Loading...
HomeMy WebLinkAbout2001-017 I'. . ~ . . .. RESOLUTION NO. 2001-17 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE AGREEMENT WITH ROGER ERNST & ASSOCIATES, AUCTIONEERS TO STORE AND SELL SEIZED VEHICLES, PERSONAL AND REAL PROPERTY, AND FIREARMS. 3 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 SECTION I. The Mayor is hereby authorized and directed to execute on behalf 7 of said City an Agreement with Roger Ernst & Associates, Auctioneers, to store and sell seized 8 9 vehicles, personal and real property, and firearms, a copy of said agreement is attached hereto, 10 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. 11 SECTION 2. The authorization to execute the above referenced agreement is rescinded 12 if the parties to the agreement fail to execute it within sixty (60) days of the passage of this 13 resolution. 14 III 15 III 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III -1- . . . RESOLUTION NO. 2001-17 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE AGREEMENT WITH ROGER ERNST & ASSOCIATES, AUCTIONEERS TO STORE AND SELL SEIZED VEHICLES, PERSONAL AND REAL PROPERTY, AND FIREARMS. 1 I HERBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 2 Common Council of the City of San Bernardino at a Joint Regular meeting thereof, held 3 on the 22nd day of January ,2001, by the following vote, to wit: 4 Council Members: AYES NAYS ABSTAIN ABSENT 5 ESTRADA ----"'- 6 LIEN X 7 MCGINNIS X 8 SCHNETZ X 9 SUAREZ X 10 ANDERSON X 11 MCCAMMACK X 12 13 ~h.~ 14 CITY CLERK 15 The forgoing Ordinance is hereby approved this25th day of January ,2001. 16 17 18 Esther Estrada Mayor Pro Tern 19 Approved as to form and legal content: 20 21 JAMES F. PENMAN, City Attorney 22 24 By: L/1 {. ()~1 {l . BCL:S:\Council Action Requests\Signature Page Ernst 1~3~01.doc 23 25 ',. '. 2001-17 Agreement This Agreement is made and entered into on January 22, 2001 , between the City of San Bernardino, Municipal Corporation of the State of California, hereinafter referred to as "City", and Roger Ernst and Associates, Auctioneers, hereinafter referred to as "Auctioneer". WITNESSETH A. The police department of the City of San Bernardino is responsible with the District Attorney for the County of San Bernardino, for initiating and litigating the forfeiture of property seized by local law- enforcement under the provisions of the health and Safety Code Section 11470, & California Vehicle Code 14607,6(a) Et seq; effecting judgment or declaration of forfeiture; establishing a proper mechanism for liquidation of forfeited assets co-operation with local law- enforcement; and making proper distribution the proceeds. B. City desires to: (1) Maximize the return of sale of forfeited assets: (2) Control the cost of transporting, storing, insuring, and maintaining property prior to liquidation: (3) Utilize public auction as proper mechanism for liquidation of forfeited assets; and (4) Simplify asset management, record keeping, and accounting procedures by generally utilizing one independent contractor to provide transportation, storage, insurance, maintenance, and auctioneering services for all asset seizures and Forfeitures administered by the San Bernardino police department. C. Auctioneer has offered to City services to transport, store, insure, maintain, administer and conduct public auction of seized vehicles, personal property, firearms, and real estate for benefit of the City. D. Auctioneer has demonstrated its competence and qualifications necessary for the satisfactory performance of the service designated herein by virtue of its experience and expertise. Therefore, in consideration of their mutual and perspective promises, the parties hereto and hereby agree as follows: '. >. 2001-17 1. ROLE OF CHIEF OF POLICE The Chief of police shall be the City's authorized representative in the termination and enforcement of all work performed in connection with this Agreement. The chief of police may delegate authority in connection with this Agreement to his designees. 2. INDEPENDENT CONTRACTOR: Auctioneer's relationship to the City shall be that of an independent contractor. Auctioneer shall be solely responsible for the performance of any of its Employees or agents under this Agreement. Auctioneer shall report to the City any and all of its Associates performing work in connection with this Agreement. Consultant is acting as an independent contractor, and not as an employee of the City. In the performance of personal services pursuant to the provisions of this Agreement, consultant shall not be supervised, directed, or under the control or authority of any City officer or employee, except and to the extent as maybe expressly or implicitly required by the terms and provisions of this Agreement. Any direction or control so required under this agreement shall be limited to broad objectives or goals of the project or program to be accomplished and not to the details and procedures to accomplish such objectives or goals. Consultant shall not be obligated to conform to the supervision or direction of City's officers or employees, which are not authorized herein. Changes or modifications of said objectives and goals may be made by written recommendations of either party subject to the concurrence of the other party in writing. 3. CARE. CUSTODY, AND CONTROL: City agrees that it has and will in the future obtain possession of vehicles, personal property, firearms, and/or real property (all inclusively referred to hereinafter as "property") pursuant to Health and safety Code Section 11470 & California Vehicle Code 14607.6 (a) et seq., and other State and local laws. And that such property is subject to the care, custody, and control by City. Auctioneer recognizes that care, custody, and control does not convey legal title to City for such property. City agrees to transfer possession of said property to Auctioneer subject to the fOllowing conditions: a. Auctioneer shall be available to respond to the scene of a property seizure upon 72hrs. notice, prepared to inventory property. Upon picking up property from the City, Auctioneer shall bear all costs, expenses, and risks of loss in loading, transporting, storing, securing, insuring, preparing for sale, direct mail and newspaper advertising, and selling the property. In regards to picking up 2 2001-17 vehicles under the Vehicle Code 14607.6 Roger Ernst & Assoc. will on pick up yehicles with a value of $1000.00 or more. b. Auctioneer shall preYide secure storage at Auctioneer's storage facility. Auctioneer shall bear all costs for said storage. 4. REPAIRS AND MAINTENANCE City agrees that Auctioneer may elect to perform any repairs or maintenance on property in Auctioneers possession provided that before such repairs or maintenance are performed, Auctioneer receives advance approval by the City. Auctioneer shall ensure that all motor vehicles are properly maintained and are smog certified per state law prior to sale. 5. AUTHORIZATION OF SALE Auctioneer and City agree that Auctioneer shalt not be entitled to sell or offer to selt property transferred to Auctioneer until Auctioneer has obtained written certification authorizing sale from City. Certification as provided herein shall entail the receipt receiyed by Auctioneer from City of either of the following: a. Copy of an order releasing property to City signed by any state or federal judge or magistrate. b. Copy of authorization from California Department of Motor Vehicles transferring title of any vehicles to City. 6. RETURN OF VEHICLE OR PROPERTY: Auctioneer agrees that City shall be entitled, prior to public sale of property, to request the return of any property transferred to Auctioneer for any reason, and that upon receipt of such request, Auctioneer shall return said property to City without assessing any cost or expense to City for such return. On return of such property, Auctioneer shalt be relieved of any obligations or liability for such property under this Agreement. Request for return may be made by telephone to Auctioneer. Auctioneer agrees that in the event City notifies either in writing or telephonic play the property in Auctioneers possession must be returned to City, within seyenty-two (72) hours of such notification. 3 2001-17 7. PUBLIC SALE BY AUCTION: Auctioneer agrees to conduct public sale by auction of property accepted for forfeiture by City held by Auctioneer in conformance with the requirements of federal, state, and local laws, including chapter 2.70 of the San Bernardino municipal code. Also in conducting said sale, Auctioneer shall pay for direct mail, and flyer advertising. Auctioneer shall also bear all costs relating to transporting or moYing such property to auction site. Auctioneer shall conduct absolute auctions, with no minimum bid for the property for sale unless the City has expressed concern and writing regarding a minimum sa.le price. 8. GUARANTEE OF RECEIVING APPRAISED VALUE: Whenever the City expresses a concern and in writing regarding the minimum sales price on any particular property, Auctioneer agrees to guarantee a minimum sales price, negotiated in advanced based on the appraised value of the item, and shall provide the guarantee in the form of certified check in the amount of the minimum sales price, less commission, prior to the sale. 9. INSPECTION STATEMENT OF RELIANCE: Auctioneer shall require that each auction purchaser sign a statement acknowledging inspection of real or personal property being purchased and stating that the purchaser is relying solely on that inspection in making the purchase. 10. COMPENSATION: Auctioneer shall maintain auditable records of all property, which is sold pursuant to this Agreement. Auctioneer's records shall be made available to the City for verification, within a reasonable time after the City's request of inspection. Auctioneer and City agree that upon Auctioneer sale of property accepted for forfeiture under the conditions provided herein, Auctioneer shall deduct as commission for the services provided to the City ten percent (10%) of the actual sales price of the vehicle and twenty-five percent (25%) of the actual sales price for a firearm or other personal property, excluding real estate and other property of exceptional value. Actual sales price shall mean the total price paid to the Auctioneer by the purchaser for the property. "Property of exceptional value" shall include any vehicle and/or property with an appraised value greater than $1,000 dollars. In the sale of property of exceptional value the Compensation for Auctioneer services shall be negotiated in writing between City and Auctioneer prior to sale, and shall generally is less than ten (10%) of the actual sales price. 4 '. 2001-17 Auctioneer agrees that within fifteen (15) days of the sale of property accepted for forfeiture, it shall pay to City that actual sales price proceeds received from the sale of such property, minus the Compensation described aboye for Auctioneer services and deducting the cost of any approved repairs to property performed by Auctioneer prior to sale of such property. 11. BUYER'S PREMIUM: It is understood that Auctioneer charges the buyer of any auction vehicle or property excluding real estate, a buyer's premium equal to ten percent (10%) of the actual sales price. 12. SERVICES PROVIDED IN CONNECTION WITH SALE OF REAL ESTATE OR COMMERCIAL PROPERTY: The particular services to be provided in connection with the sale of specific piece of real estate or commercial property will be negotiated on a case-by- case basis, with the exception of insurance coyerage. Auctioneer shall immediately acquire insurance coverage for fire, theft, and personal liability on real estate or commercial property as soon as Auctioneer is notified by City that it has obtained ownership or possession of the property by court order. Insurance coverage shall be for the full-appraised cash value of the improvements. Auctioneer will also arrange for a title search and title report on the property. Auctioneer shall conduct an evaluation of the property and its sales potential And submita complete cost analysis of the services that Auctioneer proposes to deliver in connection with its care, custody, and control of the property. Services that may be provided include, but are not necessarily limited to: a. Securing the property, including installation of locks, and/or other security devices. b. Hiring a private security firm to make periodic checks of the property. c. Contracting for periodic maintenance of lawns and landscaping. d. Contracting for cleaning, maintenance, or repair of the interior or exterior of the property to improve its sales value. e. Contract for a property inspection service to inspect the property and identify any defects or liabilities that should be disclosed to potential buyers. No services for repairs shall be initiated unless approyed in adyance by City and the cost identified in cost analysis. The fee charged for services or 5 '. 2001-17 repairs shall be the actual cost of the service or repair, with no surcharge added by Auctioneer. Auctioneer shall advertise and promote the sale of the property for at least forty-five (45) days prior to sale at auction and haye at least one (1) adyertised open house where prospective bidders may preview and inspect the property and obtain a title report. Real estate safes may be conducted by video auction in conjunction with other auctions conducted by Auctioneer. Buyer shall be responsible for the cost of all fees incurred after the auction, including but not limited to, cost of escrow and recording. 13. COMPENSATION AND FEES FOR AUCTION OF REAL ESTATE: Unless otherwise negotiated in writing for a particular property, Auctioneer A fee equal to six percent (6%) of the actual sales price of the property, The actual sales price shall mean the total sales price paid to the Auctioneer by the purchaser or the property. Auctioneer agrees that within thirty (30) days of the sale of the real estate or commercial property, it shall pay the City that actual sales price proceeds received from the sale of the property, minus the Compensation described above for Auctioneer services; deducting the actual, itemized cost of the specific services agreed upon in connection with the particular property such as insurance, security, lawn maintenance, or painting performed by Auctioneer or its agents prior to sale of the property; and deducting the cost of settling encumbrances on the property identified in the title report. During this (30) day escrow period, Auctioneer will clear all encumbrances from the title so that the property is transferred with clear title. 14. EXAMINATION OF FIREARMS: With respect to any firearms which are handled by Auctioneer for City, City shall provide a list of firearms, which are to be destroyed for City by Auctioneer. Auctioneer reserves the right to examine all the firearms listed as being appropriate for sale at auction, and should Auctioneer determines that any of said weapons are not appropriate, because of defect or otherwise, shall notify City that it will be removed from the list of firearms to be sold at auction, and placed on a list of firearms to be destroyed. The destruction of said firearms shall be done as a courtesy to City at no cost or expense to City. 15. INSURANCE: a. Auctioneer shall furnish City with a certificate of insurance evidencing that it carries Workers Compensation insurance and 6 '. , 2001-17 the policy shall not be cancelled or the coverage reduced except upon thirty (30) days prior written notice to the City. b. Auctioneer shall obtain at its sole cost and file with the City prior to exercising any right or performing any obligation pursuant to this Agreement, and maintain for the period covered by this Agreement, a policy of comprehensive general liability insurance against liability for any and all claims, suits for damages or injuries to persons or property resulting from or arising out of operations of Auctioneer, its officers, agents or employees, performed in connection with this Agreement including but not limited to premises and automobile, which also names the City of San Bernardino, its officers, agents and employees as additionally insured. Auctioneer's insurance shall be primary, Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in no less than the following amount: General Liability Combined single limit per occurrence General Aggregate $ 1,000,000,00 $ 1,000,000.00 Automobile Liability Combined Single Limit per Occurrence $1,000,000.00 Auctioneer shall provide evidence of compliance with the insurance requirements listed aboye by providing a certificate of insurance, in form acceptable to the City attorney, concurrently with the Submittal of this Agreement. Said policy or policies shall also contain a provision that termination, cancellation or change of coverage of insured and/or additionally insured shall not be effective until thirty (30) days notice thereof has been given in writing to City. Auctioneer shall giye City prompt and timely notice of claim made or soon instituted arising out of Auctioneers operation hereunder. 16. AUCTIONEER'S INDEMNIFICATION OF CITY: Auctioneer shall defend, indemnify and hold harmless the City and its officers, agents, and employees against all claims for damages or injuries to persons or property arising out of Auctioneers execution of the work, or otherwise by the conduct of the Auctioneer or its employees, agents, subcontractors or others (including the active and passiye negligence of the City, its officer, agents, or employees) in connection with the execution of the work covered by this contract and any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents, or employees in defending against 7 '. 2001-17 such claims, whether the same proceed to judgment or not. except only for those claims arising from the sole negligence or willful conduct of the City, its officers. agents. or employees. Auctioneer shall reimburse the City for all costs and expenses (including but not limited to fees and charges of attorneys, and other professionals and work costs) incurred by City and enforcing the provisions of this Agreement. 17. VALIDITY: The validity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provisions of this Agreement. 18. LAWS GOVERNING THIS AGREEMENT: This Agreement shall be governed by and construed in accordance with the laws of the State of California. 19. NOTICES: Notices and written communications sent by one party to the other shall be personally delivered or sent by U.S. mail, postage prepaid, to the following addresses: City: City of San Bernardino Chief of Police 710 North "0" Street San Bernardino, Ca 92401 Auctioneer: Roger Ernst & Associates P.O. Box 3251 Modesto, Ca 95353 20. TERMINATION OF AGREEMENT: Either party, for any reason, may terminate this Agreement whatsoever, upon 90 days advance written notice to the other party, If notice of termination is given, each party shall work in good faith to affect the orderly sale and disposition of property and possession of Auctioneer prior to notification, including if necessary, a grace period of sixty (60) days to dispose of such property continuing under the same terms and conditions of this Agreement. 21, NON-EXCLUSIVITY OF AGREEMENT: City reserves the right to contract persons or Auctioneers other than Roger Ernst and Associates to dispose of any forfeited vehicles, real or personal property, or firearms, 8 '. 2001-17 22. EXLUSIVITY AND AMENDMENT OF AGREEMENT: This Agreement supersedes any and all other agreements either oral or handwritten between the parties hereto with respect to employment of Auctioneers by City and contains all the conyeyance and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otheIWise have been made by any party, or anyone acting on behalf of any party, which. are not embodied herein, and that no other Agreement or amendment hereto shall be effective unless executed in writing and by both City and Auctioneer. 23. SIGNATURES: This Agreement is deemed to be executed by the parties hereto and San Bernardino even though the signing of the Agreement by Roger Ernst is done in Modesto, California. In witness whereof, the parties hereto have executed this Agreement the date and year first written above. Attest: CITY OF SAN BERNARDINO, a Municipal Corporation of the State of California ~~h~ ~?~~ 1- <95 -0 I DATED BY: Approved as to form and Legal content: 9 ,...........----- :iICHOLSO\ I'iSl'R.\\CE I \C ~U!;l . , I. .'~n i;P":ltl !3:27 FAX zag 526 0880 2001-17 i~i<m~I?~';\l~iBm'fiJ)gaTi;,['I~I:~~J18:~J'I4'\t;~(\\\f.'N.$;Q:ai~:~els;~i;l~,;ii';f;;:'ifj. ~~ri~ " " ... . ... ... .... ... ... ..... . . ..... THIS CERTIFICATE IS ISSUED AS A MATTEIl OF I/lFORM.\T' . ONLY AND CONFERS NO RIQHTii: UPON THE c:nITlFIC...T HOLDER. THIS CERTIFICATE DOES NOT I.M!NU, EmMD IJ. ALTER THE COVERAGE AFfORCED BY THE POLIC:GS BELO'.. COMPANIES AFFORCING _ COVERAGE .__-- . ~iiN.,v;E." L I CCM~AN'" I A ! COM'ANY ROGER ERNST & ASSOC INC I B COMPAN'( POBOX 3251 ~_~_ _ MODESTO CA 95353 I eo~_ .. Tl<!5 :S TO CERTIFY l'iAT THE POlICIES OF INSURANCE USTED BELOW HAVE SEEN IssuED TO Tlil! I,"SURED NAMED ABOVE FOIl THE POUCY PE",,::r 1~"'CA1EO. NQ'IWmlGTANOINCl ANY REQUIREMENT, TERM OR CONDITION Of AllY CONTRACT OR OTHER DOCUMENT WITH RESPECT '0 WHlCe ~.RTIFICATE MAY B! ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED SY niE POUCIES DESCRI3ED HEREIN IS SUSJeCT TO AU.1ll1i TE.,.... i EXcLUSIONS AND CONDIT10NS Of SUCH POlICIES. UMITS SHOWN MAY HAVE BEEN REDUCED SY PAID CtAlMS ~ ;01- - ".., M MlJfWlce I PQUCY MUMBDI I PCUCY .....cTNI.l,ouc't e:xp~A'nOH' j I_,~ ! DATE ~MM.ooJYY) DAn (MMJDCJYY) -- -r--- - '\ ,o."""".....oun' I 161777A 8/20/001 8/20/01,GENI!!Vol.A"GRE<lATE .-t!~,00<L9~~ ~f~. C~MM!RCW. GENERAL UABIUTY I I I p""overS.COM'Ill' AGG, s2, 000 I (,~ '.. '.:,;-.J t......S ...w. 00 OCCUR II oE''''ONAI. l MJV 1I<JUlf( I !-L...QQQ.,~.: tjOWA.,U. CQlfTAACTDR'S PROT EACH OCCURRI'I':! . : 01, 00.9...(1 C L :. f'lRI! DAM/'I.'3E (Any or..~!' 51[ D'. c._ I . ' Me!> 100' (My .... ....";. 1.J.' p, !AlrOMOllULWlILITY CA042017600 8/20/00 I 8/20/011 11,060 Ct. I L~ -\'1 COMBINED ,'NOLE UMrr, ' I -i ANY AlJTO (' I ~ AU OWNED AuTOS i I BODILY INJ'JRY I I I~X SC!-l!OUl2I:tAUT08 I (Pwtl*'l'Ol\) ~._.- X HOlm AllTOB IODLV INJURY I .' ~r~w- AUTO' ::O:::":AMAO~ I Q4AAQI w.aaun ! AUTO ()NI.V. EA ~............---~ .- -. [_ ~ A/olY AUTO I OTHER "lliAN AUTO ONLY: ~ :" ','i.," " , ' ~~. I EACH ACCIO!>IT IS -. [._.' 1 : AOllAEOATE I' . ~... ............ I EACH OCCURRl!NCE ! . ! I~;;:'= r ~.;, rI~:~~. ~ n-::; f'P:OPRlETON ..._ I I P!\,,""TNERaIE.ECllTWE ~ EL OIS",E .;CY UM'T .. . ' OFFiCSRa 4.AE: EXeL' Q. DISt!ASI!'.E.A BMPi..CYfi,i I s: ~ 01'HEJl, N:CHOLSON INSC~CE INC LICi0498116 FAX (209)526-0880 601 - 14TH STREET ~lODESTO CA 95354 FINANCIAL PACIFIC ~..SiJqf.O PROGRESSIVE COS UlIIn I C!8{;.,IPnQN OF M'UAnO.......0C4T'1ON1NIHICL.SMPECIAL n'DI' l CER~rFICATE HOLDER NAMED ADDITIONAL INSURED REGARDING LIABILITY ONLY I *10 DAYS NOTICE FOR NON PAYMENT OF PREMIUMS 1.,CE,m~9Ag:~~~8ii~Y~1~:.i~tiitLfu~@itdt~ltNR~~~~~~\tt$)fWHtft;k~~.:." I IHCUL.D AllY OF nta dOW DEICRIBED pOIJC.iU Ie Co'.."tCIU.I:D ....... ",:,1 CITY OF SAN BERNADINO E......no" .ATE THI!!lEOI'. _ 1ll8U'" eo..._ WLL ......."". 10 '.'''' ~ DAY. w!VTTEN H01IC& TO n&E CEln'1PSCAft HOLDER M&MID 10 'lIE. Lt.!l. IUT,AIIJ.IM TO un. S\;C"H HC'11eE OtWL "'POp. NO OlSUQA1'IOIII 011 UAk.'.!r 01 ANY XH:t UPON ".. COMPANY rn AQEJrN OR AEl'Ml!NI'ATIVl-~ 710 NORTH "0" ST SAN llERNADINO CA 92401 "..-1~~. " : M AcbAD?-25~~~:lilt&tf:HQYwmt)~rj8:t\W[#g$tHhVW$iffB%1r4MtrM4M%{*t.P{fW~ti[,"