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
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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
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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
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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
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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
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By
PERATO
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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.
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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
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