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HomeMy WebLinkAboutFIRETEC USED APPARATUS SALES 2-2016tMORANCE ON FILE WORK MAY PROCEED h�NI'II.INSURANCE EXPIRES 6v" /[- 2-OW/l0 , CLERK OF COUNCIL N-2016-013 DUE: FM 4 - 2316 AGREEMENT FOR PROVISION OF BROI(ERAGE SERVICES FOR r �Oj B j ��} I"IRE EQUIPMENT APPARATUS SALES r>OtCR THIS AGREEMENT is made and entered into this 14th day of January, 2016 by and between Firetec Used Apparatus Sales, a general partnership ("Broker"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"), RECITALS A. The City desires to retain a professional consultant having special skill and knowledge in the field of fire equipment brokerage to provide listing and marketing services for surplus fire apparatus owned by the City. B. In 2012, following the issuance of RFP No. 12-040, Broker was selected by the City to perform such services and entered into Agreement No, A-2012-195 with the City that expired on August 31, 2013. The parties now wish to anter into another agreement under the same terms and conditions. C. In undertaking the performance of this Agreement, Broker represents that it is knowledgeable in its field and that any services performed by Broker under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Broker shall. promote, advertise, and complete the sale documents necessary to sell the inventory of surplus fire equipment owned by the City, as set forth in Exhibit A. This equipment includes the following, and such other equipment as may be identified by the City from time to time ("Equipment"): Year Make Model 1997 BME Pumper 1998 LTI Ladder Truck 2000 Freightliner/Eagle ALF/Rescue, In providing services raider this Agreement, Broker acknowledges that the Equipment belongs to the City and that the City retains absolute discretion to accept or reject any proposed transaction brought by Broker. City retains the right to transfer ownership to any entity, based on City's surplus property policy, of any Equipment listed above, prior to the execution of an agreement to sell that piece of Equipment to a third party. In such case, Broker shall not be entitled to commission for that Equipment. City shall notify Broker if such transfer has occurred. 2. COMPENSATION a. City agrees to pay, and Broker agrees to accept as total payment for its services, a commission equal to five percent (5%) of the sale price of the respective Equipment, The total revenue payable to Broker under the term of this Agreement, including any extension, shall not exceed $25,000. b. Broker will refer to City all qualified inquiries regarding the Equipment. When a pricing agreement is reached, Broker will collect the full purchase price and transfer the balance to the City, minus its 5% commission. The remittance shall be accompanied by a sales receipt containing all the terms and conditions of such sale. 3. TERM This Agreement shall commence on January 14, 2016 and terminate on January 13, 2018, unless terminated earlier in accordance with Section 13, below. The term of this Agreement may be extended for one (2) two-year period upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Broker shall, during the entire term of this Agreement, be construed to be an independent Contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Broker performs the services that are the subject matter of this Agreement; however, the services to be provided by Broker shall be provided in a manner consistent with all applicable standards and regulations governing such services. Broker shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes, 5. INSURANCE Prior to undertaking performance of work under this Agreement, Broker shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. If requested by the City, Broker 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 be limited to protection against claims arising from bodily and personal 'injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Broker's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less 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, with $2,000,000 in the aggregate. If requested by the City, such insurance shall (a) name the City, its oflicers, employees, agents, voh nteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self- insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Worker's Compensation Insurance. Broker, if Broker 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 trader this Agreement, Broker agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 6. INDEMNIFICATION Broker agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Broker or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Broker further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. RECORDS Broker shall keep records and invoices in connection with the work to be performed under this Agreement. Broker shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of fma,l payment to Broker under this Agreement. All such records and invoices shall be clearly identifiable. Broker shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other docmnents created pursuant to this Agreement during regular business hours. Broker shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Broker under this Agreement. 8. CONFIDENTIALITY If Broker receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Broker agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the salve degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential infornation disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Broker disclosed in a publicly available source; (c) is in rightful possession of the Broker an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Broker without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Broker covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the 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 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: To Broker: FMSA — Fleet Management City of Santa Ana 215 S. Center Street P.O. Box 1988 Santa Ana, California 92703 Fax 714-647-3539 FIRETEC Used Apparatus Sales P.O. Box 177 Randolph, VT 05060 Attn: Barbara Baumann A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been 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 fax, communication shall be effective or deemed to have been 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 calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. Al. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Broker regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument 4 signed by the City and by an authorized representative of Broker. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Broker or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Broker, Broker may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void, Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement maybe terminated by the City upon thirty (30) days written notice of termination. In such event, Broker shall be entitled to receive and the City shall pay Broker compensation for all services performed by Broker prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the City may require Broker to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Broker consents to the City's use thereof for such purposes as the City deems appropriate, b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 14, NONDISCRIMINATION Broker shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Broker affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 1.5. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, perfonmance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Broker shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California,, the City of Santa Ana and all other governmental agencies. Broker shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. It. All Exhibits referenced herein and attached hereto shall be incorporated as if ffilly set forth in the body of this Agreement, IN WITNESS WMR EOF, [tic pat -ties hereto have executed this Agreement the date and year first above written. ATTEST: o"I Maria D. iuizar 17 - Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALF10 City Attorney By: 07Y,, 1 4 John V. Punk Assistant City Attorney CITY OF SANTA ZAN David Cavazos City Manager Barbara Baumann, Principal Firetec Used Apparatus Sales N-2016-013 IWX"my 101 SCOPE OF SERVICES Firetec Used Apparatus Sales is a used fire truck broker. Firetec has been selling fire trucks, rescue vehicles and ambulances, directly, department -to -department, since 1983. Firetec lists used fire trucks for fire departments, much like a real estate broker lists and sells homes. Firetec takes responsibility for all marketing and advertising, utilizing a variety of methods, which change with the times. Firctec has a network of colleagues and tens tens of thousands of established customer contacts which are valuable assets in enabling us to connect buyers and sellers of used apparatus, Marketing efforts for our services and products offered on behalf of our clients include investments in print media, online advertising, social media, google advertising, trade show presence and networking, maintaining an active `buyer wants' list, and more. Firetec oilers the best opportunity for fair deals in the used fire truck market, as we own no apparatus, We are selling only the apparatus owned by our clients. Itis our mission to sell used apparatus for fair market value, and we assist sellers in establishing estimated values for their surplus apparatus, using methods such as comps of similar apparatus sold, depreciation formulas, and industry and market knowledge. Firetec lists apparatus at no charge and invests time and money into fording buyers for its clients. A commission is due, payable by the seller, after the apparatus is paid in full. There are no buyer fees, although buyers are responsible for transporting apparatus. All units sold as -is, where -is, with no war•antees. ..~•--.r FIRET-1 OP ID: LH la. � Cs CERTIFICATE OF LIABILITY INSURANCE �..�^°"' x01/2210016 0112212016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement a . PRODUCER Fountain, Parker, Harbarger & Associates, LLC. 201 Washin ton Street g Huntsville, AL 35$09 CONTACT John T. Freisen FAX p Ex 256.551.0060 AIC No 256.534.2042 EMAIL �SSS,reisen@fpins.com hins.com AODREss:l �__ A ,rOltn T. FraiBenENSURER{S AFFORDING COVERAGE SAID INSURER A: Essex Insurance Company 39029 1,809,09 INSURED Firette Apparatus Sales .»e.....,..._..�.�_� INSURER s: Hartford Insurance 19662 Randolph Center, LLC IDEA Randolph Center, LLC DBA INSURER C INSURER D: P 0 BOX 177 Randolph, VT 05060 INSURER E: INSURER F . $ COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH *THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BV PAID CLAIMS, City of Santa Ana AUTHORIZED REPRESENTATIVE 215 S, Center Street INSR LTRTYPE EXP OF INSURANCE DCL.qP POLICY NUMBER 10ip0Y EYF LIL=Ix LIMITS A EACH OCCURRENCE S 1,809,09 CLAMS -MADE ® OCCUR 2CQ2377 1112972015 1112912016 PREMISES Ea o=Ld;nRe $ N�50,00 TMERCIALGENERALLIABILITY MED EXP tiny we person) $ _EXCLUDE PERSONAL&ADV INJURY S EXCLUDE GEN'L AGGREGATE LIMN APPLIES PER: GENERALAGGREGATE $ 1,000,09 POLICY r,_J JEECCT 1-1LOGPRODUCTS - COM_PIOP AGO $ _ EXCLUDED OTHER: $ AUTOMOBILE LIABILITY OMBINED SINGLE LIMIT E0 accident $ ...._.................... ANYAUTO BODILY INJURY (Per person) $ ALL SCHEDULED BODILY INJURY (Per accitlenl) $ TOW OWNED AUTOS gO,OWNED Pe�e'EtlR'y DAMAGE $ HIRED AUTOS UMBRELLA LIAR OCCUR EACHOCCURRENCE 9 EXCESS UAB CLAIMS -MADE AGGREGATE S t3E7 RETENTION$ I S WORKER$ COMPRNSATON 57AT"T- ERy- AND EMPLOYERS' LIABILITY YIN B ANY PRQPRIETOruPARTNER)EXECUnVE 21WECOF7091 1110212015 11!0212016 E.L. EACHaOQiOENT $ 190,08 OFFiCEROAFAIBER EXCLJGEGT NIA (Mandatory In NH) �r E.L. DISEASE -EA EMPLOYE $�J 100,00 (y05. tl04Cdb8 Wltler s�o DESCR Pr NDF PERATIONS belowY E. L. DISEASE-POLICYLIMIT 500,000 DESCRIPTION OF OPERATIONS LOCATIONS I VEHICLES (ACORO D9, Additional Remark c le, ma attachadd If more oppeO is required) DESCRIPTION CERTIFICATE HOLDER CANCELLATION 071988.2014 ACORD CORPORATION, All rights reserved. ACORD 25 (2014109) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN FMSA-Fleet Management ACCORDANCE WITH THE POLICY PROVISIONS. City of Santa Ana AUTHORIZED REPRESENTATIVE 215 S, Center Street PO Box 1988 6� 1 -a^ Sana na CA 92703 071988.2014 ACORD CORPORATION, All rights reserved. ACORD 25 (2014109) The ACORD name and logo are registered marks of ACORD