HomeMy WebLinkAboutCC AG PKT 2008-04-14 #H
AGENDA STAFF REPORT
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DATE: April 14, 2008
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Robbeyn Bird, Director of Administrative Services
SUBJECT: Professional Services Agreement for Armored Car
Services
SUMMARY OF REQUEST:
Staff requests the City Council to approve the Professional Services Agreement
with Sectran Security Inc. to provide armored car service.
BACKGROUND:
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The City currently contracts with Sectran Security Inc. to provide armored car
services for the transport of funds from the City to Bank of America at a cost of
$464,28 per month. Sectran has provided this service to the city since March 22,
1999. This service ensures that the City's assets are safeguarded from theft or
misappropriation and enhances intemal controls implemented by City staff.
FINANCIAL IMPACT:
There is no immediate impact to the General Fund as the armored car service
was budgeted for fiscal year 2007/08 and 2008/09 and there is no increase
included in the contract.
RECOMMENDATION:
Staff recommends that City Council approve the at1ached Resolution Number
authorizing the City Manager to execute the Professional Services
Agreement with Sectran Security Inc.
SUBMITTED BY;
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Robbeyn ird, CPA
Director of Administrative Services
NOTED AND APPROVED:
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David carma~y, ICity Manager
Agenda Item 1/
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RESOLUTION NUMBER
A RESOLlITlON OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH, CALIFORNIA APPROVING THE PROFESSIONAL
SERVICES AGREEMENT BETWEEN CITY OF SEAL BEACH
AND SECTRAN SECURITY INC.
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY
RESOLVE:
Seeton 1. The City Council hereby approves the Professional Services
Agreement between the Ctty of Seal Beach and Sectran Security Inc. for
armored car services.
Section 2. The Council hereby directs the Ctty Manager to execute the
Professional Services Agreement with Sectran Security Inc.
PASSED, APPROVED, AND ADOPTED by the City Council of the Ctty of Seal
Beach on the 14th day of Aoril . 2008 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
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Mayor
ATTEST:
Ctty Clerk
STATE OF CALIFORNIA
COUNTY OF ORANGE SS
CITY OF SEAL BEACH
I, Linda Devine, City Clerk of Seal Beach, Calnomla, do hereby certify that the
foregoing resolution Is the original copy of Resolution Number on file
In the office of the City Clerk, passed, approved, and adopted by the City Council
of the City of Seal Beach, at a regular meeting thereof held on the 14th day
of Aorll . 2006.
Ctty Clerk
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~ SECTRAN SECURITY INC.
ARMORED TRUCK SERVICES AGREEMENT CONTRACT# 5231
THIS AGREEMENT is made this _ day of April 2008 by and between SECTRAN
SECURITY, INCORPORATED, a California Corporation CSECTRAN") and CITY OF SEAL
BEACH ("CITY").
WHEREAS, CITY desires to have a reputable company collect, transport and deliver
shipments of currency, coins, checks, bankcards, money orders, travelers' checks and other
valuable property (collectively referred to as "PROPERTY"). PROPERTY does not include
cash letters; and
WHEREAS, SECTRAN has performed such SERVICES for CITY since 1999; and
WHEREAS, SECTRAN represents that is qualified and bonded to perform the services.
NOW, THEREFORE, in consideration of the covenants and promises hereinafter
contained, the parties hereto agree as follows:
1. SERVICES.
1.1
SECTRAN shall accept, transport and deliver shipments of PROPERTY provided
to SECTRAN by the CITY (the "SERVICES" hereinafter). "SHIPMENT" in this
agreement shall mean each consignment provided by CITY of one or multiple
items of PROPERTY (in one or multiple containers) to be transported from one
address to another designated address. Each SHIPMENT shall be sealed or
locked and clearly labeled with CITY's name and delivery location. SECTRAN
has no duty or obligation to accept a SHIPMENT lacking the requisite seal or lock
or with a seal or lock appearing to be broken, defective, altered or the subject of
tampering.
1.2 Concurrently with each SHIPMENT, CITY shall provide an inventory itemizing
each item within the SHIPMENT. CITY agrees not to conceaJ, misrepresent, or
omit to disclose any material fact or circumstance concerning the PROPERTY
tendered to, received by or delivered by SECTRAN.
1.3 Concurrent with SECTRAN'S acceptance of each SHIPMENT, each party shall
execute a receipt evidencing the transfer of possession. The execution of such
receipt shall constitute an evidentiary admission that the transfer has occurred.
1.4
SECTRAN will provide the Services in accordance with the scheduJe on
Exhibit A attached hereto and incorporated herein by this reference except with
respect to the following holidays. If requested by CITY and agreed to by
SECTRAN, holiday service will be provided at a premium fee to be agreed to at
the time of CITY'S request and SECTRAN'S approval. The holidays are:
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. (i) New Years Day
(ii) Martin Luther King's Birthday
(iii) Presidents' Day
(iv) MemoriaJ Day
(v) Independence Day
(vi) Labor Day
(vii) Columbus Day
(viii) Veterans Day
(ix) Thanksgiving Day
(x) Christmas Day
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1.5
SECTRAN reserves the right to refuse any SHIPMENT with a stated-value in
excess of the maximum liability amount set forth on Exhibit A. ShouJd
SECTRAN accept tender of a SHIPMENT in excess of the maximum limit,
SECTRAN'S potential liability shall not exceed the maximum liability amount set
forth in Section 5.3. CITY assumes all risk of loss or damage associated with
each SHIPMENT with a stated or actual vaJue exceeding the maximum liability
amount. Alternatively, CITY may defray such risk by electing to purchase, on
behalf of SECTRAN, Excess Liability coverage at an additional cost of $0.15 per
each $1,000.00 (or any fraction thereof) in excess of the maximum liability
amount. By paying the cost of excess coverage, CITY will obtain the actual value
for any substantiated loss of such SHIPMENT.
2. PAYMENT FOR SERVICES RENDERED.
2.1
2.2
2.3
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For SERVICES performed, CITY shall pay SECTRAN the fees set forth on
Exhibit A within 30 days of its receipt of an invoice from SECTRAN. Such
invoice shall include, if applicable, federal, state and local taxes.
The parties expressly agree that the consideration is based upon the limited
liability assumed by SECTRAN pursuant to Section 5,3.
CITY acknowledges Jate payments hereunder shall cause SECTRAN to incur
costs not contemplated by this Agreement, the exact amount of which is
extremely difficult to ascertain at this time. Such costs relate to, but are not
limited to, processing, administrative and accounting. Accordingly, if any
payment shall not be received by SECTRAN within the timeframe specified in
Sub-section 2.1, then, without any further notice, CITY shall pay SECTRAN a
late charge of 6% of such past due amount or, alternatively, the maximum
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pennitted by law until full payment is received. The parties agree this late charge
represents a fair and reasonable estimate of the costs and expenses SECTRAN
will foreseeably incur by reason of CITY'S late payments. SECTRAN'S
acceptance of late payments and/or late charges shall not constitute a waiver of
CITY'S breach nor prevent SECTRAN from exercising all rights or remedies
hereunder or as may be provided by law. SECTRAN reserves the right to require
CITY to make quarterly pre-payments for future services where CITY has
breached its duty to timely pay its obligations. Alternatively, SECTRAN reserves
the right to immediately canceJ or tenninate this Agreement.
3.
TERM.
3.1 This Agreement shall commence and be in full force upon the date hereof for I
year from the date of this Agreement and shall automatically renew thereafter
from year to year until cancelled by either party by giving written notice thereof at
least 30 days in advance of each anniversary of the Contract Date.
3.2 Upon termination of this Agreement for any reason, each party shall be released
from all obligations and liabilities to the other occurring or arising subsequent to
the date oftennination except as provided in Sections 8, 9, II, 14 and 16 hereof
and except that any tennination of this Agreement shall not relieve CITY from
any obligation to pay SECTRAN for SERVICES perfonned prior to the effective
date of cancellation.
4.
RELATIONSHIP OF PARTIES.
4.1 SECTRAN agrees and acknowledges thaI:
4.1.1 SECTRAN is an independent contractor;
4.1.2 That nothing in this Agreement shall be considered to create an
employeelempJoyer relationship between CITY on one hand and
SECTRAN on the other hand.
4.2 SECTRAN is solely responsible for the payment of any taxes and/or assessments
imposed on account of the payment of consideration to, or the perfonnance of
services by SECTRAN pursuant to this Agreement including, without limitation,
any California Unemployment Insurance Taxes, Federal and State Income Taxes,
Federal Social Security payments and California Disability Insurance Taxes.
CITY shall not, by reason of SECTRAN'S status as an independent contractor
and the representations contained herein, make any withholdings or payments
under said taxes with respect to consideration paid to SECTRAN hereunder.
5. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
5.1
Without limiting any express financial or liability provisions provided for in this
Agreement, SECTRAN shall not be liable to CITY for any indirect,
consequential, exemplary, speciaJ, incident or punitive damages including,
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5.2
5.3
without limitation, lost business, revenue, profits or goodwill, arIsmg in
connection with this Agreement under any theory oftort, contract, warranty, strict
liability or negligence.
SECTRAN makes no warranties, express or implied as to any Services provided
hereunder. SECTRAN specifically disclaims any and all implied warranties,
including without limitation, any implied warranties of merchantability, fitness
for a particular purport or title or non-infringement ofthird party rights.
Notwithstanding the foregoing, SECTRAN'S total liability hereunder for
providing the SERVICES shall in no event exceed the lesser of:
(i) CITY'S proven direct damages, excluding interest thereon and excluding
any indirect, consequentia~ exemplary, special, incident or punitive
damages.
(ii) $200,000.00.
The foregoing limitation applies to all causes of action and claims, including,
without limitation Breach of Contract, Breach of Warranty, Negligence, Strict
Liability, Misrepresentation and other torts. It is further understood and agreed
that SECTRAN shall not be responsible for any loss or damage caused by hostile
or warlike action, civil disorders or any governmental action, whether such loss be
direct or indirect, proximate or remote.
5.4
CITY acknowledges and accepts the reasonableness of the foregoing disclaimer
and limitations of liability. Furthermore, CITY expressly agrees that the
consideration due SECTRAN for the SERVICES to be provided herein is based
upon the limited liability assumed by SECTRAN as described herein. In the
event the value of the contents of shipments exceeds $200,000.00 more than 15
times in any calendar month, the parties hereby agree to renegotiate the
compensation to be paid to SECTRAN in consideration of the increase in liability.
In the event the parties hereto agree on the revised terms to this Agreement,
SECTRAN shall increase the liability ceiling herein and increase the related
bonds and insurance policies.
6. DELIVERY OR LOSS.
6.1
Upon SECTRAN'S delivery, in.. marketable condition, of 100% of all the
PROPERTY items listed in the inventory for any SHIPMENT to the designated
recipient, SECTRAN'S liability with respect to such SHIPMENT shall
automatically terminate. In the event of non-delivery of a SHIPMENT,
SECTRAN'S liability with respect to such SHIPMENT shall automatically
terminate if SECTRAN returns to CITY, in marketable condition, 100% of all the
PROPERTY items listed in the inventory for that shipment of PROPERTY.
CITY assumes all liability for aU PROPERTY while in CITY'S control, on
CITY'S premises (unless the PROPERTY has already been transferred to
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SECTRAN) and/or within the possession, custody or control of CITY'S
employees, representative, agents or designees.
6,2
In the event of loss, the parties shall cooperate, in reviewing the events leading to
the loss, and shall reconstruct any lost checks. Subject to the cap on liability set
forth in Section 5.3, SECTRAN shall pay CITY:
a. The reasonable and necessary cost to reconstruct such checks;
b. The reasonable and necessary costs incurred in connection with stop
payment procedures; and
c. The face value of checks that could not reasonably be reconstructed.
In this Section 6.2, the words "reconstruct" and "reconstructed" shall mean efforts
designed to identifY:
(i) The maker or endorser of the check; and
6.3
(ii) The face wnount of the check.
CITY shall notifY SECTRAN in writing of any claimed loss (actuaJ or suspected)
within 24 hours after such Loss is sustained (or believed to have been sustained)
but in no event later than 90 days after CITY'S delivery of the PROPERTY to
SECTRAN. SECTRAN shall bear no liability whatsoever for any Loss (whether
discoverable or not) for which CITY fails to notifY SECTRAN within this
requisite 9O-day notice period. CITY shall furnish proof of loss in a fonn
reasonably satisfactory and shall promptly assist SECTRAN or its insurer in any
investigation pertaining or relating to said Loss. Upon payment of the Loss to
CITY, SECTRAN or its insurer shall be subrogated to CITY'S rights and
remedies of recovery to the extent of such payment.
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6.4 Notwithstanding any other provision hereof, SECTRAN shall not be liable for any
Loss caused by or resuJting from:
(i) Any hostile, terroristic or war-like action in time of peace or war including
counteraction taken to hinder, combat or defend against an actual,
impending or expected attack by any government or sovereign power
(dejure or de facto) or by any authority, agent or group maintaining or
using military, naval, air or combat forces.
(ii) Any weapon of war or weapon of mass destruction to include but not
limited to those employing atomic fission, radioactive force, nuclear
reaction, chemical reaction, biologicaJ reaction or radiation from any
atomic, nuclear or chemical impetus whether in time of peace or war.
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(iii) Any actual or perceived insurrection, rebellion, revolution, civil war, civil
unrest, riot, terrorism, usurped power, coup or action or any counteraction
taken by governmental, sovereign or military authority, agent or group to
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(iv)
(v)
(vi)
hinder, impede, combat or defend against such occurrence, aggression,
seizure or destruction whether controlled or uncontrolled and whether
such Loss is directly, indirectly, proximately or remotely caused by,
contributed to or aggravated by such peril(s) in whole or in part.
Any occurrence, seizure, destruction, quarantine and/or confiscation, for
any reason or no reason whatsoever, by any federal, state, county or local
governmental agency or public authority whether by formal or informaJ
order, decree, directive or request.
Any Loss whatsoever associated with, or merely suspected or believed to
be associated with, contraband of any kind, any unJawful transportation
thereof and/or any unlawful trade.
With respect to Sub-sections (iv) and (v) above, SECTRAN shall
voluntarily relinquish PROPERTY to any federal, state, county or local
governmental agency or public authority whether by formal or informal
order, decree, directive or request. SECTRAN shall have no duty or
obligation whatsoever to protest, refuse or challenge any such agency or
authority.
(vii) Any claimed shortage in or disappearance of any portion of the contents of
any SHIPMENT delivered to the designated recipient with the unopened,
undisturbed, unaltered identical seal or Jock affixed to the SHIPMENT by
the CITY.
(viii) Any Loss exceeding the maximum liability amount per SHIPMENT as set
forth in Section 5.3.
(ix)
(x)
(xi)
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Any Loss resulting from a failure to furnish service where such is
prevented by war, riot, civil unrest, natural disaster, fire, man-made
disaster, road/highway closure, act of God, strikes, labor disturbance,
lockout, epidemic, power failures, power surges, national, state, county or
local emergencies or any other condition, event or circumstance
SECTRAN determines to be commercially undesirable or which may
impair or impede the health, safety or welfare of SECTRAN'S employees,
CITY'S employees, third parties, the public or the cargo within
SECTRAN'S control.
Any breakage, damage to, crack, disfigurement or discoloration of any
statuary, marble, glassware, bric-a-brac, porceJain, artistic or any similar
fragile item or any part thereof.
Any omission by SECTRAN to accept any tender of PROPERTY, to
provide service or to provide timely service as scheduled at any location or
any Loss resulting from a delayed or untimely delivery of PROPERTY to
designated recipient.
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7.
INSURANCE.
SECTRAN shall have insurance as follows:
7.1 General Liability (jncludin~ premises and operations. contractuaJ liability.
personal il\iury. independent contractors liability). SECTRAN shall at all times
during the term of this Agreement carry, maintain, and keep in full force and
effect, a policy or policies of comprehensive General Liability insurance, with
limits of$I,OOO,OOO.OO for each occurrence and in the aggregate, combined single
limit, against any personal injury, death, loss or damage resulting from the
wrongfuJ or negligent acts or omissions of SECTRAN, its officers, employees,
agents and independent contractors. If such insurance contains a general
aggregate limit, either the general aggregate shall apply separately to this project,
or the general aggregate limit shall be 3 times the occurrence limit.
7.2 Automobile Liability (jncludin~ owned. non-owned and hired autos). SECTRAN
shall at all times during the Term of this Agreement also carry, maintain, and keep
in full force and effect a policy or policies of commercial automobile liability
insurance with a combined single limit of $1,000,000.00, single limit, per
occurrence for bodily injury and property damage, which will cover the drivers
and automobiles used to perform SERVICES pursuant to this Agreement. Such
insurance shall include coverage for owned, non-owned, and hired automobiles.
7.3
Workers' Compensation. SECTRAN shall, to the extent required by state law,
provide Workers' Compensation Insurance, including employer's liability
coverage, for the protection of SECTRAN's employees, with a minimum limit of
$1,000,000.00 or the amount required by Jaw, whichever is greater. SECTRAN
shall file a certificate of insurance which evidences that SECTRAN is in
compliance with said Workers' Compensation Insurance requirement. SECTRAN
shall require all subcontractors similarly to provide such Workers' Compensation
Insurance and certificates of insurance for their respective empJoyees.
7.4
The general liability policy shall be endorsed to state that CITY, its officers,
officials, employees, agents, representatives and volunteers (collectively
hereinafter "CITY" in this Section 7) shall be covered as additional insureds with
respect to the SERVICES performed by SECTRAN. The automobile liability
policy shall be endorsed to state that CITY shall be covered as additional insureds
with respect to the ownership, operation, maintenance, use, Joading or unloading
of any automobile owned, leased, hired or borrowed by SECTRAN or for which
SECTRAN is responsible.
7.5
The insurance provided by SECTRAN shall be primary to any coverage available
to CITY and shall provide that any insurance or self-insurance maintained by City
shall be in excess of SECTRAN' s insurance and shall not contribute with it.
7.6
The insurance provided by SECTRAN shall be endorsed to state that the insurer
shall waive all rights of subrogation against CITY.
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7.7
The policy or policies required herein shall be issued by an insurer admitted in the
State of California with a rating of at least B+, VII in the latest edition of A.M.
Best's insurance guide.
7.8 The certificates and endorsements for each insurance policy shall be signed by a
person authorized by that insurer to bind coverage on its behalf. The certificates
shall also specifically state that the coverage contained in those policies affords
insurance in compliance with the terms and conditions as set forth in this
Agreement.
7.9 Deductihles. Any deductibles or self-insured retentions must be declared to and
approved by CITY prior to the execution of this Agreement by CITY. At the
option of CITY, either the insurer shall reduce or eliminate the deductibles or self.
insured retentions as respects CITY, or SECTRAN shall procure a bond
guaranteeing payment of losses and expenses.
7.10 Notice of Policy Chan~es. Each such insurance policy shall be endorsed to state
that coverage shall not be suspended, voided, cancelled, reduced in coverage or in
limits, non-renewed, or materially changed for any reason, without 30 days prior
written notice thereof given by the insurer to CITY by U.S. mail, certified, or by
personal delivery. In addition to such notice provided to CITY by the insurer,
SECTRAN shall also provide CITY with 30 days prior written notice, by certified
mail return receipt requested, of the suspension, voiding, cancellation, reduction
in coverage or in limits, non-renewal, or material change for any reason, of any
such insurance policy or policies.
7.11
Evidence of Covera~e. At all times during the term of this Agreement,
SECTRAN shall maintain on file with the City Clerk a certificate or certificates of
insurance in a form provided by the City, showing that the aforesaid policies are
in effect in the required amounts, the additional insureds are named therein, and
the policies cannot be cancelled, reduced or otherwise modified except with 30
days written notice by the insurance carrier to the CITY. The duplicate originals
and original endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. The certificates shall
also specifically state that the coverage contained in those policies affords
insurance in compliance with the terms and conditions as set forth in this
Agreement. The procuring of such insurance or the delivery of duplicate originals
and endorsements evidencing the same shall not be construed as a limitation on
SECTRAN's obligation to indemnify City and City Personnel.
7.12
Nothing contained herein shall be construed as limiting in any way SECTRAN's
obligations of indemnification under Section 9 or any other extent to which
SECTRAN may be held responsible for payment of damages to persons or
property resulting from its operations.
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8.
ARBITRATION.
The parties agree to submit any dispute relating to the SERVICES, or payment or non-
payment therefor, to non-binding arbitration. As a condition precedent to arbitrating any dispute,
the aggrieved party shall first submit to the other party a detailed demand setting forth all known
or reasonably believed facts, dates, involved persons, witnesses, calculation of losses, damages
and all other pertinent facts along with all available supporting or corroborating documentation.
Within 30 days of receiving such demand, the other party shall, in a like manner and like form,
respond thereto. Should the parties not resolve the dispute, each agrees that the claim or
controversy shall be submitted to arbitration. The American Arbitration Association rules
respecting commercial disputes shall govern the proceedings. However, this Agreement shall be
interpreted pursuant to California contract law. The proceedings shall take place in either
Orange County, California or Los Angeles County, California. The arbitrator shall be mutually
chosen by the parties from a panel of qualified persons knowledgeable in the field of commercial
disputes and shall be a current or former California jurist. The parties shall equally share
arbitration costs and fees during the resolution process but such fees and costs shall be
reimbursed to the prevailing party. The losing party shall pay the prevailing party all attorneys'
fees, legal costs, arbitration fees, investigative costs and photocopying costs incurred in the
course of arbitration or litigation. The parties waive all rights to request or to recover in any
action punitive damages, exemplary or treble damages, loss of business income, loss of good will
as well as incidental and consequential damages as such are subject to speculation, conjecture
and are costly to prove to the requisite standard of proof. It is agreed without any reservation
whatsoever that any arbitration, action, suit, or proceeding should be commenced within 12
months of the date any claim or loss is discovered. Notwithstanding the above, it is hereby
acknowledged and agreed to by the parties hereto that no arbitration award in favor of CITY
shall exceed the cap on liability as described in Section 5 hereof, and no arbitration award in
favor of SECTRAN shall exceed the figure claimed by SECTRAN to be the amount owed by the
CITY fur SERVICES rendered.
9. INDEMNIFICATION.
9.1
SECTRAN shall defend, indemnify, and hold CITY harmless from all losses,
claims of losses, damages, claims, liability and expenses (including without
limitation, court costs and attorneys' fees) arising out of the acts, omissions or
misconduct of SECTRAN, its officers, agents, employees, or authorized
representatives.
9.2
CITY shall defend, indemnify, and hold SECTRAN harmless from all losses,
claims of losses, damages, claims, liability and expenses (including without
limitation, court costs and attorneys' fees) arising out of the acts, omissions or
misconduct of CITY, its officers, agents, employees, or authorized
representatives.
9.3
The provisions of this Section 9 shall survive the termination of this Agreement.
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10.
TERMINATION.
The following events shall, at the nondefaulting party's option, constitute a default and
result in the termination of this Agreement:
10.1 Breach or default of any of the terms, obligations, covenants, or representations
under this Agreement, which is not waived in writing by the nondefaulting party.
lO.2 Either party makes a general assignment for the benefit of creditors.
10.3 A receiver of all or substantially all of the property of either party is appointed
and not removed within 30 days.
10.4 Either party files a petition for reorganization under the provision of federal
bankruptcy laws.
lO.5 Either party files a petition for an arrangement under federal bankruptcy laws.
10.6 Either party becomes or is declared insolvent.
10.7 Either party files a petition in bankruptcy or is adjudged bankrupt.
11. PROTECTION OF CONFIDENTIAL TRADE SECRETS AND PROPRIETARY
INFORMATION.
11.1 All ideas, memoranda, specifications, plans, procedures, drawings, descriptions,
computer program data, input record data, written information, and other
documents and data provided to SECTRAN in connection with the performance
of this Agreement shall be held confidential by SECTRAN. Such materials shall
not, without the prior written consent of CITY, be used by SECTRAN for any
purposes other than the performance of the SERVICES. Nor shall such materials
be disclosed to any person or entity not connected with the performance of the
SERVlCES. Nothing furnished to SECTRAN that is otherwise known to
SECTRAN or is generally known, or has become known, to the related industry
shall be deemed confidential. SECTRAN shall not use CITY's name or insignia
for any publicity pertaining to the SERVICES provided under this Agreement in
any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of CITY.
11.2
SECTRAN's failure to comply with the provision of this Section II shall give
CITY the right, in addition to all other remedies CITY may have, to seek _
injunctive relief and to terminate any benefit or compensation to which
SECTRAN may be otherwise entitled following termination of this Agreement
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12.
CONTROLLING LAW.
The validity, interpretation, and performance of this Agreement shall be controlled by
and construed under the laws of the State of California, the State in which this Agreement is
being executed.
13. ASSIGNMENT.
Neither party shall have the right to assign this Agreement without the prior consent of
the other party in writing.
14. ATTORNEYS' FEES.
In the event arbitration or litigation is brought to enforce or interpret any term or
condition of this Agreement, the prevailing party shall be entitled to reimbursement of all
attorneys' fees and costs incurred in connection with such enforcement or interpretation
proceeding, in addition to any other damages determined by the arbitrator or court.
15. COMPLETENESS OF INSTRUMENT.
This instrument contains all of the agreements, understandings, representations,
conditions, warranties, and covenants made between the parties hereto concerning the subject
matter herein contained. Unless set furth herein, neither party shall be liable for any
representations made and all modifications and amendments hereto must be in writing.
16. MISCELLANEOUS PROVISIONS.
16.1 SECTRAN reserves the right to increase service fees and charges upon thirty (30)
days written notice.
16.2 CITY agrees the maximum value of PROPERTY SECTRAN will transport in any
individual container shall not exceed $200,000. If the value of a SHIPMENT
exceeds that amount, the CITY shall place the excess PROPERTY in a sufficient
number of containers so that no single container contains PROPERTY in excess
of that amount prior to SECTRAN's acceptance ofa SHIPMENT.
16.3 Exhibit A sets forth SECTRAN'S base charges. In the event CITY requires
additional service time per stop in excess of the first 5 minutes, CITY shall pay an
additional charge of $3.00 per minute thereafter. However, SECTRAN reserves
the right to depart from any CITY location any time a SHIPMENT is not ready or
CITY'S designated recipient is not available to accept a SHIPMENT as time is of
the essence in SECTRAN'S ability to timely serve all of its customers. In the
event CITY requests SECTRAN to return at any time after SECTRAN has
departed pursuant to this Sub-section 16.3, SECTRAN will charge CITY a special
rescheduling charge as to which SECTRAN will quote prior to rendering service.
16.4 In the event CITY requests SECTRAN to search for and produce copies of
documents, receipts, forms, transportation logs, deposit receipts with CITY's
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financial institution or consignee or any other business record, SECTRAN shall
assess CITY a research fee of $45.00 an hour to cover SECTRAN'S
administrative and labor costs associated with the requested research.
17.
NOTICES
Any notice, request, demand or other communication required or permitted hereunder
shall be deemed to be properly given when deposited in the United States mail, postage prepaid:
17.1 In the case of SECTRAN to Rony Ghaby or to such other person or address as
SECTRAN may from time to time furnish to CITY.
17.2 In the case of CITY to the attention of the City Manager at City Hall, 211 8th
Street, Seal Beach, Califomia 90740 or to such other person or address as CITY
may from time to time furnish to SECTRAN.
l8.
The parties and their respective employees promise, without exception and without
reservation, that they shall make no use or disclosure of; other than for purposes of
performance hereunder or as may be required by law, the other's mode or method of
operation, security measures, SECTRAN'S routes, SECTRAN'S pick up schedule,
CITY'S safes, CITY'S deposits, the identity of CITY'S financial institutions or
consignees or any other non public proprietary arid confidential information or
documentation. Should either party receive service of legal process to compel such
disclosure or production, that party shall immediately notify the other such that the
affected party may timely object to such disclosure or production if it so desires.
19. In the event one or more of the provisions contained in this Agreement is deemed invalid,
illegal or unenforceable in any respect by an arbitrator or a court of competent
jurisdiction, the validity, legality and enforceability of the remaining provision shall not
in any way be affected or impaired. Further, the offending term shall be automatically
rewritten, as minimally as necessary, to cure such invalidity, illegality or defect.
20. It is agreed there is no relationship between SECTRAN and CITY other than as expressly
stated herein. Neither CITY nor SECTRAN is the agent, principal, employee,
representative, consultant, or independent contractor of the other.
21. This Agreement may be terminated for cause by either SECTRAN or CITY. Should a
party seek to terminate this Agreement for cause, written notice of such intent shall be
given to the other party, with particularity, the acts and/or omissions creating the
circumstances justifying termination. The party receiving such notice shall respond in
writing within 30 days and shall state the terms upon which it intends to cure the act or
omission warranting termination. Should receiving party not cure the circumstance(s)
giving rise to the termination notice to the complaining party's reasonable satisfaction,
the complaining party may terminate this Agreement effective the 30 days following
delivery of the notice of termination.
22. This Agreement may not be altered, modified, or superceded except by a written
: agreement executed by the parties' authorized officer or by a written memorandum
l20fl4
S7296-000 1 \1 034 797v4.doc
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Executed on
executed by the party against whom enforcement is sought. This Agreement and its
exhibit constitute the parties' entire Agreement. Absolutely no representation,
inducement, promise, understanding, agreement, or trade puffery shall have any force,
effect, or sustained reliance once this Agreement is executed. Each signatory, on behalf
of hislher party, represents he/she read and understood each term and condition of this
Agreement before executing. Each represent he/she is an authorized signatory with the
right, power and authority to bind the respective party.
, 2008 at
CITY OF SEAL BEACH
SECTRAN
By:
Attest:
By:
~..<h-
By:
David Carmany, City Manager
Leonard Karsana, CFO
Linda Devine, City Clerk
Approved as to Form:
By:
Quinn Barrow, City Attorney
sn9~Ool\1034797v4.doc
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EXHIBIT A
Call At: CITY OF SEAL BEACH CITY HALL) 211 EIGHTH STREErICENTRAL
Armored Truck ServicelDelive~ (, ~ BIA CCV Mon Tue Wed Thu Fri
Armored Truck ServicelPick Un ~ BI A CCV Mon Tue Wed Thu Fri S438/Month
Maximum Li.bilitv: $200 000 Total Monthlv ChRroes for this Stan: $438
Off D.v Schedule Pick Un/Delive"" $50ID.v
Tot.1 Monthlv Charaes for this Contract: $438. olus . Fuel Surcharoes Rate of 6%
S7296-000 1\ I 034797v4.doc
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