June 18, 2024, Item #3
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PO RT City of Poway
June 18, 2024
Honorable Mayor and Members of the City ~~ncil
Eric Heidemann, Director of Public Works ~
Michael Obermiller, Public Works Operations Manager ~
(858) 668-4722 or [email protected]
CITY COUNCIL
Award of Contract to J.J. Kane Associates, Inc., DBA Ken Porter Auctions for Auction Services; RFP No. 24-023
A request for proposal (RFP) for Auction Services, RFP No. 24-023, was duly advertised on April 25 and May 2, 2024. Two (2) proposals were received and opened on May 16, 2024. Staff reviewed the proposals submitted and selected J.J. Kane Associates, Inc., DBA Ken Porter Auctions U.J. Kane Associates, Inc.) as the company to provide Auction Services to the City of Poway (City). Staff determined J.J. Kane Associates, Inc. to be responsive and qualified to provide these services and is recommending the City Council award the Agreement for Auction Services (Agreement) to J.J. Kane Associates, Inc., DBA Ken Porter Auctions. The length of this Agreement shall be for two (2) years beginning on July 1, 2024, through June 30, 2026. The Agreement can be extended by a maximum of three (3) one-year terms.
Recommended Action:
It is recommended City Council award the Agreement for Auction Services, RFP No. 24-023, to J.J. Kane Associates, Inc., DBA Ken Porter Auctions and authorize the City Manager to execute the necessary documents.
Discussion:
On a regular basis the City reviews its inventory of property and periodically disposes surplus items.
The procedure for disposing City-owned property is detailed in City of Poway Policy and Procedure No. 031, Disposal of City Property (Policy). This Policy establishes various conditions and requirements for disposing of surplus City-owned property, including whether an item is no longer useful (obsolete), broken beyond repair, unsafe or no longer economical for use, or any other documented reason determined by a City department director. The Policy's objective is to streamline and expedite the disposal process to achieve additional revenue and ensure an efficient use of staff resources. The Policy provides discretion to the department director in determining which disposal method is utilized. 1 of 26
June 18, 2024, Item #3
Consequently, public auction has been determined to be the best method to dispose of vehicles and equipment removed from service, and no longer required for public use, as this method provides the greatest return of funds for the City's investment.
The City issued a notice inviting proposals for auction services on April 25 and May 2, 2024. Two (2) proposals were received and opened on May 16, 2024. Evaluation criteria for the proposals included overall experience, technical expertise, work force coverage capacity, references, and cost of service.
After reviewing the proposals, City staff selected J.J. Kane Associates, Inc., as the best qualified contractor to provide auction services to the City.
A second proposal was received by Coco Brothers Inc. OBA General Auction Company and was opened on May 16, 2024; however, the proposal was deemed non-responsive.
The table below represent the various charges for vehicles and miscellaneous equipment:
J.J. Kane Associates, Inc.
Auction Item Commission Buyer's Premium Transportation Fees Description Cars, SUV's, & Pickup 2% 15% (Live) $110 Trucks 15% (Online) Large Trucks & Other 2% 15% (Live) To be agreed upon Vehicles 15% (Online) Optional Work Description Fees
De-Logo $85Nehicle
Battery Replacement $145Nehicle
The length of the proposed initial Agreement is two (2) years beginning July 1, 2024, through June 30, 2026. The Agreement may be extended subject to City Council appropriation of funds through a total of three (3) separate one-year extensions. The maximum length of the Agreement would be up to five (5) years.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
The City will receive funds from the sale of the surplus vehicles and equipment. The funds received will be deposited into the Capital Replacement Fund (115010-78810). The exact amount of the proceeds will not be known until the results from the auction are returned. All proceeds will be used towards the purchase of replacement equipment.
Public Notification:
None.
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June 18, 2024, Item #3
Attachments:
A. Standard Agreement
Reviewed/Approved By:
Assistant City Manager
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Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chris Hazeltine
City Manager
June 18, 2024, Item #3
City of Poway
STANDARD AGREEMENT FOR SERVICES
This Agreement, entered into this 1st day of July 2024, by and between the CITY OF POWAY (hereinafter referred to as "City") and J.J. Kane Associates, Inc., OBA Ken Porter Auctions. (hereinafter referred to as "Contractor").
RECITALS
WHEREAS, City desires to obtain the services of a private Contractor to perform Auction Services for the disposal of surplus vehicles and miscellaneous equipment; WHEREAS, Contractor has represented that Contractor possesses the necessary qualifications to provide such services;
WHEREAS, City has authorized the preparation of an agreement to retain the services of Contractor as hereinafter set forth.
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONTRACTOR ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Contractor shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
2. Compensation and Reimbursement.
City shall compensate and reimburse Contractor as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
3. Term of Agreement.
The term of this Agreement shall be as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by City.
Termination without cause shall be effective only upon 60-day written notice to Contractor. During said 60-day period Contractor shall perform all consulting services in accordance with this Agreement. This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Contractor in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City. Termination for cause shall be effected by 4 of26 ATTACHMENT A
June 18, 2024, Item #3
delivery of written notice of termination to Contractor. Such termination shall be effective upon delivery of said notice.
5. Confidential Relationship.
City may from time to time communicate to Contractor certain information to enable Contractor to effectively perform the services. Contractor shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Contractor shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Contractor, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Contractor without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Contractor by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
Contractor shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this agreement without the prior written consent of the City. In its performance hereunder, Contractor shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation.
6. Office Space and Clerical Support.
Contractor shall provide its own office space and clerical support at its sole cost and expense.
7. Covenant Against Contingent Fees.
Contractor declares that it has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the Agreement.
For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps, and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Contractor upon demand.
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9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Contractor shall not act as Contractor or perform services of any kind for any person or entity whose interest's conflict in any way with those of the City of Poway. Contractor shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Contractor shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Contractor has a financial interest as defined in Government Code Section 87103. Contractor represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City.
"Contractor" means an individual who, pursuant to a contract with a state or local agency:
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(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar
authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract.
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
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DISCLOSURE DETERMINATION:
[g) 1. Contractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above.
No disclosure required.
D 2. Contractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, Contractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law.
Department Director
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void.
11. Maintenance of Records.
Contractor shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the agreement period and for three (3) years from the date of final payment under this Agreement, for inspection by City and copies thereof shall be furnished, if requested.
12. Independent Contractor.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of the City of Poway. City shall have the right to control Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Contractor accomplishes such services.
13. Licenses, Permits, Etc.
Contractor represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. Contractor represents and warrants to City that Contractor shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Contractor to practice its profession.
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14. Contractor's Insurance.
Contractor shall provide insurance as set forth in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
15. Indemnification.
(a) For Claims (as defined herein) other than those alleged to arise from Contractor's negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Contractor or any other person for, and Contractor shall indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Contractor's negligent performance under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-Contractors or employees.
(b) For Claims alleged to arise from Contractor's negligent performance of professional services, lndemnitees shall have no liability to Contractor or any other person for, and Contractor shall indemnify and hold harmless lndemnitees from and against, any and all Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Contractor's negligent performance of any professional services under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-Contractors or employees, committed in performing any of professional services under this Agreement. For Claims alleged to arise from Contractor's professional services, Contractor's defense obligation to lndemnitees shall include only the reimbursement of reasonable defense costs and attorneys' fees to the extent caused by Contractor's negligence.
(c) The foregoing obligations of Contractor shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers. (d) In any and all Claims against City by any employees of the Contractor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor under worker's compensation acts, disability benefit acts or other employee benefit acts.
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(e) Contractor shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Contractor is carrying and maintaining; however, if Contractor fails to take such action as is necessary to make a claim under any such insurance policy, Contractor shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Contractor under any insurance policy or policies required pursuant to this Agreement.
(f) The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section
15. (g) The rights and obligations of the parties described in this Section 15 shall survive the termination of this Agreement.
16. Assumption of Risk.
Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Contractor: (a) Contractor hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Contractor that occurs in the course of, or in connection with, the performance of Contractor's obligations under this Agreement, including but not limited to Contractor's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Contractor or its employees in connection with Contractor's performance its obligations under this Agreement, including but not limited to Contractor's Scope of Services.
17. Contractor Not an Agent.
Except as City may specify in writing, Contractor shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent.
Contractor shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
18. Personnel.
Contractor shall assign qualified and certified personnel to perform requested services. The City shall have the right to review and disapprove personnel for assignment to Poway projects.
City shall have the unrestricted right to order the removal of any person(s) assigned by Contractor by giving oral or written notice to Contractor to such effect.
Contractor's personnel shall at all times comply with City's drug and alcohol policies then in effect.
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19. Notices.
Notices shall be given as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
20. Governing Law, Forum Selection and Attorneys' Fees.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Each party to this Agreement consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central Division, unless the parties mutually agree to submit their dispute to arbitration. Contractor hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. The prevailing party in any such action or proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the foregoing, in the event that the subject of such an action is compensation claimed by Contractor in the event of termination, Contractor's damages shall be limited to compensation for the 60-day period for which Contractor would have been entitled to receive compensation if terminated without cause, and neither party shall be entitled to recover their litigation expenses.
21. Gender.
Whether referred to in the masculine, feminine, or as "it," "Contractor" shall mean the individual or corporate Contractor and any and all employees of Contractor providing services hereunder.
22. Counterparts.
This Agreement (and any amendments) may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Documents delivered by telephonic facsimile transmission shall be valid and binding.
23. Entire Agreement.
This Agreement shall constitute the entire understanding between Contractor and City relating to the terms and conditions of the services to be performed by Contractor. No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby.
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24. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013.
Contractor hereby certifies that all persons providing services to City by Contractor are not current members of the California Public Employees' Retirement System (Cal PERS) and shall not become members of CalPERS while providing services to City.
Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. (Remainder of page intentionally left blank)
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June 18, 2024, Item #3
IN
WITNESS
WHEREOF,
the
parties
hereto
have
duly
executed
this
Agreement
on
the
date
first
above
written.
CITY
OF
POWAY
By:------------
Chris
Hazeltine,
City
Manager
Date:
-----------
ATTEST: Carrie
Gallagher,
City
Clerk
APPROVED
AS
TO
FORM:
J.J.
Kane
Associates,
Inc.,
DBA
Ken
Porter
Auctions
By:-------------
Gene
Govoreau,
Senior
Sales
Manager
Date:
------------
By:--------------
Alan
Fenstermacher,
City
Attorney
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"SPECIAL PROVISIONS"
EXHIBIT "A"
A. Scope of Services.
The City of Poway periodically holds auctions to dispose of surplus vehicles, construction equipment, and other miscellaneous equipment. The Selected vendor will provide auction services at vendor sites as well as be able to provide mobile or offsite auctions services should the need arise.
1. General Requirements:
a. Contractor shall have the administrative and fiscal capability to provide and manage the proposed services.
b. Contractor shall ensure that no property assigned to the Contractor may be sold before an auction without prior written agreement of the City. c. Should both parties agree to a sale prior to auction, the proceeds of said sale should be treated as part of the gross proceeds of the auction.
2. City Requirements:
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a. The City shall provide in a timely manner the free and clear Title or Certificate of Ownership and all documents necessary to affect Transfer of Title for motor vehicles, trailers, and vehicle equipment and other property.
At the option of the Contractor, vehicles may not be offered at auction unless the Certificate of Ownership and all other documents necessary to affect a Transfer of Title for motor vehicles, trailers, and vehicle equipment are resubmitted at least five (5) days prior to sale.
b. Submit to Contractor a list of property 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 forgoing, the City may withdraw property from said list upon notice to Contractor five (5) days prior to auction.
c. City warrants title to all property to be unencumbered at the time of sale. All property shall be sold "as is, where is" without any warranty by City of Contractor as to condition or usability. This disclaimer shall be obtained in all auction brochures and incorporated into the "Terms and Conditions of Sale" as well as on the sale invoice.
d. The City at its option may choose to transport City property to the Contractor's auctions site using transportation other than that provided by the Contractor. City property will be delivered to the Contractor's site between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday.
Deliveries are by appointment only. No fees may be assessed on City for transporting City property to Contractor's site.
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e. The City at its option may choose to use the transportation provided by Contractor at the Contractor's current rates per Exhibit "B".
3. Contractor Requirements:
a. Contractor shall provide City and such documents as City may request to protect City's rights.
b. Contractor shall maintain any and all records considered necessary by the City other than those provided by the Contractor. City will also provide Contractor such additional documents as Contractor may reasonably request in order to assist Contractor in performing its duties under the agreement.
c. Contractor shall comply with the consignment terms of the California Commercial Code and such other codes and regulations as may apply to the services provided by the Vendor.
d. The Contractor shall maintain an auctioneer bond with the State at all times. e. The Contractor may request an amendment to the agreement for certain fee increases or for the currently unknown issue out of its control that may be instituted by government agencies, financial institutions or merchant credit card service providers in the future as it relates to convenience fees.
Contractor reserves the right to adjust internet related fees over the life of this agreement if necessary due to pricing changes out of control or new technology availability unknown at this time.
4. Auction Requirements:
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a. Contractor shall ensure all auctions will be open to the general public, and there shall be no fee charged for participation as a potential buyer. b. Contractor shall ensure sales of such property will be made only the highest responsible bidder. The proceeds from all sales shall be collected in the form of cash, cashier's check, traveler's check, money order, or a check guaranteed by a bank letter of credit. The customer may choose to use a credit card. Contractor must indicate convenience fee charged to potential buyers in Exhibit "B".
c. Contractor shall ensure that unless otherwise directed by the City, all unsold property shall be rescheduled to the next available auction at no additional cost to the City.
d. Contractor shall receive and protect and properly insure, pursuant Exhibit "A" Insurance, all property from City for disposal.
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e. Contractor shall physically display property in a manner that is conducive to proper inspection and will encourage the highest bid possible, i.e., clean, accessible for inspection, free from obstruction, and in general displayed in an efficient orderly manner allowing potential bidders unfettered access to the items to be auctioned.
f. Contractor shall supply all needed personnel and set up all needed auction equipment and facilities such as office, customer seating, and auction stands and refreshment area.
g. Contractor shall comply 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 thereof. h. Contractor shall register all bidders and issue bidder numbers. i. Contractor shall accept proxy bids with proper registration and when the bidder has submitted a written request for a proxy bidder within 12 hours of start of auction. Proxy bids are accepted through the on line system. j. Contractor shall ensure that all property is available for public inspection at least two (2) working days immediately preceding the auction sale date. i. No other public access will be allowed. Contractor's personnel and security employees will supervise the
inspection period.
ii. Vehicles shall be washed prior to inspection as requested by the City.
iii. Contractor shall, when requested by the City, provide transportation of all property from the City's possession to Contractor's auction facility. Contractor shall ensure
licensed and insured subcontractors provide such
transportation. The fees for such services shall be deducted from the auction proceeds by City. All fees shall be listed in a schedule of values and are fixed for each contract and option year.
k. Contractor shall, when requested by City and in compliance with State Laws, arrange for smog certificate or a statement that a vehicle does not meet smog requirements prior to sale. The fees for such services shall be deducted from auction proceeds by City. Vehicles that cannot be sold to California residents due to safety, California Air Resources Board regulations, or smog related reasons can be sold to car dealers, dismantlers or out of state buyers.
I. Contractor shall, when requested by City, arrange for property repair, detailing or reconditioning. Contractor, upon direction of the City, will obtain price quotes, and upon receipt of written instructions from the City, shall June 18, 2024, Item #3
have the necessary services performed. The fees for such Services shall be deducted from auction proceeds by City.
m. The City reserves the right to set a minimum selling price on certain items, and shall coordinate minimum bid requests with Contractor for purpose of ensuring reasonableness of minimum bid. Contractor shall prepare and present to the new owner the necessary documentation to transfer ownership or title, including OMV forms.
n. The Contractor shall not merge or combine lots offered for sale unless they are from the same consigner.
o. For extremely heavy items, large or difficult to transport items or items with a fixed or semi-fixed location, or any other items for which it is determined that it is economically more feasible to sell the item off site, the following procedure will be used.
i. City will provide Contractor with available inspection time prior to auction or allow the vendor to move the consigned property to the vendor's site for inspection.
ii. The Contractor may auction off-site items using photograph or other means. The display will include a general
description of each item and related public inspection
information.
iii. The Contractor shall include such items in its advertising plan and shall be knowledgeable about the off-site items being offered.
5. Advertising:
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a. Contractor shall engage in a comprehensive advertising and marketing campaign in advance of each auction.
i. The campaigns shall include: email broadcasts and several advertisements in local major newspapers.
ii. Contractor shall, by email, provide auction brochures to auctioneer's current mailing list prior to each auction. Said brochures shall contain descriptions and photographs of featured items to the property to be auctioned on the
advertised auction date. A reasonable quantity of these brochures can be provided to the City upon request.
iii. The Contractor shall state in advertisements that the vehicles are from the City of Poway.
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b. At any time and at the termination of the contract for any cause, all artwork, mailing lists proofs and/or negatives in either print or digital format and other documents or items necessary for the performance of this contract used by the vendor in the performance of this contract become the property of the City.
i. The above-mentioned items shall be returned to the City within ten (10) days upon written notification to the Contractor. c. The Contractor shall provide information regarding the auction on the Contractor's website, including photographs of major auction items. The photographs shall be of sufficient resolution to allow the viewer to identify the item and ascertain the overall condition of the item.
6. Surety Bond:
Contractor shall maintain a bond on file with the California Secretary of State in the principal amount of $20,000, as required by law (California Code Section 1812.600). Bond shall be for the benefit of any person or persons damaged by fraud, dishonesty, misstatement, misrepresentation, deceit, unlawful acts or omissions, or failure to provide the services of an auctioneer or auction company in performance of the auction by Contractor or its agents, representatives, or employees while acting within the scope of their employment.
B. Compensation and Reimbursement.
City shall pay Contractor a fee in accordance with the Fee Proposals submitted with the proposals dated May 2, 2024, which are included in this document as Attachment 1. Contractor's fee shall include, and Contractor shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
In addition to said consulting fee, Contractor shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Contractor shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates. Reimbursement for lodging is limited to travel from outside of San Diego County. Contractor shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred.
C. Term of Agreement.
This Agreement shall be effective from the period commencing July 1, 2024, and ending June 30, 2026, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." This Agreement may be extended for up to three 17 of 26
June 18, 2024, Item #3
(3) additional one-year periods upon approval in writing of the City Manager and Contractor. Award of the Agreement and any Agreement extensions are subject to City Council appropriation of funds. Each renewal period (fiscal) after the first term of the agreement, the Contractor's costs shall .be adjusted based on the annual change in the previous calendar year's Consumer Price Index for the San Diego-Carlsbad area (All Urban Consumers CPI-U) or 5%, whichever is less. The first adjustment would occur no earlier than July 1, 2026. Upon expiration or termination of this Agreement, Contractor shall return to City any and all equipment, documents or materials and all copies made thereof which Contractor received from Gity or produced for City for the purposes of this Agreement.
D. Contractor's Insurance.
1. Coverages:
Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive General Liability, including premises- operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate. (b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit.
(c) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
(b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
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June 18, 2024, Item #3
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Contractor shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
To City:
To Contractor:
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City of Poway
P.O. Box 789
Poway, CA 92074
J.J. Kane Associates, Inc.,
4510 Muth Way
Jurupa, CA 92509
June 18, 2024, Item #3
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ATTACHMENT 1
FEE SCHEDULE
J.J. Kane Associates, Inc.
Section A -Commissions: As a
percentage of sold gross proceeds for Commission Rate surplus consigned. Buyer's premiums are not preferred.
Operating vehicles including cars, trucks,
1 materials handling or specially equipped 2%
vehicles, and trailers.
Non-operating vehicles including cars,
2 trucks, and other materials handling or 2%
specially equipped vehicles, and trailers.
3 Miscellaneous materials, supplies, and 15% equipment -working or not. 4 Buyer's Premium Percentage Live 15% Auctions
5 Buyer's Premium Percentage Online 15% Auction
Section B -Transportation Charges, to Transportation
transport to the auctioneer's facility Charges
6 Carrier Transport, multiple operating $110 vehicles
7 Towing standard, single, operating & non-$425 operatinq vehicles 8 Loads on a trailer, low bed $700
9 Large trucks (over one ton) and equipment To be
AQreed On
Section C -Related Preparation Preparation Charges Charges, for vehicle related Services 10 Safety and Smog Check, per vehicle $0/vehicle
11 Removal of decals, bumper stickers, any $85/vehicle identifiers of City of Poway, per vehicle 12 Removal of light bar $NA/vehicle
13 Replace battery (including parts and labor) $145/vehicle 14 Minor vehicle repairs $75/hour
15 Parts Mark-Up Percentage (associated 10% with mechanical repairs) Section A -Commissions: As a Commission Rate percentage of sold gross proceeds for June 18, 2024, Item #3
surplus consigned. Buyer's premium is I
not preferred.
Auction Sales 2% Commission
Buyer's
Premium 15% Percentage Live
Auctions
Buyer's
Premium 15% Percentage
Online Auction
Section B -Incidental Services I Incidental Services
Transportation
of Misc. Items $200 for 24 ft. Stake Bed from City of
Poway
Appraiser Fee $0
Ad min/handling
fee for items $0 released before
sale
(Remainder of page intentionally left blank)
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June 18, 2024, Item #3
EXHIBIT "B"
Cal Gov Code§ 7522.56
Deering's California Codes are current through all 1016 chapters of the 2018 Regular Session and the November 6, 2018 Ballot Measures.
Deering's California Codes Annotated> GOVERNMENT CODE> Title 1 General> Division 7 Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public Employees' Pension Reform Act of 2013
§ 7522.56. Provisions applicable to person receiving pension benefit from public retirement system; Section supersedes conflicting provisions (a)This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section.
(b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section.
(c) A person who retires from a public employer may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration.
(d ) Appointments of the person authorized under this section shall not exceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement. (e)
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(1 )Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12-month period prior to an appointment described in this section, the retired person received June 18, 2024, Item #3
any unemployment insurance compensation arising out of prior employment subject to this section with
a public employer. A retiree shall certify in writing to the employer upon accepting an offer of employment that he or she is in compliance with this requirement.
(2)A retired person who accepts an appointment after receiving unemployment insurance compensation as described in this subdivision shall terminate that employment on the last day of the current pay period and shall not be eligible for reappointment subject to this section for a period of 12 months following the last day of employment.
(f)A retired person shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement unless he or she meets one of the following conditions:
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(1 )The employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting. The appointment may not be placed on a consent calendar.
(2)
(A)Except as otherwise provided in this paragraph, for state employees, the state employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed state employment position before 180 days have passed and the appointment has been approved by the Department of Human Resources. The department may establish a process to delegate appointing authority to individual state agencies, but shall audit the process to determine if abuses of the system occur. If necessary, the department may assume an agency's appointing authority for retired workers and may charge the department an appropriate amount for administering that authority.
(B)For legislative employees, the Senate Committee on Rules or the Assembly Rules Committee certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (C)For employees of the California State University, the Trustees of the California State University certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar.
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(3)The retiree is eligible to participate in the Faculty Early Retirement Program pursuant to a collective bargaining agreement with the California State University that existed prior to January 1, 2013, or has been included in subsequent agreements.
(4)The retiree is a public safety officer or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter. (g)A retired person who accepted a retirement incentive upon retirement shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement and subdivision (f) shall not apply. (h)This section shall not apply to a person who is retired from the State Teachers' Retirement System, and who is subject to Section 24214, 24214.5 or 26812 ofthe Education Code.
(i)This section shall not apply to (1) a subordinate judicial officer whose position, upon retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to work in the converted position, and the employer is a trial court, or (2) a retiree of the Judges' Retirement System or the Judges' Retirement System II who is assigned to serve in a court pursuant to Section 68543.5.
History
Added Stats 2012 ch 296 § 15 (AB 340), effective January 1, 2013. Amended Stats 2013 ch 528 § 11(SB13), effective October 4, 2013 (ch 528 prevails); ch 76 § 75 (AB 383), effective January 1, 2013; Stats 2014 ch 238 § 1 (AB 2476), effective January 1, 2015.
Annotations
Notes
Amendments:
2013 Amendment:
Substituted (1) "have passed" for "has passed" in the first sentence of subds (f)(I) and (f)(2); (2) "or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter" for "of firefighter" in subd (f)(4); and (3) "Judges' Retirement System" for "Judges' Retirement System I" in subd (i).
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June 18, 2024, Item #3
GUARANTY
To the City of Poway, City Council, for:
Auction Services
The undersigned guarantees the work included in this project(s).
Should any of the materials or equipment prove defective or should the work as a whole prove defective, due to faulty workmanship, material furnished or methods of installation, or should the work or any part thereof fail to operate properly as originally intended and in accordance with the Plans and Specifications, due to any of the above causes, all within the number of months the site is to be maintained after date on which this Contract is accepted by the City, or the date of recordation of Notice of Completion, whichever is the later, the undersigned agrees to reimburse the City upon demand, for its expenses incurred in restoring said work to the condition contemplated in said project, including the cost of any such equipment or materials replaced and the cost of removing and replacing any other work necessary to make such replacement or repairs, or upon demand by the City, to replace any such material and to repair said work completely without cost to the City so that said work will function successfully as originally contemplated.
The City shall have the unqualified option to make any needed replacements or repairs itself or to have such replacements or repairs done by the undersigned. In the event the City elects to have said work performed by the undersigned, the undersigned agrees that the repairs shall be made and such materials as are necessary shall be furnished and installed within a reasonable time after. the receipt of demand from the City. If the undersigned shall fail or refuse to comply with his obligations under this guaranty, the City shall be entitled to all cost and expenses, including attorney's fees, reasonably incurred by reason of the said failure or refusal.
Contractor
Date
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June 18, 2024, Item #3
WORKERS' COMPENSATION INSURANCE CERTIFICATE
Pursuant to Section 1861 of the State Labor Code, each Contractor to whom a public works Contract has been awarded shall sign the following certificate and shall submit same to the City of Poway prior to performing any work on the Contract:
"I am aware of the provisions of Section 3700 of the Labor Code which require 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 of this Contract." Contractor
By:
Title
Date
Section 3700 of the State Labor Code reads in part as follows:
"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 employees."
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