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HomeMy WebLinkAboutPROPERTYROOM.COM, INC.INSURANCE ON FILE WORK MAY PROCEED N-2009-029 UNTIL INSURANCE EXPIRES PROPERTY DISPOSITION SERVICES AGREEMENT COVER SHEET CLERK OF COUNCIL DATE: PropertyRoom.com, Inc., a Delaware corporation, enters into this Property Disposition Services Agreement with the organization identified below as the "Owner" for the auction and disposition of Property (as defined in the attached `~-1s"~~ Terms and Conditions) on behalf of Owner as agent for the Owner. „,oc~ yy~z r y Cc~` a Owner Information Schedules, Supplements & Other Attachments C.or ~ II~~o ~ ~~ CITY OF SANTA ANA Owner Name 20 Civic Center Plaza Address Santa Ana, CA 92701 City, State Zip Code Phone Email Mark included attachments: Terms and Conditions Addendums: Start Date: , 20 Yes This Property Disposition Services Agreement constitutes the "Executed Documentation" pursuant to the Terms and Conditions attached hereto. Such Terms and Conditions, as well all other attachments, if any, identified above, are incorporated into and made a part hereof. This Property Disposition Services Agreement, such Terms and Conditions and all other attachments incorporated herein collectively comprise the entire agreement between the parties relating to the subject hereof 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. This Property Disposition Services Agreement maybe signed in any number of counterparts, each of which maybe enforced against the party signing such counterpart and all of which are considered a single agreement. Owner CITY OF SANTA ANA DAVID N. REAM Signor Name City Manager Si or Title Signature Signature Date PropertyRoom.com Thomas Lane Signor Name Founder Signor Title ~J Signature Signature Date PropertyRoom.con~, Inc. 26421 Crown Valley Parkway, Ste 200 Mission Viejo, California 92691 +1 (949) 282-0121 Federal Tax ID 86-0962102 Q] COPY Muni Disposition Contract 2008-11-25 Multi Sig Cover Pg Santa Ana (2) ~ Of 2 PROPERTY DISPOSITION SERVICES AGREEMENT COVER SHEET ADDITIONAL OWNER SIGNORS Owner Owner Signor Name Signor Name Signor Title Signor Title Signature Signature Signature Date Signature Date Owner Owner Signor Name Signor Name Signor Title Signor Title Signature Signature Signature Date Signature Date ATTEST: ;, ~V PA RICIA E. E LY Clerk of the C uncil ~p PY MEN D OR APPROVAL: PAUL M. WALTERS Chief of Police ~~~~ovF~~s T~~~.~~ Laura Stitt edy 't~ssistant Cit Attorney Muni Disposition Contract 2008-11-25 MultiSig Cover Pg Santa Ana (2) 2 Of 2 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS These Terms and Conditions set forth the terms upon which PropertyRoom.com, Inc., a Delaware corporation ("PRC"), will handle the auction and disposition of Property provided from time to time by the Contracting Organization or any Sister Agency of the Contracting Organization (jointly and severally, the "Owner") to PRC (the "Disposition Services") on behalf of, and as agent for, the Owner. These Terms and Conditions maybe accepted by PRC, on one hand, and the organization to which the Services are provided (the "Contracting Organization") on the other hand, by (i) the execution of a written agreement expressly incorporating these terms, together with any attachments or addenda expressly incorporated therein (the "Executed Documentation"), (ii) the presentment of these Terms and Conditions as part of a proposal letter, proposal documentation or other written submission signed by PRC and acceptance in writing (whether by letter, facsimile or e-mail) of such materials by the Contracting Organization without modification (the "Transaction Documentation"), (iii) the presentment of these Terms and Conditions as part of a proposal letter, proposal documentation or other written correspondence signed by PRC and the subsequent submission by the Contracting Organization of Property to PRC for the performance of Disposition Services. These Terms and Conditions may also be accepted by any municipal, county or state governmental agency located in the state in which the Contracting Organization is located (each a "Sister Agency") by the submission by the Sister Agency of Property to PRC for the performance of Disposition Services pursuant to the terms and conditions of an Agreement between PRC and the Contracting Organization. The agreement between the PRC and the Owner (the "Agreement") consists of these Terms and Conditions and (i) if any Executed Documentation exists, such Executed Documentation, (ii) if no Executed Documentation exists but Transaction Documentation exists, such Transaction Documentation. If neither Executed Documentation nor Transaction Documentation exists, then the Agreement shall consist solely of these Terms and Conditions. The Agreement, as so defined, collectively comprises the entire agreement between PRC and the Owner relating to the subject of the Agreement and supersedes 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. The Agreement cannot be modified except in writing by the duly authorized representatives of PRC and the Contracting Organization. 1. Property to be Sold. From time to time, Owner will designate items of property (the "Property") that it desires to provide to PRC for Disposition Services. PRC retains the right to accept or reject certain items as Property in its sole discretion. Title to Property. Owner shall retain legal title to the Property until it is purchased by auction or otherwise disposed of in accordance with the Agreement at which time Owner will be deemed to have transferred title to the purchaser or other acquirer of the item of Property (the "Buyer"). Owner appoints PRC as its representative and instrumentality to hold and offer for sale on Owner's behalf the Property, in accordance with the Agreement. In connection therewith, Owner appoints PRC as its attorney-in-fact to sign any and all documents necessary to assign to Buyers all of Owner's right, title and interest in and to Property sold or disposed. Owner's Property shall, at all times before sale or disposition, be subject to the direction and control of Owner. 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 payment of amounts owed by Owner to PRC and to third parties pursuant to the Agreement, which amounts shall be disbursed by PRC on behalf of Owner as provided in the Agreement. 3. Method of Selling Property. a. Portable Property Items. PRC will, on Owner's behalf as its representative, pick-up, store and list Property for sale by auction to the public on the internet on one or more domain names selected by PRC. To the extent that any Property is not sold by auction, PRC may, in any commercially reasonable manner selected by PRC, dispose of Properly. PRC will determine al] aspects, terms and conditions of auctions of Property and dispositions of Property not purchased at auction, subject to the ultimate control of Owner. PRC will handle 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; setting the length of time Property will be auctioned; creating text and graphics to describe and depict Property submitted for auction; collecting Buyer information (such as name, billing address, shipping address, and 1 of 8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS credit card information); approving Buyer credit card purchase transactions; and collecting auction proceeds for completed sales from Buyers. PRC shall use reasonable commercial efforts in auctioning and selling the Property on the Internet and disposing of Property that does not sell at auction. PRC shall sell and dispose of all Property "as is" without any liability to the Owner. PRC is solely responsible for identifying and resolving sales and use tax collection issues arising from Property sales, including the necessity of charging and collecting such taxes. b. Large Property Items. PRC will, at Owner's request and on Owner's behalf as its representative, list physically large Property ("Large-Items") for sale by auction, including but not limited to cars, trucks, boats, planes and bulk lots of bicycles. For Large-Items, PRC offers Owner different selling options ("Silver," "Gold" and "Platinum"), each with different service components and associated pricing. (1) In-Place Options. For Silver and Gold, PRC will auction Large-Items in-place, and in this context, "in-place" means that PRC will not pick-up and store these specific Items but rather Owner will maintain physical control until transfer of title to such Large-Items to Buyers. (2) Haul-away Option. For Platinum, PRC will, in conjunction with an agent or subcontractor of PRC and to the extent practical, pick-up and haul-away Large-items, selling via online auction and transferring title and physical possession to Buyers as described in Portable Property Items. (3) Large-Item Service Summary. The Large-Item Auction Services Option Table below depicts service components associated with each option. Mathnrl of cPn;na Prnnerty~ i,arue-item Auction Services Option Table Res onsible Part if a licable Service Component Silver Gold Platinum* 1. List Large-Item for online auction PRC PRC PRC 2. Checklist review and coordination PRC PRC PRC 3. Listin write-up and marketing PRC PRC PRC 4. Auction and auction technology management PRC PRC PRC 5. Customer Su ort to Bidders Owner PRC PRC 6. Coordinate Buyer payment and Large-Item ick-up Owner PRC PRC 7. Transaction (payment) processing Owner PRC PRC 8. Photographing, vehicle review, equi merit description Owner Owner PRC 9. Provide or procure asset title documentation, as applicable Owner Owner Owner** 10. Pick-up and haul-away for off- remises online auction PRC * PRC provides its Platinum service in cooperation with Copart, Inc., ("CPRT") a publicly traded US company with over 140 geographically-dispersed vehicle storage facilities. ** At Owner request, PRC and CPRT will acquire title documentation through an agent or subcontractor of PRC. 4. Term and Termination. a. The Agreement will become effective upon formation (the "Effective Date") and will continue for an initial term of one (1) year from the Effective Date and thereafter will automatically renew for consecutive one (1) year terms unless written notice of non-renewal is provided by either party to the other at least sixty (60) days prior to the expiration of the then current term. b. The Agreement may be terminated if there is a breach by either party of any obligation, representation or warranty contained in the Agreement, upon thirty (30) days prior written notice to the other party unless the breach is cured within the thirty (30) day period, provided, however, if the breach is not capable of being cured within thirty (30) days, the breaching party will have a reasonable amount of time to cure the breach if it begins to cure during the thirty (30) day period and proceeds diligently thereafter. The written notice will specify the precise nature of the breach. 2 of 8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS c. The rights of the parties to terminate the 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. d. Notwithstanding any termination by either party of the Agreement, PRC will continue to remit the Proceeds arising under the Agreement (net of amounts owed by Owner to PRC and to third parties pursuant to the Agreement) in connection with any sales made before the effective date of the termination. At the time of termination, any unsold inventory shall continue to be auctioned by PRC or disposed on behalf of Owner or returned to Owner, at Owner's election and cost. 5. Allocation of Sales Proceeds. a. Portable Property Items (1) Sales Price. The total amount of Proceeds paid by Buyer shall be called the "Sales Price." The Sales Price shall include the winning bid amount (the "Winning Bid") and all costs, shipping and handling charges, taxes, and insurance costs associated with the transaction and paid by Buyer. (2) Transaction Costs. PRC shall utilize all costs, shipping and handling charges, taxes, and insurance costs collected from the Buyer (other than the Winning Bid) to pay or remit such costs, shipping and handling charges, taxes, and insurance costs on behalf of Owner and Buyer, as applicable. (3) PRC Commission. For each item of Property, Owner will pay to PRC (by deduction pursuant to the section titled "Payment Terms" below) a fee (the "PRC Commission") equal to fifty percent (50%) of the first $1,000 of the Winning Bid and twenty five percent (25%) of the Winning Bid portion, if any, that exceeds $1,000. The amount of the Winning Bid remaining after deduction and payment of the PRC Commission will be called "Owner's Gross Proceeds". (4) Processing Costs. Credit card processing costs ("Credit Card Cost") and affiliate processing fees (the "Affiliate Fees," which include commissions and processing costs paid to third parties IF such a third party sent the winning bidder to the website), will be borne by Owner and PRC in proportion to the ratio of Owner's Gross Proceeds to PRC Commission. Owner's portion of Credit Card Cost and Affiliate Fees (collectively, the "Processing Costs") will be paid by PRC to applicable third parties on Owner's behalf. (5) Net Proceeds. The amount of the Winning Bid paid to Owner after deduction and payment of the PRC Commission and Processing Costs will be called "Owner's Net Proceeds". Portable Item Example. The following example illustrates allocation of proceeds from a Portable Property Item sale. Assume an item of Property sells at auction fora $100 Winning Bid; the Buyer pays shipping and handling of $10, insurance of $2, and sales tax of $6. The Buyer pays the Sales Price of $118.00 ($100 + $10 + $2 + $6) by credit card, and the Credit Card Cost is 3% of the Sales Price or $3.54 (0.03 x $118) and the Affiliate Fee is 4.8% or $4.80 (0.048 x $100). PRC will retain $10 of the Sales Price for shipping and handling, $2 for insurance and $6 for remittance to relevant tax authorities. PRC will pay itself from the Winning Bid the amount of $50 as the PRC Commission. As the ratio of the PRC Commission to Owner's Gross Proceeds is 1:1, the Credit Card Costs and Affiliate Fees are shared equally, $1.77 each ($3.54 _ 2) for Credit Card Cost and $2.40 each ($4.80 - 2) for Affiliate Fees. The portion of the Processing Fees allocated to Owner (that is, $4.17) will be paid to the relevant third parties out of Owner's Gross Proceeds, with the remainder being the responsibility of PRC. Owner's Net Proceeds equal $45.83 ($100.00 Winning Bid less $50 PRC Commission less $4.17 Owner's share of Processing Costs). (6) Fuel Surcharge. PRC does NOT charge pick-up fees. Instead, a fuel surcharge ("Fuel Surcharge") will be paid to PRC out of Owner's Net Proceeds for each Portable Item manifest when diesel prices rise above a specific level as shown in the Fuel Surcharge Schedule below. PRC tracks benchmark average diesel retail prices as published online by the Energy Information Administration of the US Department of Energy and resets its fuel surcharge quarterly based on average weekly pricing from the prior quarter. Fuel Surcharges, if any, are deducted from monthly Owner's Net Proceeds. 3of8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS Fuel Surchar a Schedule Retail Diesel er al Fuel Surchar e* Less than $2.50 $ 0.00 $ 2.50 to $ 2.99 $ 12.40 $ 3.00 to $ 3.49 $ 24.80 $ 3.50 to $ 3.99 $ 37.20 $ 4.00 to $ 4.49 $ 49.60 $ 4.50 to $ 4.99 $ 62.00 $ 5.00 to $ 5.49** $ 74.40 * Divides across locations and/or sub-accounts picked-up same day ** Table continues u ward at same rate (7) To the extent that Property is not sold by Auction and PRC disposes of Property in a commercially reasonable manner (see "Method of Selling Property" section), including, but not limited to, sending to a charity, recycling center, landfill, or scrap metal processor, Owner understands and agrees to the following. (a) When Property is not sold by Auction, PRC disposition activities create additional PRC processing costs (the "Disposal Costs") and potentially a disposition Sales Price (the "Disposition Proceeds"). (b) Disposal Costs include, but are not limited to, labor cost of reloading Property onto a truck, labor and vehicle costs associated with transporting Property for disposition, and third-party fees, such as landfill, recycling, and hazardous material disposal fees. (c) Disposition Proceeds include, but are not limited to, a Sales Price obtained for scrap metal. (d) PRC will bear the burden of Disposal Costs. (e) Owner will pay to PRC the Disposition Proceeds, if any, as an offset to Disposal Costs, except if Disposition Proceeds for an item of Owner Property exceed $250, in which case Owner shall be entitled to retain a portion of Disposition Proceeds calculated in accordance with Section Sa above, provided that the Disposition Proceeds will be deemed to be the "Sales Price" and the Disposal Costs will be deducted as a transaction cost under Section Sa(2) above. b. Large- Items. (1) Sales Price, PRC Commission, Processing Costs and Net Proceeds. Calculated in a manner directly analogous to Portable Property Items. (2) PRC Commission. For each Large-Item of Property, PRC will be entitled to a PRC Commission equal to a percent of the Winning Bid which varies according to the Large-Item service option employed. In addition, PRC will be entitled to charge to the Buyer a premium paid directly to PRC (the "Buyer's Premium") which will not be included in the Winning Bid. (a) Silver. The PRC Commission will be 0% of the Winning Bid and PRC will charge Buyer a 1S% Buyer's Premium. (b) Gold. The PRC Commission will be S% of the Winning Bid and PRC will charge Buyer a 15% Buyer's Premium. (c) Platinum. The PRC Commission will vary based on annual item volume commitments by clients. The volume-based commission schedule appears below: Program. ~ Items Committed to Program per Calendar Year ~ PRC Commission Platinum-A >SO 12.5% 4of8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS Pro ram Items Committed to Pro ram. erCalendar Year PRC Commission Platinum-B 25-49 20.0% Platinum-C <25 30.0% For large items that can be hauled on a standard vehicle transporter, the tow services are provided for free when within 30 miles of one of CPRT's 140 facilities. A $25 tow fee applies for every 25 miles over the first 30 free miles. In addition, fees for acquiring titles on behalf of Owner, if any, or for over-sized vehicle (e.g., crane, bus, backhoe, etc.) haul-away fees, will be borne entirely by Owner. Large-Item Example. Assume aLarge-Item sells at auction for a Winning Bid of $1,000.00 and with no shipping or handling charges yields a $1,000.00 Sales Price. For the Silver and Gold options, PRC collects and retains a 15% Buyer's Premium, $150.00 (0.15 x $1,000), from Buyer. With regard to collecting the Sales Price and sharing proceeds, the approach differs by option: Silver. Owner completes the sale by collecting the $1,000.00 Sales Price from Buyer, retaining 100% as Owner's Net Proceeds. Gold. PRC completes the sale by collecting the $1,000.00 Sales Price from Buyer. The underlying Winning Bid results in a $50 PRC Commission, leaving $950 in Owner's Gross Proceeds. Assuming Processing Costs of 3% ($30.00), these would be borne 95% by Owner, $28.50 (0.95 x $30) and 5% by PRC, $1.50 (0.05 x $30), respectively. The Owner's Net Proceeds would equal $921.50 ($950.00 less $28.50). Platinum. For an Owner committing over 50 items per calendar year (Platinum-A Program) and paying 12.5% commission, PRC and CPRT complete the sale by collecting the $1,000.00 Sales Price from Buyer. The underlying Winning Bid results in a $125 PRC Commission, leaving $875 in Owner's Gross Proceeds. Assuming Buyer pays by electronic funds transfer, as the majority of Buyers do, then Processing Costs would equal 0% and the Owner's Net Proceeds would equal $875. 6. Payment Terms. Once every month, PRC will remit to Owner the amount of Owner's Net Proceeds (less any Title Fees and/or Fuel Surcharges, if applicable) arising from completed sales during the preceding month (after payment of all transaction costs, PRC Commissions, Processing Fees, Title Fee and Fuel Surcharges, as applicable). Sales are deemed completed when all items comprising a line item on the original manifest or other list of Property are sold. With each payment of Owner's Net Proceeds, PRC will make available to Owner, online, a report setting forth the following information for the immediately preceding month: a. The completed sales during the prior month, including the total amount of related Proceeds collected, the transaction costs, the PRC Commissions, the Owner and PRC share of Processing Costs, any applicable Title Fees and/or Fuel Surcharges, and the Owners Net Proceeds; b. Other dispositions of Property during the month; and c. The Property, if any, inventoried by PRC at the end of the month. 7. PropertyRoom's Obligations Concerning Property in Its Possession. With respect to Property in PRC's possession: a. PRC will exercise due care in the handling and storage of any Property; b. PRC shall keep the Property free of liens, security interests, and encumbrances, and shall pay when due all fees and charges with respect to the Property; c. PRC shall sign and deliver to Owner any UCC-1 financing statements or other documents reasonably requested by Owner; and 5 of 8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS d. PRC shall obtain and maintain insurance in an amount (determined by PRC) not less than the replacement value of Property in its possession. The insurance will cover the Property against fire, theft, and extended coverage risks ordinarily included in similar policies. PRC shall give Owner a certificate or a copy of each of the above upon Owner's request. Owner Obligations. Owner will use its best efforts to provide to PRC such Property as becomes available for sale to the public. Owner will complete paperwork reasonably necessary to convey custodial possession of the item of Property to PRC, including a written manifest or list that describes the item of Property in sufficient detail for identification. In addition, to help comply with public notification statutes as well as to support Internet traffic flow to the PRC auction website, Owner agrees to place a permanent clickable link (the "Link") to wtvw.Pro~ertyRoom.com on one or more Owner websites. PRC will supply Link technical requirements, text and images to Owner. Owner agrees that it will not provide Property that is illegal or hazardous or infringes the intellectual property rights of any third party ("Prohibited Property"), including but not limited to explosives, firearms, counterfeit or unauthorized copyrighted material ("lrnock-offs"), poisons or pharmaceuticals. In the event that any third party asserts a claim that any Property consists of Prohibited Property, Owner shall indemnify and hold PRC harmless from any such claim and all damages, liabilities (whether joint or several), costs and expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in connection with such claim, whether or not litigated. In the event of any such claim or if PRC otherwise determined in good faith that any Property consists of Prohibited Property, PRC shall have the right to immediately suspend or cancel (even if completed) any auction or disposal of such Property and may refuse to sell, offer to sell or otherwise dispose of such Properly. To the extent requested by PRC, Owner will provide reasonable assistance in determining whether such Property in fact consists of Prohibited Property. In the event that any Buyer asserts a claim that any Property consists of Prohibited Property and PRC determined in good faith that such claim is reasonably likely to be determined to be correct, PRC may, in its discretion, accept the return of such Property and refund the Sales Price for such Property to the Buyer, in which event PRC may then destroy such Property or return such Property to Owner and such refunded Sales Price shall be deducted from future remittances of Owner's Net Proceeds made by PRC. 9. Restrictions on Bidding. PRC and its employees and agents may not directly or indirectly bid for or purchase auctioned Property on the PRC web site. 10. Representations and Warranties of Owner. Owner hereby represents, warrants and covenants as follows (the "Conditions Precedent"): a. Property delivered to PRC is available for sale to the general public without any restrictions or conditions whatever and does not consist of Prohibited Property; and b. Owner has taken all actions under applicable law that are required for Owner to auction the Properly or to transfer title to the Property to Buyers (including, without limitation, all notice requirements and the like required prior to the sale of Property at auction under local statute or municipal code). 11. Books and Records. PRC will keep complete and accurate books of account, records, and other documents with respect to the Agreement (the `Books and Records") for at least three (3} years following expiration or termination of the Agreement. Upon reasonable notice, the Books and Records will be available for inspection by Owner, at Owner's expense, at the location where the Books and Records are regularly maintained, during normal business hours. 12. Indemnification. Subject to the ]imitations specified in the Agreement, each party will indemnify, hold harmless and defend the other party and its agents and employees from and against any and all losses, claims, damages, liabilities (whether joint or several), costs and expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in settlement, incurred or suffered by any such person or entity (collectively, "Losses") arising out of or in connection with: a. the inaccuracy of any representation or warranty made by the party hereunder, 6of8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS b. any breach of the Agreement by the party, or c. 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. 13. Limitations on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN )F 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 THE 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 THE AGREEMENT. LIABILITY ARISING UNDER THE 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 THE 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 AND FOR ANY AMOUNTS CLAIMED BY A THIRD PARTY WHICH ARE SUBJECT TO INDEMNIFICATION PURSUANT TO THE AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, OWNER'S LIABILITY IS NOT LIMITED UNDER THE AGREEMENT WITH RESPECT TO LIABILITY ARISING FROM OWNERS FAILURE TO SATISFY TIMELY ALL CONDITIONS PRECEDENT. 14. Assignment. The Agreement may not be assigned, in whole or in part, by either of the parties without the prior written consent of the other party (which consent may not be unreasonably withheld or delayed). Notwithstanding the foregoing, an assignment of the Agreement by either party to any subsidiary or affiliate or a third party acquisition of all or substantially all of the assets of such party will not require the consent of the other party, so long as such subsidiary, affiliate or acquiring entity assumes all of such party's obligations under the Agreement. No delegation by PRC of any of its duties hereunder will be deemed an assignment of the Agreement, nor will any change in control nor any assignment by operation of law by either party. Subject to the restrictions contained in this section, the terms and conditions of the Agreement will bind and inure to the benefit of each of the respective successors and assigns of the parties hereto. 15. Notices. Any notice or other communication given under the Agreement will be in writing and delivered by hand, sent by facsimile (provided aclmowledgment of receipt thereof is delivered to the sender), sent by certified, registered mail or sent by any nationally recognized overnight courier service to the addresses provided on the signature page of the Agreement. The parties may, from time to time and at any time, change their respective addresses and each will have the right to specify as its address any other address by at least ten (10) days written notice to the other party. 16. Interpretation. Whenever possible, each provision of the Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the 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 the Agreement. The headings in the Agreement are inserted for convenience of reference only and shall not constitute a part hereof. Nothing in the Agreement is intended nor shall it be construed to confer any rights or remedies upon any person or entity other than the parties named herein and their respective successors and permitted assigns. The parties have participated, or had the opportunity to participate in, the negotiation and drafting of the Agreement or requested, or had the opportunity to request, amendments to the Agreement. In the event an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of the Agreement. 7of8 PROPERTY DISPOSITION SERVICES AGREEMENT TERMS AND CONDITIONS 17. Governing Law. The internal law, and not the law of conflicts, of the state in which the Owner is located will govern all questions concerning the construction, validity and interpretation of the Agreement and the performance of the obligations imposed by the 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. If any proceeding or action is brought to recover any amount under the Agreement, or for or on account of any breach of, or to enforce or interpret any of the terms, covenants, or conditions of the Agreement, the prevailing party will be entitled to recover from the other party, as part of the prevailing party's costs, reasonable attorneys' fees, the amount of which will be fixed by the court, and will be made a part of any judgment rendered. 18. Further Assurances. PRC 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 the Agreement and to account for and document those activities. 19. Relationship of the Parties. No representations or assertions will be made or actions taken by either party that could imply or establish any joint venture, partnership, employment or trust relationship between the parties with respect to the subject matter of the Agreement. Except as expressly provided in the 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 obligation whatsoever on behalf of the other, to any person or entity. Whenever PRC is given discretion in the Agreement, PRC may exercise that discretion solely in any manner PRC deems appropriate. PRC shall be not liable to Owner for any Losses incurred by reason of any act or omission performed or omitted by PRC in good faith on behalf of the Owner and in a manner reasonably believed to be within the scope of authority conferred on PRC by the Agreement, except that PRC shall be liable for any such Losses incurred by reason of PRC's fraud, gross negligence or willful misconduct. 20. Force Majeure. Neither party will be liable for any failure of or delay in the performance of the 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 promptly of the occurrence of any Force Majeure and carry out the Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure will not extend the term of the Agreement. 8of8 Page 1 of 3 Calderwood, Mary From: Sheedy, Laura Sent: Thursday, March 05, 2009 2:36 PM To: Calderwood, Mary Subject: RE: Propertybureau.com Hi Mary The agreement does not require Council approval but the City Manager will sign. Two copies should be fine unless you want a duplicate original for the Police. The Clerk keeps the original for the City and PropertyBureau will want an original There is no reason PD has to have an original but if you want one, make a copy now for original signatures. My signature can be copy because I am just saying the farm is ok -not binding the Ci#y. Thanks Laura From: Calderwood, Mary Sent: Thursday, March 05, 2009 2:24 PM To: Sheedy, Laura Subject: FW: Propertybureau.com Hello Laura, I received back the PropertyBureau.com agreement cover sheets and contracts. THANKS. In May 2002 Mike Vigliotta from the City Attorneys office cited this agreement does not have to go to Council, per SAMC section 2-705, but the City Manager still needed to approve. Just to clarify, does that still hold true and if so, do I just need the 2 originals signed ? THANKS again ! Mary Calderwood Property & Facilities Manager Santa Ana Police Dept - M18 (714) 245-8061 fax (714) 245-8092 From: Calderwood, Mary Sent: Monday, February 23, 2009 3:23 PM To: Sheedy, Laura Cc: Price, Terry Subject: Propertybureau.com Hello Laura. We have been using PropertyBureau.com since July 2002 for the auctioning of all police found property. While examining some paperwork I found their contract ended on March 31, 2008, even though we have continued to work with them each month since then. The last agreement I have is numbered # N-2005-076. We need to enter into another contract with them -attached is their paperwork. They are a separate auctioneer used exclusively for police property, which Rod Coloma and Chief Walters approved in 2002. They offer extremely good accountability for every item, which is imperative for us to track this property. All checks are sent to me. I then copy and forward the original check to Terry Price for processing and deposit by his City Stores staff. 04/10/2009 AcoRD CERTIFICATE aF LIABILITY INSURANCE w Tk1S CERTIFICATE IS IBSU OI4tY ANO CONltRS NC L~ ~~ ~~~ - ~kssia >rOC7lgi ALTER EH OVERAGE JU 11700 ~SSt Oty~Rpie Elvd. NQT OAT! IYfYOprwrY- OR SWIG !10 ~ NA-C N lAS AA~~ CA lOOi4 1NSuRERS AFFOROtNti GQVERAGE . _ . ---- _ .. _ .aRlea rROPERnreulGA<i.coM .- ~ w~I,RCR ~. WatErn I{tltlt~g~ InwraRCe Co. _. _ ... do Rasd Hull R->'- M.ponot LIib11U1f i F'In Illwtstw;f: Co ~_ _. _ 7351 CNRinn iliro Cosa. 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