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HomeMy WebLinkAboutContractAGREEMENT FOR NON-EXCLUSIVE ONLINE AUCTIONEERING SERVICES THIS AGREEMENT, dated for reference purposes only as December 01, 2025, is by and between the City of Renton (the “City” /”Consignor”/”Seller”), a Washington municipal corporation, and James G. Murphy Co (“Consultant”/”Auctioneer”), Washington Corporation . The City and the Consultant are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties. 1. Scope of Work: Consultant agrees to provide Auctioneering Services for Rolling stock, including vehicles and equiqment as specified in Exhibit A, which is attached and incorporated herein and may hereinafter be referred to as the “Work.” 2. Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Work consisting of additions, deletions or modifications. Any such changes to the Work shall be ordered by the City in writing and the Compensation shall be equitably adjusted consistent with the rates set forth inExhibit A or as otherwise mutually agreed by the Parties. 3. Time of Performance: Consultant shall commence performance of the Agreement pursuant to the schedule(s) set forth in Exhibit A. All Work shall be performed by no later than December 31, 2026. 4. Compensation: A. Amount. Total compensation to Consultant for Work provided pursuant to this Agreement shall not exceed $49,950.00, plus any applicable state and local sales taxes. Compensation shall be paid based upon Work actually performed according to the rate(s) or amounts specified in Exhibit A. Work shall remain locked at the negotiated rate(s) unless otherwise agreed to in writing or provided in Exhibit A. Except as specifically provided herein, the Consultant shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. B. Method of Payment. Payment is as set forth in Exhibit A ! "       CAG-26-012 PAGE 2 OF 15 C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Consultant for failure of the Consultant to perform the Work or for any breach of this Agreement by the Consultant. D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5. Termination: A. The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten(10) calendar days’ notice to the Consultant in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Consultant pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. (Also See Exhibit A Paragraph 22 for Termination by Auctioneer) B. In the event this Agreement is terminated by the City, the Consultant shall be entitled to payment for all hours worked, including necessarily, but not limited to, all commissions and applicable expenses earned, to the effective date of termination, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation is a fixed fee, the City shall pay the Consultant an equitable share of the fixed fee. This provision shall not prevent the City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the City shall be deducted from the final payment due the Consultant. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the City. 6. Warranties: Consultant represents and warrants that Consultant will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards and laws. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Record Maintenance: The Consultant shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. The Consultant agrees to provide access ! "        PAGE 3 OF 15 to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 8. Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Consultant shall make a due diligent search of all records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Consultant believes said records need to be protected from disclosure, it may, at Consultant’s own expense, seek judicial protection. Consultant shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Consultant has responsive records and for which Consultant has withheld records or information contained therein, or not provided them to the City in a timely manner. Consultant shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Independent Contractor Relationship: A. The Consultant is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Consultant and the City during the period of the Work shall be that of an independent contractor, not employee. The Consultant, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Consultant shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Consultant shall retain the right to designate the means of performing the Work covered by this agreement, and the Consultant shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Consultant is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to Consultant or any employee of the Consultant. ! "        PAGE 4 OF 15 C. If the Consultant is a sole proprietorship or if this Agreement is with an individual, the Consultant agrees to notify the City and complete any required form if the Consultant retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Consultant’s failure to do so. 10. Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the Consultant in its performance of this Agreement or a breach of this Agreement by Consultant, except for that portion of the claims caused by the City’s sole negligence. Per the terms in Exhibit A Paragraphs 17, 18, 19 and 20 the City agrees to indemnify the Auctioneer. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees and volunteers, Consultant’s liability shall be only to the extent of Consultant’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Consultant’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance with the City’sCode of Ethics and state law, the Consultant shall not give a gift of any kind to City employees or officials. Consultant also confirms that Consultant does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Consultant, negotiating or administering this Agreement, or evaluating the Consultant’s performance of the Work. ! "        PAGE 5 OF 15 12. City of Renton Business License: Unless exempted by the Renton Municipal Code, Consultant shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: https://www.rentonwa.gov/Tax Information regarding State business licensing requirements can be found at: https://dor.wa.gov/doing-business/register-my-business 13. Insurance: Consultant shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability, Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. "Professional Services", for the purpose of this section, shall mean any Work provided by a licensed professional or Work that requires a professional standard of care. C. Workers’ compensation coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Consultant’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes. E. Consultant shall name the City as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Consultant liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of Consultant to the coverage provided by such insurance or otherwise limit the City’s recourse to any remedy available at law or in equity. F. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before performing the Work. G. Consultant shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. ! "        PAGE 6 OF 15 14. Delays: Consultant is not responsible for delays caused by factors beyond the Consultant’s reasonable control. When such delays beyond the Consultant’s reasonable controloccur, the City agrees the Consultant is not responsible for damages, nor shall the Consultant be deemed to be in default of the Agreement. 15. Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. 16. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission. Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. CITY OF RENTON Jeffrey Perrigo 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-7254 jperrigo@rentonwa.gov CONSULTANT Todd Meyers 3803 136th Street NE Marysville, WA 98271 Phone: (425) 486-1246 Todd@murphyauction.com 17. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Consultant agrees as follows: A. Consultant, and Consultant’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Consultant will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, ! "        PAGE 7 OF 15 color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If the Consultant fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. The Consultant is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 18. Miscellaneous:The parties hereby acknowledge: A. The City is not responsible to train or provide training for Consultant. B. Consultant will not be reimbursed for job related expenses except to the extent specifically agreed within the attached exhibits. C. Consultant shall furnish all tools and/or materials necessary to perform the Work except to the extent specifically agreed within the attached exhibits. D. In the event special training, licensing, or certification is required for Consultant to provide Work he/she will acquire or maintain such at his/her own expense and, if Consultant employs, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. E. This is a non-exclusive agreement and Consultant is free to provide his/her Work to other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. F. Consultant is responsible for his/her own insurance, including, but not limited to health insurance. G. Consultant is responsible for his/her own Worker’s Compensation coverage as well as that for any persons employed by the Consultant. 19. Other Provisions: ! "        PAGE 8 OF 15 A. Approval Authority. Each individual executing this Agreement on behalf of the City and Consultant represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Consultant. B. General Administration and Management. The City’s project manager is JEFFREY PERRIGO. In providing Work, Consultant shall coordinate with the City’s contract manager or his/her designee. C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Consultant proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Consultant prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. Consultant and all of the Consultant’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Consultant hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Consultant is a foreign corporation not registered with the State of Washington. H. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. ! "        ! "          #  PAGE 10 OF 15 Approved as to Legal Form By: ____ŚĞƌLJů>͘ĞLJĞƌϭϮͬϵͬϮϱ______________________ Cheryl L. Beyer Senior Assistant City Attorney Contract Template Updated 5/21/2021 Clb 11/19/25 3620 NS ϭϮͬϵͬϮϱ ! "        PAGE 11 OF 15 Exhibit A SCOPE OF WORK, PAYMENT AND OTHER PROVISIONS - FOR ONLINE AUCTIONEERING SERVICES James G. Murphy Co. – “Auctioneer” Commercial/Industrial/Real Estate Auctioneers Appraisals/Liquidations P.O. Box 1127 • Marysville, WA 98270 3803 136th St. NE • Marysville, WA 98271 (425) 486-1246 • murphyauction.com CITY OF RENTON – CONSIGNOR # 9123 CONSIGNOR/Seller INFORMATION Business Address: 1055 South Grady Way RENTON WA 98057 PHONE 425-430-7254 EMAIL jperrigo@rentonwa.gov CONTACT JEFFREY PERRIGO Pick up location: Public Works Shops 3555 NE 2nd Street Renton, WA 98056 1. Consignor engages the Auctioneer to sell Consigned Articles at public online-only auction. All aspects of the auction, including preparation, advertising, determination of lots, conduct of the sale including terms of sale, qualification of bidders, and completion of all matters relating to the auction, shall be solely within the discretion and control of the Auctioneer. Auctioneer, as compensation, will charge The City, as Consignor, a Commission on all Consigned Articles as set forth in Paragraph 4 below and will charge the auction buyers a Buyer’s Premium as unilaterally set by Auctioneer. A Buyer’s Premium is a price the buyer(s) are required to pay that is in addition to the hammer price (winning bid) for a particular item. 2. Consignor acknowledges and agrees that Auctioneer makes no promises regarding the availability of its online service or the proceeds of the sale to be realized as a result of the use of online bidding services. Consignor/Seller further acknowledges and agrees that Auctioneer has the discretion to start and stop the online bidding software at the time and interval(s) it unilaterally determines fit for the sale. Consignor/Seller specifically agrees that Auctioneer will not be liable to Consignor/Seller for any lost profits, lost revenues, damages, costs or charges arising from (1) the failure of the internet, the software Auctioneer utilizes, services or other computer communications components and systems, regardless of whether such failure is ! "        PAGE 12 OF 15 caused by the negligence of Auctioneer; (2) Auctioneer’s decision whether or not to use such software, technologies or systems; or (3) Auctioneer’s failure to offer such systems at any time. 3. There are no minimum or reserve prices on the Consigned Articles, and Auctioneer will not guarantee any selling price for said articles. Neither Consignor, nor anyone acting for Consignor, may bid on or buy-back any item Consignor has consigned to auction. In the event Consignor directly or indirectly interferes with the auction, Auctioneer may, at its sole discretion and option (a) ban Consignor from participating in Auctioneer’s auctions; and/or (b) cancel any involved transaction(s). 4. Consignor agrees to pay Auctioneer a commission (commission rates are based on total sales for each auction), delivery cost (if applicable), and its expenses and other charges for selling the Consigned Articles, as follows: Commission: Heavy Equipment/Rolling Stock 10% Misc. Equipment/Tools 20% Other Charges: VEHICLE TRANSPORT FROM RENTON TO MARYSVILLE: $250.00/ PER VEHICLE $450.00/ PER CDL VEHICLE **NO OTHER CHARGES EXCEPT BY MUTUAL AGREEMENT** 5. At the completion of the auction, Auctioneer shall furnish to Consignor a list of the Consigned Articles sold together with the sale prices obtained. After deducting from the auction proceeds all amounts due Auctioneer under this agreement (including amounts for commission, reimbursable expenses, and indemnification), and any amounts necessary to pay other parties (including lienors) as may be required by law or under this agreement, Auctioneer shall pay to Consignor the net proceeds within 21 days after the auction. Payment by cheque will only be made out to the Consignor identified herein. Payment by electronic funds transfer will only be made to a bank account confirmed to belong to Consignor. 6. Consignor agrees not to sell or in any manner dispose of any of the Consigned Articles prior to auction. If Consignor sells or disposes of any of the Consigned Articles prior to auction, Consignor shall reimburse Auctioneer for commission on any article thus sold or disposed of (as well as for any reimbursable expenses and indemnification due Auctioneer under this agreement for said articles, further including any Buyer’s Premium if applicable) as if the article(s) had been sold at auction. Further, Auctioneer may deduct any commission, buyer’s premium, reimbursable expenses, and indemnification due on any such article from the proceeds of Articles consigned by Consignor that were sold at auction. ! "        PAGE 13 OF 15 7. Consignor warrants that he has full authority to sell Consigned Articles and further, that he will make available all necessary documents of title within three (3) days prior to the day of auction. 8. Consignor warrants and guarantees that his title to the Consigned Articles is unencumbered and free from any liens. 9. If there are any liens or encumbrances of any kind against the Consigned Articles, Consignor authorizes Auctioneer to deduct amounts from the auction proceeds with which to pay off lienholder(s) and all encumbrances. Auctioneer shall deduct all amounts owing to Auctioneer before making payments to lienholder(s). Notwithstanding the foregoing, Auctioneer shall have no duty to determine the existence of liens, or to pay lienors. 10. Consignor assumes all risk of loss to the Consigned Articles until such risk passes to buyer after the items have been removed from the auction site. Auctioneer is not responsible for fire, theft, vandalism, or other losses. It is the Consignor's responsibility, at his sole expense, to keep said articles insured until such risk passes to buyer. For the avoidance of any doubt, risk of loss does not transfer to the buyer until the items have been successfully removed from the auction site. All Consigned Articles must be fully insured by the Consignor through completion of the auction and buyer removal from the auction site. 11. Consignor warrants to Auctioneer, solely for the protection of Auctioneer, that there are no known hidden defects in articles sold or to be sold. 12. Auctioneer agrees to collect sales tax as required under state law and remit such sales tax to the state. 13. Consignor hereby engages Auctioneer as the agent of Consignor for purposes related to the auction. Auctioneer shall have authority to execute bills of sale to purchasers at the auction, and to receive, demand, and collect sale proceeds. 14. Auctioneer does not guarantee that any sale to a bidder at the auction will be completed. If for any reason a bidder refuses to pay for an auctioned item prior to removal of the item from the auction site, Auctioneer may, at its option, return the item in question to Consignor (in which case Auctioneer shall not be required to make any payment to Consignor), Auctioneer may also offer item to the second highest bidder or re-auction such item within a reasonable time after the auction specified herein. 15. Auctioneer may charge Consignor for actions required to prepare the Consigned Articles for auction. With the prior agreed consent of the Consignor. ! "        PAGE 14 OF 15 16. Consignor authorizes Auctioneer to start and move equipment in the auction area. 17. Consignor assumes, and indemnifies Auctioneer from, all risk and liability which may arise from the failure of the Consigned Articles to comply with government laws and regulations, including environmental regulations, and Consignor shall pay all costs of cleanup of such articles and any other costs incurred due to failure of the goods to comply with government laws and regulations, including any costs or liability associated with environmental pollutants of any of the Consigned Articles for auction. 18. Consignor will indemnify Auctioneer from any loss, casualty, or liability (including attorney’s fees, costs, expenses, settlements and judgments) incurred by or threatened against Auctioneer by any third party from any claim (whether or not suit is filed) not the fault of Auctioneer, including but not limited to, the following matters: claims asserting defects in Consignor 's title or in Consignor 's authority to consign for auction any goods sold or to be sold; encumbrances against or defects in title to, or taxes payable relating to the Consignor’s goods, injury (including environmental injury) resulting from any goods sold or to be sold; the spill or release, unintentional or otherwise, of any toxic, dangerous or hazardous chemicals, materials, substances, pollutants or wastes, or any other requirements relating to pollution or protection of health and safety of the environment, or claims caused by any breach of this agreement by Consignor. Consignor authorizes Auctioneer to withhold net auction proceeds as necessary to assure Auctioneer of indemnification hereunder, but Consignor's obligation to indemnify shall not be limited to amounts withheld (if any). 19. Consignor acknowledges that Auctioneer may in its sole discretion assist in the unloading of Consignor’s goods at the auction site location. In the event this occurs, Consignor agrees to waive, release, defend, indemnify and hold Auctioneer harmless from and against any and all claims, actions, losses, injuries, damages, expenses, costs, liabilities, or potential liabilities, including, without limitation, any injury to Consignor or Consignor’s agents, employees, or subcontractors, or any damage to Consignor’s personal property or the property of others, arising in connection with: (1) the unloading of goods; (2) Consignor’s or its transportation representative’s presence on Auctioneer’s property; (3) any of the activities Consignor or its transportation company carries out on Auctioneer’s property; (4) any assistance provided to Consignor or to its transportation company by Auctioneer’s personnel; and (5) use of Auctioneer’s equipment. Consignor expressly acknowledges and agrees that Consignor will be solely responsible for any injury to Consignor or any other person (including Consignor’s agents, employees or subcontractors), fines, or for any damage to Consignor’s property or the property of others (specifically including, but not limited to, Consignor’s transportation company’s property) caused by this action. 20. Consignor will indemnify Auctioneer for all attorney’s fees and costs (whether or not suit is filed) incurred by Auctioneer to enforce any term of this agreement, or to determine conflicting or uncertain claims by third parties to the auction proceeds, whether by negotiation, arbitration, or commencement of suit (including interpleader action). Consignor authorizes ! "        PAGE 15 OF 15 Auctioneer to withhold net auction proceeds as necessary to assure reimbursement of Auctioneer for attorney’s fees and costs hereunder, but Consignor's obligation to indemnify shall not be limited to amounts withheld (if any). 21. Auctioneer may, in its unilateral discretion, apply and withhold auction proceeds towards any outstanding amounts otherwise due and owing to Auctioneer in connection with any purchases, deficiencies or services rendered by Auctioneer. 22. Auctioneer shall have the right, in its sole discretion, to terminate this Agreement in whole or in part if (a) there are any encumbrances on equipment which were not disclosed and agreed to in advance by Auctioneer; (b) your net proceeds are insufficient to discharge creditor claims and pay Auctioneer its compensation due under this Agreement; (c) your lien holders are unwilling to release liens and/or allow any of the Consigned Articles to be sold; (d) you have provided inaccurate, fraudulent, outdated or incomplete information regarding the Consigned Articles; or (e) you are in breach of this Agreement. In the event of termination, in addition to any other remedies available to the Auctioneer, you agree to pay Auctioneer its incurred costs and expenses in preparing the Consigned Articles for auction. In the event of termination as a result of items (d) or (e) of this Paragraph, you agree to pay Auctioneer 25% of the estimated market value for the Consigned Articles as unilaterally determined by Auctioneer. 23. In the case of conflicting or uncertain claims (including Consignor's and/or Auctioneer's claims) to the auction proceeds, Auctioneer may obtain determination of those claims (including filing of suit for interpleader) for the protection and release of Auctioneer from any further liability for the auction proceeds. In case of interpleader, Auctioneer may deduct all commissions, expenses and indemnification amounts to which Auctioneer is entitled under this agreement before the net proceeds are interpleaded. 24. N/A see Paragraph 19 I of Agreement. 25. N/A see Paragraphs 19 E and G of Agreement. 26 The Parties agrees and acknowledges that any claim arising out of or relating to this Agreement must be commenced within six months after the dispute arose, and if not commenced timely, shall be permanently waived and time barred. ! "