction is to be made
available.
3.2.2.5 Contractor shall record sales, and provide such recordings
when requested.
3.2.2.6 All auctions shall be open to the general public, and there
shall be no fee charged for participation as a potential buyer.
3.2.2.7 Sale of such PERSONAL PROPERTY shall be made only
to the highest responsible bidder.
3.2.2.8 Unless otherwise directed by City designated
representative, Contractor shall reschedule all unsold
property to the next available auction, at no additional cost
to City.
3.2.2.9 Contractor shall be responsible for loss or damage during
and after transport of said PERSONAL PROPERTY to the
auction site through sale and transfer of possession to the
new buyer.
3.2.2.10 Receive and protect all PERSONAL PROPERTY consigned
to contractor for disposal/sale.
3.2.2.11 Contractor shall assume liability of PERSONAL PROPERTY
at the time of pickup from City.
3.2.2.12 Contractor shall be responsible for maintaining each vehicle
released to auction in the same or better condition than
when it was received.
3.2.2.13 In the event that PERSONAL PROPERTY is damaged, lost,
stolen, or an accident occurs, Contractor shall either repair
the PERSONAL PROPERTY at no cost to City or pay City
the value of the PERSONAL PROPERTY at the time of the
accident. Miscellaneous items shall also receive the same
liability coverage as PERSONAL PROPERTY.
J.J. Kane Associates, Inc. Page A-2
3.2.2.14 Inspect vehicles for any safety or maintenance needs. Wash
and vacuum all cars and trucks prior to auction date.
3.2.2.15 Supply all needed personnel and setup all needed auction
equipment and facilities.
3.2.2.16 Ensure compliance with all pertinent provisions of the bulk
sales laws and laws and regulations of the State of
California, including but not necessarily limited to, obtaining
all necessary licenses and permits, posting required bonds,
payment of all fees and expenses.
3.2.2.17 Notify City's designee two weeks prior to auction, via mail or
e-mail, of auction dates for any City property being
auctioned.
3.2.2.18 Register all bidders and issue bidder numbers. A valid
California driver's license or other acceptable picture
identification is required for no -fee registration.
3.2.2.19 Collect and process all deposits and proceeds.
3.2.2.20 Process all title work for vehicles and assure that all
mandated inspections (smog, weight, etc.) have been
obtained. Prepare this title work for a smooth transfer of
ownership into the new buyer's name on the day of the sale,
and any other required DMV forms (including, but not limited
to Notice of Transfer and Release of Liability).
3.2.2.21 Provide City with proof of transfer and release of liability,
with the California DMV.
3.2.2.22 Provide a detailed summary statement of auction activity to
City, accompanied by payment of those net proceeds of sale
to City no later than twenty-one (21) days after the auction
date. Final accounting will include sale price, name and
address of new owner, detailed accounting for fees, and
authorized expenses. Summary statements may be
designed to fit consignor requirements.
3.2.2.23 Provide City with a link to sales results of all sales, pending
or other via the internet. The information shall include
pricing, equipment description and customer information.
3.2.2.24 Contractor shall ensure that all PERSONAL PROPERTY is
available for public inspection during normal working hours
prior to the sale.
3.2.2.25 As requested by City, Contractor shall arrange for
transportation of all PERSONAL PROPERTY from City's
possession to Contractor's auction facility. Such
transportation shall be provided by Contractor's licensed
and insured employees and/or subcontractors.
3.2.2.26 As requested by City and in compliance with the laws of the
State of California, Contractor shall arrange for smog
certification or a state that vehicle does not meet smog
requirements prior to sale.
J.J. Kane Associates, Inc. Page A-3
3.2.2.27 The fees for smog certification shall be deducted from the
auction proceeds.
3.2.2.28 Contractor may charge the successful bidder with a
standard bidder's premium. Full disclosure of said charges
shall be duly noted in advance of sale.
3.3 City Responsibilities
3.3.1 City shall provide, title or Certificate of Ownership and all other
documents necessary to affect transfer of title for motor vehicles,
trailers, and vehicle equipment and other PERSONAL PROPERTY.
3.3.2 Submit to Contractor a list of PERSONAL PROPERTY to be released
for sale. It is understood that minor changes in said list may be
submitted to Contractor at any time prior to two (2) weeks in advance
of the auction. Notwithstanding the foregoing, City may withdraw
PERSONAL PROPERTY from said list upon notice to Contractor five
(5) days prior to auction.
3.3.3 City warrants title to all PERSONAL PROPERTY to be
unencumbered at the time of sale. All PERSONAL PROPERTY shall
be sold "as is, where is" without any warranty by City or Contractor as
to condition or usability. This disclaimer shall be contained in all
auction brochures and incorporated into the "Terms and Conditions
of Sale" as well as on the sales invoice.
J.J. Kane Associates, Inc. Page A-4
EXHIBIT B
SCHEDULE OF BILLING RATES
CONTRACTOR WILL RETAIN THE FOLLOWING COMMISSION RATE FROM
TOTAL GROSS SALES:
COMMISSION RATE CHARGED TO CITY:
Passenger Vehicles
0%
Commercial Vehicles
0%
Aircraft
0%
Miscellaneous Surplus
0%
CHARGES FOR INCIDENTAL SERVICES
Remove Decals, Bumper Stickers, Any
Identifiers of City, and Paint Over Area
$0
Remove Light Bar
$0
Transport of Each Cars and Light Truck
$0
Transport of large Trucks (Over One Ton) and
Equipment
$0
MISCELLANEOUS CHARGES
Buyer's Premium
10% of Gross Sale Value
Mechanical Repairs (Only if
Requested/Approved by City)
Reimbursable at Cost
Markup for Replacement Parts (Only if
Requested/ Approved by the City)
0%
J.J. Kane Associates, Inc. Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Auctioneer's Liability Insurance. Contractor may maintain an auctioneer
insurance policy provided the policy meets or exceeds the coverage requirements
set forth herein.
4. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
J.J. Kane Associates, Inc. Page C-1
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
D. Cyber Liability Insurance. Contractor shall maintain cyber liability insurance
with limits of not less than one million dollars ($1,000,000) per occurrence
and two million dollars ($2,000,000) annual aggregate covering (1) all acts,
errors, omissions, negligence, infringement of intellectual property, (2)
network security and privacy risks, including but not limited to unauthorized
access, failure of security, breach of privacy perils, wrongful disclosure,
collection, or negligence in the handling of confidential information, privacy
perils, including coverage for related regulatory defense and penalties, and
(3) data breach expenses payable whether incurred by City or Contractor,
including but not limited to consumer notification, whether or not required
by law, computer forensic investigations, public relations and crisis
management firm fees, credit file or identity monitoring or remediation
services, in the performance of services for City or on behalf of City
hereunder
5. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
6. Additional Agreements Between the Parties. The parties hereby agree to the
following:
J.J. Kane Associates, Inc. Page C-2
A. Evidence of Insurance. Contractor shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. The certificates and endorsements for each insurance policy
shall be signed by a person authorized by that insurer to bind coverage on
its behalf. At least fifteen (15) days prior to the expiration of any such
policy, evidence of insurance showing that such insurance coverage has
been renewed or extended shall be filed with the City. If such coverage is
cancelled or reduced, Contractor shall, within ten (10) days after receipt of
written notice of such cancellation or reduction of coverage, file with the
City evidence of insurance showing that the required insurance has been
reinstated or has been provided through another insurance company or
companies. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
J.J. Kane Associates, Inc. Page C-3
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
J.J. Kane Associates, Inc. Page C-4
Name
Account Number'.
Addres«
StatLl'-:;'
Account Informat.ion
Account Number':
FV00000879
Risk Type.
Professional Services Aareei-rient
DC Not Call:
Address Information
Mailing Address
Insured:
J J Kane Assoc lates, I n c
Ack-1fess 1:
33 Inverness Center Park,,,va,,-,
Address 2
B 1 Fm i Fi c h a m
.4 L
3rl:
3±242
.1,1 Kane Ass---)---iates, Inc A
FV0000087-9
3.3' Irrverness Center P—l"'-
Currentl,y in Compliance.
Address Updated:
Physical Address