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HomeMy WebLinkAboutCC AG PKT 2011-12-12 #FAGENDA STAFF REPORT DATE: December 12, 2011 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Shally Lin, Interim Director of Finance SUBJECT: REVISED AGREEMENT FOR PARKING COLLECTION - BEACH PARKING LOT METERS SUMMARY OF REQUEST: FEE Staff requests that the City Council adopt Resolution No. 6206 approving the revised agreement between Ampco System Parking and the City of Seal Beach for parking fee collections at the beach parking lots and authorize the City Manager to execute the agreement. BACKGROUND AND ANALYSIS: Pursuant to the attached agreement dated December 8, 2008 ( "2008 Agreement "), Ampco System Parking ( "Ampco ") has provided parking fee collection services at the City's beach parking lots. The 2008 Agreement states that the agreement would be automatically extended for one more year (2012) unless the City provides written notice of not electing to renew the term. After discussion with Ampco, the parties would prefer to continue the services on a month -to -month basis. Accordingly, staff has drafted the proposed revised agreement to change the term to month -to- month, and provided notice to Ampco on November 30, 2011 that the City has elected not to renew the term of the Parking Fee Collection Agreement dated December 8, 2008 pursuant to Section 4.2 of the Agreement: "Section 4.2 This Agreement shall automatically renew for two additional 1 -year terms unless the City, in its sole discretion elects not to renew the term and provides notice of the same to the Consultant at least 30 days prior to the expiration of the then current term." Staff recommends that the Council approve the revised agreement with a month - to -month term. As shown on the attached redlined version, the operating terms of the revised agreement are virtually identical to the initial agreement, with a few SEAL � s U y5 C Agenda Item F minor changes to reflect the new term and to delete requirements already completed over the last three years. ENVIRONMENTAL IMPACT: Approval of the agreement will merely continue the terms of the existing parking fee collection program on a month -to -month basis. There will be no physical change in the environment as a result. Approval of the new agreement is therefore exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. LEGAL ANALYSIS: The City Attorney has reviewed and approved the agreement as to form. FINANCIAL IMPACT: The new agreement does not change the financial impact created by the arrangement with Ampco. The City will continue to receive revenue in accordance with the same schedule in effect since January 1, 2009. RECOMMENDATION: Staff recommends that the City Council adopt Resolution No. 6206 approving the revised agreement for parking fee collections at the beach parking lots and authorize the City Manager to execute the agreement. SUBMITTED BY: Shally l , Interim Director f Finance /City Treasurer NOTED AND APPROVED: K4 ���� , Ingram i .•- Attachments: A. Resolution No. 6206 B. Draft Agreement C. Redlined agreement Page 2 RESOLUTION NUMBER 6206 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING A MONTH -TO -MONTH AGREEMENT FOR PARKING FEE COLLECTIONS (AMPCO SYSTEM PARKING) WHEREAS, Ampco System Parking has been providing parking fee collections at the City's beach lots since 2000; and WHEREAS, the City Council approve the revised term of the Parking Fee Collection Agreement dated December 8, 2008 between the City of Seal Beach and Ampco System Parking pursuant to Section 4.2 of the Agreement revising the agreement with a month -to -month term. WHEREAS, The rest of the terms of the revised agreement will be virtually identical to the initial agreement dated December 8, 2008, with a few minor changes to reflect the new term. NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY RESOLVE: Section 1. The City Council hereby approves the Parking Fee Collection Agreement. Section 2. The City Council hereby directs the City Manager to execute Parking Fee Collection revised agreement with Ampco System Parking. PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 12th day of December 2011 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6206 on file in the office of the City Clerk, passed, approved, and adopted by the Seal Beach City Council at a regular meeting held on the 12th day of December , 2011. City Clerk PARKING FEE COLLECTION AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Ampco System Parking 1150 South Olive Street, 19th Floor Los Angeles, CA 90015 This Professional Service Agreement ( "the Agreement ") is made as of December 12, 2011 (the "Effective Date "), by and between Ampco System Parking ( "Consultant "), a California corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). 1 of 9 S7296-000 1\1 410636v2.doc RECITALS A. City desires to contract for the collection of parking fees. B. Consultant represents that it is qualified and able to provide City with such services; and has previously provided such services to the City pursuant to an agreement between the Parties dated December 8, 2008 ( "the 2008 Agreement "). C. It is the mutual intention of the Parties that this Agreement supersede and replace the 2008 Agreement. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Definitions For purposes of this Agreement, the following words shall have the meanings set forth in this Section 1: 1.1. "Facilities ": City's automobile parking facilities Lots 1, 8, and 10, as depicted on the attached Exhibit A. 1.2. "Fee Collection Equipment": automated machinery capable of collecting fees for parking and storage of motor vehicles upon the Facilities. The term includes "Pay Station." 1.3. "Pay Station ": means a LUKE Pay in Display machine manufactured by Digital Payment Technologies, Inc., and as more fully described in Exhibit B. 1.4. "Gross Parking Receipts" means all revenue derived from the parking and storage of automobiles at the Facilities, regardless of whether such fees are paid on an hourly, daily, weekly, or monthly basis. 2.0 Scope of Services 2.1. Consultant shall maintain Fee Collection Equipment at the Facilities in good working order. 2.2. Consultant shall be solely responsible for the maintenance of the Pay Stations and shall promptly repair or replace any Pay Station that is not functioning properly. 2.3. Consultant shall regularly collect all Gross Parking Receipts, including but not limited to all revenue from the Fee Collection Equipment. 2.4. On the first day of each month, Consultant must deliver to City: (1) a monthly payment in accordance with the monthly payment schedule found in Exhibit C; and (2) a written itemized report of the Gross Parking Receipts collected during the previous month, which report 2 of 9 S7296- 0001 \1410636v2.doc shall be in a form acceptable to the City and must at a minimum contain an itemized record of the gross parking receipts collected from the Fee Collection Equipment installed at the Facilities. 2.5. On or before January 15 of every year, Consultant shall deliver to City: (1) 65% of any Gross Parking Receipts collected during the previous 12 months in excess of $300,000; and (2) a written itemized report, in a form acceptable to City, of the Gross Parking Receipts collected during the previous 12 months. 2.6. In the event of termination of this Agreement, on whatever grounds, Consultant shall deliver to City on or before the 30th day following such termination: (1) 65% of any Gross Parking Receipts collected during the then current annual term in excess of $300,000; and (2) a written itemized report, in a form acceptable to City, of the Gross Parking Receipts collected during the then current term. 2.7. Consultant shall obtain and maintain in good standing all permits and licenses required or necessary for the performance of this Agreement. 2.8. Consultant shall maintain a complete set of itemized records, in a form approved by the City, of the gross parking receipts collected from the Fee Collection Equipment. Consultant shall allow City or its designated agents to inspect these records at Consultant's offices during normal business hours. Consultant's obligations under this Section 2.8 shall survive for 2 years beyond termination of this Agreement. 2.9. Consultant may install and maintain on the Facilities at its own expense, signage suitable for advertising the availability of parking. Consultant must obtain the City's written approval of all such signage before installing it on the Facilities. 2.10. Consultant may install and maintain on the Facilities whatever personal property and trade fixtures are reasonably necessary for fulfilling its obligations under this Agreement. Consultant shall maintain all personal property and trade fixtures at the Facilities in good working condition and shall promptly repair or remove any such personal property or trade fixtures that are not functioning properly. 2.11. Upon expiration or termination of this Agreement, on whatever grounds, Consultant shall promptly remove any of its personal property and trade fixtures from the Facilities. Consultant shall leave the Facilities in substantially the same condition as they were found as of the Effective Date. 2.12. Consultant must perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 2.13. In performing this Agreement, Consultant, its agents, employees, and officers must comply with all applicable provisions of federal, state, and local law. S7296- 0001 \1410636v2.doc 3 of 9 3.0 Parking Rates 3.1. The maximum permissible rates to be charged for the parking at the Facilities shall be determined by the City, as published in its annual schedule of fees and charges. Consultant shall not charge any fee in excess of the rates established by the City nor shall Consultant waive fees for any person or organization without the City's prior written approval. Nothing in this Agreement shall be construed as limiting the City's ability to establish and alter the rates charged for using the Facilities. City shall be solely responsible for security, maintenance, police services, parking control enforcement, and traffic control for the Facilities. 4.0 Term 4.1. This term of this Agreement shall begin January 1, 2012 and continue thereafter on a month -to -month basis until terminated as provided in this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by either Party upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by City upon 10 days' written notice to Consultant, if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 5.3. Upon termination or expiration of this Agreement, for whatever reason, Consultant shall transfer to City ownership of the Pay Stations installed at the Facilities if City, in its sole discretion, elects to assume ownership of the Pay Stations. 6.0 Pay Station Amortization 6.1. Section 6.1 of the 2008 Agreement required the City to reimburse Consultant for the unamortized value of the six Pay Stations installed by Consultant in the event that the City elected not to renew the term of the 2008 Agreement. Pursuant to the amortization schedule provided by Consultant, the Parties agree that the six Pay Stations will be fully amortized by March 1, 2012. In the event that the City does not terminate this Agreement prior to March 1, 2012, the City will have no obligation to pay or reimburse Consultant any amount for the amortized value or cost of the six Pay Stations. 7.0 Cessation of Public Parking at Facilities 7.1. Nothing in this Agreement shall preclude City ceasing or suspending public parking service at the Facilities or any portion thereof for any reason. 7.2. If City permanently ceases public parking services at the Facilities or any portion thereof during the term of this Agreement, then this Agreement shall automatically terminate as to those portions of the Facilities so affected. 4of9 S7296- 0001 \1410636v2.doc 8.0 Party Representatives 8.1. The City Manager is the City's representative for purposes of this Agreement. 8.2. Kerry E. Turner is the Consultant's primary representative for purposes of this Agreement. 9.0 Notices 9.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at the following addresses: To City: City of Seal Beach 211 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Ampco System Parking 1150 South Olive Street, 19th Floor Los Angeles, California 90015 Attn: Kerry E. Turner 9.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 10.0 Independent contractor 10.1. Consultant, its agents, employees, and subcontractors, if any, are independent contractors and not employees of the City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 10.2. Consultant shall indemnify and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of city officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 9. 5 of 9 57296- 0001 \1410636v2.doc 11.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 12.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 13.0 Insurance 13.1. Consultant must not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant must furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy must be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 13.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage must be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); and (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto). Consultant must maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 13.3. The insurance policies shall contain the following provisions, or Consultant must provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, must stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self - insurance maintained by the City, its 6 of 9 S7296- 0001 \1410636v2.doc directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 13.4. All insurance required by this Section must contain standard separation of insureds provisions and must not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 13.5. Any deductibles or self - insured retentions must be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 14.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnities ") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. 15.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant must not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such S7296-000 1\1410636v2.doc 7of9 non - discrimination includes, but is not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 16.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 17.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements, including without limitation the 2008 Agreement. This Agreement may only be modified by a writing signed by both parties. 18.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 19.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 20.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 21.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 22.0 Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City has 8 of 9 S7296-0001 \1 410636v2.doc the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 23.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorney's fees and other costs incurred in connection with such action. 24.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 25.0 Corporate Authority The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by their execution, the Parties are formally bound to the provision of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH Un Jill R. Ingram City Manager AMPCO SYSTEM PARKING By: Arnold Klauber Senior Vice President Attest: 0 Linda Devine City Clerk Approved as to Form: Quinn Barrow City Attorney 9 of 9 57296- 0001 \1410636v2.doc Exhibit A City's Automobile Parking Facilities, Lots 1, 8, and 10 S7296- 0001 \1410636v2.doc Exhibit B Specifications for LUKE Pay in Display Machine manufactured by Digital Payment Technologies, Inc. 57296- 0001 \1410636v2.doc Exhibit C Monthly Payment Schedule January February March April May June $5,000.00 $5,000.00 $7,500.00 $10,000.00 $20,000.00 $30,000.00 July Ausust September October November December $45,000.00 $40,000.00 $20,000.00 $7,500.00 $5,000.00 $5,000.00 Total Guaranteed Base Income = $200,000.00 per year. 57296 -0001 U 410636v2.doc PARKING FEE COLLECTION AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 U Ampco System Parking X95 South Olive Street 19th Floor Los Angeles, CA 90044 90015 This Professional Service Agreement ( "the Agreement") is made as of December 8 2011 (the "Effective Date "), by and between Ampco System Parking ( "Consultant "), a California corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). RECITALS 1 of 9 S7296-000 I \ "'",V-54-.1410636v2. doc S7296-000 h 1410734v l .doc A. City desires to contract for the collection of parking fees. B. Consultant represents that it is qualified and able to provide City with such services and has previously provided such services to the City pursuant to an agreement between the Parties dated December 8, 2008 ( "the 2008 Agreement "). C. It is the mutual intention of the Parties that this Agreement supersede and replace the 2008 Agreement NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Definitions For purposes of this Agreement, the following words shall have the meanings set forth in this Section 1: 1.1. "Facilities ": City's automobile parking facilities Lots 1, 8, and 10, as depicted on the attached Exhibit A. 1.2. "Fee Collection Equipment ": automated machinery capable of collecting fees for parking and storage of motor vehicles upon the Facilities. The term includes "Pay Station." 1.3. "Pay Station ": means a LUKE Pay in Display machine manufactured by Digital Payment Technologies, Inc., and as more fully described in Exhibit B. 1.4. "Gross Parking Receipts" means all revenue derived from the parking and storage of automobiles at the Facilities, regardless of whether such fees are paid on an hourly, daily, weekly, or monthly basis. 2.0 Scope of Services 2.1. Consultant shall preyid e, install, and maintain in geed er -ki ng efa°r Fee Collection Equipment at the Facilities in good working order 2.2. signed must r-eplaee all fee eelleetien equipment ewfei:415 at the Faeilities with at least 6 Pa� Statiens, 2 ef whieli must be zeeeted at each of Lots 1, 4 �zd 10 eft the Faeil }ties. C onsultant shall be solely responsible for the maintenance of the Pay Stations and shall promptly repair or replace any Pay Station that is not functioning properly. 2.3. Consultant shall regularly collect all Gross Parking Receipts, including but not limited to all revenue from the Fee Collection Equipment. 2.4. On the first day of each month, Consultant must deliver to City: (1) a monthly payment in accordance with the monthly payment schedule found in Exhibit C; and (2) a written 2of9 S 7296- 0001 \ `°x141063 6v2. d oc 57296- 0001 \1410734v1.doc itemized report of the Gross Parking Receipts collected during the previous month, which report shall be in a form acceptable to the City and must at a minimum contain an itemized record of the gross parking receipts collected from the Fee Collection Equipment installed at the Facilities. 2.5. On or before *eJanuar 15 *'i day a ft er *'i° ° ^d ^f 'h° "n '' ^' ° -•:a of every year Consultant shall deliver to City: (1) 65% of any Gross Parking Receipts collected during the previous 12 months in excess of $300,000; and (2) a written itemized report, in a form acceptable to City, of the Gross Parking Receipts collected during the previous 12 months. 2.6. In the event of an -eafly termination of this Agreement, on whatever grounds, Consultant shall deliver to City on or before the 30th day following such termination: (1) 65% of any Gross Parking Receipts collected during the then current annual term in excess of $300,000; and (2) a written itemized report, in a form acceptable to City, of the Gross Parking Receipts collected during the then current term. 2.7. Consultant shall obtain and maintain in good standing all permits and licenses required or necessary for the performance of this Agreement. 2.8. Consultant shall maintain a complete set of itemized records, in a form approved by the City, of the gross parking receipts collected from the Fee Collection Equipment. Consultant shall allow City or its designated agents to inspect these records at Consultant's offices during normal business hours. Consultant's obligations under this Section 2.8 shall survive for 2 years beyond termination of this Agreement. 2.9. Consultant may install and maintain on the Facilities at its own expense, signage suitable for advertising the availability of parking. Consultant must obtain the City's written approval of all such signage before installing it on the Facilities. 2.10. Consultant may install and maintain on the Facilities whatever personal property and trade fixtures are reasonably necessary for fulfilling its obligations under this Agreement. Consultant shall maintain all personal property and trade fixtures at the Facilities in good working condition and shall promptly repair or remove any such personal property or trade fixtures that are not functioning properly. 2.11. Upon expiration or tennination of this Agreement, on whatever grounds, Consultant shall promptly remove any of jts p ersonal propert y and trade fixtures from the Facilities. Consultant shall leave the Facilities in substantially the same condition as they were found as of the Effective Date. 2.12. Consultant must perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 2.13. In performing this Agreement, Consultant, its agents, employees, and officers must comply with all applicable provisions of federal, state, and local law. S7296-000 1 \ 71 O'�,5*T 141063 6 v2. do c S7296- 0001 \1410734vLdoc 3 of 9 3.0 Parking Rates 3.1. The maximum permissible rates to be charged for the parking at the Facilities shall be determined by the City, as published in its annual schedule of fees and charges. Consultant shall not charge any fee in excess of the rates established by the City nor shall Consultant waive fees for any person or organization without the City's prior written approval. Nothing in this Agreement shall be construed as limiting the City's ability to establish and alter the rates charged for using the Facilities. City shall be solely responsible for security, maintenance, police services, parking control enforcement, and traffic control for the Facilities. 4.0 Term 4.1. This term of this Agreement shall be e~° year and shall begin January 1, 2009 4.2. This Agr-eetment shall autematieally r-enew fer Vwe additional 1 year- ter-Fns Unless the City, in its sole diserefieft eleets net to renew die ter-Fn and provides netiee E)f the same te the Geas u lt ant at le 30 da pr to th pir- ,ti e f th th t t er-m 2012 and continue thereafter on a month -to -month basis until terminated as provided in this Agreement 5.0 Termination 5.1. This Agreement may be terminated by either Party bas on r upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by City upon 10 days' written notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 5.3. Upon termination or expiration of this Agreement, for whatever reason, Consultant shall transfer to City ownership of the Pay Stations installed at the Facilities if City, in its sole discretion, elects to assume ownership of the Pay Stations. 6.0 Pay Station Amortization 6.1. I t h e e th t h e Gity elects net to renew the ter -in of +Section 6.l of the 2008 Agreement pursuant to Seetien ^?.reauired the City s all to reimburse Consultant for the unamortized value of the six Pay Stations that Gensultant is fequij e install at the Faeilities pur-suaRt to Seetien 2.2. Per- these i stalled by Consultant in the event that the City elected not to renew the term of the 2008 Agreement Pursuant to the amortization schedule provided by Consultant the Parties agree that the teta-1 cwt of the siKPay - jtatiens - is $92,491.00 and that they shall be amet4ized ever- 36 menths at 0 #Ili^ S 6 shall i ny ° 1:...:E the City au ther4 y t t- .. i ate thi n , _ a six Pav Stations will be fully amortized by March 1, 2012. In the event that the City does not terminate this Agreement prior to March 1. 2012. the City will have no obligation to nay or reimburse Consultant any amount for the amortized value or cost of the six Pay Stations 4of9 S7296- 0001 \ 11 °,��v9-1410636v2. doc S7296- 0001 \1410734v1.doc 7.0 Cessation of Public Parking at Facilities 7.1. Nothing in this Agreement shall preclude City ceasing or suspending public parking service at the Facilities or any portion thereof for any reason. 7.2. If City permanently ceases public parking services at the Facilities or any portion thereof during the term of this Agreement, then this Agreement shall automatically terminate as to those portions of the Facilities so affected. 8.0 Party Representatives 8.1. The City Manager is the City's representative for purposes of this Agreement. 8.2. Kerry E. Turner is the Consultant's primary representative for purposes of this Agreement. 9.0 Notices 9.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at the following addresses: To City: City of Seal Beach 211 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Ampco System Parking 988 South Olive Street 19th Floor Los Angeles, CA 90414California 90015 Attn: Kerry E. Turner 9.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 10.0 Independent contractor 10.1. Consultant, its agents, employees, and subcontractors, if any, are independent contractors and not employees of the City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 5 of 9 S7296- 0001 \109 "�TjUQfi fi doc 57296- 0001 \1410734v Ldoc 10.2. Consultant shall indemnify and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of city officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 9. 11.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 12.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 13.0 Insurance 13.1. Consultant must not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant must furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy must be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 13.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage must be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); and (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto). Consultant must maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 13.3. The insurance policies shall contain the following provisions, or Consultant must provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not 6 of 9 57296- 0001 \' ^°' ror✓inv n r.doc 57296 - 0001 \1410734vLdoc be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, must stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self - insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 13.4. All insurance required by this Section must contain standard separation of insureds provisions and must not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 13.5. Any deductibles or self - insured retentions must be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 14.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnities ") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. S7296- 0001 \10 -"�T141UX1y . doc S 7296-000 1 U 410734v Ldoc 7of9 15.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant must not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non - discrimination includes, but is not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 16.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 17.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements including without limitation the 2008 Agreement This Agreement may only be modified by a writing signed by both parties. 18.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 19.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 20.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 21.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 8 of 9 57296- 0001 \' ^°r:1410636v2. S7296-000 I \ 1410734 v l . doc 22.0 Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City has the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 23.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorney's fees and other costs incurred in connection with such action. 24.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 25.0 Corporate Authority The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by their execution, the Parties are formally bound to the provision of this Agreement. 9of9 S7296- 0001 \40 "vr1410636v2. 57296- 0001 \ 1410734v Ldoc IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH Attest: Jill R. lnaram City Manager Linda Devine. City Clerk Approved as to Form: Quinn Barrow. City Attorney GONS it T- nNTAMPCO SYSTEM PARKING Arnold Klauber Senior Vice President 10of9 57296- 0001 ^°, 9-141063by doc S7296-000 I \ 1410734v l .doc Exhibit A City's Automobile Parking Facilities, Lots 1, 8 and 10 S7296- 0001\ A °'�.1410636v2. S7296 - 0001 \I410734v I.doc Exhibit B Specifications for LUKE Pay in Display Machine manufactured by Digital Payment Technologies, Inc. 57296- 0001 Q93495v9-.1410636v2. S7296-000 1\1410734v Ldoc Exhibit C Monthly Payment Schedule January February March April May June $5,000.00 $5,000.00 $7,500.00 $10,000.00 $20,000.00 $30,000.00 July August September October November December $45,000.00 $40,000.00 $20,000.00 $7,500.00 $5,000.00 $5,000.00 Total Guaranteed Base Income = $200,000.00 per year. 57296- OOOP '"°',� "�r141063&2 doc S7296-000 I \ 1410734v l . doc Document comparison by Workshare Professional on Wednesday, November 30, 2011 4:47:33 PM Input: Document 1 ID interwovenSite ://RWGDMS2 /RWGI MAN 1/1093495/9 Description 1093495v9 <RWGIMAN1> - Agreement re Collection of Beach Parking Fees (Final 11/25) Document 2 ID interwoven Site ://RWGDMS2 /RWGI MAN 1/1410636/2 Description 1410636v2 <RWGIMAN1> - month -to -month Agreement w ith Ampco re Parking Fee Collection Rendering set standard Legend: - Insertion Vii} A em Moved to Style change Format change Moved from Inserted cell Moved to Deleted cell Style change Moved cell Format changed Split/Merged cell Total changes Padding cell statistics:: Count Insertions 35 Deletions 36 Moved from 4 Moved to 4 Style change 0 Format changed 0 Total changes 79 S7296- 0001 \1410734v1.doc