SERVICES AGREEMENT BETWEEN THE CITY OF SUNNYVALE AND FREDERICK BURTON JOHNSON DBA: INTERSTATE AUTO SALES FOR AUTOMOBILE BROKER SERVICES
THIS AGREEMENT, dated
11/21/2022 , is by and between the CITY OF SUNNYVALE, a California chartered municipal corporation ("CITY"), and FREDERICK BURTON JOHNSON DBA: INTERSTATE AUTO SALES, a California Auto Dealer ("CONTRACTOR").
WHEREAS, CITY desires to procure automobile broker services; and
WHEREAS, CITY advertised an Invitation for Bid (IFB) on September 9, 2022; and WHEREAS, CITY accepted bid submitted on October 5, 2022; and WHEREAS, CONTRACTOR represents that it, and its sub-contractors, if any, possess the professional qualifications and expertise to provide the required services, and is licensed by the State of California as a vehicle dealer to sell new or used vehicles (i.e., possess a California vehicle dealer license).
NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.
1. Services by CONTRACTOR
CONTRACTOR shall provide services in accordance with Exhibit "A" entitled referenced in this Agreement are attached hereto and are incorporated herein by reference. To accomplish that end, CONTRACTOR agrees to assign Frederick Burton Johnson to this project, to act in the capacity of Project Manager, and personally direct the services to be provided by CONTRACTOR.
Except as specified in this Agreement, CONTRACTOR shall furnish all technical services, including labor, material, equipment, transportation, supervision, and expertise to perform all operations necessary and required to satisfactorily complete the services required in this Agreement.
2. Contract Term
The term of this Agreement shall begin on November 21, 2022, and shall remain in effect for one (1) year, unless terminated in accordance with Section 16 below. The City may renew this contract for two (2) additional one (1) year periods at the sole discretion of the City and as granted by the City Manager.
3. Payment of Fees and Expenses
CITY agrees to pay CONTRACTOR for the work performed at unit prices set forth in Exhibit "B". Total compensation shall not exceed Eight Hundred Thousand and 00/100 ($800.000.00), unless upon written modification to this Agreement signed by both parties in accordance with Section 24 below.
All invoices, including detailed backup, shall be sent to City of Sunnyvale, attention Accounts Payable, P.O. Box 3707, Sunnyvale, CA 94088-3707. Payment shall be made within thirty (30) days upon receipt of an accurate, itemized Accounts Payable Unit.
4. No Assignment of Agreement
CONTRACTOR shall bind themselves, their partners, successors, assigns, executors, and administrators to all covenants of this Agreement. Except as otherwise set forth in this Agreement, no interest in this Agreement or any of the work provided for under this Agreement shall be assigned or transferred, either voluntarily or by operation of law, without the prior written approval of CITY. However, claims for money due to or to become due to CONTRACTOR from CITY under this Agreement may be assigned to a bank, trust company or other financial institutions, or to a trustee in bankruptcy, provided that written notice of any such assignment or transfer shall be first furnished to CITY. In case of the death of one or more members of CONTRACTOR's firm, the surviving member or members shall complete the services covered by this Agreement. Any such assignment shall not relieve CONTRACTOR from any liability under the terms of this Agreement.
Attachment 2
5. Independent Contractor
CONTRACTOR is not an agent or employee of CITY but is an independent contractor with full rights to manage its employees subject to the requirements of the law. All persons employed by CONTRACTOR in connection with this Agreement will be employees of CONTRACTOR and not employees of CITY in any respect. CONTRACTOR is responsible for obtaining statutory Workers' Compensation coverage for its employees.
6. Standard of Workmanship
CONTRACTOR represents and maintains that it is skilled and licensed in the professional calling necessary to perform the services and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR's representations regarding its skills, licensure, and knowledge. CONTRACTOR shall perform such services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
7. Responsibility of CONTRACTOR
CONTRACTOR shall be responsible for the professional quality, technical accuracy and the coordination of the services
required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and CONTRACTOR shall be and remain liable to CITY
the services furnished under this Agreement.
8. Right of CITY to Inspect Records of CONTRACTOR
CITY, through its authorized employees, representatives, or agents, shall have the right, at any and all reasonable times, to audit the books and records including, but not limited to, invoices, vouchers, canceled checks, time cards of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years from the date of final payment to CONTRACTOR or for any longer period required by law, sufficient books and records in accordance with generally accepted accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR. Any expenses not so recorded shall be disallowed by CITY.
9. No Pledging of Credit
Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY.
10. Ownership of Material
All material, including information developed on computer(s), which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared or caused to be prepared, under this Agreement shall be the property of CITY, but CONTRACTOR may retain and use copies thereof.
CITY shall not be limited, in any way, in its use of said material, at any time, for work associated with Project.
However, CONTRACTOR shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to the release of this material to third parties for work other than on Project.
11. Indemnification and Hold Harmless
A. CONTRACTOR shall hold harmless, defend, and indemnify the CITY and its officers, agents, officials, employees, and volunteers against all claims, losses, damages and/or expenses including attorney Attachment 2
fees, costs of litigation and judgement, directly or indirectly arising from or claiming to arise from any injury to any person(s), damage to any property, or any economic loss, arising out of, in whole or in part, (1)
non-performance of its duties under this Agreement; and/or (3) any defect in any services provided by the
responsibility for any and all foregoing claims, even if such claims are groundless, false, and/or fraudulent and any and all equitable relief, damages, costs and attorney fees except those caused by the active negligence, sole negligence, or willful misconduct of the CITY.
B. This obligation shall be continuing in nature and extend beyond the term of this Areement. The doctrine of equitable tolling extends the time within which an action for breach of this provision may be filed.
C. CONTRACTOR and CITY as used in this section, include the employees, agents, sub-contractors, and any other person who are directly employed by or otherwise legally responsible, respectively to each party.
12. Contract Security
CONTRACTOR shall furnish a surety bond in an amount at least equal to 100 percent of the contract price as security for the faithful performance of this Agreement. CONTRACTOR shall also furnish a separate surety bond in an amount at least equal to 100 percent of the contract price as security for the payment of all persons for furnishing materials, provisions, provender, or other supplies, or teams, used in, upon, for or about the performance of the work contracted to be done, or for performing any work or labor thereon of any kind, and for the payment of amounts due under the Unemployment Insurance Code with respect to such work or labor in connection with this Agreement, and for the payment of a reasonable attorney's fee to be fixed by the court in case suit is brought upon the bond. Bonds shall be issued by an admitted surety insurer authorized to operate in the state of California.
13. Conflict of Interest
CONTRACTOR shall avoid all conflicts of interest, or appearance of conflict, in performing the services and agrees to immediately notify CITY of any facts that may give rise to a conflict of interest. CONTRACTOR is aware of the prohibition that no officer of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof.
During the term of this Agreement CONTRACTOR shall not accept employment or an obligation which is inconsistent or incompatible with obligations under this Agreement.
14. Governing Law, Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law or choice of law principles. Proper venue for legal actions will be exclusively vested in a state court in the County of Santa Clara. The parties agree that subject matter and personal jurisdiction are proper in state court in the County of Santa Clara and waive all venue objections.
15. Records, Reports and Documentation
CONTRACTOR shall maintain complete and accurate records of its operation, including any and all additional records required by CITY in writing. CONTRACTOR shall submit to CITY any and all reports concerning its performance Attachment 2
under this Agreement that may be requested by CITY in writing. CONTRACTOR agrees to assist CITY in meeting CITY's reporting requirements to the state and other agencies with respect to CONTRACTOR's work hereunder. All records, reports and documentation relating to the work performed under this Agreement shall be made available to City during the term of this Agreement.
16. Termination of Agreement
A. If CONTRACTOR defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to CONTRACTOR. In the event of such termination, CONSULTANT shall be compensated in proportion to the percentage of satisfactory services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. CONSULTANT shall present CITY with any work product completed at that point in time.
B. Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon ten (10) days' written notice to CONTRACTOR. In the event of such termination, CONTRACTOR shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. CONSULTANT shall present CITY with any work product completed at that point in time.
C. If CITY fails to pay CONTRACTOR, CONTRACTOR at its option may terminate this Agreement if the failure is not remedied by CITY within thirty (30) days after written notification of failure to pay.
17. Subcontracting
None of the services covered by this Agreement shall be subcontracted without the prior written consent of CITY.
Such consent may be issued with notice to proceed if subcontractors are listed in the project work plan.
18. Compliance with Laws
(a) CONTRACTOR shall not discriminate against, or engage in the harassment of, any City employee or
religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status, or any other protected characteristic in violation of federal and
activities as a provider of services to the City.
(b) CONTRACTOR shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.
19. Notice
All notices required by this Agreement, other than invoices for payment which shall be sent directly to Accounts Payable, shall be in writing, and sent by first class with postage prepaid, or sent by commercial courier, to address below.
Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by email, to accomplish timely communication. Each party may change the address by written notice in accordance with this Section. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three business days after mailing.
To CITY: Jennifer Ng
Public Works Fleet Department
CITY OF SUNNYVALE
P.O. Box 3707
Sunnyvale, CA 94088-3707
Attachment 2
To CONSULTANT: Fredrick Burton Johnson
DBA: Interstate Auto Sales
4091 N Valentine Ave #101
Fresno, CA,93722
20. Changes
CITY or CONTRACTOR may, from time to time, request changes in the terms and conditions of this Agreement.
Such changes, which are mutually agreed upon by CITY and CONTRACTOR, shall be incorporated in amendments to this Agreement in accordance with Section 24 below.
21. Other Agreements
This Agreement shall not prevent either Party from entering into similar agreements with others.
22. Severability Clause
In case any one or more of the provisions contained herein shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions which shall remain in full force and effect.
23. Captions
The captions of the various sections, paragraphs and subparagraphs, of the contract are for convenience only and shall not be considered nor referred to for resolving questions of interpretation.
24. Entire Agreement; Amendment
This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing as an amendment to this Agreement signed by all parties. If the amendment is signed electronically, the digital signatures must comply with the requirements of California Government Code Section 16.5.
25. Miscellaneous
Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision.
REMAINDER OF PAGE IS INTENTIONALLY BLANK.
Attachment 2
IN WITNESS WHEREOF, the parties have executed this Agreement.
CITY OF SUNNYVALE ("CITY") FREDERICK BURTON JOHNSON DBA INTERSTATE AUTO SALES ("CONTRACTOR")
By By
City Manager
Name/Title
ATTEST:
By By
City Clerk
Name/Title
APPROVED AS TO FORM:
City Attorney
Attachment 2
Exhibit A
SCOPE OF WORK
Process & Communication
Auto Broker will be contacted by Department of Public Work Fleet staff with an email request that provide vehicle specifications or a range of vehicle options regarding Make, Model, color, etc. All vehicles requested shall have less than 25,000 miles and be less than 4 model years old.
Auto Broker shall provide currently available vehicles for consideration via email, with photos, mileage, etc. Auto Broker shall provide via email, vehicle condition photographs, description, (year, make, Model, mileage) vehicle background via (auto check), along with potential purchase cost.
City staff will review the currently available vehicles and communicate with Auto Broker via phone & email as to acceptable selections for follow-up and action by Auto Broker. This action may include negotiating up to a not- to- exceed identified price for the selected vehicle or agreeing to an amount to purchase the vehicle for, prior to Auto Broker purchasing the vehicle.
If Auto Broker purchases vehicle without record of approval from the City or in excess of the amount agreed to pay for the purchase, the City will not be required to repurchase any vehicle that the Auto Broker has purchased.
If there is any discrepancy between the identified details of the vehicle selected by City, including but not limited to, the age of the vehicle, miles of use for the vehicle, features or specifications of the vehicle, the City will provide notice within 15 business days to the Auto Broker to clarify the request. If the substantial discrepancy is identified, the City will not be required to complete the purchase of this vehicle and will require that the Auto Broker pick up the vehicle within an agreed-upon timeline. The City will not be liable for costs for transport of delivery or pick up in this situation.
Auto Broker shall purchase vehicle and provide DMV paperwork (title, registration, etc.) for the selected vehicle upon delivery.
Auto Broker shall provide & coordinate transportation of selected vehicles to:
221 Commercial St. Sunnyvale CA, 94088, within 10 business days from vehicle purchase.
Auto Broker shall provide complete Itemized Invoice/Costs for vehicle transaction, including Auction Company Invoice for the selected vehicle when submitting for payment. This invoice shall include the Transaction Fee as identified in Exhibit B, Compensation Schedule.
Auto Broker shall schedule and conduct the work so as to minimize the inconvenience to the public as well as to City employees at any City facilities and adjoining areas impacted by the work. Work shall occur only between the hours of 7 a.m. and 6 p.m., Monday through Friday, unless an exception is granted by the City. Any phase of the work which requires disruption of utilities shall be scheduled three (3) days in advance with the affected parties.
Attachment 2
Exhibit B
Compensation Schedule
Base Bid Item
LINE ITEM
DESCRIPTION
QTY
UOM
Cost
1 Transaction fee per vehicle purchase
1 Vehicle
$500.00
Attachment 2