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HomeMy WebLinkAboutContract 47882 CES CITY SECRETARY t� CONTRACT NO. 5 Zp16 PROFESSIONAL SERVICES AGREEMENT LONE STAR AUCTIONEERS, INC. This PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into by and between the CITY OF FORT WORTH (the "City"), a Texas home-rule municipal corporation, acting by and through Valerie Washington, its duly authorized Assistant City Manager, and Lone Star Auctioneers, Inc., as auctioneer services contractor ("Contractor'), a Texas Corporation, acting by and through Marilyn K. Burgess, its duly authorized C.E.O./President, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A—Statement of Work 3. Exhibit B— Payment Schedule All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. The term "Consultant' or"Contractor" shall include the Consultant or Contractor, and its officers, agents, employees, representatives, servants, contractors or subcontractors. The term "City" shall include its officers, employees, agents, and representatives. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional services for the purpose of providing Auction Services for City of Fort Worth. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. 2. TERM. This Agreement shall commence upon last date executed by both parties ("Effective Date") and shall expire on May 11, 2017, unless terminated earlier in accordance with the provisions of this Agreement. The City shall have the option, in its sole discretion, to renew this Agreement under the same terms and conditions, for up to four (4) one (1) year successive terms, each a "Renewal Term." The City shall provide Consultant with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 3. COMPENSATION. Once a month, Contractor will remit City Net Proceeds from sales completed the prior month and in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "B", which is incorporated for all purposes herein. Sales are deemed completed when all items from an asset list or manifest are sold, paid for and shipped. Contractor shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Contractor not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. OFFICIAL RECORD 4.1. Convenience. CITY SECRETARY FT.WORTH,TX Professional Services Agreement Lone Star Auctioneers, Inc. Page 1 of 16 The City or Contractor may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Contractor of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Breach. Subject to Section 28 herein, either party may terminate this Agreement for breach of duty, obligation or warranty upon exhaustion of all remedies set forth in Section 28. 4.4 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Contractor for services actually rendered up to the effective date of termination and Contractor shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Contractor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City information or data as a requirement to perform services hereunder, Contractor shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Contractor hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. Contractor, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Notwithstanding the foregoing, Consultant understands and agrees that the City is a public entity under the laws of the State of Texas, and as such, is subject to various public information laws and regulations, including, but not limited to, the Texas Public Information Act, Chapter 552 of the Texas Government Code (the "Act"). Consultant acknowledges that, under the Act, the following information is subject to disclosure: 1) all documents and data held by the City, including information obtained from the Consultant, and 2) information held by the Consultant for or on behalf of City that relates to the transaction of City's business and to which City has a right of access. If the City receives a request for any documents that may reveal any of the Consultant's proprietary information under the Act, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Consultant prior to disclosure of such documents. The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary/ Confidential Information" or if disclosure is required by the Act or any other applicable law or court order. In the event there is a request for such information, it will be the responsibility of Consultant to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. Professional Services Agreement Lone Star Auctioneers, Inc. Page 2 of 16 5.3 Unauthorized Access. Contractor shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Contractor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Contract at no additional cost to the City. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Contractor shall operate as an independent contractor as to all rights and privileges and work performed under this agreement, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Contractor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Contractor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Contractor, its officers, agents, employees, servants, contractors and subcontractors. Contractor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Contractor. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Contractor or any officers, agents, servants, employees or subcontractors of Contractor. Neither Contractor, nor any officers, agents, servants, employees or subcontractors of Contractor shall be entitled to any employment benefits from the City. Contractor shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. Professional Services Agreement Lone Star Auctioneers, Inc. Page 3 of 16 B. INDEMNIFICATION - CONTRACTOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONTRACTOR, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Contractor shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. The Contractor and Assignee shall be jointly liable for all obligations of the Contractor under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Contractor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Contractor under this Agreement as such duties and obligations may apply. The Contractor shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Contractor shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $750,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Contractor, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non-owned (c) Worker's Compensation - Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, Professional Services Agreement Lone Star Auctioneers, Inc. Page 4 of 16 $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Professional Liability (Errors & Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Contractor agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Contractor of any violation of such laws, ordinances, rules or regulations, Contractor shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Contractor, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Contractor's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non- discrimination covenant by Contractor, its personal representatives, assigns, subcontractors or successors in interest, Contractor agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. Professional Services Agreement Lone Star Auctioneers, Inc. Page 5 of 16 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: To Contractor: City of Fort Worth Lone Star Auctioneers, Inc. Attn: Valerie Washington, Assistant City Manager Attn: Marilyn K. Burgess 1000 Throckmorton 4629 Mark IV Parkway Fort Worth TX 76102-6311 Fort Worth, Texas 76106-2295 Facsimile: (817) 392-8654 Phone: (817) 740-9400 Facsimile: (817)—740-9777 With Copy to the City Attorney At same address 14. SOLICITATION OF EMPLOYEES. Neither the City nor Contractor shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent Contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Contractor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Contractor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Contractor shall exercise their best efforts to meet their respective duties and Professional Services Agreement Lone Star Auctioneers, Inc. Page 6 of 16 obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Contractor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 25. WARRANTY OF SERVICES. Contractor warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Contractor's option, Contractor shall either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or(b) refund the fees paid by the City to Contractor for the nonconforming services. 26. NETWORK ACCESS. — Intentionally Deleted. 27. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Contractor shall verify the identity and employment eligibility of all employees who perform work under this Professional Services Agreement Lone Star Auctioneers, Inc. Page 7 of 16 Agreement. Contractor shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Contractor shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Contractor shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Contractor shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Contractor. 28. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Contractor has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non-binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 29. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto, may be executed by any authorized representative of Contractor whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "D" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 30. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement, collectively, "Work Product" Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of the City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is Professional Services Agreement Lone Star Auctioneers, Inc. Page 8 of 16 not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Contractor hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that the City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of the City. Signature Page to Follow Professional Services Agreement Lone Star Auctioneers, Inc. Page 9 of 16 ITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this jja—day of 2016. AGREED: AGREED: CITY O FORT WORTH: LONE STAR AU Tl NEER NC.: ( 41 , By: By: Valerig Washington Marilyn K. Burdeffs Assistant City --anager CEO/President Date: ( Date: C �QRrL ApSecretary � '" 1� pv® ATTEST: a`� f By 'LBy:Mser Name: Vo J � OCi �o , .� �° Title: o• a� APPROVEAST FORM AND LEG LIT By: Guille o (Will) S. Trevino Assistant City Attorney CONTRACT AtITHORI74TION: M&C: Date Approved: Form 1295 Certification No: n( ID_ 115 Li b OFFICIAL RECORD CITY SECRETARY FT.WORTH, TX Professional Services Agreement Lone Star Auctioneers, Inc. Page 10 of 16 EXHIBIT A STATEMENT OF WORK 1. All Contractors shall furnish copies of any certificates and/or licenses issued by any governmental agency having control or jurisdiction over auction services evidencing the extent of their authority and show authorization to perform all requirements of this agreement. The successful Contractors awarded the agreement shall keep their certificates and/or license up to date throughout the life of this agreement and submit copies to the City in the future upon request. 2. Auction shall be open to the general public and there will be no fee to participate. A potential Buyer's premium may be charged to the successful bidder at payout. 3. Unless otherwise directed by the City, unsold vehicles and equipment will be rescheduled and re-auctioned at the next available auction. 4. All items will be offered "as is, where is"without any warranty by the City or Auctioneer as to condition, usability, quality and quantity. 5. Sales shall be made to the highest responsible bidders. The Contractor shall make every effort to ensure that each bidder is at least eighteen (18) years old and that bidders have been informed of the terms and conditions of the auctions and release the City from claims on warranties. Contractors shall register only those individuals who have complied with auction rules. The Contactor is the final authority Coordinator. Current City employees, members of their immediate families or authorized agents for said employees shall not be registered to bid. 6. The Contractor shall register bidders and assign bidder numbers. Registration should include name, current address, telephone of the person being registered to bid, name that is to appear on the title and/or receipt and method of payment. Copies of the computer generated list will be provided to the City, Purchasing Division with payment and information package. 7. The Contractor shall provide computerized master list of each item auctioned showing bidder number and amount of sale for all auctions to the Purchasing Division. 8. City personnel may pull items from the auction, before Bidding or final bidding if they are found to be ineligible for auction. Staff will perform due diligence to ensure this does not occur and pull items before bidding is started online or during a live auction. 9. The Contractor shall be provide an invoice to each successful bidder and Auction Coordinator showing lot number purchased with description, bid amount and any applicable taxes. 10. The Contractor shall be fully responsible for the collection for all money due from auctions. Contractor shall also provide a summary statement, "Final Auction Results", to the City, accompanied by payment of those gross proceeds of sale less the approved commission and other approved charges to the City no later than thirty (30) business days after the onsite/live auctions and electronic web based auction is completed. Payment shall be made payable to City and delivered to the City's Contract Administrator or assigned representative with a detailed invoice documenting all deductions from the proceeds. 11. The Contractor is responsible for the security of the money, during the auction and until the funds is delivered to the City's Contract Administrator or assigned representative. Professional Services Agreement Lone Star Auctioneers, Inc. Page 11 of 16 12. The Contractor shall be responsible for establishing criteria for accepting payment from registered bidders. These criteria will be in writing, posted at the auction site and copy included in all auction advertisement and website. Contractor shall submit a copy of the criteria with the response to the bid. 13. The Contractor accepts personal checks or other methods of payment from bidders, the check or payment will be made in the Contractor's name. The Contractor shall bear the expense of any check or payment method that is returned for"insufficient funds" or"closed account." The Contractor shall be responsible for the collection of those funds. 14. The Contractor shall collect sales taxes on property/merchandise that is taxable, such as bicycles, tools, "untitled" vehicles, "hulls", vehicle parts, office equipment and/or furniture that are sold at the auctions. Contractor shall be responsible for making all sales tax payments to the State of Texas at the prevailing rate. 15. If, at any time, a registered bidder refuses to make complete payment for goods, the bidder will not be considered a valid bidder for a period of not less than one year. Any goods left behind for nonpayment or any other reason may be: (a) sold to the next lowest bidder and sold for the second highest bid price or (b) resold at next available auction to the highest bidder. The City reserves the right to determine if the goods will be sold to the next lowest bidder or sold at the next available auction. 16. Contractor shall keep all necessary records and provide copies to the City; all sales receipts that reflect vehicle identification number, description, sales price, date sold, and buyer information. They will provide a list of property or equipment with the sales price, date sold and buyer information. 17. After funds have been remitted for Auto Pound vehicles by the auction customers and cleared Contractor's banking institution, Contractor shall prepare electronically and submit forms listed below to the Purchaser. Buyers Terms and Conditions shall state: title shall not pass to purchaser until all funds have shall been remitted and cleared. The Auto Pound shall provide vehicle/equipment list in Microsoft Access format electronically to Contractor who shall obtain software/hardware to process the forms. The City will hold the Contractor responsible for obtaining and tracking Vehicle Titles and Registration Division (VTR-71-1) forms by identification number from the Auto Pound for approximate number of vehicles to be sold. Unused or incorrect forms must be returned to the Auto Pound and, original or corrected forms must be picked up by Contractor from the Auto Pound. 18. Texas Department of Motor Vehicles (DMV), Form 130-U, Application for a Certified the Texas Department of Motor Vehicles) Texas DMV Form VTR-71-1, Receipt for abandoned vehicles sold at public Auction at the Police Auto Pound. For City-owned vehicles sold at the Auto Pound, titles will be completed and processed by the City before or at the auction and provided to the Contractor. The Auto Pound Manager/Supervisor or City designee shall provide a corrected VTR-71-1 whenever incorrect information was provided by the City. 19. Texas DMV Form 130-U, Application for a Certified Copy of Texas Certificate of Title for Motor Vehicle. (Contractor can obtain form 130-U, from the Texas Department of Motor Vehicles) 20. Any other document required by the State of Texas, the City or other government agencies. After funds have been remitted for property and equipment, the property will be shipped to the bidder at the bidder's expense. The Contractor shall handle all shipping of auction items to the bidder and will be responsible for any claims regarding the shipping of Professional Services Agreement Lone Star Auctioneers, Inc. Page 12 of 16 the property or equipment. Equipment too large for shipping will have pick-up arrangements made between the bidder and the Contractor. 21. The Contractor shall distribute all available keys to purchasers of vehicles. 22. Auctions and related duties will be performed by the Contractor staff unless otherwise directed by the City's Administrator. 23. All items will be pre-lotted before start of auction by the Contractor. A final and updated list which may contain changes shall be provided after online posting has been completed. The Contractor shall not divide auction lots unless otherwise authorized and approved by the City Auction Coordinator. 24. Many bidders that participate in City auctions are Spanish-speaking only. The Contactor shall have a minimum of one (1) fluent Spanish speaking employee available at all auctions and available for all auction related functions not limited to live auctions and onsite auctions and Contractor's business office. The Spanish speaking employee can be in addition to or one of the employees required by these specifications. 25. Contractor shall have no less than five (5) years verifiable experience in the auctioning of governmental impounded, seized or abandoned vehicles, equipment, surplus sand property of auctions of similar size and scope. Failure will disqualify Contractors from award of this bid. 26. Contractor shall have large verifiable and well documented presence in the governmental auctions industry both in onsite live and online electronic auctions. Contractor shall submit list current customers with bid and give website address with access to the City for evaluation of bid. 27. Contractor shall have fully computerized operations for performance of all auctions, reports, list and statements. 28. The City shall keep all live and online auctions separate. Absolutely no simulcast or mixing auction types. No exceptions. 29. The Contractor shall be responsible for taking photographs of online vehicles, property and equipment and lotting items for online auctioning purposes. The City shall provide a list of all auctioned items on a manifest to the Contractor. Contractor shall take possession of any property and equipment to be sold and distributed out of their facility. Vehicles and large equipment may be photographed on-site and left at the city facility until sold and picked up by the bidder. ONLINE AUCTIONS 1. A list of goods with brief description will be provided to Contractor five (5) days before any scheduled auctions by way of email to Contractor's administrator for vehicles and heavy equipment. City Departments will provide a listing of items; photographs shall be taken by the Contractor or by the City Department as determined by City Auction Coordinator. 2. Online auctions can consist of any/all items on an as needed basis. Property and small equipment shall be picked up and removed by the Contractor at the designated and agreed upon pick up time and location (City Facility). 3. Items will be placed on an electronic and/or hard copy manifest listing according to the Contractor's specifications. Different numbering for each account will be Professional Services Agreement Lone Star Auctioneers, Inc. Page 13 of 16 provided to the Contractor and used for different departments and for different accounting purposes in order to track the items and streamline the accounting for specific departments, (e.x. forfeiture property would be in a separate traceable account.) 4. Preferable method: The Contractor shall be responsible for grouping, testing of property for functionality and condition, cleaning and reasonable repair of property; research and evaluation of property; and providing free appraisal and/or certification of property that are of special interest or value; a Certified Gemological Institute of America Inspector. The Contractor shall take multiple photographs of the items and place them in the designated lots, tracking the progress of each item in each lot from the list or manifest provided by the City. Any property not needing these specifications will be communicated to the City's Administrator of those items and agreed upon by both parties. Items of no value will be documented and notifications be made on the destruction of said items. 5. Auctions shall begin and end at the times and dates as required by the City's Administrator by mutual agreement with the Auctioneer. Auction schedule shall normally be as follows unless otherwise directed by the City's Administrator. 6. Auction shall begin no later than five (5) business days after list and Photographs have been submitted to the Contractor Administrator. 7. Auction shall run for duration of no more than a maximum of 21 calendar days one of which shall be a City business day for preview. An extension of the auction may be mutually agreed upon by both the City and Contractor. Preview shall be at or near the seventh day of the auction duration during the hours of 8:00 AM to 4:00 PM by appointment with the Auction Coordinator or appointed representative. Preview can be by other methods or at any other time as determined by the Auction Coordinator or appointed representative. 8. The internet auction site will be a secured site (not a shared site)which is available 7 days a week, 24 hours a day. Qualified bidders should be able to use their debit or credit card to pay for bids online. 9. Contractor shall use a method in which is common practice within the online auctioning industry to close or stop taking bids from the customers for each lot; the Contractor shall submit t is method with bid. 10. Time for payout by successful customers shall run for duration of no more than a maximum of three (3) business days from close of auction. At the end of the three (3) business days, if payment has not been made, customer shall be deemed as a no pay/walk and shall not be allowed to participate in future live or online City auctions. The Contractor shall be responsible for collecting and paying all sales tax. 11. Pick up for large items i.e.: vehicles large equipment, by successful customers shall run for duration of no more than a maximum of five (5) City business days during the hours of 8:00 AM to 4:00 PM by appointment only made with the Auction Coordinator or appointed representative. Any customer who fails to pick up surplus for any reason will automatically forfeit all rights to and any ownership of the surplus. Customer shall forfeit any money already paid for the surplus. 12. Smaller items will be packaged and shipped to the customer after successful payment is made at the customer's expense. The Contractor shall be responsible for the packaging and shipping of these items. Any liability will fall to the Contractor when there is a shipping issue. Professional Services Agreement Lone Star Auctioneers, Inc. Page 14 of 16 13. Contractor may provide official appraisals for jewelry and other items that may be of significant value by those who may hold certification or possesses a deep knowledge/expertise in the area of which the items may belong. Cost for any appraisals shall be paid by Contractor. Contractor shall be responsible for incorrect appraisals and resolution of appraisal-related problems that may arise. 14. No auctioned items of any kind for any auction shall be transported, shipped or arranged to be transported or shipped by the City. Contractor's website shall be that which is acceptable and meets the common standards or practices within the online auction industry. Website shall be easy to navigate, be able to handle a large customer base and have the ability to grow to encompass an unlimited number of current or new customer base and auction surpluses as needed. Website must have the ability to handle all items to be auctioned including but not limited to descriptions, digital Photographs, all terms and conditions for multiple City auctions along with other separate agency auctions. Preference is a 24 hour customer support line to answer questions for the bidders. ADDITIONAL INFORMATION 1. The Contractor shall pick up smaller items to be processed for online auctions on a monthly basis. Larger vehicles and equipment will be at the designated storage facility until bidding has finished and the bidder brings in proof of purchase to pick up the vehicle or equipment sold. 2. The City reserves the right to inspect all equipment, tools and facilities required to be used in the performance of this agreement before, during and after the award of this agreement and during the performance of this agreement. 3. Contractor's equipment, tools and facilities shall comply with all requirements and shall remain current throughout the life of this agreement. 4. All equipment, tools and facilities used in the performance of this Agreement shall be fully maintained, clean, in good working condition, suitable for the intended purpose and operated byqualified personnel. 5. Contractor shall maintain any records considered necessary by the City, other than those provided. Monthly reports shall be provided to the City by the Contractor with full disclosure of all items turned over to the Contractor for the online auction. 6. If other governmental entities elect to purchase services based upon this agreement, auctions shall be held at the location mutually agreed to by the Contractor and entity at its own or other facilities. The City shall not be responsible for any portion or responsibilities of another entity's auctions for any reason at any time. Professional Services Agreement Lone Star Auctioneers, Inc. Page 15 of 16 EXHIBIT B PAYMENT SCHEDULE Quote Sheet for RFP 15-0232 Auction Services Online Auciton Proceeds Commission % Buyers Premium % Extended Total Vehicles $1,640.000.00 0% 10%* $1,640,000.00 Surplus Items $300,000.00 0% 10%* $300.000.00 Total Revenue Generated for the City $1,940,000.00 `Buyers who elect to pay by an optional payment method such as credit or debit card will pay a 13% Buyer Premium as stated in our payment terms. A 3% "cash equivalent" discount will be given to buyers paying By customary payment methods, specifically cash, Cashier's Check, U.S. Postal money orders, certified checks with a bank letter of guarantee, and wire transfer as stated in our payment terms. Professional Services Agreement Lone Star Auctioneers, Inc. Page 16 of 16 M&C Review Pagel of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FOR 11 COUNCIL ACTION: Approved on 5/10/2016 REFERENCE ** 13P15-0282 AUCTION DATE: 5/10/2016 NO.: P-11871 LOG NAME: SERVICES - EW POLICE CODE: P TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Contracts for Auction Services with Lone Star Auctioneers, Inc., and PropertyRoom.com, Inc., for Sales of Wrecked and Abandoned Vehicles, Property and Surplus City Equipment (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize contracts for auction services with Lone Star Auctioneers, Inc., and PropertyRoom.com, Inc., for sales of wrecked and abandoned vehicles, property and surplus City equipment. DISCUSSION: City departments will use these contracts for live and online auction sales of forfeiture and surplus vehicles, obsolete equipment, surplus office furniture and various surplus items. Lone Star Auctioneers and Property Room.com will be paid by commission from buyers of auctioned items. This is a revenue generating Agreement with auction proceeds credited to the appropriate City fund identifier. During the previous fiscal year the City received a total net revenue of$1,940,000.00 from internet auctions. Of this total, $895,265.00 was from Equipment Services Department vehicle sales, $997,345.00 was from the Police Department and auto impound sales and $47,390.00 was received from other City surplus sales. Estimates for these revenues are included in the City's budget. A Request for Proposals (RFP) 15-0282 was issued on August 19, 2015. The evaluation factors included physical governmental auctioneer experience, electronic governmental auctioneer experience, advertising and sale marketing ability, web based services, project management, qualifications and references and cost. The evaluation panel included representation from the Police Department- Property and Records Management, Asset Forfeiture, Fleet/Auto Pound and the Property Management Department. The evaluation panel compared proposal responses to the evaluation factors, Lone Star Auctioneers, Inc., and PropertyRoom.com, Inc., were the best rated value to the City. PRICE ANALYSIS - The percentages paid to these suppliers remain unchanged compared to percentages awarded in 2009. Overall, percentages being recommended are considered fair and reasonable. BID ADVERTISEMENT - This RFP was advertised in the Fort Worth Star-Telegram on August 19, 2015, August 26, 2015, September 2, 2015, September 9, 2015 and September 16, 2015. Nineteen vendors from the City's database system were solicited, seven responses were received. M/WBE OFFICE —A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. AGREEMENT TERMS— Upon City Council's approval these contracts shall have an initial one year http://apps.cfwnet.org/council_packet/mc_review.asp?ID=21870&councildate=5/10/2016 6/1/2016 M&C Review Page 2 of 2 term beginning May 4, 2016 and expiring May 3, 2017. RENEWAL OPTIONS - These contracts may be renewed for four additional one-year terms at the City's option. This action does not require City Council approval provided that City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal terms. FISCAL INFORMATION/CERTIFICATION: Revenue received from the contracts provided herein will be deposited into the appropriate fund, including but not limited to the General Fund, Sale of Abandoned Property Account which has total estimated revenue in Fiscal Year 2016 of$1,320,599.00 and year-to-date receipts of$4,650.00, Crime Control Prevention District Fund, Sale of Capital Asset Account which has total estimated revenue in Fiscal Year 2016 of$101,988.00 and no year-to-date receipts and State Asset Forfeiture Fund, Sale of Abandoned Property Account which has no estimated revenue in Fiscal Year 2016 and year-to-date receipts of$267,582.00. BQN\15-0282\EW TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 Submitted for City Manager's Office by: Valerie Washington (6192) Originating Department Head: Aaron Bovos (8517) Additional Information Contact: Jack Dale (8357) Eryck Walker (6610) ATTACHMENTS 1295 Forms.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=21870&councildate=5/10/2016 6/1/2016 CERTIFICATE OF INTERESTED PARTIES FORM 1295 loft Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2016-15481 LONE STAR AUCTIONEERS, INC. FORT WORTH,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 02/18/2016 being filed. CITY OF FORT WORTH Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identity the contract,and provide a description of the goods or services to be provided under the contract. 15-0282 AUCTIONEERING SERVICES 4 Nature of interest(check applicable) Name of Interested Party City,State,Country(place of business) Controlling Intermediary 5 Check only if there is NO Interested Party. ❑ X 6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct ^Pin' BRANDON L.SMITH Notary Public,State of Texas �• :y= My Commission Expires August 20, 2016 Signature of authorized agent of co ra ting business entity AFFIX NOTARY STAMP 1 SEAL ABOVE /t Sworn to and subscribed before me,by the said 0% ew K. r,nQSS ,this the..__I A-W, day of to certify which,witness my hand and seal of office. IL ignature of cer ad nistering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.LIS Version V1.0.34944