HomeMy WebLinkAbout22 - Bus Shelter Contract•
TO:
FROM:
SUBJECT:
•
January 22, 1996
CITY COUNCIL AGENDA
ITEM NO. 21
MAYOR AND MEMBERS OF THE CITY COUNCIL
Public Works Department
BUS SHELTER CONTRACT
RECOMMENDATION:
JAN 2 2
(�0
1. Direct staff to negotiate an extension of the current bus shelter contract with
Metro Display Advertising, Inc.; OR
2. Direct staff to prepare a Request For Proposal and disseminate it to all
interested bus shelter companies.
BACKGROUND:
The City implemented a bus shelter program in December 1984. The initial bus
shelter contract was for a period of one year and was limited to a maximum of ten
shelters. The ten shelter limitation was incorporated in the contract because of
concern that bus shelter advertising on public sidewalks might not be acceptable to
the community.
Following expiration of the initial contract, the City maintained a month -to -month
agreement with the bus shelter vendor, until a new five year contract was approved.
The new contract was due to expire in May 1991. However in mid -1990, the vendor
encountered financial difficulties. Thereupon, the vendor expressed the desire to sell
the shelters to another vendor. Given that the existing contract precluded assignment
to another vendor, the City entered into a new contract (see Exhibit 1) with the new
vendor. The term of this latest contract expired last month, but has been continued on
a month -to -month basis pending Council's direction to staff.
The contract also contains provision for a five -year extension. The vendor, Metro
• Display Advertising, Inc. (MDA) has expressed an interest in extending the contract,
with some modifications. The current contract revenue is based on a monthly fee per
shelter with the City now receiving $4202 per month for the 22 shelters listed on
EXHIBIT 2. The vendor proposes to adjust the advertising revenue to the City to a
fixed amount of $5000 per month, exclusive of the number of shelters in place. MDA
also proposes to delete the provision requiring them to pay $5000 for any new
shelters that are approved. A number of additional modifications pertaining to
maintenance provisions, pay phones, advertising policies, etc., were also proposed.
Staff made a recommendation to the Utilities/Public Works Committee (Committee) to •
direct staff to negotiate an extension to the contract. This recommendation was based
upon MDA's proven performance record as a competent, responsive provider of
shelter services. Cities that have vendors other than MDA have indicated to staff that
they have experienced problems with shelter maintenance and installation. Staff has
not experienced these problems with MDA. An additional factor in the
recommendation was the fact that MDA proposed to continue paying the City notably
more than other cities were receiving in monthly revenue. However, it was noted that
a comparison of what other companies might propose in terms of revenue to the City,
would not be known unless a Request For Proposal (RFP) was disseminated to
other vendors. After discussing this issue, the Committee elected to submit the issue
to the City Council for consideration.
DISCUSSION:
MDA has submitted a letter outlining their position on the current contract and why
they feel that the City should negotiate the extension as provided for in the contract,
rather than going through the RFP process. Staff disagrees with some of the points
made in that letter and has responded accordingly. Copies of both letters are •
attached for your information.
Staff believes that MDA is a competent, responsive vendor which, over the years, has
not required an excessive amount of staff time to maintain compliance with the
contract. A new vendor represents an unknown in terms of proven performance
record. Problems, such as those experienced by other cities, could necessitate
increased staff time to maintain contract compliance. Although this issue is an
intangible that cannot be used in evaluating prospective vendors, it has the potential
to offset any increase in revenue that might result from changing vendors.
Respectfully submitted,
C;�PUB`LIC WORKS DEPARTMENT
Don Webb, Director
By:
Richard M. Edmonston
Traffic Engineer
Attachment: EXHIBIT 1 - Bus Shelter Contract
EXHIBIT 2 - Current shelter locations
EXHIBIT 3 - Letter from MDA dated 12/13/95
EXHIBIT 4 - Letter to MDA from City dated 1112196
•
BUS SHELTER LOCATIONS
As of January 1, 1996
•
1.
Coast Highway @ Orange Street (E/B)
2.
Coast Highway @ Prospect Street (E /B)
3.
Coast Highway @ West Newport Park (E /B)
4.
Coast Highway @ Avocado Avenue (W /B)
5.
Coast Highway @ Marguerite Avenue (W /B) - no advertising
6.
Newport Boulevard @ Hospital Road (NIB)
7.
Newport Boulevard @ Hospital Road (SIB)
S.
Balboa Pier
9.
Balboa Boulevard @ 23rd Street (W /B)
10.
Balboa Boulevard @ 32nd Street (W /B)
11.
Balboa Boulevard @ River Avenue (W /B)
12.
Balboa Boulevard @ 46th Street (E/B)
13.
Campus Drive @ MacArthur Boulevard (E /B)
14.
MacArthur Boulevard @ Birch Street (SIB)
15.
MacArthur Boulevard @ Bowsprit (SIB)
16.
Dover Drive @ Coast Highway (NIB) .
17.
Dover Drive @ 16th Street (NIB)
•
18.
Newport Center Drive @ Newport Center Drive (SIB)
19.
Jamboree Road @ University Drive (NIB)
20.
Irvine Avenue @ Mesa Drive (NIB)
21.
San Miguel Drive @ Port Ramsey (NIB)
22.
San Miguel Drive @ Spyglass Hill Road (NIB)
23.
Westcliff Drive @ Irvine Avenue (E/B)
•
(E/B means the shelter is for eastbound busses)
EXHIBIT 2
• •
METRO
DISPLAY
Advertising, Inc.
15265 Alton Parkway, Irvine, CA 92718
Phone: (714) 727 -3333 Fax: (714) 727 -4444
December 13, 1995
Richard Edmonston
Traffic Engineer
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92659
Re: Clarification of Bus.Shelter Program History
Dear Rich:
�"_ 2 2
Thank you for recognizing the hard work and quality service Metro Display Advertising has
provided the City of Newport Beach over the last five years. I have clarified some issues
raised at the Utilities Committee meeting:
I
n
C
C
1985 agreement was with InterCity Shelters
MDA negotiated a NEW agreement in 1990, did not renew InterCity
Shelters' contract.
Metro negotiated and offered revenue to the City based on a ten year
agreement.
Metro offered $5,000 signing bonus based on ten year agreement
• City desired to have five plus five rather than ten year fixed in case
Metro did not fulfill their commitment of non - offensive advertising.
0 Metro is seeking an EXTENSION, not a renegotiation. The contract, as
written, contemplates this.
InterCity Shelter was the contractor until 1989 when Metro Display Advertising bought out
InterCity Shelters's agreements with various cities including Newport Beach.
EXHIBIT 3
i
NEWPORT BEACH
DECEMBER 13, 1995
• PAGE 2
The agreement between InterCity Shelters and Newport Beach had very specific language
regarding assignment of the agreement, guaranteed fees, number of shelters, and contract
extension. The agreement between Metro Display Advertising and Newport Beach was
executed four and a half months prior to the end of the InterCity Shelters' agreement.
Metro Display Advertising's December, 1990 agreement with the City of Newport Beach is
a new agreement, not an extension of InterCity Shelters's agreement. The difference being
the sheer magnitude of the changes in most every aspect of the agreement including the
revenue to the City.
Therefore, Metro Display Advertising's agreement with the City of Newport Beach, which
was executed in December of 1990, was not the five year extension contemplated in the
InterCity Shelters agreement, but a new ten year agreement with an out for the City after
five years due to the control of advertising content issue which was, at that time, a
• controversial subject. The extension of the current agreement between Newport Beach and
Metro Display Advertising is, in fact, an extension and not a new negotiation.
This revenue is still 60% greater than any other city is getting. As for what would happen
to the bus shelters should another contractor come in, the shelters would be removed. Not
out of spite, but because each contractor has its own shelters and prefers to minimize the
varying types of shelters to reduce the cost and availability of replacement parts.
In short, the 1990 agreement was a new negotiation, and the requested renewal is for an
extension of the current contract. Based on the generous guaranteed revenues and signing
bonus offered by Metro Display Advertising, no one ever considered our agreement with
the City of Newport Beach as only a five year agreement.
If you have any questions, please do not hesitate to contact me. Thank you for your
support and assistance in this matter.
Sincerely,
• Tony Ingegneri
Vice President, Government Relations
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CITY OF NEWPORT BEACH
January 12, 1996
PUBLIC WORKS DEPARTMENT
P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915
(714) 644-3311
Tony Ingegneri
Vice President, Government Relations
Metro Display Advertising, Inc.
15265 Alton Parkway
Irvine, CA 92718
RE: December 17, 1990 agreement for Bus Shelters
Dear Mr. Ingegneri:
I have read your letter dated December 13, 1995 concerning
the proposal to extend our Agreement with you for bus
shelters. I was the person at the City involved in
negotiating the terms of the agreement. While I concur
that the 1990 agreement did not renew the Inter -City
Shelters contract, and permits a five year extension upon
written mutual consent of the parties, I disagree with
several of the other points you raise.
You indicate that MDA's offer was in several repects based
upon a ten year agreement. While I won't claim to know what
MDA was thinking at the time, the points raised in your
letter were not discussed with me. Your assertion that the
City did not want a ten year agreement out of concern for
the nature of the advertising is not correct. The current
agreement was prepared and submitted to the City by MDA with
a five year period and I don't recall a ten year option ever
being discussed.
EXHIBIT 4
3300 Newport Boulevard, Newport Beach
•
I appreciate your willingness to continue our agreement on a
• monthly basis pending a final decision by the City Council.
This delay should not be considered as a commitment to
extend the agreement. Such extension can only be done in
writing and I believe we both have changes we want to make
if the City Council authorizes us to negotiate an extension
with MDA.
Sincerely,
A atlw : ate
Richard M. Edmonston
Traffic Engineer
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GANNETT TRANSIT, 1731 WORKMAN STREET, LOS ANGELES,
HAND DELIVERED
Hon. John Hedges
Mayor of the City
of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
"RECEIVED AFTER GENDA
PRINTED:" -
90031 -3381
January 22, 1996
Re: Bus Shelter Contract
City Council Agenda Item No. 21
Dear Mayor Hedges:
213- 222 - 7171
JN o,
ORIGINAL
The purpose of this letter is to express to you and the
members of the Newport Beach city council Gannett Transit's
interest in bidding on the recently expired bus shelter contract
with the city.
In the transit shelter advertising industry, the City of
Newport Beach is nationally recognized as the "crown jewel."
Under its contract with the current vendor the per shelter
revenue received by the city is the highest in the United States.
The second highest nationally is that paid to Pasadena by Gannett
which retained the contract as the successful bidder under the
recently completed request for proposal process ("RFP"). Gannett
believes that the only way for Newport Beach to accurately and
fairly determine the value of this income generating asset to the
city is by the request for proposal process open to all in the
industry.
GANQW OUTDOOR GROUP
0
Hon. John Hedges
January 22, 1996
Page Two
In addition to maximizing revenue to the city, Gannett
believes that the RFP process would result in additional benefits
to the city. Most significant among these would be the upgrading
and /or replacement of the existing shelters according to current
design standards.
In order to minimize the expense to the city of
administering the RFP process, the city may want to consider
requiring each bidder to pay an evaluation fee of $500.00 as was
recently done by the City of Tustin.
Gannett Co., Inc., is the largest diversified media
company operating out -of -home media advertising in North America.
Gannett is a $3.8 billion per year corporation and is primarily
known as the publisher of USA Today. Gannett Transit is the
largest transit shelter operator in North America with more than
10,000 transit shelters in Southern and Northern California, New
York, Philadelphia and Canada. (A list of the cites in Southern
California served by Gannett is attached.) As the largest
outdoor advertising company in North America, Gannett performs
all sales and marketing (through 2,200 client support personnel),
installation and maintenance responsibilities, and bears all
capital and operating costs incurred under its municipal transit
shelter contracts.
For the foregoing reasons it is Gannett Transit's fervent
hope that the city council will direct staff to prepare and
disseminate a request for proposal in connection with the letting
of the bus shelter contract with the city.
REW /b
cc: Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Jan Debay
Dennis O'Neil
Thomas C. Edwards
John Cox
Norma Glover
Jean Watt
Yours sincerely,
Richard E. Wannenmacher
GAMEIT TRANSIT
0 0
SOUTHERN CALIFORNIA CITIES
SERVED BY GANNETT TRANSIT
• Anaheim
• Burbank
• E1Segundo
• Inglewood
• Irvine
• Los Angeles
• Pasadena
• Riverside Transit
• San Diego
• Santa Ana
• Torrance
• UCLA
• West Hollywood
GAMEIT TRANSIT
' I
AGREEMENT FOR BUS SHELTERS
al
THIS AGREEMENT, entered into this fd day of
�Dece^6er , 1990, by and between the CITY OF NEWPORT
BEACH, a municipal corporation (hereinafter referred to as
"CITY "), and BUSTOP SHELTERS OF CALIFORNIA, INC., a California
corporation (hereinafter referred to as "CONTRACTOR "), is made
with reference to the following:
R E C I T A L S•
A. The CITY is a municipal corporation duly organized
and validly existing under the laws of the State of California
with the power to carry on its business as it is now being
conducted under the Statutes of the State of California and the
Charter of the CITY.
B. The CITY and CONTRACTOR desire to enter into an
agreement for the installation and maintenance of bus shelters at
mutually acceptable locations throughout the City, upon the terms
and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between
the undersigned parties as follows:
1. TERM
The term of this Agreement sWa�ll be exclusive and
shall commence on the 1741 day of �iJecern,1jer ,
1 0, and shall remain and continue in effect until
/)ecem6er /h 1996 , which is a five (5) year term,
unless terminated as set forth herein.
Such term may be extended by mutual written
consent of the parties for one (1) successive term of five (5)
years, but neither the CITY nor the CONTRACTOR shall incur any
obligation beyond the term contained herein prior to execution of
the written agreement..
LOCATIONS
CITY hereby grants to CONTRACTOR, on terms herein
contained, the right to install, repair and maintain shelters at
locations throughout the City. As of October 1, 1990, there are
eighteen (18) shelters with advertising approved.
1
EXHIBIT 1
Additional locations may be requested by either
CITY or CONTRACTOR. Approval of said additional locations shall
be by written mutual consent.
3. FEES PAYABLE TO CITY
A. Annual Fee
CONTRACTOR shall make payment to CITY on a
monthly basis. The monthly fee shall be One Hundred Fifty -Five
Dollars ($155.00) per month, per shelter for the first year. In
year two (2), the income per shelter will increase to One Hundred
Sixty -Four Dollars ($164.00) for each advertising shelter. In
year three (3), the income per shelter will increase to One.
Hundred Seventy -Three Dollars ($173.00) per shelter. In year
four (4), the income per shelter will increase to One Hundred
Eighty -Two Dollars ($182.00). 'In year five (5) , the income per
shelter will increase to One Hundred Ninety -One Dollars
($191.00).
The fee for any fractional part of any month
between the date of installation and the first date of the
following month shall be prorated and paid by CONTRACTOR, along
with fees for the remainder of the year period. .
An installation bonus will be paid for each
shelter installed. A bonus of One Hundred Thousand Dollars
($100,000.00) for the shelters currently installed will be paid
upon execution of this agreement. A bonus of Five Thousand
Dollars ($5,000.00) per shelter will be made for each additional
shelter with advertising installed pursuant to this agreement.
Payment shall be made prior to installation.
B. other Considerations
CONTRACTOR agrees to furnish, install and
maintain five (5) bus shelters without advertising in addition to
the two (2) existing as of October 1, 1990. These shelters may
be outfitted at no cost to the CITY, with advertising kiosks
dedicated solely for public service or City - generated messages.
CONTRACTOR agrees to furnish, install and
maintain twenty -five (25) bus benches without advertising, in
addition to those in place on October 1, 1990.
Said installation shall be completed within
ninety (90) days from notification by CITY of installation
location. All installations provided for above, with the
exception of bus shelters with advertising, shall become the
property of CITY at the termination or expiration of this
Agreement, as herein provided.
2
4. CONTRACTOR'S SERVICES
A. Scope of Service
CONTRACTOR shall, at its own cost and
expense, construct, install and maintain bus shelters and bus
benches herein described at locations approved by CITY.
Shelters and amenities will only be installed
between the hours -of 9:00 a.m. and 4:00 p.m., Monday through
Friday. All work will be done in accordance with the Uniform
Building Code and all street disruption will follow the
W.A.T.C.H. guidelines.
All shelters and amenities will be installed
on concrete pads or sidewalks and be plumb, level, true, neat,
and rigid in every respect. ' The work shall adhere to the
engineered plans supplied. Any disturbance of existing sidewalk
will be restored in a manner satisfactory to the CITY.
A completed shelter includes all glass panels
installed, a bench, a trash receptacle, overhead lighting and
transit . route information kiosks. Immediately prior to
acceptance by the CITY, each shelter and surrounding area shall
be cleaned and all excess materials removed.
B. Time of Installation
CONTRACTOR shall install any additional
shelters within ninety (90) days of CITY's authorization to begin
installation, including all electrical power, benches and trash
containers.
C. Shelter Desicrn
Each shelter shall be constructed to a.common
design. said design shall be submitted for written approval by
CITY at least thirty (30). days prior to installation.
Design shall include detailed drawings and
structural calculations of all elements including, but not
limited to, the shelter and the bench. Each shelter shall
include the provision of an adequately -sized trash container.
D. Permits
CONTRACTOR shall obtain separate permits from
CITY for each bus shelter. Said permits shall consist of a
Public Works Encroachment Permit, a Building Permit, an
Electrical Permit, and any other permit deemed necessary by CITY.
Each shelter shall have displayed in a conspicuous place the name
of CONTRACTOR and the Encroachment Permit number.
3
All required permits for each shelter shall
be issued at the same time and no such permits shall be issued
without proof of available electrical service. CONTRACTOR shall
pay all permit costs regularly assessed by CITY.
E. Repair and Maintenance
CONTRACTOR shall maintain,- repair, clean and
service the shelters. CONTRACTOR shall be at liberty to enter
upon and into shelters at any reasonable time with personnel and
all necessary materials including, but not limited to, electric
wires, meters, clock work machinery. and other items reasonably
necessary for making said shelter effective. All such work shall
be performed at the sole expense of CONTRACTOR. Each shelter_.
shall be cleaned not less than two (2) times per week. Emergency'
repairs, including graffiti removal, shall be done within twenty -
four (24) hours. CONTRACTOR shall provide CITY with twenty -four
(24) hour emergency telephone number.
F. Advertising
1. The limitations on advertising as
specified in this Section are predicated on legitimate City
interests, including, without limitation:
(a) a strong desire to avoid the
appearance of favoring any political candidate, ballot measure,
or related issue; .
(b) a strong desire not to impose
objectionable matter upon a captive audience -- those that
choose, or are forced to use, public transportation; and
(c) avoiding material which could
distract or confuse motorists, thereby causing bodily injury,
property damage and City liability.
2. No sign shall be placed or displayed on
any shelter except in the area designated for advertising.
3. The following types of advertising would
run counter to the objectives of the City as specified in
subsection F(1) and the restrictions represent the least
intrusive means available to accomplish these objectives:
(a) Advertisement of political
candidates, political campaign or ballot measures or political
issues is prohibited;
(b) Advertisements which contain or
depict pornographic material are prohibited;
4
(c) Advertisement of alcoholic
beverages, tobacco or other substances known to be health hazards
is prohibited.
G. Shelter Removal
CONTRACTOR shall retain. the right to remove
any shelter upon thirty (30) days notice to CITY in the event the
federal, state, municipal or other proper authorities should
hereafter establish any rules, regulations or taxation which
shall so restrict location, construction, maintenance or
operation of the shelters as to substantially diminish the value
of said shelters for advertising purposes, or in the event of
"chronic vandalism ", as hereinafter defined.
In the event CITY fails to receive notice of
renewal of any permit or the comprehensive general liability
insurance on or before twenty (20) days before the expiration
date thereof, or in the event the comprehensive general liability
insurance is canceled and no evidence of equal coverage is filed
with CITY on or before twenty (20) days prior to the expiration
date of either coverage, or upon termination of this Agreement
for any reason, CONTRACTOR agrees to remove immediately all of
its shelters. If CONTRACTOR fails to do so within thirty (30)
days after notice to do so is mailed by CITY, CITY shall have the
right to remove said shelters and CONTRACTOR agrees to pay to
CITY, CITY's costs for such removal and site restoration.
"Chronic Vandalism" shall be defined as
damages inflicted to an individual shelter during any six (6)
month period which requires cumulative expenditures for
replacement and repair that exceed the original cost of
construction and installation of the shelter.
CITY reserves the right to demand that any of
said shelters be removed if a shelter is not maintained properly;
if the bus stop location is changed; shelter will interfere with
any construction, maintenance or repairs of any public utility or
public improvement; or, if any term of this agreement or of any
permit issued to CONTRACTOR by CITY is violated. In the event of
said demand, CONTRACTOR agrees to be responsible for all costs
involved in restoring the site.
Upon removal of any or all shelters erected
by CONTRACTOR hereunder, a13 material shall be removed from the
site, including, but not by way of limitation, all wires. The
site shall be restored to the condition as it existed prior to
installation of the shelter, including complete restoration of
any sidewalk upon which said shelter was located.
5
5.
The parties to this Agreement intend that the
relation between them created by this Agreement is that of
employer - independent contractor. The manner and means of
conducting the work are under the control of the CONTRACTOR,
except to the extent that they are limited by statute, rule or
regulation and the express terms of this Agreement. No Civil
Service status or other right of employment will be acquired by
virtue of- the CONTRACTOR's services. None of the benefits
provided by the CITY to its employees including, but not limited
to, unemployment insurance, worker's compensation insurance,
retirement and deferred compensation plans, vacation and sick
leave, are available from the CITY to the CONTRACTOR, its.
employees or agents. From any fees due the CONTRACTOR,'
deductions shall not be made for any State or Federal taxes, FICA
payments, PERS payments, or other purposes normally associated
with an employer - employee relationship. Payment of the above
items, if required, are the responsibility of the CONTRACTOR.
6.
On or before the commencement of the term of this
Agreement, CONTRACTOR shall furnish the CITY with certificates
showing the type, amount, class of operations covered, effective
dates and dates of expiration of insurance policies. Such
certificates, which do not limit CONTRACTOR's indemnification,
shall also contain substantially the following statement: "The
insurance covered by this certificate will not be canceled or
materially altered, except after thirty (30) days written notice
has been received by the CITY."
It is agreed that CONTRACTOR shall maintain in
force at all times during the performance of this Agreement, all
appropriate policies of insurance, and that said policies of
insurance shall be secured from a company or companies, doing
insurance business in the State. of California and assigned a
Policyholder's Rating A (or higher) and Financial Size Category
Class VIII (or larger) in accordance with the latest edition of
Best's Key Rating Guide: Property - Casualty.
A. Liability Insurance
Said policy or policies of insurance shall
provide coverage for both bodily injury and property damage in
not less than the following minimum amounts: Two Million Dollars
($2,000,000.00) combined single limit. said policy or policies
shall also contain a provision that no termination, cancellation
or change of coverage or of insured or additional insured shall
be effective until after thirty (30) days notice thereof has been
given in writing to the CITY.
0
B. Worker's Compensation Insurance
Worker's compensation insurance shall be
carried for its employees in an amount and with coverage to meet
all requirements of the Labor Code of the State of California and
which specifically covers all persons providing services on
behalf of CONTRACTOR and all applicable risks to such persons
under this agreement. CONTRACTOR shall bear the sole
responsibility and liability for furnishing Worker's Compensation
benefits--to any person for injuries arising from or connected
with services performed on behalf of CONTRACTOR pursuant to this
agreement. A certificate evidencing such insurance coverage
shall be filed with the City Manager or designee prior to
commencement of work hereunder.
C. Subrocration Waiver
CONTRACTOR agrees that in the event of loss
due to any of the perils for which it has agreed to provide
insurance, that CONTRACTOR shall look solely to its insurance for
recovery. CONTRACTOR hereby grants to CITY, on behalf of any
insurer providing insurance to either CONTRACTOR or the CITY with
respect to the services of CONTRACTOR herein, a waiver of any
right of subrogation which any such insurer of said CONTRACTOR
may acquire against CITY by virtue of the payment of any loss
under such insurance.
D. Additional Insured
The CITY, its City Council, Boards and
Commissions, officers, agents, servants and employees shall be
named as an additional insured on all policies of insurance
required by this Agreement. The naming of an additional insured
shall not affect any recovery to which such additional insured
would be entitled under this policy if not named as such
additional insured and an additional insured named herein shall
not be held liable for any premium or expense of any nature on
this policy or any extension thereof.
Any other insurance held by an additional
insured shall not be,required to contribute anything toward any
loss or expense covered by the insurance provided by this policy.
Proceeds from any such policy or policies shall be payable to the
CITY primarily, and to the CONTRACTOR secondarily, if necessary.
7
7. HOLD HARMLESS
Consultant shall indemnify and hold harmless CITY,
its City Council, Boards and Commissions, officers, agents,
servants and employees from and against any and all loss,
damages, liability, claims, suits, costs and expenses,
whatsoever, including reasonable attorneys' fees, regardless of
the merit or outcome of any such claim or suit, arising from or
in any manner connected to the negligent performance or omission
of any services or work conducted pursuant to this Agreement.
8. PROHIBITION AGAINST TRANSFERS
A. CONSULTANT shall not assign, sublease,.
hypothecate, or transfer this Agreement or any interest therein
directly or indirectly, by operation of law or otherwise, without
the prior written consent of CITY. Any attempt to do so without
consent shall be null and void, and any assignee, sublessee,
hypothecate or transferee shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
B. The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of
CONTRACTOR, or of the interest of any general partner or joint
venturer or syndicate member or co- tenant if CONTRACTOR is a
partnership or joint venturer or syndicate or co- tenancy, which
shall result in changing the control of CONTRACTOR, shall be
construed as an assignment of this Agreement. Control means
fifty percent (50 %) or more of the voting power of the
corporation, or twenty -five percent (25 %) or more of the assets.
9.
In the event CONTRACTOR hereto fails or refuses to
perform any of the provisions hereof at the time and in the
manner required hereunder, CONTRACTOR shall be deemed in default
in the performance of this Agreement. If such default is not
cured within a period of two (2) days after receipt by CONTRACTOR
from CITY of written notice of default, specifying the nature of
such default and the steps necessary to cure such default, CITY
may terminate the Agreement forthwith by giving to the CONTRACTOR
written notice thereof.
The CITY may terminate this .Agreement, with
reasonable cause, by giving sixty (60) days written notice to
CONTRACTOR as provided herein. Upon termination of this
Agreement, CONTRACTOR shall pay to CITY that portion of
compensation specified in this Agreement that is earned and
unpaid prior to the effective date of termination.
10. COST OF LITIGATION
If any legal action is necessary to enforce any
provision hereof or for damages by reason of an alleged breach of
any provisions of this Agreement, the prevailing party shall be
entitled to receive from the losing party all costs and expenses
in such amount as the court may adjudge to be reasonable attorney
fees.
11. COMPLIANCES - --
CONTRACTOR shall comply with all laws, State or
Federal, and all ordinances, rules and regulations enacted or
issued by the CITY.
12. NONDISCRIMINATION
CONTRACTOR represents and agrees that CONTRACTOR,
its affiliates, subsidiaries, or holding companies do not and
will not discriminate against any subcontractor, consultant,
employee, or applicant for employment because of race, religion,
color, sex, handicap, or national origin. Such nondiscrimination
shall include, but not be limited to, the following: employment,
upgrading, demotion, transfers, recruitment, recruitment
advertising, layoff, termination, rates of pay or other forms of
compensation, and selection for training, including
apprenticeship.
13. WAIVER
A waiver by the CITY of any breach of any term,
covenant, or condition contained herein shall not be deemed to be
a waiver of any subsequent breach of the same or any other term,
covenant, or condition contained herein whether of the same or a
different character.
14. RECORDS
CONTRACTOR shall maintain complete and accurate
records with respect to costs, expenses, receipts and other such
information required by CITY that relate to the performance of
services under this Agreement.
CONTRACTOR shall maintain adequate records on
services provided in sufficient detail to permit an evaluation of
services. All such records shall be maintained in accordance
with generally accepted accounting principles and shall be
clearly identified and readily accessible. CONTRACTOR shall
provide free access to the representatives of the CITY or its
designees at all proper times to such books and records, and give
the CITY the right to examine and audit same, and to make
transcripts therefrom as necessary, and to allow inspection of
all work, data, documents, proceedings and activities related to
this Agreement. Such records, together with supporting
documents, shall be kept separate from other documents and
records and shall be maintained for a period of three (3) years
after receipt of final payment.
15. NOTICES
All notices, demands, requests or approvals to be
given under this Agreement, shall be given in writing and
conclusively shall be deemed served when delivered personally or
on the second business day after the deposit thereof in the
United States mail, postage prepaid, registered or certified,
addressed as hereinafter provided.
All notices, demands, requests, or approvals from
CONTRACTOR to CITY shall be addressed to CITY at:
City Manager
City of Newport Beach
3300 Newport Boulevard
P O Box 1768
Newport Beach, CA 92659 -1768
All notices, demands, requests, or approvals from
CITY to CONTRACTOR shall be addressed to CONTRACTOR at:
Jean Claude LeRoyer
President
Bustop Shelters of California, Inc.
18023 Skypark Circle, H -2
Irvine, CA 92714
16. MERGER OF NEGOTIATIONS
This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the
parties hereto and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions hereof.
Any modification of this Agreement will be effective only by
written execution signed by both CITY and CONTRACTOR. This
Agreement supersedes any prior Agreement between CITY and
CONTRACTOR.
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IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed on the day and year first above written.
CITY OF NEWPORT BEACH BUSTOP SHELTERS OF CALIFORNIA, INC.
A Municipal Corporation A California Corporation
By �� �„`°k" By
Mayor
APPROVED AS TO FORM:
City Attorney
RME:bb
WP:A:BUSTOP.AGR
ATTEST:
City Clerk
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