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HomeMy WebLinkAboutContracts & Agreements_116-2024AGREEMENT TO PERFORM AUCTION SERVICES This agreement for the provision of auction services ("Agreement") is made and entered in this 18th day of June, 2024 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City)" and J.J. Kane Associates, Inc. a New Jersey corporation, dba JJ Kane Auctioneers/Ken Porter Auctions ("Contractor"). City and Contractor are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, City and Contractor agree as follows: 1.1 ARTICLE 1— ENGAGEMENT OF CONTRACTOR City hereby engages Contractor to provide auction services in connection with City's sale of surplus equipment and personal property (the "Services"). The Services shall be performed by Contractor in a professional manner, and Contractor represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional Contractors in the industry providing like and similar types of Services. ARTICLE 2 — SERVICES OF CONTRACTOR 2.1 The Services that Contractor shall perform are more particularly described in Exhibit "A," entitled "Scope of Auction Services," which is attached hereto and incorporated herein by reference. 2.2 Contractor shall comply with applicable federal, state, and local laws and regulations in the performance of this Agreement including, but not limited to State prevailing wage laws. 2.3 The initial term of this Agreement shall be for five (5) years, commencing on the Effective Date of this Agreement ("Initial Term"). City shall have the option to renew this Agreement for one consecutive five (5) year terms (each a "Renewal Term"), on the same terms and conditions hereof, by providing contractor with at least thirty (30) days written notice of City's election prior to the end of the Initial Term or a Renewal Term. ARTICLE 3 — RESPONSIBILITIES OF CITY 3.1 City shall make available to Contractor information in its possession that may assist Contractor in performing the Services. 3.2 City designates Dana Abramovitz-Daniel, the City's Procurement Manager, as City's representative with respect to performance of the Services, and such person shall have the authority to transmit instructions, receive information, interpret, and define City's policies and decisions with respect to performance of the Services. 1 I:\cmo\Agreements\J.J. Kane Associates, Inc. dba Ken Porter Auctions (Auction Services Agreement) FY23 -0115.docx-ms ARTICLE 4 — PERFORMANCE OF SERVICES 4.1 Contractor shall perform and complete the Services in a prompt and diligent manner in accordance with Contractor's proposal which is attached hereto as Exhibit "A" and which is incorporated herein by reference. ARTICLE 5 — PAYMENTS TO CONTRACTOR 5.1 City shall pay Contractor compensation for performance of the Services in accordance with the Fee Schedule attached hereto as Exhibit "B." Contractor shall submit monthly invoices to City describing the Services performed during the preceding month. Contractor's invoices shall include a brief description of the Services performed and the dates the Services were performed. City shall pay Contractor no later than thirty (30) days after receipt and approval by City of Contractor's invoice. 5.2 Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail; in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section: City Dana Abramovitz-Daniel, Procurement Manager Purchasing Department City of Redlands 1270 West Park Avenue Building A Redlands, CA 92373 Contractor Gene Govoreau Senior Sales Manager JJ Kane Auctioneers/Ken Porter Auctions 4510 Muth Way Jurupa Valley CA 92509 ARTICLE 6 — INSURANCE AND INDEMNIFICATION 6.1 The following insurance coverage required by this Agreement shall be maintained by Contractor for the duration of its performance of the Services. Contractor shall not perform any Services unless and until the required insurance listed below is obtained by Contractor. Contractor shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City. 2 I:\cmo\Agreements\J.J. Kane Associates, Inc. dba Ken Porter Auctions (Auction Services Agreement) FY23-0115.docx-ms A. Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Contractor is self -insured or exempt from the workers' compensation laws of the State of California. Contractor shall execute and provide City with Exhibit "C" titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services. B. Comprehensive General Liability insurance with carriers acceptable to City in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. C. Business Auto Liability coverage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability. This coverage shall include all Contractor owned vehicles used in connection with Contractor's provision of the Services, hired and non -owned vehicles, and employee non -ownership vehicles. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self- insurance maintained by City. 6.2 Contractor shall defend, indemnify, and hold harmless City and its elected and appointed officials, employees, and agents from and against any and all claims, losses and liability, including attorneys' fees, arising from injury or death to persons or damage to property occasioned by any negligent act or omission by, or the willful misconduct of, Contractor, or its officers, employees and agents in performing the Services. ARTICLE 7 — CONFLICTS OF INTEREST 7.1 Contractor covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected in any manner or degree by the performance of Contractor's Services. Contractor further covenants and represents that in the performance of its duties hereunder, no person having any such interest shall perform any Services under this Agreement. 7.2 Contractor agrees it is not a designated employee within the meaning of the Political Reform Act because Contractor: A. Does not make a governmental decision whether to: (i) approve a rate, rule or regulation, or adopt or enforce a City law; (ii) issue, deny, suspend or revoke any City permit, license, application, certification, approval, order or similar authorization or entitlement; (iii) authorize City to enter into, modify or renew a contract; (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract; (v) grant City approval to a plan, design, report, study or similar item; 3 I:\cmo\Agreements\J.J. Kane Associates, Inc. dba Ken Porter Auctions (Auction Services Agreement) FY23-0115.docx-ms (vi) adopt, or grant City approval of, policies, standards or guidelines for City or for any subdivision thereof. B. Does not serve in a staff capacity with City and, in that capacity, participate in making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302. 7.3 In the event City determines that Contractor must disclose its financial interests, Contractor shall complete and file a Fair Political Practices Commission Form 700, Statement of Economic Interests, with the City Clerk's office pursuant to the written instructions provided by the City Clerk. ARTICLE 8 — GENERAL CONSIDERATIONS 8.1 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the use of in- house counsel by a Party. 8.2 Contractor shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement. Any assignment or attempted assignment without such prior written consent may, in the sole discretion of City, results in City's immediate termination of this Agreement. 8.3 Contractor is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor. Neither City nor any of its agents shall have control over the conduct of Contractor or Contractor's employees, except as herein set forth. Contractor shall supply all necessary tools and instrumentalities required to perform the Services. Assigned personnel employed by Contractor are for its account only, and in no event shall Contractor or personnel retained by it be deemed to have been employed by City or engaged by City for the account of, or on behalf of City. Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Contractor have any authority, express or implied, to bind City to any obligation. 8.4 This Agreement may be terminated by City, in its sole discretion, by providing not less than ten (10) days prior written notice to Contractor of City's intent to terminate. If this Agreement is terminated by City, an adjustment to Contractor's compensation shall be made, but (1) no amount shall be allowed for anticipated profit or unperformed Services, and (2) any payment due Contractor at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by Contractor. Upon receipt of a termination notice, Contractor shall immediately discontinue its provision of the Services and, within five (5) days of the date of the termination notice, deliver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, drawings, specifications, reports, summaries and such other information and materials as may have been accumulated by Contractor in performing the 4 I:\cmo\Agreements\J.J. Kane Associates, Inc. dba Ken Porter Auctions (Auction Services Agreement) FY23-0115.docx-ms Services. Contractor shall be compensated on a pro-rata basis for Services completed up to the date of termination. 8.5 Contractor shall maintain books, ledgers, invoices, accounts and other records and documents evidencing costs and expenses related to the Services for a period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor pursuant to this Agreement. Such books shall be available at reasonable times for examination by City at the office of Contractor. 8.6 This Agreement, including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement. Except as otherwise provided for herein, any amendment to this Agreement shall be in writing, approved by City and signed by City and Contractor. 8.7 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in San Bernardino County, California, and the federal courts located in Riverside County, California. 8.8 If one or more of the sentences, clauses, paragraphs or sections contained in this Agreement is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement. IN WITNESS WHEREOF, duly authorizes representative of the City and Contractor have signed in confirmation of this Agreement. CITY OF REDLANDS JJ KANE ASSOCIATES, INC. DBA JJ AUCTIONEERS/KEN PORTER AUCTIONS By: By: ddie Tejeda, Mayor ATTEST: e Donaldson, City Clerk Gene Govoreau, Senior Sales Manager 5 I:\cmo\Agreements\J.J. Kane Associates, Inc. dba Ken Porter Auctions (Auction Services Agreement) FY23-0115.docx-ms EXHIBIT "A" SCOPE OF AUCTION SERVICES SCOPE: Contractor shall provide City the full range of services provided by Contractor. City shall release Items for sale as they are declared surplus on a random schedule without a guarantee as to an annual volume. The City requires that all items be auctioned within ten (10) weeks after they are released for sale. Surplus property may include: Vehicles, equipment, furniture and miscellaneous surplus property. Contractor is required to provide the following services: • Transportation and on/off load of surplus from City locations to business/auction sites City location: Services/pickups are from Redlands' Corporate yard: 1270 W Park Ave, Redlands CA 92373 • Storage of surplus until auction including proper security and reimbursement of fair market value if lost or stolen • All vehicle preparation including DMV paperwork, smog check/certification and any other requirements • Tracking of surplus through entire process • Records and data available online to the City • Advertising of auctions online and through print or other media • Auctions to be held online and on company provided site NON-EXCLUSIVE AGREEMENT It shall be understood that the City does not grant an exclusive right to Contractor to provide auction services during the term of this Agreement. City reserves the right to contract for similar services from other vendors. LOCATION Contractor should provide address of location surplus will be taken to and the locations where the auctions will be held. Contractor will list address of corporate office and any locations within the company where offices exist. FEE PAID Contractor will be paid for the conducting of each auction based on a percentage of the gross sales. Contractor will be responsible for the payment of all Contractor costs associated with the auction, from the Contractor's percentage received. Contractor is responsible for collecting and paying all appropriate taxes. Proceeds from each auction (less Contractor's percentage and fees for authorized services listed on price sheet) are to be paid to City within fourteen (14) calendar days after the sale. The payment is to include an itemized listing of all items auctioned, the selling price and separate totals for vehicles and all other items. The contractor shall submit an itemized list of all items sold to the Purchasing Manager. REQUIRED SERVICES Contractor shall conduct effective and professional auctions that reflect a good public image for the City. All auctions must be open to the general public. ACCOUNTING Contractor shall provide accurate accounting data of the auctions no later than fourteen (14) calendar days following the auction. Data must identify City Auction ID Number and/or Vehicle Identification Number to Contractor's number, and sale price. SECURITY Contractor shall provide adequate security for auction items. Cost for security shall be paid from the Contractor's percentage fee. TRANSPORTATION OF GOODS The Contractor shall be responsible for transporting goods (including vehicles and heavy equipment if authorized) to the auction site as it becomes available from City. Contractor shall be responsible for any damages and or costs to City's property and for any damages or costs that City property may have caused to a third party while in the process of transporting the surplus property to Contractor's place of business. Contractor shall transport auction items within five (5) days of notification for pick-up. With the exception of high dollar valued items, requests for pick-ups will be made when a truck load of items is available. Items not purchased at auction will be evaluated by City for further action. City will have the final approval as to the disposition of all items, and reserves the right to attempt to resell at the next auction. Unsold items are to be transported back to the City by the Contractor at no additional cost to City. PREPARATION OF VEHICLES FOR AUCTION Vehicles that are to be sold at auction will be in various conditions. Contactor shall be paid from Contractor's percentage fee for the standard washing and cleaning of the inside and outside of passenger vehicles and trucks, smog test, safety check, de -Identification and de -Logo. In some instances, a vehicle may need repairs prior to being sold including, but not limited to repairing or replacing a tire, to replacing a dead battery to getting a new paint job. Contractor shall create a quotation for the work to be done. It shall be sent to the Fleet Manager and the Purchasing Manager to be approved prior to the work being done. The cost of these repairs shall then be deducted from City's proceeds from the sale of the vehicle upon approval from the Purchasing Services Manager. DEPARTMENT OF MOTOR VEHICLES (DMV) DOCUMENTATION The Contractor shall properly complete all necessary DMV paperwork to ensure that the City vehicles/equipment titles are properly transferred from seller to buyer. WARRANTY The City does not guarantee the condition and quality of any item, and all items will be sold in "as is" condition. BUSINESS LICENSES Contractor will be required to obtain a City business license prior to commencement of work. RIGHT TO AUDIT RECORDS The City shall be entitled to audit the books and records of Contractor to the extent that such books and records relate to the performance of this Agreement or any sub -contract to the Agreement. Such books and records shall be maintained by the Bidder for a period of three (3) years from the date of final payment under the Agreement and by the sub -contractor for a period of three (3) years from the date of final payment under the sub -contract unless a shorter period is otherwise authorized in writing. EXHIBIT "B" FEE SCHEDULE Auctioning service pricing shall include all costs for the services described. Prices shall remain in effect for the term of the contract. 1. Vehicles FEE TO PROVIDE AUCTIONING SERVICES IS: 0% OF GROSS PROCEEDS PAID BY THE CITY 10% OF GROSS PROCEEDS PAID BY THE BIDDER/BUYER TOTAL*: 10% OF GROSS PROCEEDS PAID TO THE AUCTIONEER * Total fee must include Smog check, Safety inspection, interior/exterior cleaning, De -Identification and De - Logo, advertising and Transportation. 2. Furniture FEE TO PROVIDE AUCTIONING SERVICES IS: 2.5% OF GROSS PROCEEDS PAID BY THE CITY 10% OF GROSS PROCEEDS PAID BY THE BIDDER/BUYER TOTAL*: 12.5% OF GROSS PROCEEDS PAID TO THE AUCTIONEER *Total fee must include advertising and shipping/transportation. 3. Equipment and Misc. Supplies FEE TO PROVIDE AUCTIONING SERVICES IS: 0% OF GROSS PROCEEDS PAID BY THE CITY 10% OF GROSS PROCEEDS PAID BY THE BIDDER/BUYER TOTAL*: 10% OF GROSS PROCEEDS PAID TO THE AUCTIONEER * Total fee must include advertising and shipping/transportation. I:\cmo\Agreements\J.J. Kane Associates, Inc. dba Ken Porter Auctions (Auction Services Agreement) FY23-0115.docx EXHIBIT "C" WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State. (b) By securing from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees. CHECK ONE X I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work and activities required or permitted under this Agreement. (Labor Code § 1861). X I affirm that at all times, in performing the work and activities required or permitted under this Agreement, I shall not employ any person in any manner such that I become subject to the workers' compensation laws of California. However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a certification of workers' compensation insurance. I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. CONTRACTOR By: Gene Go oreau, Senioal"es Manager Date: June 18,2024