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HomeMy WebLinkAboutC-3203 - Official Police Tow Truck Services AgreementAMENDMENT NO. ONE TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT WITH G&W TOWING, INC. THIS AMENDMENT NO. ONE TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT ("Amendment No. One") is made and entered into as of this 1st day of December, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and G&W TOWING, INC., a California corporation ("Operator"), whose address is 965 W. 18th Street, Costa Mesa, California 92627, and is made with reference to the following: RECITALS A. On January 26, 2016, City and Operator entered into an Official Police Tow Truck Service Agreement ("Agreement") for Operator to provide police towing services within the City of Newport Beach ("Project"). B. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to December 31, 2026 and to update the Insurance Requirements of the Agreement (Exhibit C). NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2026, unless terminated earlier as set forth herein." 2. INSURANCE REQUIREMENTS Exhibit C to the Agreement is amended in its entirety and replaced with the attached Exhibit C and incorporated herein by reference. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOR Y'S OFFICE Date: i/ on C. ity Attorney ATTEST: Date: )2-23- 2a / TAW (1•23.1-a CITY OF NEWPORT BEACH, a California municipal corporation Date: 12/ 1412-) By: Gr . Leung Cit anager OPERATOR: G&W TOWING, INC California corporation,, 1 Date: /l/ By: g fi`- By, �- Leilani I. Brown City Clerk ordon Miller President and Secretary [END OF SIGNATURES] t �iFO Fig_ Attachm i s Exhibit C — Insurance Requirements G&W Towing, Inc. Page 2 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Operator's indemnification of City, and prior to commencement of Work, Operator shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Operator agrees to provide insurance in accordance with requirements set forth here. If Operator uses existing coverage to comply and that coverage does not meet these requirements, Operator agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Operator shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. B. Operator shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. C. General Liability Insurance. Operator shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. D. Automobile Liability Insurance. Operator shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Operator arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented G&W Towing, Inc. Page C-1 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Operator shall also maintain On -Hook coverage in an amount not less than five hundred thousand dollars ($500,000). E. Garagekeepers Legal Liability Insurance. Operator shall maintain garagekeepers insurance with limits of not less than one million dollars ($1,000,000.00). F. Umbrella or Excess Liability Insurance. Operator shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than four million dollars ($4,000,000) that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall "follow form" to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Operator or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Operator hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. G&W Towing, Inc. Page C-2 C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Operator shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Operator shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Operator sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Operator, City and Operator may renegotiate Operator's compensation. C. Right to Review Subcontracts. Operator agrees that upon request, all agreements with subcontractors or others with whom Operator enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Operator shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Operator shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. G&W Towing, Inc. Page C-3 D. Enforcement of Agreement Provisions. Operator acknowledges and agrees that any actual or alleged failure on the part of City to inform Operator of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Operator maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Operator. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self -insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Operator or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Operator's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Operator or reimbursed by Operator upon demand. H. Timely Notice of Claims. Operator shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Operator's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Operator's Insurance. Operator shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. G&W Towing, Inc. Page C-4 Mulvey, Jennifer From: Miller, Holly <hmiller@nbpd.org> Sent: December 22, 2021 5:49 AM To: Mulvey, Jennifer Subject: FW: Compliance Alert -Vendor Number FV00000695 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Hello Jennifer, The account for G&W TOWING, INC (FV00000695) is compliant. Holly Miller #1554 Community Services Officer I Planning & Research Newport Beach Police Department Phone: 949.644.3663 I hmiller@nbpd.org Original Message From: Newman, Lisa <Inewman@nbpd.org> Sent: Tuesday, December 21, 2021 5:54 PM To: Miller, Holly <hmiller@nbpd.org> Subject: FW: Compliance Alert -Vendor Number FV00000695 For you.... Original Message From: Customer Service <customerservice@ebix.com> Sent: Tuesday, December 21, 2021 5:42 PM To: Newman, Lisa <Inewman@nbpd.org>; insurance@newportbeachca.gov Cc: lori.alcala@ebix.com Subject: Compliance Alert -Vendor Number FV00000695 Warning, External email: The content or attachments contained in this message may be harmful. DO NOT CLICK links or attachments if you do not recognize the sender. This Account has moved from non -compliant to COMPLIANT status and is currently in compliance for certificate of insurance requirements. FV00000695 G&W TOWING, INC Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach. IMPORTANT WARNING and CONFIDENTIALITY NOTICE: This e-mail (and any attachment) is only intended for the use of the person or entity to which it is addressed, and may contain information that is privileged and confidential. All recipients, including employees of the City of Newport Beach, are obligated to maintain this communication in a safe, secure and confidential manner. Unauthorized disclosure or failure to maintain confidentiality is strictly prohibited and may be a violation of state and/or federal law(s) and carry criminal and/or civil penalties. Additionally, the unauthorized disclosure or failure to maintain confidentiality this e-mail (and any attachments) by employees of the City of Newport Beach may be a violation of City of Newport Beach and/or Newport Beach Police Department policies. If you are not the 1 OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT WITH G&W TOWING, INC. This OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT ("Agreement") is made and entered into this 26th day of January, 2016 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a municipal corporation and charter city (hereinafter referred to as "City") and G&W TOWING, INC., a California corporation whose address is 965 W. 18th Street, Costa Mesa, CA 92627 (hereinafter referred to as "Operator"), and is made with reference to the following: RECITALS A. 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. Chapter 5.15 of the Newport Beach Municipal Code ("NBMC") regulates the operation of official police towing services, which are used in police emergency situations and for the removal of vehicles that are apparently abandoned, involved in an accident, or that constitute an obstruction to traffic because of mechanical failures. C. NBMC Section 5.15.080 provides that tow truck companies that are selected as "official" police tow service providers pursuant to the City's established bidding process are required to enter into an agreement with the City that outlines their duties and obligations and that contains eligibility requirements, operating regulations and a fee schedule as adopted by the City Council. D. By designating specific companies as police tow service providers, City desires to ensure the availability of prompt, efficient and reliable police towing services within the City of Newport Beach. E. The City Council of the City of Newport Beach has selected G&W TOWING, INC. to operate as one of the City's "official" operators to provide tow service at the request of the Police Department throughout the City ("Project"). F. City and Operator desire to enter into this Agreement wherein Operator agrees to perform police towing services for the City under the terms and conditions set forth herein. G&W TOWING, INC. Page 1 NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the undersigned parties agree as follows: 1. TERM The term of this Agreement shall be for five (5) years, and shall commence on the Effective Date, and shall terminate on December 31, 2021 unless terminated earlier as set forth herein. The City reserves the right, upon sixty (60) days written notice, to renew this Agreement for an additional five (5) year term provided that Operator's performance is deemed acceptable, and that the renewal is agreeable to the Operator. 2. SERVICES TO BE PERFORMED BY OPERATOR 2.1 Operator agrees to operate as one of the City's "Official" Police Tow Services pursuant to the terms of this Agreement and in conformity with the requirements contained in NBMC Chapter 5.15, which is incorporated herein by reference and specifically includes the Standard Rules of Operation contained in NBMC Section 5.15.110 which is attached hereto as Exhibit "A" and incorporated herein by reference. 2.2 It is hereby expressly reserved to the City Council the power and authority to amend any provision of NBMC Chapter 5.15 as to require additional, different or greater standards on the part of Operator. Any future amendment(s) to NBMC Chapter 5.15 by the City Council shall be deemed incorporated into this Agreement on the effective date of such amendment(s). 3. RATE SCHEDULES 3.1 Operator shall charge the rates for Services as set forth in the Rate Schedule attached hereto as Exhibit "B" and incorporated herein by this reference. 3.2 The Rate Schedule will automatically be adjusted on its anniversary date based on the percentage change in the cost of doing business as measured by the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, for all Urban Consumers for the Los Angeles -Riverside -Orange County Area, All Items, (1982-1984=100) for the preceding twelve (12) months. Operator shall provide a listing of the rates to be charged. However, the City may require and revise the fee schedule by mutual agreement at any time upon a finding that a rate adjustment is justified. Any future amendment(s) to the Rate Schedule by City shall be deemed incorporated into this Agreement on the effective date of such amendment(s) without further action by the Parties. G&W TOWING, INC. Page 2 4. MANAGER 4.1 Operator shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Operator has designated Gordon Miller to be its Project Manager. Operator shall not remove or reassign the Project Manager without the prior written consent of City. 4.2 Operator, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Operator warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5. ADMINISTRATION This Agreement will be administered by the Police Department. City's Police Chief or his/her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. STANDARD OF CARE 6.1 All of the Services shall be performed by Operator or under Operator's supervision. Operator represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Operator certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 6.2 Operator represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Operator to practice its profession. Operator shall maintain a City of Newport Beach business license during the term of this Agreement. 6.3 Operator shall not be responsible for delay, nor shall Operator be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Operator's work promptly, or delay or faulty performance by City, Operators, or governmental agencies. G&W TOWING, INC. Page 3 7. INDEPENDENT CONTRACTOR The parties of this Agreement intend that the relationship between them created by this Agreement is that of City -independent contractor. The manner and means of conducting the work are under the control of the Operator, except to the extent 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 Operator's Services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers' compensation insurance, retirement and deferred compensation plans, vacation and sick leave, are available from City to Operator, its employees or agents. 8. HOLD HARMLESS 8.1 To the fullest extent permitted by law, Operator shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Operator's presence or activities conducted which arise out of or occur in connection with Operator's performance of Services pursuant to this Agreement or Chapter 5.15 (including the negligent and/or willful acts, errors and/or omissions of Operator, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 8.2 Notwithstanding the foregoing, nothing herein shall be construed to require Operator to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Operator. 9. INSURANCE Without limiting Operator's indemnification of City, and prior to commencement of work, Operator shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in G&W TOWING, INC. Page 4 this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit "C" and incorporated herein by reference. 10. PROHIBITION AGAINST TRANSFER Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Operator, or of the interest of any general partner or joint venturer or syndicate member or co- tenant if Operator is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Operator. Control means fifty percent (50%) or more of the voting power, or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 11. STORAGE OF VEHICLES 11.1 The Operator shall store all impounded vehicles, together with all accessories, equipment and personal property located on or in each vehicle, in City approved storage facilities. 11.2 Vehicles taken into custody that involve evidence shall be stored in a secure area and under conditions approved by the City's Chief of Police, or his or her designee. The storage area shall be protected against access by persons not authorized by the Chief of Police, or his or her designee. The Operator will be required to take all reasonable precautions required by the Chief of Police, or his or her designee, to avoid damage to any evidence, such as fingerprints, stains, etc. 11.3 The Operator agrees to maintain storage facilities as required by Section 5.15.110 for vehicles ordered impounded by the Police Department. The Operator shall take any and all measures necessary to prevent theft or damage to such vehicles and the accessories, equipment or other personal property in them while stored in his storage facility. 11.4 Operator agrees to waive towing and/or storage fees when reasonably requested by any police supervisor of the rank of Sergeant or above, or by the Traffic Civilian Supervisor. Such requests generally shall be limited to the towing of City owned vehicles, the towing and storage of other vehicles as a result of mistake or error by City employees, or vehicles impounded during the course of carrying out an official police investigation. G&W TOWING, INC. Page 5 12. PERMITS AND LICENSES Operator, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required in connection with the performance of Services provided hereunder. 13. CONTRACT SERVICES FEE 13.1 Reserved. 13.2 Operator shall pay City the fees provided in the Rate Schedule, attached as Exhibit B. Operator and City agree the fees provided in Exhibit B reimburse the City for its actual and reasonable costs in administering this tow program. Payment shall be due no later than forty-five (45) days after the expiration of each calendar quarter. 13.3 In the event that the above payment is not received by the City within the specified time period, Operator shall pay to the City a one-time penalty of ten percent (10%) of the amount due and interest of one and one-half percent (1.5%) per month on the unpaid balance. 13.4 Operator shall file with the City, within forty five (45) days after expiration of Operator's fiscal year during which this Agreement is in force, a financial statement prepared by a certified public accountant showing in detail the vehicle release fees collected from official police tow operations in the City of Operator, or its successors and assigns, during the preceding fiscal year. 13.5 The right is reserved to the City of audit and recomputation of any and all amounts due under this Agreement, and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further additional sums due under this Agreement or for the performance of any obligation hereunder. 14. RECORDS 14.1 Operator shall maintain complete and accurate records with respect to all expenses, receipts and other such information required by the City that relate to the performance of Services under this Agreement. 14.2 Operator shall maintain accurate records on Services provided in sufficient detail to permit an evaluation of Service and income received therefrom. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible to the City upon demand. Operator shall provide free access to the Revenue Manager or his or her designees to such books and records during regular business hours, and give the City the right to examine and audit same, and to make copies as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, G&W TOWING, INC. Page 6 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. Operator shall reimburse City for City's costs in performance of an audit if, as a result of the audit, it is determined that a discrepancy of ten percent (10%) or more of the contract Service fees paid during the period reviewed is due. Operator shall reimburse the City for such costs within thirty (30) days of the date the City notifies Operator in writing of the amount of City's cost. 14.3 Contractor shall produce a monthly "Vehicle Towing Service Monthly Report" by the fifteenth (15th) day of each month to the City, which shall contain the following information: 1) Number of calls for Service; 2) Number of vehicles towed; 3) Number of lien sales processed; 4) Number of vehicles auctioned; 5) A detailed breakdown of the number of vehicles towed showing: a. Total number of impounds, b. Number of 30 day impounds, c. Number of other Police Department initiated tows at owner's request, and d. Number of non - police initiated City tows; and 6) An explanation of each tow where response time delay in excess of thirty (30) minutes occurred. 15. CONFLICTS OF INTEREST 15.1 The Operator or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 15.2 If subject to the Act, Operator shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Operator shall indemnify and hold harmless City for any and all claims for damages resulting from Operator's violation of this Section. 16. NOTICES 16.1 All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and shall be deemed served when delivered personally or on the second business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. 16.2 All notices, demands, requests or approvals from Operator to City shall be addressed to the City at: Attn: Revenue Manager City of Newport Beach 100 Civic Center Drive PO Box 1768 G&W TOWING, INC. Page 7 Newport Beach, California 92659-1768 16.3 All notices, demands, requests or approvals from City to Operator shall be addressed to Operator at: G&W TOWING, INC. Attn: Gordon Miller 965 W. 18th Street Costa Mesa, CA 92627 17. TERMINATION 17.1 The grounds for termination of this Agreement are set forth in Newport Beach Municipal Code Section 5.15.140, and include breach of any terms of this Agreement. In the event Operator has breached the terms of this Agreement or other grounds for termination exist, the City shall provide written notice of the nature of the default and the steps necessary to cure the default. If such default is not cured within a period of two (2) days after receipt by Operator of written notice of default, this Agreement may be terminated by the City Manager by giving written notice to the Operator. Notice that the Agreement has been terminated shall state the reasons for termination. Any appeal shall be to the City Council. The right to appeal shall terminate fifteen (15) days following the date of personal service or, seventeen (17) days following deposit in the United States mail of the notice of termination. The City Council may preside over the hearing on appeal, or in the alternative, appoint a hearing officer to conduct the hearing and submit to the City Council its finding and recommendations. The City Council shall render its decision within forty-five (45) days of receipt of the hearing officer's findings and recommendations. The decision of the City Council shall be final. 17.2 The City hereby reserves every right and power, in the exercise thereof, which is reserved or authorized by any provision of any lawful ordinance or resolution of the City, whether enacted before or after the effective date of this Agreement. Neither the decision to select Operator as an "Official" Police Tow Service provider or any provision of this Agreement shall constitute a waiver or a bar to the exercise of any governmental right or power of the City. 18. STANDARD PROVISIONS 18.1 Compliance with all Laws. Operator shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Operator shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. G&W TOWING, INC. Page 8 18.2 Waiver. A waiver by either party 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. 18.3 Integrated Contract. 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 herein. 18.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 18.5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 18.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Operator and City and approved as to form by the City Attorney. 18.7 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 18.8 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 18.9 Equal Opportunity Employment. Operator represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 18.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 18.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] G&W TOWING, INC. Page 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 1101(So By: Aaron C. Harp City Attorney ATTEST: I Date: f% ( (or) B: Y hililiz— Leilani I. Brown - City Clerk Attachments: CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Diane B. Dixon Mayor OPERATOR: G&W TOWING, I California Corpor..'.n Date: �✓ By. Gordon Miller President & Secretary [END OF SIGNATURES] Exhibit A: Exhibit B: Exhibit C: Standard Rules of Operation Rate Schedule Insurance Requirements G&W TOWING, INC. Page 10 EXHIBIT A STANDARD RULES OF OPERATION 5.15.110 Standard Rules of Operation. A. All requests for towing service and the removal of traffic hazards shall be made through the Police Department. B. When it becomes evident that there will be a delay in responding to a request for towing service, the towing company concerned shall promptly advise the Police Department of this delay. C. An attendant capable of responding to police requests for tow service as well as responsible for the arranging the release of vehicles to the public shall be on call twenty-four (24) hours a day, seven days a week. Official police tow service operators shall also maintain regular business hours of eight (8) a.m. to six (6) p.m., Monday through Friday, during which time an attendant shall be present in person to respond to police requests and to assist the public in obtaining their vehicles. Vehicles stored twenty-four (24) hours or less shall be charged a maximum of one -day storage. Each day thereafter shall be calculated by calendar day. Signs listing the phone number where persons can call to retrieve their vehicles must be posted in plain view at the front of the storage facility. D. Removing Hazards. After being dispatched by the Police Department to the scene, the tow truck operator shall cooperate with the police officers in removing hazards and illegally parked vehicles as requested. It is the duty of the police officers to determine when such vehicle should be impounded or moved, and the tow truck operator shall abide by their decisions. E. Each towing company shall comply with Section 27907 of the California Vehicle Code regarding signs on tow trucks. Only tow trucks bearing the name of the company shall be dispatched to the scene of need without approval of Police Communications. F. Vehicles impounded by the police for special investigation, i.e., fingerprints, etc., shall be held under maximum security until cleared by investigating officers. Contents of vehicles subject to a "police hold" shall not be removed. G. The owners of towing companies participating in towing assignments by the Police Department shall be responsible for the acts of their employees while on duty. The towing company shall be responsible for all damages to vehicles while in its possession. H. All towing company records, equipment, and storage facilities shall be subject to periodic inspection by Police Department investigators. G&W TOWING, INC. Page 11 I. All vehicles stored or impounded as a result of a tow ordered by the Police Department shall be made available to the owner of the vehicle or his representative, any insurance agent, insurance adjuster, or any body shop or car dealer, for the purpose of estimating or appraising damages, except vehicles subject to a "police hold." J. The official police towing service shall record the time in and the time out on every tow truck assignment. Such records shall be available and open for City examination. An electric time clock shall be maintained for this purpose. K. Upon request, official police towing services shall submit a report to the Chief of Police and the Administrative Services Director, which may include any of the following: 1. Total police impounds; 2. Number of times dispatched by Newport Beach Police Department; 3. Number of these calls resulting in impounds; 4. Number of vehicles sold on lien sale under authority of Section 3072, Civil Code, and reporting such lien sales as per authority of Section 22705 CVC; 5. Number of vehicles sold under authority of Section 3073, Civil Code (under two hundred dollars ($200.00) value); 6. Names and addresses of buyers and description of vehicles when sold; 7. Number of calls answered which took more than one hour to handle. L. All tow trucks shall be radio -equipped. M. Storage lots shall be properly fenced (at least six -feet high) to maintain a maximum of security for stored and impounded vehicles. Such lots shall be accessible for vehicle storage and vehicle releases twenty-four (24) hours a day, seven days a week. Storage lots must provide a minimum of forty- four thousand (44,000) square feet of space dedicated for outside vehicle storage and a minimum of one thousand (1,000) square feet of inside storage for vehicles. N. Storage lots shall be located within three miles of the Newport Beach City Hall. G&W TOWING, INC. Page 12 O. An official garage shall not proceed with any repair work on a vehicle or place any charges against a vehicle other than those required for removal from the street and storage unless authorized by the owner or his designated agent. P. When disposing of unclaimed vehicles, official police tow service operators shall abide by all Civil Code sections pertaining thereto. Q. All vehicles stored or impounded as a result of a tow ordered by the Police Department shall be towed directly to an official storage lot unless the Police Department or other person legally in charge of the vehicle requests that it be taken to some other location. Vehicle release fees shall be as established by resolution of the City Council. R. A towing company may charge a lien sale fee and may begin lien sale proceedings as provided in the California Vehicle and Civil Codes. G&W TOWING, INC. Page 13 EXHIBIT B RATE SCHEDULE City of Newport Beach Official Police Tow Rate Schedule Effective January 26, 2016 SERVICE CHARGE Towing Basic Towing $172.00 Flatbed $188.00 Medium duty $188.00 Heavy duty $327.00 Motorcycle $188.00 Storage Car outside $45.00 Car inside $54.00 Truck outside $53.00 Truck inside $63.00 Motorcycle $25.00 Labor Driveline $31.00 Dollies/Go-Jacks $60.00 Haz.Mat $47.00 Winching $78.00 Linkage $29.00 Rollover $78.00 After hours release — Lt. Duty $59.00 Medium Duty $65.00 Heavy Duty $75.00 On -scene release $85.00 Service call — minimum $118.00 Labor $172.00 City vehicle release fee $75.00 Operator's Franchise fee $55.00 G&W TOWING, INC. Page 14 EXHIBIT C INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Operator's indemnification of City, and prior to commencement of work, Operator shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Operator agrees to provide insurance in accordance with requirements set forth here. If Operator uses existing coverage to comply and that coverage does not meet these requirements, Operator agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Operator shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Operator shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Operator shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. G&W TOWING, INC. Page 15 C. Automobile Liability Insurance. Operator shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Operator arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Operator shall also maintain On -Hook coverage in an amount not less than five hundred thousand dollars ($500,000). D. Garagekeepers Legal Liability Insurance. Operator shall maintain garagekeepers insurance with limits of not less than one million dollars ($1,000,000.00). E. Umbrella or Excess Liability Insurance. Operator shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than four million dollars ($4,000,000) that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall "follow form" to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Operator or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. G&W TOWING, INC. Page 16 Operator hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Operator shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Operator sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Operator, City and Operator may renegotiate Operator's compensation. C. Right to Review Subcontracts. Operator agrees that upon request, all agreements with subcontractors or others with whom Operator enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. D. Enforcement of Agreement Provisions. Operator acknowledges and agrees that any actual or alleged failure on the part of City to G&W TOWING, INC. Page 17 inform Operator of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self -insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Operator or any sub - consultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Operator's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Operator or reimbursed by Operator upon demand. H. Timely Notice of Claims. Operator shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Operator's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Operator's Insurance. Operator shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. G&W TOWING, INC. Page 18 AMENDMENT NO. TWO TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT WITH G&W TOWING, INC. THIS AMENDMENT NO. TWO TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT ("Amendment No. Two") is made and entered into as of this 30th day of June, 2013 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and G&W TOWING, INC., a California corporation ("Operator"), whose address is 965 West 17th Street, Costa Mesa, CA 92627 and is made with reference to the following: RECITALS A. On May 1, 2003, City and Operator entered into an Official Police Tow Truck Service Agreement ("Agreement") for the City's official police tow service. B. On April 30, 2008, City and Operator mutually agreed to renew the Agreement for an additional five (5) year term. C. On April 30, 2013, City and Operator entered into Amendment No. One to extend the term of the Agreement until June 30, 2013. D. City desires to enter into this Amendment No. Two to extend the term of the Agreement to December 31, 2014, to allow for sufficient time for the City to complete a Request for Proposals process and ensure there is no interruption in providing official police tow services to the City. E. The City finds that it is necessary to preserve the public health, safety and welfare to ensure that police tow services continue to be provided to the City. F. City and Operator mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall be extended to December 31, 2014, unless terminated earlier as set forth in the Agreement or by Section 2 below. 2. TERMINATION Notwithstanding the provisions of Newport Beach Municipal Code Section 5.15.140 and Section 14 of the Agreement, the City shall have the right to terminate this Amendment No. Two with twenty-four (24) hour written notice to Operator following the City Council's approval of new agreements to provide official police tow services to the City. G&W TOWING, INC. Page 1 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'B OFFICE Date: (p By: Aaron C. ffiarp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: In 4 010 By: Dave City Manager OPERATOR: G&W TOWING , INC., California rp Date: ' By: G rdon Miller President & Secretary [END OF SIGNATURES] a G&W TOWING, INC. Page 2 AMENDMENT NO. ONE TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT WITH G&W TOWING THIS AMENDMENT NO. ONE TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT ("Amendment No. One") is made and entered into as of this 30th day of April, 2013 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and G&W TOWING, a California corporation ("Operator"), whose address is 965 West 17th Street, Costa Mesa, CA 92627 and is made with reference to the following: RECITALS A. On May 1, 2003, City and Operator entered into an Official Police Tow Truck Service Agreement ("Agreement") for the City's official police tow service. B. On April 30, 2008, City and Operator mutually agreed to renew the Agreement for an additional five (5) year term, C. City desires to enter into this Amendment No. One to extend the term of the Agreement to June 30, 2013 to allow for sufficient time for the City to complete a Request for Proposals process and ensure there is no interruption in providing official police tow services to the City, D. The City finds that it is necessary to preserve the public health, safety and welfare to ensure that police tow services continue to be provided to the City. E, City and Operator mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall extend to June 30, 2013 unless terminated earlier as set forth in the Agreement or by Section 3 below. 2. RATE SCHEDULES Effective July 1, 2012, Operator shall charge the rates for services as set forth in the rate schedule attached hereto as Exhibit "A," which is incorporated herein by this reference, 3. TERMINATION Notwithstanding the provisions of Newport Beach Municipal Code Section 5.15.140 and Section 14 of the Agreement, the City shall have the right to terminate this Amendment No. One with twenty-four (24) hour written notice to Operator following the City Council's approval of new agreements to provide official police tow services to the City. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTONFY'S OFFICE Date: / Q By: Aarol. Harp City Attorney ATTEST: Date: 6. 6.13 By: Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, A California municipal corporation Date: S? 11:11 Dave`kiff City Manager OPERATOR: G& TOWING, a California Date: corporation �7 / Date: By: Name: Title: Date: By: Name: Title: [END OF SIGNATURES] Exhibit A — Official Police Tow Rate Schedule Effective July 1, 2012 G&W TOWING Page 2 EXHIBIT A G&W TOWING Page A-1 Official Police Tow Rate Schedule Effective July 1, 2012 SERVICE CHARGE Basic Towing $161.00 Flatbed/med. duty $176.00 Heavy duty $306.00 Motorcycle $176.00 Storage Car outside $42.00 Car inside $50.00 Truck outside $49.00 Truck inside $59.00 Motorcycle $24.00 Labor Driveshaft $29.00 Dollies $56.00 Linkage $29,00 Rollover $73.00 After hours release $56.00 On -site release $81.00 Service Call — min. $112.00 Labor $161/hr • • OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT This AGREEMENT is made and entered into this first day of May, 2003 by and between the CITY OF NEWPORT BEACH, a municipal corporation (hereinafter referred to as "City") and G & W TOWING, a California corporation whose address is 965 West 18th Street, Costa Mesa, CA 92627 (hereinafter referred to as "Operator"), and is made with reference to the following: RECITALS A. 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. Chapter 5.15 of the Newport Beach Municipal Code regulates the operation of official police towing services, which are used in police emergency situations and for the removal of vehicles that are apparently abandoned, involved in an accident, or that constitute an obstruction to traffic because of mechanical failures. C. Section 5.15.080 provides that tow truck companies that are selected as "official" police tow service providers pursuant to the City's established bidding process are required to enter into an agreement with the City that outlines their duties and obligations and that contains eligibility requirements, operating regulations and a fee schedule as adopted by the City Council. D. By designating specific companies as police tow service providers, City desires to ensure the availability of prompt, efficient and reliable police towing services within the City of Newport Beach. E. The City Council of the City of Newport Beach has selected G & W Towing to operate as one of the City's "official" operators to provide tow service at the request of the Police Department throughout the City. F. City and Operator desire to enter into this Agreement wherein Operator agrees to perform police towing services for the City under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the undersigned parties agree as follows: 1. TERM The term of this Agreement shall be for five (5) years, and shall commence on the first day of May 2003, and shall tenninate on the 30'" day of April 2008, unless terminated earlier as set forth herein. The City reserves the right, upon sixty (60) days written notice, to renew this • • Agreement for an additional five (5)-year term provided that Operator's performance is deemed acceptable, and that the renewal is agreeable to the Op.sator. 2. SERVICES TO BE PERFORMED BY OPERATOR Operator agrees to operate as one of the City's "Official" Police Tow Services pursuant to the terms of this Agreement and in conformity with the requirements and Rules of Operation contained in Chapter 5.15 of the Newport Beach Municipal Code, which by this reference is incorporated herein. 3. RATE SCHEDULES Operator shall charge the rates for services as set forth in the rate schedule attached hereto as Exhibit "A," which is incorporated herein by this reference. The rate schedule will automatically be adjusted on its anniversary date based on the percentage change in the cost of doing business as measured by the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, for all Urban Consumers for the Los Angeles -Long Beach -Anaheim Area, All Items, (1967=100) for the preceding twelve (12) months. Operator shall provide a listing of the rates to be charged. However, the City may require and revise the fee schedule by mutual agreement at any time upon a finding that a rate adjustment is justified. Operator shall charge the City no more than twenty-five percent (25%) of the charge set forth in Exhibit "A" for storage of vehicles ordered impounded by the Police Department that involve evidence, as described in Paragraph 9 (B) of this Agreement. 4. STANDARD OF CARE Operator warrants and guarantees that all services performed hereunder shall be provided in a manner commensurate with the highest professional standards and shall be performed by qualified, licensed and experienced personnel. 5. INDEPENDENT CONTRACTOR The parties of this Agreement intend that the relationship between them created by this Agreement is that of City -independent contractor. The manner and means of conducting the work are under the control of the Operator, except to the extent 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 Operator's services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers' compensation insurance, retirement and deferred compensation plans, vacation and sick leave, are available from City to Operator, its employees or agents. 6. HOLD HARMLESS Operator shall indemnify, defend 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 for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other 2 claims arising from any and all negligent acts or omissions of Operator, its employees, agents or subcontractors which arise out of or result from, or occur in connection with Operator's performance of services pursuant to this Agreement or Chapter 5.15. 7. INSURANCE Without limiting the indemnification provided in Section 6 above, Operator shall obtain and maintain throughout the term of this Agreement, at Operator's sole cost and expense, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the services provided by Operator under this Agreement. On or before the commencement of the term of this Agreement, Operator shall furnish the City with certificates showing the type, amount, class or operations covered by such insurance, and the effective dates and dates of expiration of such insurance policies. Such certificates 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." All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact the business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide, unless otherwise approved by the City Risk Manager. The polices required are as follows: A. Commercial Liability: Operator shall obtain and maintain at all times during the term of this Agreement comprehensive general commercial liability insurance covering third - party liability risks in a minimum amount of $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. B. Automobile Liability: Commercial automobile liability and property insurance covering any vehicles owned, leased, hired or borrowed by Operator in a minimum amount of $1 million combined single limit per occurrence for bodily injury and property damage, and shall include sudden and accidental coverage. C. Workers Compensation: Operator shall maintain full Worker's Compensation Insurance for all persons for whom it employs in accordance with the requirements of the most current and applicable State Workers' Compensation Insurance laws in effect D. Subrogation Waiver: Operator agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, that Operator shall look solely to its insurance for recovery. Operator hereby grants to City, on behalf of any insurer providing insurance to either Operator or the City with respect to the services of Operator herein, a waiver of any right of subrogation that any such insurer of said Operator may acquire against City by virtue of the payment of any loss under such insurance. E. 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 extension thereof. Any other insurance held 3 • 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 Operator secondarily, if necessary. F. Operator agrees that if any policy of insurance required by this Agreement is not maintained in full force and effect, the City Manager may, in his sole discretion, suspend this Agreement, immediately, until such time as the required insurance is in effect and the required certificates and endorsements are delivered to the City. 8. PROHIBITION AGAINST TRANSFER Operator 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 the consent of the City shall be null and void, and any assignee, subleasee, hypothecatee or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecate or transfer. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Operator, or of the interest of any general partner or joint venture or syndicate member or cotenant, which shall result in change in the control of Operator, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation, partnership, joint venture, syndicate, or cotenancy. 9. STORAGE OF VEHICLES (A) The Operator shall store all impounded vehicles, together with all accessories, equipment and personal property located on or in each vehicle, in City -approved storage facilities. (B) Vehicles taken into custody that involve evidence shall be stored in a secure area and under conditions approved by the Police Department. The storage area shall be protected against access by persons not authorized by the police. The Operator will be required to take all reasonable precautions required by the Police Department to avoid damage to any evidence, such as fingerprints, stains, etc. (C) The Operator agrees to maintain storage facilities as required by Section 5.15.110 for vehicles ordered impounded by the Police Department. The Operator shall take any and all measures necessary to prevent theft or damage to such vehicles and the accessories, equipment or other personal property in them while stored in his storage facility. (D) Operator agrees to waive towing and/or storage fees when reasonably requested by any police supervisor of the rank of Sergeant or above, or by the Traffic Civilian Supervisor. Such requests generally shall be limited to the towing of city vehicles, the towing and storage of other vehicles as a result of mistake or error by city employees, or vehicles impounded during the course of carrying out an official police investigation. 10. PERMITS AND LICENSES Operator, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required in connection with the performance of services provided hereunder. 4 • • 11. CONTRACT SERVICES FEE As compensation for the costs incurred in connection with City's operation of this police towing program, Operator shall pay quarterly to the City during the life of this Agreement, a fixed percentage of the gross receipts it derives from services provided under this Agreement. Such percentage shall be ten (10) percent of gross receipts. Proceeds from vehicles sold at lien sale shall not be subject to this fee. Payment shall be due to the City no later than forty-five (45) days after the expiration of each calendar quarter. In the event that the above payment is not received by the City within the specified time period, Operator shall pay to the City a one-time penalty of ten (10) percent of the amount due and interest of one and one-half percent (1.5%) per month on the unpaid balance. Operator shall file with the City, within ninety (90) days after expiration of Operator's fiscal year during which this Agreement is in force, a financial statement prepared by a certified public accountant showing in detail the gross annual receipts from official police tow operations in the City of Operator, or its successors and assigns, during the preceding fiscal year. The right is reserved to the City of audit and recomputation of any and all amounts due under this Agreement, and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further additional sums due under this Agreement or for the performance of any obligation hereunder. 12. RECORDS Operator shall maintain complete and accurate records with respect to all expenses, receipts and other such information required by the City that relate to the performance of services under this Agreement. Operator shall maintain accurate records on services provided in sufficient detail to permit an evaluation of service and income received therefrom. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible to the City upon demand. Operator shall provide free access to the Revenue Manager or his or her designees to such books and records during regular business hours, and give the City the right to examine and audit same, and to make copies 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. Operator shall reimburse City for City's costs in performance of an audit if, as a result of the audit, it is determined that a discrepancy of ten percent (10%) or more of the contract service fees paid during the period reviewed is due. Operator shall reimburse the City for such costs within thirty (30) days of the date the City notifies Operator in writing of the amount of City's cost. 13. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and shall be deemed served when delivered personally or on the second 5 business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Operator to City shall be addressed to the City at: Newport Beach City Hall 3300 Newport Beach Blvd., PO Box 1768 Newport Beach, California 92659-1768 Attention: City Manager With copy to: Newport Beach City Hall 3300 Newport Beach Blvd., PO Box 1768 Newport Beach, California 92659-1768 Attention: Revenue Manager All notices, demands, requests or approvals from City to Operator shall be adilressed to Operator at: G & W Towing 965 W. 18th St. Costa Mesa, CA 92627 14. TERMINATION The grounds for termination of this Agreement are set forth in Newport Beach Municipal Code Section 5.15.140, and include breach of any terms of this Agreement. In the event Operator has breached the terms of this Agreement or other grounds for termination exist, the City shall provide written notice of the nature of the default and the steps necessary to cure the default. If such default is not cured within a period of two (2) days after receipt by Operator of written notice of default, this Agreement may be terminated by the City Manager by giving written notice to the Operator. Notice that the Agreement has been terminated shall state the reasons for termination.. Any appeal shall be to the City Council. The right to appeal shall terminate fifteen (15) days following the date of personal service or deposit in the United States mail of the notice of termination. The City Council may preside over the hearing on appeal, or in the alternative, appoint a hearing officer to conduct the hearing and submit to the City Council its finding and recommendations. The City Council shall render its decision within forty-five (45) days of receipt of the hearing officer's fmdings and recommendations. The decision of the City Council shall be final. 15. COST OF LITIGATION If any legal action is necessary to enforce any provisions of this Agreement 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 reasonable attorneys' fees and costs. 16. COMPLIANCE WITH ALL LAWS 6 • • Operator shall comply with all laws, state or federal, and all ordinances, rules and regulations enacted or issued by the City. 17. 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. 18. INTEGRATED CONTRACT 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 Operator. The City hereby reserves every right and power, in the exercise thereof, which is reserved or authorized by any provision of any lawful ordinance or resolution of the City, whether enacted before or after the effective date of this Agreement. Neither the decision to select Operator as an "Official" Police Tow Service provider or any provision of this Agreement shall constitute a waiver or a bar to the exercise of any governmental right or power of the City. There is hereby expressly reserved to the City Council the power and authority to amend any section of Chapter 5.15 of the Newport Beach Municipal Code as to require additional or greater standards on the part of Operator. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. AS TO FORM: CITY ATTO ATTEST: oCtavoi (Byrom) CITY CLERK CITY OF NEWPORT BEACH A Municipal Corporati OPERATO 7 • CITY OF NEWPORT BEACH OFFICIAL POLICE TOW TRUCK RATE SCHEDULE Effective May 12, 2003 Towing Light Duty $110.00 Medium Duty, Flatbed Request $118.00 Heavy Duty $208.00 Motorcycle $118.00 Storage (daily) Vehicles - Outside $28.00 Vehicles - Inside $33.00 Motorcycle $15.00 Truck or Motorhome - Outside $32.00 Truck or Motorhome - Inside $38.00 Labor After -Hour Release $37.00 On -Site release $55.00* Rollover/Winching $50.00 Dolly/Go-jacks $37.00 Driveshaft/Linkage $20.00 Service Call -minimum $75.00 Labor $110.00/hr. City Release Fee $30.00 *Rate per CVC • G3.,o3 OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT THIS AGREEMENT is made and entered into this first day of May, 1998 by and between the CITY OF NEWPORT BEACH, a Municipal Corporation, hereinafter referred to as "City," and G & W Towing, whose address is 965 West 18s` Street, Costa Mesa, CA 92627 (hereinafter referred to as "Operator"), is made with reference to the following: RECITALS: 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. Chapter 5.15 of the Newport Beach Municipal Code prescribes the basic regulation for the operation of official police towing services in police emergency situations and in the removal of vehicles which are apparently abandoned, or involved in an accident, or which constitute and obstruction to traffic because of mechanical failures. C. Section 5.15.080 provides that tow truck services that are awarded a Certificate of Public Convenience pursuant to the established bidding process are required to enter into an agreement which contains eligibility requirements, operating regulations and fee schedule as adopted by the City Council. D. City desires to assure the availability of prompt, efficient and reliable towing services with in the City of Newport Beach E. The City Council of the City of Newport Beach has selected G & W Towing to operate as one of the "Official Police Truck Services. F. The City and Operator desire to enter into an agreement for the operation of an "Official" Police Tow Truck Service, 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 shall commence on the first day of May, 1998, and shall terminate on the 30th day of April, 2003, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED BY OPERATOR Operator agrees to operate as one of the city's " Official" Police Tow Truck Service in conformity with the eligibility requirements and operating regulations contained in Chapter 5.15 of the Newport Beach Municipal Code, and which by this reference is incorporated herein. 3. RATE SCHEDULES Operator shall charge the rates for services described in section 5.15.040 as set forth in Exhibit "A" which is incorporated herein by Iefet-ace. The rate schedule will automatically be adjusted on its anniversary date based on the percentage change in the costs of doing business as measured by the United States Department of Labor, Bureau of labor Statistics, Consumer Price Index, for all Urban Consumers for the Los Angeles -Long Beach- Anaheim Area, All Items, (1967=100) for the preceding twelve (12) months. Operator shall provide a listing of the rates to be charged. The Operator shall charge the City no more than twenty-five percent (25%) of the charge set forth in Exhibit "A" for storage of vehicles taken into custody that involve evidence as described in paragraph 9 (2) of this Agreement. 4. STANDARD OF CARE Operator warrants and guarantees that all services performed hereunder shall be provided in a manner commensurate with the highest professional standards and shall be performed by qualified and experienced personnel. 5. INDEPENDENT OPERATOR The parties of 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 Operator, except to the extent 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 Operator's services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers' compensation insurance, retirement and deferred compensation plans, vacation and sick leave, area available from city to Operator, its employees or agents. 6. HOLD HARMLESS Operator 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 defense costs and reasonable attorneys' fees, regardless of merit or outcome of any such claim or suit, which arise out of or result from, or occur in connection with operator's performance of services or work conducted or performed pursuant to this Agreement and Chapter 5.15. 2 7. INSURANCE Operator shall be required to provide insurance as required by Newport Beach Municipal Code Section 5.15.130. On or before the commencement of the term of this Agreement, Operator shall furnish the City with certificates showing the type, amount, class or operations covered, effective dates and dates of expiration of insurance policies. Such certificates, which do not limit Operator's indemnification, shall also contain substantially the following statement: "The insurance covered by this certificate will not be canceled or materially altered, except after ten (10) days written notice has been received by the City." It is agreed that Operator 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 good and responsible company or companies, doing insurance business in the State of California. Operator shall maintain general commercial liability insurance with combined single limits in the amount of $1,000,000. B. Subrogation Waiver: Operator agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, that Operator shall look solely to its insurance for recovery. Operator hereby grants to City, on behalf of any insurer providing insurance to wither Operator or the city with respect to the services of Operator herein, a waiver of any right of subrogation which any such insurer of said Operator may acquire against City by virtue of the payment of any loss under such insurance. • C. 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 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 Operator secondarily, if necessary. 8. PROmBITION AGAINST TRANSFER Operator shall not assign, sublease, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise. Any attempt to do so without said consent shall be null and void, and any assignee, sublease, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecate or transfer. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Operator, or of the interest of any general partner or joint venture or syndicate member or cotenant, if operator is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Operator, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 9. STORAGE OF VEHICLES (1) The Operator shall store all vehicles, together with all accessories and equipment on said vehicles and all personal property in each vehicle, in City approved storage facilities. (2) Vehicles taken into custody that involve evidence shall be stored in an area and under conditions approved by the Police Department. The storage area will be protected against access by persons not authorized by the police. The Operator will be required to take all reasonable precautions required by the Police Department to avoid damage to any evidence, such as finger prints, stains, etc. (3) The Operator agrees to maintain storage facilities as required by Section 5.15.110 and as ordered impounded by the Police Department. The Operator will take any and all measures necessary to prevent theft or damage to vehicles and the accessories, equipment or other personal property impounded in his storage facility. (4) Personal property in vehicles listed on storage report forms shall be delivered to the Police Department upon written request no later than ninety (90) days after the date of impound if not called for by owner within set period. (5) No storage fees shall be imposed upon the owner of a recovered stolen vehicle for the first 24 hours of impoundment when held at the Police Department's request for evidence purposes. (6) Company agrees to waive towing and/or storage fees when reasonably requested by any police supervisor of the rank of Sergeant or above, or by the Traffic Civilian Supervisor. Such requests generally shall be limited to the towing of city vehicles, and the towing and storage of other vehicles as a result of mistake or error by city employees, or during the course of carrying out an official police investigation. 10. PERMITS AND LICENSES Operator, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required in connection with the performance of services hereunder. 11. CONTRACT SERVICES FEE As compensation for the costs incurred in connection with the towing program, the operator shall pay quarterly to the city during the life of this Agreement, a fixed percentage of the gross receipts of the Operator derived from Official Police Tow truck services provided within the City. Such percentage shall be ten percent 10%. Proceeds from vehicles sold at lien sale shall not be subject to the services fee. Payment shall be due to the City forty-five (45) days after the expiration of each calendar quarter. Operator shall file with the City, within ninety (90) days after expiration of Operator's fiscal year during which this Agreement is in force, a financial statement prepared by a certified 4 public accountant showing in detail the gross annual receipts from official police tow truck operations in the City of Operator, its successors and assigns, during the preceding fiscal year. In the event that the above payment is not received by the City within the specified time, Operator shall pay to the City a penalty of one and one-half percent (1.5%) per month on the unpaid balance in addition thereto. The right is reserved to the City of audit and recomputation of any and all amounts under this Agreement, and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further additional sums payment under this Agreement or for the performance of any obligation hereunder. 12. RECORDS Operator shall maintain complete and accurate records with respect to expenses, receipt and other such information required by City that relate to the performance of service under this Agreement. Operator shall maintain accurate records on services provided in sufficient detail to permit an evaluation of service. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Operator shall provide free access to the Revenue Manager or his or her designees at all proper times to such books and records, and gives 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. 13. NOTICES All notices, demands, requests or approvals to be given under this Aguxi tent 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 Operator to City shall be addressed to the City at: Newport Beach City Hall 3300 Newport Beach Blvd., PO Box 1768 Newport Beach, California 92659-1768 Attention: City Manager All notices, demands, requests or approvals from City to Operator shall be addressed to Operator at : G & W Towing 965 W. 18t° St. Costa Mesa, CA 92627 5 14. TERMINATION The grounds for termination of this Agreement are set forth in Newport Beach Municipal Code Section 5.15.140. In the event Operator has breached the terms of this Agreement or grounds for termination exist, the City shall provide written notice of the nature of the default and steps necessary to cure the default. If such default is not cured within a period of two (2) days after receipt by Operator of the written notice of default, this Agreement may be terminated by the City Manager by giving written notice to the Operator. Notice that the Agreement has been terminated shall state the reasons for termination of this Agreement to the City Council. The right to appeal shall terminate fifteen (15) days following the date of personal service or deposit of the notice in the United States mail. The City Council may preside over the hearing on appeal, or in the alternative, appoint a hearing officer to conduct the hearing and submit to the City Council finding and recommendations. The City Council shall render its decision within forty-five (45) days of receipt of findings and recommendations of the hearing officer. The decision of the City Council shall be final. 15. COST OF LITIGATION If any legal action is necessary to enforce any provisions 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 expense in such amounts as the court may adjudge to be reasonable attorneys' fees. 16. COMPLIANCES Operator shall comply with all laws, state or federal, and all ordinances, rules and regulations enacted or issued by the City. 17. 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. 18. INTERGRATED CONTRACT 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 Operator. The City hereby reserves every right and power, in the exercise thereof, which is reserved or authorized by any provision of any lawful ordinance or resolution of the City, whether enacted before or after the effective date of this Agreement. Neither the granting of the certificate of public necessity and convenience or any provision of this contract shall constitute a waiver of or a bar to the exercise of any governmental right or power to the City. 6 There is hereby expressly reserved to the City Council the power and authority to amend any section of Chapter 5.15 of the Newport Beach Municipal Code as to require additional or greater standards on the part of operator. In addition, the City of Newport Beach expressly reserves the power and authority to amend the provisions of Chapter 5.15 to authorize issuance of certificate of public necessity and convenience to three (3) official police tow truck services. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY ATTORNEY ATTEST: fRiLct141.-1 '( iti CITY CLERK CITY OF NEWPO i.' CH A Municipal By YOR 7