HomeMy WebLinkAboutPROPERTYBUREAU.COM,INC.
INSURANCE. ON FILE.
WORK Mf\Y PROCEED
UNTIL INSURANCE EXPIRES
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CLE.RK OF COUNCIL
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N-2005-076
PROPERTY DISPOSAL AGREEMENT
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PropertyBureau.com, Inc.
3551 Camino Mira Costa, Suite C
San Clemente California 92672
Phone: 800-799-2440
PropertyBureau.com, Inc., an Arizona corporation ("PropertyBureau.com"), by its acceptance of this agreement (the
"Agreement"), enters into an agreement with the customer identified below (the "Owner") for the auction and disposition
of personal property, all in accordance with the Terms and Conditions attached to this cover sheet Special
undertakings, if any, and other matters, if any, will be as specified on the appropriate schedules and attachments.
Owner and PropertyBureau.com expressly incorporate into this Agreement only the schedules and supplements
indicated as ~cluded in the box below, and no other documents or writings shall be considered a part of this Agreement
Beginning ,--, \ L , 2005 (the "Start Date") Owner engages the services of PropertyBureau.com to assist
Owner in auctioning and disposing of personal property by auction on the Internet This Agreement will terminate on
tJ\ A,- ciA- '3.1.. , 2008(the 'Termination Date").
OWNER INFORMATION:
SCHEDULES, SUPPLEMENTS AND OTHER
ATTACHMENTS: (Mark only if included)
Terms and Conditions
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Addendum
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THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS SET FORTH ON THE ATTACHED
TERMS AND CONDITIONS, AND ALL OTHER ATTACHMENTS INDICATED IN THE BOX ABOVE, IS THE
PARTIES' ENTIRE AGREEMENT AND CANNOT BE MODIFIED EXCEPT IN WRITING BY THE DULY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES.
EXECUTED on the date(s) indicated below:
.
CI.
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By:
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Steven Lupinacci. PresidenVCOO
[Name and Title]
[Name and Title]
Date:
,2005
Date:
,2005
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TERMS AND CONDITIONS
1. Property to be Sold, From time to time, Owner will designate to PropertyBureau,com personal property that it
desires to auction on the Internet Items of property designated and not rejected by PropertyBureau,com will be referred
to collectively as "Property." An item of property will not become Property subject to this Agreement until Owner delivers
to PropertyBureau,com a written notice in a form approved by PropertyBureau,com , which notice describes the item of
Property in sufficient detail to identify it Notwithstanding anything herein to the contrary, PropertyBureau.com may at
any time notify Owner that it rejects an item of property, in which case the item will cease to be Property subject to this
Agreement as of the date of the notice.
2. Title. Title to the Property shall remain in Owner until the item of Property is purchased by auction or otherwise
disposed of, at which time Owner will be deemed to have transferred title to the purchaser of the item of Property.
Owner appoints PropertyBureau.com as its attorney-in-fact to sign any and all documents necessary to assign to
purchasers of Property all of Owner's right title and interest in and to Property sold or disposed of. All cash receipts,
accounts receivable, contract rights, notes, general intangibles, and other rights to payment of every kind, arising out of
the sales and dispositions of Property (collectively the "Proceeds") belong to Owner, subject to PropertyBureau.com's
right to PropertyBureau.com's Net Proceeds and funds attributable to Credit Card Costs and other transaction costs.
Owner's Property shall, at all times before saie, be subject to the direction and control of Owner,
3. Method of Selling Property. PropertyBureau,com will on Owner's behalf list all Property for saie by auction to the
public on the World Wide Web of the Internet on one or more domain names selected by PropertyBureau.com. To the
extent that any Property is not soid by auction, PropertyBureau.com may, in any commercially reasonable manner
selected by PropertyBureau,com, dispose of Property. PropertyBureau.com may determine all aspects, terms and
conditions of auctions of Property and dispositions of Property not purchased at auction, subject to the ultimate control of
Owner. PropertyBureau.com will be responsible for all phases of submitting the Property for auction, including, but not
limited to, determining when Property will be auctioned, setting the opening and reserve prices of Property, if any;
determining the selling price, setting the length of time a Product will be auctioned; creating text and graphics to describe
and depict Property submitted for auction; collecting all purchaser information (such as purchaser'S name, billing
address, shipping address, and credit card information); approving purchasers' credit card purchase transactions; and
collecting auction proceeds for completed sales from purchasers, PropertyBureau.com shall use its best efforts in
auctioning and selling the Property on the Internet and disposing of Property that does not sell at auction.
PropertyBureau,com shall sell and dispose of all Property "as is" without any warranty liability to the Owner, including,
but not limited to, any warranties of title. PropertyBureau,com is solely responsible for identifying and resolving sales
and use tax collection issues arising from Property saies, including the necessity of charging and collecting such taxes.
4. Allocation of Sales Proceeds.
a. The price for a personal property item paid by the buyer shall be called the "Sales Price". The Sales Price
shall include the Winning Bid Price of the item purchased and all costs, shipping and handling charges, taxes,
and insurance costs associated with the transaction,
b. Owner will be credited with 50% (for items less than $1,000) or 75% (for Items equal to or more than
$1000) of the Winning Bid Price of all items less the owner's pro rata share of fees and charges
attributable to credit card purchases ("Credit Card Costs") and other transaction costs.
c, Credit Card Costs and other transaction costs will be borne by Owner and PropertyBureau,com in proportion
to the percentage of the revenue credited to the parties for each underiying transaction,
d. Amounts received by PropertyBureau,com and Owner will be called "Net Proceeds".
The following example illustrates how proceeds of a sale are to be allocated, Assume an item of Property sells at
auction for a Winning Bid Price of $100; the buyer pays shipping and handling of $10, insurance of $2, and taxes of $6.
The buyer pays $118,00 by credit card, and the Credit Card Costs are 2% of the Sales Price. The Credit Card Cost IS
therefore $2,36 ($118 x ,02), The Owner's and PropertyBureau.com's shares of Credit Card Costs are each $1.18; and
the Owner's Net Proceeds and PropertyBureau,com's Net Proceeds are each $48.82.
5, Payment Terms. Not later than the 15th of each month, PropertyBureau.com will pay to Owner the amount of
Owner's Net Proceeds payable for the preceding month. With each monthly payment, PropertyBureau.com Will deliver
to Owner a detailed report of sales activity for the preceding month showing PropertyBureau,com's calculation of the
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amount of Owner's Total Net Proceeds for the month. With each payment of Owner's Total Net Proceeds,
PropertyBureau.com will deliver to Owner a written report setting forth the following information for the immediately
preceding month: (i) the Property sold by PropertyBureau.com during the prior month; (ii) the Property, if any, consigned
for sale to PropertyBureau.com during the month; (iii) other dispositions of Property during the month; (iv) the total
amount of proceeds collected by PropertyBureau.com resulting from sales or dispositions of Property during the month;
(v) the Property, if any, inventoried by PropertyBureau.com at the end of the month, (vi) Owner's and
PropertyBureau.com's shares of Credit Card Costs and other transaction costs, Owner's Net Proceeds and
PropertyBureau.com's Net Proceeds.
6. PropertyBureau.com's Obligations Concerning Property in Its Possession. The following provisions will apply
only with respect to Property in PropertyBureau.com's possession: (i) PropertyBureau.com will exercise due care in the
handling and storage of any Property; (ii) PropertyBureau.com shall keep the Property free of unpaid charges, liens,
security interests, and encumbrances, and shall pay when due all fees and charges with respect to the Property; (iii)
PropertyBureau.com shall sign and deliver to Owner any UCC-1 financing statements and any and all documents
reasonably requested by Owner from time to time to give public notice of Owner's interest in the Property and/or to
protect Owner's title to Property; (iv) PropertyBureau.com shall obtain and maintain insurance in an amount (determined
by PropertyBureau.com) not less than the replacement value of Property in its possession. The insurance will cover the
Property against fire, theft, and eX1ended coverage risks ordinarily included in similar policies, with proceeds payable to
PropertyBureau.com and to Owner as their interests may appear. All policies shall require thirty days' written notice to
Owner before any material change or cancellation. PropertyBureau.com shall give Owner a certificate or a copy of each
of the policies concurrently with signing this Agreement and on Owner's demand; and (v) If PropertyBureau.com returns
any Property to Owner, PropertyBureau.com shall pay all freight charges, insurance and related costs to return the
Property to Owner's nearest warehouse. PropertyBureau.com, at PropertyBureau.com's expense, shall insure Property
during shipping in an amount not less than the replacement value of any item of Property returned to Owner.
7. Owner's Obligations. As soon as practicable, Owner will submit to PropertyBureau.com personal property in
possession of the Owner that becomes available to Owner to sell to the public, excluding any personal property to be
used by Owner. Owner will complete paperwork reasonably necessary to convey custodial possession of the item of
property to Property Bureau.com
8. Joint Obligations. PropertyBureau.com and their employees and agents may not: (i) manipulate the price of an item
of Property submitted for auction, either by using a shill (a secondary account or third party) or by bidding themselves, or
(ii) purchase any item of Property.
9. Representations and Warranties of Owner. With the knowledge that PropertyBureau.com is relying thereon in
entering into this Agreement, Owner hereby represents, warrants and covenants as follows: (i) Owner is not and will not
be required to give any notice to or obtain any consent from any person in connection with the consummation or
performance of any of its obligations hereunder, and (ii) Owner will not knowingly deliver to Property Bureau.com for sale
any goods of a counterfeit nature, or which otherwise infringe illegally on trademarks or patents, and (iii) Owner has
taken all required actions under applicable law that are conditions precedent to Owner's right to transfer title to the
Property to purchasers (the "Conditions Precedenf').
10. Books and Records. The parties will keep complete and accurate books of account, records, and other documents
with respect to this Agreement ("Books and Records"). The Books and Records will be kept by both parties for the
longer of (i) a period of time consistent with Owner's general document records management policy, or (ii) three years
following expiration or termination of this Agreement. The Books and Records will be available for inspection and
copying by any qualified representative or agent of a party, at the expense of that party, subject to the following terms
and conditions: (a) examinations will be at the principal place of business or the location where the Books and Records
are regularly maintained, during normal business hours and only to the extent necessary to verify payment amounts; (b)
the party demanding the audit will give the other party at least seven business days' written notice before any an
examination; (c) both parties will keep each party's Confidential Information disclosed to it during the examination
conlidential in accordance with each party's obligations set forth in this Agreement to the extent permitted under the
Caiifornia Public Records Act (Government Code 6250,et seq.); and (d) a party may not conduct more than two
inspections during any twelve-month period. At the request of a party, the other party will deliver to the requesting party
any reports or information reasonably requested relating to the subject matter of this Agreement. If an examination
reveals a discrepancy that exceeds five percent of the total reported by the audited party to the auditing party, and there
is no dispute concerning the results of the audit, the audited party will reimburse the auditing party for the expenses of
the audit and pay any money owed to the audited party within five business days of the auditing party's demand.
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11. Term and Termination. Unless terminated earlier, the term of this Agreement will begin on the Start Date and
terminate on the Termination Date. This Agreement may be terminated if there is a breach by either partY of any
obligation, representation or warranty contained in this Agreement, upon thirtY days prior written notice to the other partY
unle.ss the breach is cured within the thirtY day period, provided, however, if the breach is not capable of being cured
within thirtY days, the breaching partY will have a reasonable amount of time to cure the breach if it begins to cure during
the thirtY day period and proceeds diligently thereafter. The written notice will specify the precise nature of the breach.
The rights of the parties to terminate this Agreement are not exclusive of any other rights and remedies available at law
or in equity, and such rights will be cumulative. The exercise of any such right or remedy will not preclude the exercise
of any other rights and remedies. Notwithstanding any termination by either partY of this Agreement, Owner will continue
to deliver PropertY sold before the termination and PropertYBureau.com will continue to remit amounts due to Owner
under this Agreement in connection with any sales made before the effective date of the termination.
12. Return of Proprietary Information. Upon termination of this Agreement for any reason, each partY will
immediately return to the other all propertY (including without limitation, Confidential Information and all materiai related
to any customers) that it has received from the other party in connection with the performance of its obligations
hereunder, except to the extent such propertY is needed to fulfill its continuing obligations hereunder. In such event, the
retained propertY will be returned immediately upon the partY's fulfillment of its all of its obligations under this Agreement.
13. Survival. On the termination of this Agreement, all obligations of the parties will cease, except the obligations that
by their nature should reasonably continue beyond the termination. Obligations that will continue beyond termination,
inciude, but are not limited to, the obligation of PropertyBureau.com to pay Owner's Net Proceeds for sales made before
the termination and the obligation of the parties to retum property and Confidential Information.
14. Indemnification. Subject to the limitations specified in this Section 14, each partY will indemnify, hold harmiess and
defend the other partY and its agents and employees from and against any and all losses, claims, damages, liabilities,
whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts
paid in seltiement, incurred or suffered by any such person or entity arising out of or in connection with (i) the inaccuracy
of any representation or warranty made by the partY hereunder, (ii) any breach of this Agreement by the partY, or (iii) any
negligent act or omission by the partY or its employees or agents in connection with the performance by the partY or its
employees or agents of obligations hereunder, provided the negligent act or omission was not done or omitted at the
direction of the other partY.
15. Limitations on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE
AGREEMENT, THE SALE OF PROPERTY, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT,
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE
OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 14. LIABILITY ARISING UNDER THIS AGREEMENT
WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. THE MAXIMUM LIABILITY OF ONE
PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT
EXCEED THE AGGREGATE AMOUNT OF PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY HEREUNDER
IN THE YEAR IN WHICH LIABiliTY ACCRUES; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE
AGREEMENT. N01WITHSTANDING ANYTHING HEREIN TO THE CONTRARY, OWNER'S LIABILITY IS NOT
LIMITED UNDER THIS AGREEMENT WITH RESPECT TO LIABILITY ARISING FROM OWNER'S FAILURE TO
SATISFY TIMELY ALL CONDITIONS PRECEDENT.
16. Confidentiality.
a. As used herein, "Confidential Information" means (i) the terms and provisions of this Agreement and any
related documents delivered concurrently herewith, and (ii) all computer hardware, all software, all data, reports,
analyses, compilations, studies, interpretations, forecasts, records and other materials (in whatever form maintained,
whether documentary, computer storage or otherwise) that contain or otherwise reflect information conceming
PropertYBureau.com, Owner, any of their subsidiaries or affiliates, or any portion thereof, that one partY or its Agents
may provide to the Receiving Party or its Agents in connection with this Agreement ("Provided Information"), together
with all data, reports, analyses, compilations, studies, interpretations, forecasts, records or (ii) other materials (In
whatever form maintained, whether documentary, computer storage or otherwise) prepared by the Disclosing PartY
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receiving Provided Information or its Agents that contain or otherwise reflect or are based upon, in whole or in part, any
Provided Information or that reflect the review of, interest in, or evaluation of all or any portion of the transactions
contemplated by this Agreement and any related documents delivered concurrently herewith ("Derived Information"). As
used herein, "Agents" means, collectively, the respective directors, employees, controlling persons or attorneys of
PropertyBureau.com or Owner. As used herein, the term "person" will be broadly interpreted to include, without
limitation, any corporation, partnership, trust or individual; the term "Receiving Party" will mean the person receiving
Provided Inforrnation; and the term "Disclosing Party" will mean the person providing Provided Information.
b. All Confidential Information will be kept confidential to the extent perrnitted under the California Public
Records Act (Government Code 6250, et seq.) and will not, without the prior written consent of the Disclosing Party, be
disclosed by the Receiving Party in any manner whatsoever, in whole or in part, other than to the Disclosing Party's
Agents, and will not be used, directly or indirectly, for any purpose other than in connection with this Agreement and not
in any way inherently detrimental to the other party. Moreover, PropertyBureau.com and Owner agree to reveal
Confidential Information only to their Agents if and to the extent that such Agents, have a strict need to know such
Confidential Information for the purpose of the Receiving Party satisfying its obligations under this Agreement and are
informed of the confidential nature of the Confidential Information and agree to be bound by the terms and conditions of
this Agreement. PropertyBureau.com and Owner will each be responsible for any breach of this Agreement by their
respective Agents (including Agents who, subsequent to the first date of disclosure of Confidential Information
hereunder, become former Agents). Moreover, PropertyBureau.com and Owner will take all reasonably necessary
measures to restrain their respective Agents (and former Agents) from unauthorized disclosure or use of the Confidential
Information.
c. Notwithstanding anything in this Agreement to the contrary, Confidential Information will not include any
information that: (i) at the time of disclosure to the Receiving Party is generally available to and known by the public
(other than as a result of any disclosure made directly or indirectly or other action or inaction by the Receiving Party or
anyone to whom the Receiving Party or any of its Agents transmit or transmitted any Confidential Information); (ii)
becomes publicly available in the future (other than as a result of a disclosure made directly or indirectly or other action
or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or have
transmitted any Confidential Information); (iii) was available to the Receiving Party or its Agents on a non-confidential
basis from a source other than the Disclosing Party or any of its Subsidiaries or affiliates or any of their respective
Agents providing such information (provided that to the best of the Receiving Party's knowledge, after due inquiry, such
source is not or was not bound to maintain the confidentiality of such information); or (iv) has been independently
acquired or developed by the Receiving Party without violating any of its obligations under this Agreement, provided
such independent development can reasonably be proven by the Receiving Party upon written request.
d. In the event that a party or any of such party's Agents become legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the
Confidential Information of the other party, that party or person under the legal compulsion (the "Compelled Party") from
whom such information is being sought will, unless prohibited by law, provide the party to whom such Confidential
Information belongs with prompt prior written notice of such requirement so that it may seek a protective order or other
appropriate remedy, or both, or waive compliance with the terms of this Agreement. In the event that such protective
order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the Compelled
Party agrees to furnish only such portion of the Confidential Information that the Compelled Party is advised by written
opinion of its counsel is legally required to be furnished by it and will exercise its reasonable best efforts to obtain reliable
assurance that confidential treatment will be accorded such Confidential Information. Notwithstanding the foregoing, to
the extent required under applicable state and federal securities laws, either party may file this Agreement as an exhibit
with federal and state securities filings, provided that each party will use its best efforts to obtain confidential treatment of
the portions of this Agreement that contain Confidential Information. In this regard, the party making such filing will
obtain the prior written consent of the other party, which consent will not be unreasonably withheld.
e. Each party will be subject to the obligations under this Section until the expiration of three years following the
termination of this Agreement. Other than as specifically provided in this Agreement, neither party will duplicate the
Disclosing Party's Confidential Information for any purpose other than for the performance of its obligations under thiS
Agreement and for the benefit of the Disclosing Party; or use the Disclosing Party's Confidential Information for any
reason or purpose other than as expressly permitted in this Agreement.
f. Upon termination of this Agreement or if either party so requests, the Receiving Party will return to the
Disclosing Party or destroy all copies of the Confidential Information in its possession and the possession of ItS Agents
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and will destroy all copies of any Derived Information; provided, however, that this Agreement will continue to apply to
the Confidential Information andlor Derived Information contained or reflected in such copies.
g. Each party would be irreparably injured by a breach of this Section of this Agreement by the other party or its
Agents and that the other party will be entitled to seek equitable relief, including injunctive relief and specific
performance, in the event of any breach of the provisions of this Section. The remedies will not be deemed to be the
exclusive remedies for a breach of this Section by either party or their Agents, but will be in addition to all other remedies
available at law or in equity.
17. Notices. Any notice, tender, demand, delivery, or other communications pursuant to this Agreement shall be in
writing and shall be deemed to be property given if delivered in person or mailed by first class or certified mail, postage
prepaid, or sent by telefacsimile or other telegraphic communication in a manner provided in this Section, to the following
persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box t 988
Santa Ana, CA 92702-1988
Telefacsimile (714) 647-6956
With Courtesy copies to:
Chief of Police
City of Santa Ana
60 Civic Center Plaza (M-97)
P.O. Box 1988
Santa Ana, CA 97702
Telefacsimile (714) 245-8001
City Attorney
City of Santa Ana
60 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana. CA 92702
Telefacsimile (714) 647-6515
Attn: May Chiechi
To Consultant:
PropertyBureau.com:
3551 Camino Mira Costa, Suite C
San Clemente California 92672
Altn: Tom Lane, President
A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand,
delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail any notice,
tender, demand, delivery, or other communication shall be effective to have given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above.
If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to
have given twenty.four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile
machine, addressed as set forth above. For purposes of calcuiating these time frames, weekends, federal, state, County
or City hoiidays shall be excluded.
18. Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
19. Amendment and Waiver. This Agreement may be amended, and any provision of this Agreement may be waived;
provided that any such amendment or waiver will be binding upon any party hereto only if the amendment or waiver is
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set forth in a writing signed by such party. No course of dealing between or among any persons having any interest in
this Agreement will be deemed effective to modify or amend any part of this Agreement or any rights or obligations of
any person under or by reason of this Agreement. The waiver of any default, or the remedying of any default in any
manner, will not operate as a waiver of any other prior or subsequent default. No extension of time for the performance
of any obligation or act will be deemed to be an extension of time for the performance of any other obligation or act
hereunder. No delay or omission by a party to exercise rights hereunder will impair any such rights or will be construed
to be a waiver of any such default or any acquiescence therein.
20. Complete Agreement. This Agreement and any related documents delivered concurrently herewith, contain the
complete agreement between the parties relating to the subject of this Agreement and supersede any prior
understandings, agreements or representations by or between the parties, written or oral, which may be related to the
subject matter hereof in any way.
21. Further Assurances. PropertyBureau.com and Owner will each sign such other documents and take such actions
as the other may reasonably request in order to effect the relationships, services and activities contemplated by this
Agreement and to account for and document those activities.
22. Governing Law. The internal law, and not the law of confiicts, of the state in which the Owner is located will govern
all questions concerning the construction, validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement. The proper venue for any proceeding at law or in equity will be the state and
county in which the Owner is located, and the parties waive any right to object to the venue.
23. Relationship of the Parties. The relationship created hereunder between Owner and PropertyBureau.com will be
soiely that of independent contractors entering into an agreement. No representations or assertions will be made or
actions taken by either party that could imply or establish any agency, joint venture, partnership, empioyment or trust
relationship between the parties with respect to the subject matter of this Agreement. Except as expressly provided in
this Agreement, neither party will have any authority or power whatsoever to enter into any agreement, contract or
commitment on behalf of the other, or to create any liability or obiigation whatsoever on behalf of the other, to any person
or entity. Whenever PropertyBureau.com is given discretion in this Agreement, PropertyBureau.com may exercise that
discretion soiely (rather than reasonably) in any manner PropertyBureau.com deems appropriate.
24. Force Majeure. Neither party will be liable for any failure of or delay in the performance of this Agreement for the
period that such failure or delay is due to acts of God, public enemy, war, strikes or labor disputes, or any other cause
beyond the parties' reasonable control (each a "Force Majeure"), it being understood that lack of financial resources will
not to be deemed a cause beyond a party's control. Each party will notify the other party promptiy of the occurrence of
any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The
existence of any Force Majeure will not extend the term of this Agreement.
25. Counterparts. This Agreement may be signed in any number of counterparts.
26. City's Contact Person. For the purposes of this Agreement, Property & Facilities Manager, Mary Chiechi,or her
designee, will be the Owner's contact person for all matters relating to this AGREEMENT. All Contract responsibilities
that belong to Owner's will be coordinated and managed by Mary Chiechi.
27. Insurance. Prior to undertaking performance of work under this Agreement, Concultant shall maintain and shall
require its subcontractors, if any, to obtain and maintain insurance as described below.
a) Commercial Generai Liability Insurance. Consuitant shall maintain commercial general liability insurance
naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s)
and shall include, but not limited to protection against claims rising from bodily and personal injury, including
death resulting therefrom and damage to property, resulting from any act or occurrence arising out of
Consultant's operations in the performance of this Agreement, including, without limitation, acts involving
vehicles. The amounts of insurance shall not be iess than the following: single limit coverage applYing to
bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of
$1,000,000 per occurrence. Consultant shall supply City with fully executed additional insured
endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and
shall be approved in form by the City Arttorney.
b) Business automobile liability insurance, or equivalent form, with a combined single limit of not less than
$1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non.owned
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automobiles.
c) Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant.
if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake
self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain
and maintain any employer's liability insurance with limits not less than $1,000,000 per accident.
d) If Consultant is or employs a licensed professional such as an architect or engineer: ProfessionalliabiliLy (errors and
omissions) insurance, with the combined single limit of not less than $1,000,000 per claim.
e) The following requirements apply to the insurance to be provided by the Consultant pursuant to this section:
(i) Consultant shall maintain all insurance required above in full force and effect for the entire
period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and
shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in
coverage or changed in any way other material aspect without thirty (30) days prior written
notice to the City.
f) If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses
to furnish the City with required proof that insurance has been procured and is in force and paid for, the
City shall have the right, as the City's election, to forthwith terminate this Agreement. Such termination
shall not effect Consultant's right to be paid for its time and materials expended prior to notification of
termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any
work prior to approval of insurance by the City.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST:
~'I
\
CITY OF SANTA ANA
~~
1$<:
DAVID N. REAM
City Manager
-J
PATRIClAE. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
\.. / (.
fl/ .,/ /
~~~(~~~d;-/ U.CU-,/"
ffisistant City Attorney
RECOMMENDED FOR APPROVAL:
,!\S:.......
,".'L L\. -,,--\ ,
PAUL WALTERs'
Chief of Police
CONSULTANT
~ ~'
Steven LUPina~
President/COO
tc..- CR.'- '2....l0"'L.
Employer ID # or Individual SS #
Page 8 of8
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company L.vUy M~-!i~ c..o -ll<:..:ll: ()c..5~q\
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the nanled insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant ifnot so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effecti ve.)
, this endorsement form as a part of
Effective
Policy Il
Issued to ~C7T-OD (l J. ~ ~ (J,. f\l)(', . ,
. Q.o ^"
Named Insured
Countersigned by C?~ ~~. 0
Aut orized Representative
MAR.OJ.~;.)U~ 1;L;(J~ ,;l(.;lIij~..J'i
J..d iJuJ. ..U\t\LL;~ ,,'.j
ffl,'.". ."'__'
ACORD
- ~
CERTIFICATE OF LIABILITY INSURANCE
I DA1'f.(IlIM1CO"NYV)
0310312005
THIS CERnFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AHO CONFERS NO RIGHT& UPON THE CERTIFICATE
HOLDER. THIS CERnFICATE DOEs NOT A.ND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
-
l.W\IdY _ Conopllly -l_1iOC3i"1
11300 WIll OIylopic Blvd.
5uiIo liD
!,.oo Ango!oo CA 800M _
-.. PROPERTYIU_.COM
cJoRaodlfuy
35$1 ConoIno .... ea.... ""'.
Son C1t_ CA 12172
: lNf\I}Rt:::RA.
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INSURERS AFFORDING COVERAGE
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COVERAllES
THI! pOLICIES OF' INSUAANCt: LISTED BELOW HAVe. IlEEN ISSUED TO TIlE lNSUHEU NAMED ABOVE FOA THE P'OUCY PERIOD INOICATrn NOlWIIH~TANDINa
AN"l' HfOUIREMENT. "TOIM Oft CONOffION OF' ANY CONTRACT OR OTHr:R DOCUMENT WITH RESPF.CT TO WHICH HIS CERTIFICMF MA"l' 8E ISSUED OR
YAY PE~TIUN, TIle IN!.UHAHCE "'FFOROCO BY TliE POLICIES DI:SCRIIK!O HERElH IS SUBJECT TO ALL THE TERYS. EXCLU$I(INfi "NO CONDITIONS OF SUCH
PULIClt$. ACGAECiATE LIMITS SHOWN tMy ,"",VE ISII!II!N Ht:OUCl:D BY PND Cl.I<ll\lI$.
- I ~y NUM8EA JI"OL V Fr." e II! LICY u"",,-TlO"
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DAn ~eQfI. 1111: tUUlNG....UftIi.WI.L ENDCAVOll TO MIL 30... DAYI WRITTEN
NOlIel TO THE cz..nrlCATI HQU)l:A " TO ntt LlI!:n, "" FAILURE: TO DO 10 SHAU.
IMPOSE NO OIUGATION OR UMlUry.Of. NY t<1NO U TN( INIUfW\ ITI AGENTS OR
AfPIlflUTA ..'
ALIlHONZED R!rMSlNTATNi.
OIl ACORD CORPORA nON 1011
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t\S TO FORM
ACORD ZlI (ZlMI1/011
ell\ i\liorlll:v
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ACORD CERTIFICATE OF PROPERTY INSURANCE I DO"
N O.llO.llZO~
-... THIS CERTIFICA T! IS ISSUED AS A IIA TTEfl OF INFORM 1l0N
ONLY ANll CONF!RS NO RKlHTS UI'ON THE CER1lFICATE
l,oldy IoIolliIl eo.....y . lie.... toC3A., HOLOER. THIS CERTIFlCAre OO!S NOT AMEND. EXTEND OR
AlTER THE COVERAGE AFFORDED BY TllE POLICIES BELOW.
11340 _llIym\llC lI/vd. ~_ COMPANIES AFFORDING C.~~.._
Sullo .'0
LoI Anvoln CA 100M CUMAANV Eltu NUr.ce Company
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SI.~CAI:li72 i r.OMO^NY
COVERAGES
THJS 1$ TO CERTIFY TH" I' THE POlJCtES 01' INSURANCE USTCO eeLOW HAVE BEEN ISSUED TO lHt: INSURED N~urD ,.,auvt. !"Ok THE POLICY PFRIOD
tNt:'J(;"lED. NOTWITUS1"NUlN<:ii ANY REQUUlt.MENT. TERM OR CONOlnON OF JoH't CONTRACT OM OTHER OOCUMfNT WHH RESPECT TO WUICl1 THIS
CERTIFlc,4.TF. IMY liE ISSUED OR tMY PERTAIN. THE INSIIRANCE AFFORDED (11'1' THE POUCIES OESCRIBEO HEREIN IS SUB.JECl TO AI.I.. rHE TERMS,
EXI~I.USlnNS AHD COHOlOONS OF SUCH POLICIES l.I,..ts SHOWN MAY tlAV!! 8t't'.H ~EUUCED BY PAlO CI- A....."
co I -..."". ."W-.'-' j' -- --HU.'''' I POUCYf'R.~ve .CJLtCYn~I""TlON. -'---Y--'" .
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LOCATIONOfPN!_,..rr ,,,,,,,or ....0f'IiI'1rTY
l.ocl;3515IC...........c-.SIIl~CA 11672
loc 2: lCUt E. Do. Ju....Qroflndllllly.CA 117..
1HCw.. CONQlTIONIIOTMU COftIV4ES
CER'I1FICA TE HOLDER
CANCeLLATION
IttOULg ,.., or nt'- AIKWI: DUCIIIRD I"Ot.ICIF.I iii CA"CELLfD Bf.fOfllf nit
exr'IMTIOH DAn TMlREO'. Ttff I5$UlNG COIFAlfY WILL StDt!IWOlll TO MAlL
..R- DAYS WRITT1!N NOllel TO TWI CfRTlflCAlIE HOUl'" .....D 10 1Hf &.Ul,
BUT .....lMI! TO....L IUCM SHALL MlIP'055 NO DlLIGATlOIiI 0,. L1f18L1TY
IMY /Il;1tC) T ANY . fT. NT DFl R('PREIENTATlV
~D"f;'Q1tNT"'1'i1
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ACORD 2. (1115)
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SG
CERTKOLDER COpy
STATE
COMPENSATION
INSURANCE
FUND
P.O. BOX 807, SAN FRANCISCO,CA 94142-0807
CERTIFICATE OF WORKERS' COMPENSATION INSURANCE
ISSUE DATE: 04-02-2005
GROUP:
POLICY NUMBER: 1695562 -2005
CERTIFICATE ID: 1
CERTIFICATE EX~IRES: 04-02-2006
04-02-2005/04-02-2006
CITY OF SANTA ANA
ATTN MARY CHIECHI
20 CIVIC CTR PLAZA RM M-97
SANTA ANA CA 92701
SG
This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the
California Insurance Commissioner to the employer named below for the policy period indicated.
This policy is not subject to cancellation by the Fund except upon 30 days' advance written notice to the employer.
We will also give you 30 days' advance notice should this policy be cancelled prior to its normal expiration.
This certificate of insurance is not an insurance policy and does not amend; extend or alter the coverage afforded
by the policies listed herein. Notwithstanding any requirement, term, or condition of any contract or other document
with respect to which this certificate of insurance may be issued or may pertain, the insurance afforded by the
policies described herein is sub iect to all the terms, exclusions and conditions of such policies.
~
A~t
&L
AUTKORIZED REPRESENTATIVE PRESIDENT
EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000.00 PER OCCURRENCE.
ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 04-02-2005 IS ATTACHED TO AND
FORMS A PART OF THIS POLICY.
EMPLOYER
LEGAL NAME
(
\
PROPERTYBUREAU COM
3551 CAMINO MIRA ~OSTA
SAN CLEMENTE CA 92672
PROPERTY BUREAU COM INC
THIS DOCUMENT HAS A BLUE PATTERNED BACKGROUND selF ",,,
(RE.V.3-031
PRINTED: 03/17/2005 PQ408
~uez, Patricia
From:
Sent:
To:
Subject:
Sheedy, Laura
Thursday, May 26, 200511:10AM
Jacquez, Patricia
FW: Propertybureau.com
Hi Pat
This is the response I received regarding your question as to term. It appears it shoLild be 4-1-05 though 3/31/08.
Thanks
Laura
---nOriginal Message-----
From: Coleman, Paula
Sent: Wednesday, May 25, 2005 12: 18 PM
To: Sheedy, Laura
Subject: FW: Propertybureau.com
Does her response answer your question???
----~Original Message-u--
From: Calderwood, Mary
Sent: Wednesday, May 25, 2005 12:13 PM
To: Coleman, Paula
Subject: RE: Propertybureau.com
The first agreement was N2002-047. It was in effect from 6/1/2002 to 4/1/2005. We would also like a 3 year on this new
one too, if possible. If not, a one year will work.
Mary Calderwood
Property & Facilities Manager
(714) 245-8061
-----Original Message---n
From: Coleman, Paula
Sent: Wednesday, May 25, 2005 8: 11 AM
To: Calderwood, Mary
Subject: Propertybureau.com
What was the term for this agreement. the 8th floor needs to know (i.e., the dates it is in effect).
Paula J.Coleman
Assistant City Attorney
Legal Advisor to SAPD
7"4-647-5202 (a.m.'s) City Hall
7"4-245-8010 (p.m. 's) Police Dept.
1