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HomeMy WebLinkAboutC-3189 - Official Police Tow Truck Service Agreement0 AMENDMENT NO. TWO TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT Qj WITH METROPRO ROAD SERVICES, 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 METROPRO ROAD SERVICES, INC., a California corporation ("Operator"), whose address is 2550 S. Garnsey St., Santa Ana, CA 92707 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. 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'S OFFICE Date: —5 — iq By:kAaAm 4 1 Aaron C. Varp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: �p \'j---) \ By: Dave Ki City Manager OPERATOR: METROPRO ROAD SERVICES, INC. a alifornia corporation Date: C' /<a i.. By: By: _ .. Leilani I. brown Bra ey T. Humphrey City Clerk Pr sent & Secretary/ 0RNP [END OF SIGNATURES] METROPRO ROAD SERVICES, INC. Page 2 AMENDMENT NO. ONE TO OFFICIAL POLICE TOW TRUCK SERVICE AGREEMENT WITH METROPRO ROAD SERVICES, INC. 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 METROPRO ROAD SERVICES, INC., a California corporation ("Operator"), whose address is 957 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 May 17, 2012, Harbor Towing, Inc. merged with Metropro Road Services, Inc. D. 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. 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: 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 ATT RNEY'S OFFICE Date: `a /D//-� By: / Aar . Harp City Attorney ATTEST: 6 IV�, )3 Date: By: 4&� Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, A California municipal corporation Date: `J1 3g) By: Dave City Manager OPERATOR: SERVICE, I Date: S i -Y METROPRO ROAD a California corporation Humph [END OF SIGNATURES] Exhibit A — Official Police Tow Rate Schedule Effective July 1, 2012 METROPRO ROAD SERVICES, INC. Page 2 EXHIBIT A METROPRO ROAD SERVICES, INC. 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 Driveshatt $29.00 Dallies $56.00 Linkage $29.00 Rollover $73.00 After hours release $56.00 On-site release $$1.00 Service Call — min. $112.00 Labor $161/hr 0 0 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 HARBOR TOWING INC., a California corporation whose address is 957 West 17"' 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 Harbor 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. 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 terminate 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 0- 30 0 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 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 0 0 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 rimes 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 0 & 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 (501/o) 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. 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 (1.51/o) 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 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 addressed to Operator at: Harbor Towing Inc. 957 West 17`s Street 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 findings 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 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. APPROVED AS TO FORM: Y ATTORNEY ATTEST: 0�4- N -. 'T yt� b 9Tj4q CITY CLERK CITY OF NEWPORT BEACH A Municipal Cgrporation,,-�2 C MA V By PERATO ®� SEW P u 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 0 0 e- WI 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 Harbor Towing, whose address is 964 West 17t° 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 duty 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 Harbor 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 30s' 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 reference. 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 (251%) 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. S. 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. 0 0 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: - "Ihe 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. 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. 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 (5001a) 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 As compensation for the costs incurred in connection with the towing program, the 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 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 101/6. 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 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 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 trail, 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 : Harbor Towing 964 W. 17'" St. Costa Mesa, CA 92627 0 0 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 Idnd 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. 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. APPROVE ,AS TO FORM: CITY ATTORNEY ATTEST: / W" M 6, -1, � , � hR�t CITY CLERK CITY OF NE BE H A Municip orati By MAYOR OPE]