HomeMy WebLinkAboutC-2839 - PSA for Installation and Maintenance of Advertising and Non-Advertising Bus SheltersAMENDMENT NO. ONE TO AGREEMENT
WITH CLEAR CHANNEL OUTDOOR
FOR INSTALLATION AND MAINTENANCE OF ADVERTISING AND
NON -ADVERTISING BUS SHELTERS
THIS AMENDMENT NO. ONE TO AGREEMENT ("Amendment No. One") is made
and entered into as of this 17th day of December, 2018 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation ("Contractor"),
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 City.
B. Contractor is an outdoor advertising company with operations in the United States,
Canada and Latin America, and is the current provider of advertising bus shelters
in the City pursuant to an agreement dated January 13, 2009 (the "2009
Agreement"), which is set to expire January 12, 2019.
C. A Request for Proposals ("RFP") was issued June 21, 2018, soliciting proposals
for a new contract to provide advertising bus shelters within the City. The City is
evaluating the proposals received, and will be making a selection and negotiating
a new contract over the next several months.
D. City desires to enter into this Amendment No. One with Contractor to allow
Contractor to continue providing bus shelters under the 2009 Agreement, until a
new contract is awarded and executed pursuant to the results of the RFP.
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 be for a period of five (5) years, commencing on
the Effective Date, unless terminated earlier as set forth herein.
Provided Contractor is not in default, Contractor may extend this Agreement for
one (1) additional five (5) year term ("Extension"). Contractor must exercise this
option by giving City written notice of its intention to do so at least three (3) months
prior to the expiration of the original term.
Upon the expiration of the original term and any optional Extension term,
Contractor's continued performance of services shall automatically be considered
as month -to -month operations subject to all the terms and conditions of this
Agreement. Month -to -month operations may be discontinued by the City or the
Contractor providing not less than thirty (30) calendar days' written notice of its
election to terminate the Agreement."
2. 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]
Clear Channel Outdoor, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: I 2_.//9/( 8
By:
ro,/:Aaron C. Harp
City Attorney
ATTEST:
Date: / / 7 / 7
By:
Lip)1 ni I. : rown
City Cle
(LW) OAS • t4
//I-411A_
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 1-/12,.-ri
By:
Gra - Leung
Cit anager
CONTRACTOR: CLEAR CHANNEL
OUTDOOR, I;C., a Delaware corporation
Date:
By:
G.'• cGrath
resident, Southern California Division
Date:
By.
en G.gnon
Vice President of Finance
[END OF SIGNATURES]
Clear Channel Outdoor, Inc. Page 3
Dui A
AGREEMENT WITH CLEAR CHANNEL OUTDOOR
FOR INSTALLATION AND MAINTENANCE OF
ADVERTISING AND NON -ADVERTISING BUS SHELTERS
THIS AGREEMENT is made and entered into as of this PM day of ciAl2009
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a Charter City
and Municipal Corporation ("City"), and CLEAR CHANNEL OUTDOOR, INC., a
Delaware corporation whose principal place of business is 19320 Harborgate Way,
Torrance, California 90501 ("Contractor"), 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
City.
B. Contractor is an outdoor advertising company with operations in the United
States, Canada and Latin America. Contractor is also a bus shelter provider to
the City pursuant to an agreement dated September 9, 1996 (the "1996
Agreement"), and continues to maintain twenty (20) shelters in the City ("1996
Shelters").
C. At the direction of City Council, City issued a Request for Proposals on July 9,
2007 ("RFP"), in which proposals were sought from outdoor advertisers to install
and maintain up to 27 new bus shelters at various locations in the City, some of
which would contain advertising, and to replace the 1996 Agreement. Contractor
responded to the RFP, and was selected by the City Council as the only
responsive bidder.
D. City desires to enter into this contract with Contractor to install and maintain the
City's bus shelters, provide advertising revenues to the City and replace the 1996
Agreement (the "Project").
E. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to provide the services under the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall be for a period of five (5) years, commencing on
the Effective Date, unless terminated earlier as set forth herein.
Provided Contractor is not in default, Contractor may extend this Agreement for
one (1) additional five (5) year term ("Extension"). Contractor must exercise this
option by giving City written notice of its intention to do so at least three (3) months
prior to the expiration of the original term.
2. TIME OF PERFORMANCE
The parties agree that time is of the essence in performance of the services
required under this Agreement.
3. COMPENSATION
3.1 Payment. For the term of this Agreement, Contractor shall pay to City
Five Thousand Dollars ($5,000.00) per month ("Shelter Fee") for the
right to operate up to twenty-seven (27) bus shelters in the City.
If Contractor exercises its option for the Extension pursuant to Section 1
above, then at the time the Extension takes effect, the Shelter Fee shall
be adjusted in proportion to changes in the Consumer Price Index. Such
adjustment shall be made by multiplying the original Shelter Fee by a
fraction, the numerator of which is the value of the Consumer Price Index
for the calendar month three (3) months preceding the calendar month for
which such adjustment is to be made and the denominator of which is the
value of the Consumer Price Index for the same calendar month
immediately prior to the Effective Date. In no event shall the adjusted
Shelter Fee be reduced below the Shelter Fee immediately preceding any
adjustment. The "Consumer Price Index" to be used in such calculation is
the Consumer Price Index, All Urban Consumers (All Items), for the Los
Angeles Anaheim Riverside Metropolitan Area, published by the United
States Department of Labor, Bureau of Labor Statistics (1982 84 = 100).
If both an official index and one or more unofficial indices are published,
the official index shall be used. If said Consumer Price Index is no longer
published at the adjustment date, it shall be constructed by conversion
tables included in such new index.
3.2 New Shelters. This monthly Shelter Fee shall be increased by Two
Hundred Dollars ($200.00) for each advertising shelter added beyond the
first twenty-seven (27) shelters. If an additional shelter is installed or
2
removed after the 1st of any month, the additional monthly fee of $200.00
shall be prorated for any month between the date of installation and the
first of the following month. Notwithstanding the foregoing, Contractor
shall not be required to provide, install or maintain more than an
aggregate of twenty-seven (27) bus shelters in the City.
3.3 Late Fees. Contractor shall pay all fees on or before the 1st day of each
month. If fees are not paid when due, then in addition to the fees,
Contractor shall pay a late payment penalty in an amount equal to ten
percent (10%) of the fee that was not timely paid. If Contractor fails to
pay delinquent fees within thirty (30) days of the date due, Contractor
shall pay a second late payment penalty in an amount equal to ten
percent (10%) of the fee outstanding after such thirty -day period. The
second late payment penalty shall be in addition to the first late payment
penalty. In addition, Contractor shall pay interest on all unpaid fees at the
rate of ten percent (10%) per annum or the legal rate allowed, whichever
is greater. Interest shall be paid for all fees that remain unpaid after thirty
(30) days from the date they were due.
3.4 City Generated Messages. Upon City's written request, but at locations
determined by Clear Channel, up to twenty percent (20%) of the bus
shelters may be used for City generated messages. These shelters shall
be furnished, installed and maintained by Contractor and considered part
of the consideration for this Agreement.
3.5 Ownership of Shelters. All shelters are the property of Contractor, and
upon termination or expiration of this Agreement, shall be removed as
provided in this Agreement.
4. PERMITS
Contractor shall obtain separate permits from the City for each shelter installed.
Such permits shall consist of a Public Works Encroachment Permit, a Building
Permit, an Electrical Permit, and any other permit deemed necessary by City.
Each shelter shall have displayed in a conspicuous place, the name of the
Contractor and the shelter identification number.
5. ADMINISTRATION
This Agreement will be administered by the Revenue Division. Evelyn Tseng
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or her authorized representative
shall represent City in all matters pertaining to the services to be rendered
pursuant to this Agreement.
3
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other City departments that may have jurisdiction
or interest in the work to be performed.
6. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate and oversee
the services to be provided under this Agreement. The Project Manager shall be
available to City at all reasonable times. Contractor has designated Layne
Lawson to be its Project Manager.
7. LOCATION OF BUS SHELTERS
7.1 Contractor shall remove the existing 1996 Shelters and replace them with
new shelters at the twenty (20) locations as indicated in Exhibit "A".
In addition to the twenty (20) shelters listed in Exhibit "A", City may
designate an additional seven (7) bus shelter locations within the first three
(3) years of this Agreement, to be installed by Contractor within the first
five (5) years of this Agreement. The locations of the bus shelters shall be
chosen by the City, with the advice of Contractor.
7.2 Contractor agrees not to place or locate shelters in any area within the
City's jurisdiction without the prior written approval of the City Manager or
his or her designee. Contractor also agrees not to place or locate a shelter
in any area without first obtaining a permit from the City.
City may require Contractor to relocate bus shelters as the bus lines
change, if there is higher than normal vandalism in that area, or upon
complaints from the public.
8. BUS SHELTER DESIGN AND INSTALLATION
8.1 Contractor shall be responsible for all costs and expenses associated in
any way with the installation of the bus shelters.
8.2 Contractor shall replace or install five (5) shelters in the first twelve (12)
months following the Effective Date, another five (5) shelters in the
following twelve (12) months, then all the remaining shelters listed in
Exhibit "A", or as designated by the City pursuant to Section 7.1, in the
next twelve (12) months.
City shall provide, in writing, the order in which the bus shelters shall be
replaced or installed.
8.3 Each bus shelter shall have the following amenities: bench, 40 gallon trash
receptacle, overhead shelter and lighting.
4
8.4 Each shelter shall be constructed to conform to the common design shown
on Exhibit "B". Plans shall be submitted to City at least thirty (30) days
prior to installation. The plans shall include detailed drawings and
structural calculations of all elements, including, but not limited to, the
shelter and the bench. Any change in design as depicted and set forth in
Exhibit "B" must be approved by City in writing. City shall have the sole
discretion to approve any design changes that differ from Exhibit "B".
8.5 Contractor shall construct each bus shelter to comply with the
requirements of the Americans with Disabilities Act ("ADA"), and all other
applicable government rules and regulations, and shall be responsible for
all costs associated with compliance with the ADA, including the cost of
any required right-of-way upgrade/construction.
Contractor must confirm feasibility and design of each City bus shelter with
the Orange County Transportation Authority.
Contractor shall be responsible for installing the shelters per the "Bus Stop
Safety and Design Guidelines" prepared by the Orange County
Transportation Authority, dated March 2004, as it may be amended from
time to time.
8.6 All components of the bus shelters must be fabricated of high quality,
durable and vandal -resistant materials. Painted structures should have no
less than a baked -on porcelain enamel finish or better. To the maximum
extent feasible, all surfaces of the bus shelters that are accessible to the
public must be graffiti resistant. Adequate illumination of shelters (average
of vertical one foot candle) and adjacent sidewalk must be provided.
8.7 Contractor shall fumish and pay for all charges for electrical connections and
the energy used and supplied to the shelters and shall indemnify the City
against any and all costs and charges arising out of the use, maintenance,
and construction thereof. Shelters shall be illuminated from sunset to
sunrise.
8.8 All shelters shall be installed on concrete pads or sidewalks and be plumb,
level, true, rigid and neat in every respect. The work shall adhere to the
engineered plans supplied to the City to obtain required permits. Any
disturbance of existing sidewalk will be restored in a manner satisfactory to
City.
8.9 Shelters may only be installed between the hours of 9:00 a.m. and 4:00
p.m., Monday through Friday. All work must be done in accordance with
the Uniform Building Code. All street disruption work will follow the Work
Area Traffic Control Handbook (W.A.T.C.H.) guidelines.
5
8.10 Contractor shall obtain all necessary permits and pay for all fees and costs
regularly assessed by the City, including any State and/or Federal
requirements associated with site development and shelter construction.
8.11 Pay phones shall not be installed at any bus shelter.
9. BUS SHELTER REPAIR AND MAINTENANCE
9.1 Contractor shall maintain, repair, clean and service the shelters to the
City's satisfaction. All work shall be performed at the sole cost and
expense of Contractor.
9.2 Each shelter shall be cleaned not less than twice per week and power
washed not less than twice a year. Trash receptacles shall be emptied
when full, but not less than two (2) times per week.
Notwithstanding the foregoing, some locations may require more
maintenance than twice per week cleaning. City shall inform Contractor of
such locations and Contractor shall clean those locations not less than
three times per week.
9.3 Emergency repairs, including graffiti removal, shall be done within twenty-
four (24) hours of notice to Contractor. Contractor shall provide City with a
twenty-four (24) hour emergency contact telephone number.
9.4 Upon City's request, Contractor shall provide City with a monthly
maintenance log to monitor the maintenance program and identify
locations with frequent vandalism. At City's request, Contractor shall
provide additional maintenance, as required.
9.5 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses sufficient personnel
to perform the services required by this Agreement, and that it will perform
all services in a manner commensurate with community professional
standards. All services shall be performed by qualified and experienced
personnel who are not employed by City, nor have any contractual
relationship with City.
9.6 Contractor represents and warrants to City that it has, shall obtain, and
shall keep in full force in 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 Contractor to practice its
profession. Contractor shall maintain a City of Newport Beach business
license during the term of this Agreement.
6
10. SHELTER REMOVAIJRELOCATION
10.1 Contractor shall retain the right to remove any shelter upon thirty (30) days
notice to City in the event the federal, state, municipal or other proper
authorities should hereafter establish any rules, regulations or taxation
which shall so restrict the location, construction, maintenance or operation
of the shelters as to substantially diminish the value of said shelters for
advertising purposes or which inhibits the ability of the shelter to generate
advertising profits; or in the event of "chronic vandalism."
"Chronic vandalism" shall be defined as damages inflicted to any individual
shelter during any six (6) month period that requires cumulative
expenditures for replacement and repair that exceed the original cost of
construction and installation of the shelter.
If Contractor's request to remove shelters pursuant to this Section 10.1
results in Contractor having less than 20 shelters in the City, the Shelter
Fee shall, nevertheless, remain the same and shall not be prorated.
10.2 Subject to the cure provisions set forth in Section 25, in the event that City
fails to receive notice of non -renewal of any required permit or insurance
on or before thirty (30) days before the expiration date thereof, or in the
event any required insurance is canceled and no evidence of equal
coverage is filed with City on or before twenty (20) days prior to the
expiration or cancellation date of any coverage required by this
Agreement, or upon expiration or termination of this Agreement for any
reason, Contractor agrees to remove immediately all of its shelters if
requested by City. If Contractor fails to remove any shelter as required by
this Section within thirty (30) days after notice to do so is mailed by City,
City shall have the right to remove the shelters and Contractor agrees to
pay City's costs for such removal and site restoration.
10.3 City reserves the right to require Contractor to remove any shelter if: (a)
the shelter is not maintained as required in this Agreement; (b) the bus
stop location is changed; (c) the shelter will interfere with the construction,
maintenance or repairs of any public utility or public improvement; (d)
there is higher than normal vandalism in that area; (e) there are
complaints from the public regarding the shelter; or (f) any term of this
Agreement or any permit issued to Contractor by City is violated. If
Contractor fails to remove any shelter as required by this Section within
thirty (30) days after notice to do so is mailed by City, City shall have the
right to remove the shelters and Contractor agrees to pay City's costs for
such removal and site restoration.
7
If City's request to remove shelters pursuant to this Section 10.3 results in
Contractor having Tess than 20 shelters in the City, the Shelter Fee shall
be prorated accordingly.
In the event City requests relocation of a shelter, Contractor agrees to
relocate the shelter at its own expense and restore the site to the
satisfaction of the City. Relocation shall be completed within fifteen (15)
calendar days after a new site is found by the City and Contractor has
been notified in writing by the City.
10.4 Upon removal of any or all shelters, all materials shall be removed from
the site, including, but not limited to, all wires. The site shall be restored
to the condition as it existed prior to installation of the shelter, including
complete restoration of any sidewalk upon which the shelter was located.
Contractor agrees to be responsible for all costs involved in removing the
shelter and restoring the site as required herein.
11. ADVERTISING
City has legitimate government interests in avoiding the appearance of favoring
any political candidate, ballot measure or related issue, and in not imposing
objectionable, obscene, pomographic or adult oriented material upon a captive
audience — those who use public transportation. City also has a legitimate
government interest in avoiding material on its bus shelters that distracts or
confuses motorists. Contractor desires to maintain a reputable and inoffensive
advertising policy. Therefore, if City provides notice that any advertising is
contrary to the interests stated herein, as determined by City, Contractor agrees
to remove the advertisement.
Inappropriate or offensive advertising shall include, but is not limited to, the
following:
(a) Advertising that is likely to confuse, distract, interfere, mislead, or conflict
with any traffic control device or traffic circulation. Arrows or directions to
a location shall be prohibited. In addition, no advertising, signs or devices
shall be permitted in conjunction with the shelter which display the words
"STOP", "DRIVE-IN", "DANGER", or any other word, phrase, symbol or
character that may interfere with, mislead, or direct vehicular traffic.
(b) Advertisements that contain or depict pornographic material, or adult
material that is harmful to minors, or obscene matters as defined in
California Penal Code Sections 311 through 312.5 inclusive, and as
determined by a court.
(c)
Advertisement of alcoholic beverages, tobacco or other substances
known to be health hazards.
8
(d) Political advertisements.
(e) Symbols, images and language deemed offensive by the City.
(f) Advertising or displays that contain rotating, revolving or flashing lighting
devices or any other moving parts.
(g) Advertising that promotes unsold bus shelter advertising space.
(h) Any other advertising that is determined by the City, in its sole discretion,
to not sufficiently comply with the City's Sign Code as codified in Newport
Beach Municipal Code Section 20.67.
Contractor shall remove any advertisement within twenty-four (24) hours of
receipt of verbal notice from City, with written notice to follow from the City.
Should Contractor fail to remedy the situation within this time period, the City
may elect to assume this responsibility and all City costs associated with the
removal of inappropriate advertising shall be paid by Contractor.
12. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
13. HOLD HARMLESS
To the fullest extent permitted by law, Contractor 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 work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship or materials and/or design defects [if the design originated with
9
Contractor]) or Contractor's presence or activities conducted on the Project
(including the negligent and/or willful acts, errors and/or omissions of Contractor,
its principals, officers, agents, employees, vendors, suppliers, Contractors,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor 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 attomey'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 Contractor.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of work. Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Contractor shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. 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.
D. Coverage Requirements.
Workers' Compensation Coverage. Contractor shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of Califomia. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation
10
Insurance and Employer's Liability Insurance in accordance with the
laws of the State of Califomia for all of the subcontractors
employees. Any notice of cancellation or non -renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed by
Contractor for City.
ii. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount not less than two million
dollars ($2,000,000) per occurrence for bodily injury, personal injury,
and property damage, including without limitation, contractual
liability. If commercial general liability insurance or other form with a
general aggregate limit is used, either the general aggregate limit
shall apply separately to the work to be performed under this
Agreement, or the general aggregate limit shall be at least twice the
required occurrence limit.
iii. Automobile Liability Coverage. Contractor shall maintain automobile
insurance covering bodily injury and property damage for all activities
of the Contractor 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 two
million dollars ($2,000,000) combined single limit for each
occurrence.
iv. Certificates of Insurance. Contractor shall provide all proofs and
certificates of insurance required under the Agreement prior to
beginning work under this Agreement.
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Contractor.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Contractor's operations or services
provided to City. Any insurance maintained by City, including any
self -insured retention City may have, shall be considered excess
11
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
v. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non-payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Contractor's performance under this Agreement.
G. Additional Insurance. Contractor 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.
H. Insurance at Extension. The limits of coverage provided in this Section
may be increased at the Extension if deemed necessary by the City's Risk
Manager to be consistent with industry standards.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
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 Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint -venture or syndicate or cotenancy,
which shall result in changing the control of Contractor. 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. Notwithstanding the
foregoing, Contractor may assign or transfer the Agreement to an entity
controlling, under common control with or controlled by Contractor.
12
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Contractor. Assignments of any or all rights, duties or obligations of Contractor
under this Agreement will be permitted only with the express written consent of
City.
17. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information or
otherwise required by law.
18. INTELLECTUAL PROPERTY INDEMNITY
Contractor shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of
any United States letters patent, trademark, or copyright infringement, including
costs, contained in Contractor advertising or other services or products provided
under this Agreement.
19. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor under this Agreement. All such records and
invoices shall be clearly identifiable. Contractor shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Contractor shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Contractor under this
Agreement.
20. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Contractor shall not discontinue work as a result of such withholding. Contractor
shall have an immediate right to appeal to the City Manager or his/her designee
13
with respect to such disputed sums. Contractor shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and/or
restoration expense shall be borne by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
22. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
23. CONFLICTS OF INTEREST
Contractor 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.
If subject to the Act, Contractor 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. Contractor shall indemnify and hold
harmless City for any and all claims for damages resulting from Contractor's
violation of this Section.
24. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Contractor and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first-class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Contractor to City shall be addressed to City at:
14
Attn:
Phone:
Fax:
All notices, demands, requests
addressed to Contractor at:
Attn:
Phone:
Fax:
25. TERMINATION
Evelyn Tseng
Income Contract Administrator
Revenue Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658-8915
949-644-3153
949-644-3339
or approvals from City or Contractor shall be
Layne Lawson
Director of Public Affairs
19320 Harborgate Way
Torrance, CA 90501
(310) 755-7234
(310) 755-7355
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and. in the manner required, that party shall be
deemed in default in the performance of this Agreement. The non -defaulting
party shall provide written notice specifying the default. If such default is not
cured within thirty (30) calendar days from the date of the notice, or if more than
thirty (30) calendar days are required to cure the default, then this Agreement
shall terminate on the thirtieth (30t) day, unless the non -defaulting party agrees
in writing to an extension of the cure period.
If any default by Contractor shall continue without cure as required by this
Agreement, City shall have the remedies described in this Section in addition to
all other rights and remedies provided by law or equity, to which City may resort
cumulatively or in the altemative.
On the effective date of termination, Contractor shall remove all its bus shelters
and amenities from the City, completely restore the sidewalk where the shelters
were located and repair any damage caused by the removal of the shelters and
amenities to a condition acceptable to the City. If Contractor fails to remove any
shelter or amenities as provided herein upon no less than 90 days written notice,
then City shall have the option to keep the shelters in operation, with no payment
to Contractor; or alternatively, to remove the shelters and amenities on
Contractor's behalf, dispose the shelter and amenities, which shall be deemed to
have no value, restore the sidewalk where the shelters were located and repair
any damage caused by the removal of the shelter and amenities. Contractor
shall reimburse the City for all costs associated with work performed by the City
as set forth herein within thirty (30) days of received an invoice from the City.
15
26. COMPLIANCE WITH ALL LAWS
Contractor 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 by Contractor 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City
Attorney.
32. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
16
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
33. 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.
34. EQUAL OPPORTUNITY EMPLOYMENT
Contractor 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 or age.
35. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute one
and the same instrument. A facsimile signature shall be deemed an original.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
Aaron
Assistant City Attorney
City of Newport Beach
ATTEST:
By:
C. Harp,
Leilani Brown,
City Clerk
CITY OF N WPORT BEACH,
A Municip Corporatio
r
By:
Edward D. Se ich,
Mayor
City of Newport Beach
CLEAR C OUTDOOR:
Bv:
(Corporate Officer)
TIt1 .President, Southern California
Division
Print Name Greg McGrath
By:
ancial Officer)
Title: Finance Manager
Print Name: Marc Goldstein
Attachment: Exhibit "A" — List of Bus Shelters
Exhibit "B" — Bus Shelter Depiction
18
Exhibit "A"
These shelters shall be installed/replaced:
1. MacArthur Boulevard w/s @ Newport Place
2. Dover Drive e/s @ 16t" Street
3. San Nicholas Drive s/s @ Newport Center Drive
4. Newport Center w/s @ Newport Center West
5. Balboa Boulevard e/s @ 32nd Street
6. Campus Drive s/s @ MacArthur Boulevard
7. Dover Drive e/s @ Pacific Coast Highway
8. MacArthur Boulevard w/s @ Birch Street
9. Newport Boulevard w/s @ Hospital Road
10. Newport Boulevard e/s @ Hospital Road
11. Newport Center e/s @ 4 Seasons
12. Pacific Coast Highway w/s @ Orange Avenue
13. Pacific Coast Highway w/s @ 57th Street
14. Pacific Coast Highway w/s @ Newport Coast Drive
15. Westcliff Drive s/s @ Irvine Avenue
16. Pacific Coast Highway n/s @ Superior
17. Pacific Coast Highway w/s a@ Prospect Street
18. Balboa Boulevard e/s @ 23 Street
19. Balboa Boulevard e/s @ River Avenue
20. Balboa Boulevard w/s @ River Avenue
19
Exhibit "B"
w•.E - • „,„:„....„:„....:,,......
_144AXSXXXiil
AGREEMENT FOR BUS SHELTERS C — 2- 3 Y'
--� THIS AGREEMENT, entered into this /7 d day of
Lecember , 1990, by and between the ITY OF NEWPORT
BEACH, a municipal corporation (hereinafter referred to as
"CITY"), and BUSTOP SHELTERS OF CALIFORNIA, INC., a California
corporation (hereinafter referred to as "CONTRACTOR"), is made
with reference to the following:
RECITAL S:
A. The CITY is a municipal corporation duly organized
and validly existing under the laws of the State of California
with the power to carry on its business as it is now being
conducted under the Statutes of the State of California and the
Charter of the CITY.
B. The CITY and CONTRACTOR desire to enter into an
agreement for the installation and maintenance of bus shelters at
mutually acceptable locations throughout the City, upon the terms
and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between
the undersigned parties as follows:
1. TERM
The term of this Agreement. shall be exclusive and.
shall commence on the / 7 4 day of DeceoP6er- ,
1 0, and shall remain andcontinue in effect until
,,Oecemier /h , /995 , which is a five (5) year term,
unless terminated as set forth herein.
Such term may be extended by mutual written
consent of the parties for one (1) successive term of five (5)
years, but neither the CITY nor the CONTRACTOR shall incur any
obligation beyond the term contained herein prior to execution of
the written agreement.
2. LOCATIONS
CITY hereby grants. to CONTRACTOR, on terms herein.
contained, the right to install, repair and maintain shelters at
locations throughout the City. As of October 1, 1990, there are
eighteen (18) shelters with advertising approved.
Additional locations may be requested by either
CITY or CONTRACTOR. ..Approval of said additional locations shall
be by written mutual consent.
3. FF.RS PAYABLE TO CITY
A. Annual Fee
CONTRACTOR shall make payment to CITY on a
monthly basis. The monthly fee shall be One Hundred Fifty -Five
Dollars ($155.00) per month, per shelter for the first year. In
year two (2), the income per shelter will increase to One Hundred
Sixty -Four Dollars ($164.00) for each advertising shelter. In
year three (3), the income per shelter will increase to One
Hundred Seventy -Three Dollars ($173.00) per shelter. In year
four (4), the income per shelter will increase to One Hundred
Eighty -Two Dollars ($182.00). In year five (5), the income per
shelter will increase to One Hundred Ninety -One Dollars
($191.00).
The fee for any fractional part of any month
between the date of installation and the first date of the
following month shall be prorated and paid by CONTRACTOR, along
with fees for the remainder of the year period.
An installation bonus will be paid for each
shelter installed. A bonus of One Hundred Thousand Dollars
($100,000.00) for the shelters currently installed will be paid
upon execution of .this agreement. A bonus of Five Thousand
Dollars ($5,000.00) per shelter will be made for each additional
shelter with advertising installed pursuant to this agreement.
Payment shall be made prior to installation.
B. Other Considerations
CONTRACTOR agrees to furnish, install and
maintain five (5) bus shelters without advertising in addition to
the two (2) existing as of October 1, 1990.. These shelters may
be outfitted at no cost to. the CITY, with advertising kiosks
dedicated solely for public service or City -generated messages.
CONTRACTOR agrees to furnish, install and
maintain twenty-five (25) bus benches without advertising, in
addition to those in place on October 1, 1990.
Said installation _shall be completed within
ninety (90) days from notification by CITY of installation
location. All installations provided for above, with the
exception of bus shelters with advertising, shall become the
property of CITY at the termination or expiration of this
Agreement, as herein provided.
2
4. CONTRACTOR'S SERVICES
A. Scone of Service
CONTRACTOR shall, at its own cost and
expense, construct, install and maintain bus shelters and bus
benches herein described at locations approved by CITY.
Shelters and amenities will only be. installed
between the hours of 9:00 a.m. and 4:00 p.m., Monday through
Friday. All workwill be done in accordance with the Uniform
Building Code and all street •disruption will follow the
W.A.T.C.H. guidelines.
All shelters and amenities will be installed
onconcrete pads or sidewalks and be plumb, level, true, neat,
and rigid in every respect. Thework shall adhere to the
engineered plans supplied. Any disturbance of existing sidewalk
will be restored in a manner satisfactory to the CITY.
A completed shelter includes all glass panels
installed, a bench, a trash receptacle, overhead lighting and
transit route information kiosks. Immediately prior to
acceptance by the CITY, each shelter and surrounding area shall
be cleaned and all excess materials removed.
B. Time of Installation
CONTRACTOR shall install any additional
shelters within ninety (90) days of CITY's authorization to begin
installation, including all electrical power, benches and trash
containers.
C. Shelter Design
Each shelter shall be constructed to a common
design. Said design shall be submitted for written approval by
CITY at least thirty (30) days prior to installation.
Design shall include detailed drawings and
structural calculations of all elements including, but not
limited to, the shelter and the bench. Each shelter shall
include the provision of an adequately -sized trash container.
D. Permits
CONTRACTOR shall obtain separate permits from
CITY for each bus shelter. Said permits shall consist of a
Public Works Encroachment Permit, a Building Permit, an
Electrical Permit, and any other permit deemed necessary by CITY.
Each shelter shall have displayed in a conspicuous place the name
of CONTRACTOR and the Encroachment Permit number.
3
All required permits for each shelter shall
be issued at the same time and no such permits shall be issued
without proof of available electrical service. CONTRACTOR shall
pay all permit costs regularly assessed by CITY.
E. Repair and Maintenance
CONTRACTOR shall maintain, repair, clean and
service the shelters. CONTRACTOR shall be at liberty to enter
upon and into shelters at any reasonable time with personnel and
all necessary materials including, but not limited to, electric
wires, meters, clock work machinery and other items reasonably
necessary for making said shelter effective. All such work shall
be performed at the sole expense of CONTRACTOR. Each shelter
shall be cleaned not less than two (2) times per week. Emergency
repairs, including graffiti removal, shall be done within twenty-
four (24) hours. CONTRACTOR shall provide CITY with twenty-four
(24) hour emergency telephone number.
F. Advertising
1. The limitations on advertising as
specified in this Section are predicated on .legitimate City
interests, including, without limitation:
(a) a strong desire to avoid the
appearance of favoring any political candidate, ballot measure,
or related issue;
(b) a strong desire not to impose
objectionable matter upon a captive audience -- those that
choose, or are forced to use, public transportation; and
(c) avoiding material which could
distract or confuse motorists, thereby causing bodily injury,
property damage and City liability.
2.. No sign shall be placed or displayed on
any shelter except in the area designated for advertising.
3. The following types of advertising would
run counter to the objectives of the City as specified in
subsection F(1) and the restrictions represent the least
intrusive means available to accomplish these objectives:
(a) Advertisement of political
candidates, political campaign or ballot measures or political
issues is prohibited;
(b) Advertisements which contain or
depict pornographic material are prohibited;
(c) Advertisement of alcoholic
beverages, tobacco or„other substances known to be health hazards
is prohibited.
Shelter Removal
CONTRACTOR shall retain the right to remove
any shelter upon thirty (30) days notice to CITY in the event the
federal, state, municipal or other proper authorities should
hereafter establish any rules, regulations or taxation which
shall so restrict location, construction, maintenance or
operation of the shelters as to substantially diminish the value
of said shelters for advertising purposes, or in the event of
"chronic vandalism", as hereinafter defined.
In the event CITY fails to receive notice of
renewal of any permit or the comprehensive general liability
insurance on or before twenty (20) days before the expiration
date thereof, or in the event the comprehensivegeneral liability
insurance is canceled and no evidence of equal coverage is filed
with CITY on or before twenty (20) days prior to the expiration
date of either coverage, or upon termination of this .Agreement
for any reason, CONTRACTOR agrees to remove immediately all of
its shelters. If CONTRACTOR fails to do so within thirty (30)
days after notice to do so is mailed by CITY, CITY shall have the
right to remove said shelters and CONTRACTOR agrees to pay to
CITY, CITY's costs for such removal and site restoration.
"Chronic Vandalism" shall be defined as
damages inflicted to an individual shelter during any six (6)
month period which requires cumulative expenditures for
replacement and repair that exceed the original cost of
construction and installation of the shelter.
CITY reserves the right to demand that any of
said shelters be removed if a shelter is not maintained properly;
if the bus stop location is changed; shelter will interfere with
any construction, maintenance or repairs of any public utility or
public improvement; or, if any term of this agreement or of any
permit issued to CONTRACTOR by CITY is violated. In the event of
said demand, CONTRACTOR agrees to be responsible for all costs
involved in restoring the site.
Upon removal of any or all shelters erected
by CONTRACTOR hereunder, all material shall be removed from the
site, including, but not by way of limitation, all wires. The
site. shall be restored to the condition as it existed prior to
installation of the shelter, including complete restoration of
any sidewalk upon which said shelter was located.
5
c
5. INDEPENDENT PARTIES
The parties to this. Agreementintend that the
relation between them created by this Agreement is that of
employer -independent contractor. The manner and means of
conducting the work are under the control of the CONTRACTOR,
except to the extent that they are limited by statute, rule or
regulation and the express terms of this Agreement. No Civil
Service status or other right of employment will be acquired by
virtue of the CONTRACTOR's services. None of the benefits
provided by the CITY to its employees including, but not limited
to, unemployment insurance, worker's compensation insurance,
retirement and deferred compensation plans, vacation and sick
leave, are available from the CITY to the CONTRACTOR, its
employees or agents. From any fees due the CONTRACTOR,
deductions shall not be made for any State or Federal taxes, FICA
payments, PERS payments, or other purposes normally associated
with an employer -employee relationship. Payment of the above
items, if required, are the responsibility of the CONTRACTOR.
6. INSURANCE
On or before.the commencement of the term of this
Agreement, CONTRACTOR shall furnish the CITY with certificates
showing the type, amount, class of operations covered, effective
dates and dates of expiration of insurance policies. Such
certificates, which do not limit CONTRACTOR's indemnification,
shall also contain substantially the following statement: "The
insurance covered by this certificate will not be canceled or
materially altered, except after thirty (30) days written notice
has been received by the CITY."
It is agreed that CONTRACTOR shall maintain in
force at all times during the performance of this Agreement, all
appropriate policies of insurance, and that said policies of
insurance shall be secured from a company or companies, doing
insurance business in the State of California and assigned a
Policyholder's Rating A (or higher) and Financial Size Category
Class VIII (or larger) in accordance with the latest edition of
Best's Key Rating Guide: Property -Casualty.
A. Liability Insurance
Said policy or policies of insurance shall
provide coverage for both bodily injury and property damage in
not less than the following minimum amounts: Two Million Dollars
($2,000,000.00) combined single limit. Said policy or policies
shall also contain a provision that no termination, cancellation
or change of coverage or of insured or additional insured shall
be effective until after thirty (30) days notice thereof has been
given in writing to the CITY.
6
B. Worker's Compensation Insurance
Worker's compensation insurance shall be
carried for its employees in an amount and with coverage to meet
all requirements of the Labor Code of the State of California and
which specifically covers all persons providing services on
behalf of CONTRACTOR and all applicable risks to such persons
under this agreement. CONTRACTOR shall bear the sole
responsibility and liability for furnishing Worker's Compensation
benefits to any person for injuries arising from or connected
with services performed on behalf of CONTRACTOR pursuant to this
agreement. A certificate evidencing such insurance coverage
shall be filed with the City Manager or designee prior to
commencement of work hereunder.
C. $ubroaation Waiver
CONTRACTOR agrees that in the event of loss
due to any of the perils for which it has agreed to provide
insurance, that. CONTRACTOR shall look solely to its insurance for
recovery. CONTRACTOR hereby grants to CITY, on behalf of any
insurer providing insurance to either CONTRACTOR or the CITY with
respect to the services of CONTRACTOR herein, a waiver of any
right of subrogation which any such insurer of said CONTRACTOR
may acquire against CITY by virtue of the payment of any loss
under such insurance.
D. Additional Insured
The CITY, its City Council, Boards and
Commissions, officers, agents, servants and employees shall be
named as an additional insured on all policies of insurance
required by this Agreement. The naming of an additional insured
shall not affect any recovery to which such additional insured
would be entitled under this policy if not named as such
additional insured and an additional insured named herein shall
not be held liable for any premium or expense of any nature on
this policy or any extension thereof.
Any other insurance held by an additional
insured shall not be required to contribute anything toward any
loss or expense covered by the insurance provided by this policy.
Proceeds from any such policy or policies shall be payable to the
CITY primarily, and to the CONTRACTOR secondarily, if necessary.
7
7. HOLD HARMLESS
Consulfant shall indemnify and hold harmless CITY,
its City Council, Boards and Commissions, officers, agents,
servants and employees from and against any and all loss,
damages, liability, claims, suits, costs and expenses,
whatsoever, including reasonable attorneys' fees, regardless of.
the merit or outcome of any such claim or suit, arising from or.
in any manner connected to the negligent performance or omission
of any services or work conducted pursuant to this Agreement.
8. PROHIBITION AGAINST TRANSFERS
A. CONSULTANT shall not assign, sublease,
hypothecate, or transfer this Agreement or any interest therein
directly or indirectly, by operation of law or otherwise, without
the prior written consent of CITY. Any attempt to do so without
consent shall be null and void, and any assignee, sublessee,
hypothecate or transferee shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
B. The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of
CONTRACTOR, or of the interest of any general partner or joint
venturer or syndicate member or co -tenant if CONTRACTOR is a
partnership or joint venturer or syndicate or co -tenancy, which
shall result in changing the control of CONTRACTOR, shall be
construed as an assignment of this Agreement. Control means
fifty percent (50%) or more of the voting power of the
corporation, or twenty-five percent (25%) or more of the assets.
9. TERMINATION
In the event CONTRACTOR hereto fails or refuses to
perform any of the provisions hereof at the time and in the
manner required hereunder, CONTRACTOR shall be deemed in default
in the performance of this Agreement. If such default is not
cured within a period of two (2) days after receipt by CONTRACTOR
from CITY of written notice of default, specifying the nature of
such default and the steps necessary to cure such default, CITY
may terminate the Agreement forthwith by giving to the CONTRACTOR
written notice thereof.
The CITY may terminate this Agreement, with
reasonable cause, by giving sixty (60) days written notice to
CONTRACTOR as provided herein._... Upon termination of this
Agreement, CONTRACTOR shall pay. to CITY that portion of
compensation specified in this Agreement that is earned and
unpaid prior to the effective date of termination.
10. COST OF LITIGATION
If any` legal action is necessary to enforce any
provision hereof or for damages by reason of an alleged breach of
any provisions of this Agreement, the prevailing party shall be
entitled to receive from the losing party all costs and expenses
in such amount as the court may adjudge to be reasonable attorney
fees.
11. COMPLIANCES
CONTRACTOR shall comply with all laws, State or
Federal, and all ordinances, rules and regulations enacted or
issued by the CITY.
12. NONDISCRIMINATION
CONTRACTOR represents and agrees that CONTRACTOR,
its affiliates, subsidiaries, or holding companies do not and
will not discriminate against any subcontractor, consultant,
employee, or applicant for employment because of race,religion,
color, sex, handicap, or national origin. Such nondiscrimination
shall include, but not be limited to, the following: employment,
upgrading, demotion, transfers, recruitment, recruitment
advertising, layoff, termination, rates of pay or other forms of
compensation, and selection for training, including
apprenticeship.
13. WAIVER
A waiver by the CITY of any breach of any term,
covenant, or condition contained herein shall not be deemed to be
a waiver of any subsequent breach of the same or any other term,
covenant, or condition contained herein whether of the same or a
different character.
14. RECORDS
CONTRACTOR shall maintain complete and accurate
records with respect to costs, expenses, receipts and other such
information required by CITY that relate to the performance of
services under this Agreement.
CONTRACTOR shall maintain adequate records on
services provided in sufficient detail to permit an evaluation of
services. All such records shall be 'maintained in accordance
with generally accepted accounting principles and shall be
clearly identified and readily accessible. CONTRACTOR shall
provide free access to the representatives of the CITY or its
designees at all proper times to such books and records, and give
the CITY the right. to examine and; audit same, and to make
transcripts therefrom as necessary, and to allow inspection of
all work, data, documents, proceedings and activities related to
this Agreement. Such records, together with supporting
documents, shall be- kept separate from other documents and
records and shall be maintained for a period of three (3) years
after receipt of final payment.
15. NOTICES
All notices, demands, requests or approvals to be
given under this Agreement, shall be given in writing and
conclusively shall be deemed served when delivered personally or
on the second business day after the deposit thereof in the
United States mail, postage prepaid, registered or certified,
addressed as hereinafter provided.
All notices, demands, requests, or approvals from
CONTRACTOR to CITY shall be addressed to CITY at:
City Manager
City of Newport Beach
3300 Newport Boulevard
P 0 Box 1768
Newport Beach, CA 92659-1768
A11 notices, demands, requests, or approvals from
CITY to CONTRACTOR shall be addressed to CONTRACTOR at:
Jean Claude LeRoyer
President
Bustop Shelters of California, Inc.
18023 Skypark Circle, H-2
Irvine, CA 92714
16. MERGER OF NEGOTIATIONS
This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the
parties hereto and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions hereof.
Any .modification of this Agreement will be effective only by
written execution signed by. both CITY and CONTRACTOR; This
Agreement supersedes any prior Agreement between CITY and
CONTRACTOR.
10
Oc. •
IN WITNESS .WHEREOF, the parties have caused this:
Agreement to be executed on the day and year first above written,
CITY OF NEWPORT BEACH BUSTOP SHELTERS OF CALIFORNIA, INC.
A Municipal Corporation A California Corporation
Mayor
APPROVED AS TO FORM:
City Attorney
RME.:bb
WP:A:BUSTOP.AGR
By \Qj e 3
t
Jean Claude LeRo er
Pres'dent
ATTEST:
City Clerk