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Home My WebLink AboutAGMT - Adopt a Beach (Trash Receptacle) Adopt Highway ,a,11- A maintenance corporation _, March 19, 2013 City Of Seal Beach Attention Director of Public Works 211 8th Street Seal Beach, CA 90740 Dear Director, Please accept this correspondence as notification that Adopt A Highway Maintenance Corporation dba Adopt A Beach, ("AAB") would like to exercise the option for an additional 5 years as noted in "Section 4. Term" in the"Trash Receptacle Agreement" that began on June 25, 2008 and will end on June 24, 2013. The new contract termination date will now be June 24, 2018. Cordially, Philip Chow Controller Adopt A Highway Maintenance Corporation dba Adopt A Beach 1211 E Dyer Rd #110. Santa Ma,CA 92705 !9 800 200.0003 $ff 800 358.0230 ® adoptahlghwaycom. e� • • TRASH RECEPTACLE AGREEMENT This Trash Receptacle Sponsorship Agreement ( "Agreement ") is entered into by and between Adopt A Highway Maintenance Corporation, a California Corporation, doing business as Adopt A Beach, ( "AAB ") and the City of Seal Beach ( "Seal Beach "), a municipal corporation. RECITALS WHEREAS, AAB represents it able to provide trash receptacles suitable for use on Seal Beach Beaches; and WHEREAS, Seal Beach requires such services; NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Definitions As used in this Agreement, the terms set forth below shall be defined as follows: "Agreement Year" means the 365 -day period commencing June 25, 2008 or any subsequent 365 -day period commencing upon the expiration of a prior Agreement Year. "Client" means any group, organization, or entity that contracts with AAB for the placement of Sponsorship Identification on Trash Receptacles. "Seal Beach Beaches" means those beaches located within Seal Beach, as depicted by Exhibit 1, which is hereby incorporated by this reference. "Sponsorship Identification" means the display of a Client's name, image, or advertisement on a Trash Receptacle; which display shall not exceed 66% of the total surface space on the Trash Receptacle. Areas on Trash Receptacles reserved for public service messages shall not be included as part of the Sponsorship Identification space. "Trash Receptacle(s)" means a 55- gallon plastic drum trash container similar in kind to those currently used by Seal Beach and placed on Seal Beach Beaches. Section 2. Obligations of Seal Beach A. Seal Beach grants AAB a non - exclusive right to provide Trash Receptacles on Seal Beach Beaches during the term of this Agreement, and an exclusive right to display Sponsorship Identification on Trash Receptacles on Seal Beach Beaches. B. Seal Beach shall place Trash Receptacles on Seal Beach Beaches within approximately 10 business days of receipt of the Trash Receptacles at delivery sites agreed upon by Seal Beach and AAB, but in no case later than 30 days after receipt of the Trash Receptacles. C. Seal Beach shall reasonably, place, maintain, and empty the Trash Receptacles placed on their beaches. 57296 - 0001 \1043352v2.doc • D. Seal Beach may, in its sole discretion, temporarily remove Trash Receptacles from the beach to avoid damage or loss of life, health, or property. In the event that Trash Receptacles are removed or relocated by Seal Beach personnel for any reason, Seal Beach will notify AAB within 24 hours of the Trash Receptacle move or removal. Section 3. Obligations of AAB A. In each of the first five Agreement Years, AAB will pay Seal Beach $45 (forty- five dollars) for each Sponsorship Identification ready Trash Receptacle (i.e. receptacles that can have Sponsorship Identification) placed on its beach pursuant to this agreement. In each of the second five Agreement Years, AAB will pay Seal Beach $50 (fifty dollars) for each Sponsorship Identification ready Trash Receptacle placed on its beach pursuant to this agreement. Payments will be divided into two equal cash payments, to be paid on November 1 and May 1 of each Agreement Year. B. AAB shall provide at least 125 Trash Receptacles according to a schedule to be agreed upon between Seal Beach and AAB. AAB shall deliver the first shipment of Trash Receptacles within 60 days of the commencement of the Agreement. C. AAB shall replace up to 10% of the total number of Trash Receptacles lost or damaged in each Agreement Year at no cost to Seal Beach. Should the rate of lost or damaged Trash Receptacles exceed 10% of the minimum number required by this Agreement, or should Seal Beach request additional Trash Receptacles, Seal Beach shall be required to bear all such costs. D. AAB shall bear all design, manufacturing, and delivery costs associated with the production and delivery of the Trash Receptacles to designated sites. E. AAB shall, at it sole expense, install and replace Sponsor Identification covered by this Agreement. F. AAB shall not display any Sponsorship Identification on any Trash Receptacle that does not comport with community standards for good taste. Furthermore, Sponsorship Identification shall not include: (1) political advertising; (2) signage for indecent, obscene, pornographic, or sexually explicit materials; or (3) materials depicting or pertaining to the use of illegal substances, tobacco, or alcohol products. G. AAB shall only use Sponsorship Identification comprised of two- dimensional printed material. Sponsorship Identification shall neither contain moving parts nor provide any audio message or scent. Section 4. Term A. The term of this Agreement shall begin on June 25, 2008, and continue thereafter for 5 Agreement Years. B. If AAB is in good standing during the final year of the initial 5 -year term, it may exercise an option to extend the term of the Agreement for up to 5 additional years. In order to 2 of 7 57296- 0001 \ 1043352v2.doc • exercise this option, AAB must notify Seal Beach of its intent to do so 90 days before the end of the initial 5 -year term. Section 5. Operational Expansion or Reduction A. In the event Seal Beach's jurisdictional or operational control is expanded to include beaches not under its control as of the effective date of this Agreement, and AAB desires to increase its sponsorship, Seal Beach and AAB shall negotiate an increase in the fees commensurate with the increase in the number of Trash Receptacles needed. B. In the event Seal Beach's jurisdictional or operational control is reduced to exclude beaches under its control as of the effective date of this Agreement, Seal Beach and AAB shall negotiate a reduction in the fees commensurate with the decrease in Trash Receptacles. If the reduction of operational controls exceeds 30 percent of the area and the corresponding number of barrels, AAB may terminate this Agreement without liability upon giving 30 days written notice to Seal Beach and upon pro rata payment of any money still owed. AAB shall not be entitled to a refund of any payments made in the event of a voluntary termination based on a reduction of Seal Beach's operational control. Section 6. Special Event Receptacles It is understood by both parties that on occasion Seal Beach may need to place additional trash receptacles on its beaches for special events. Before placing such barrels, Seal Beach shall notify AAB of its desire at least 30 days prior to the event(s), at which time, AAB will have the "first right of refusal" to supply Seal Beach with receptacles similar to those already provided pursuant to this Agreement. If AAB supplies such barrels, Seal Beach shall authorize AAB to Sponsorship Identification on these barrels in accordance with all other sections of this Agreement. If AAB elects not to supply the requested receptacles, Seal Beach may place other receptacles on the beach for a period not to exceed 60 days. The additional barrels shall not replace or reduce the presence or inventory of receptacles supplied by AAB. At no time may Seal Beach or any of its affiliates place or enter into an agreement to place or display advertising on these additional receptacles without written consent from AAB. Section 7. Indemnification A. AAB agrees to indemnify, hold harmless, and defend Seal Beach, and its officers, agents, employees, successors, and assigns from and against any claim, including damages, expenses, reasonable litigation costs, and reasonable attorney's fees, resulting directly from any items produced, distributed or warranted by AAB or its Client(s), including without limitation, any claim of false or deceptive advertising, illegal competition or trade practices, common -law or statutory, arising as a result of this Agreement. B. AAB's indemnity obligation shall not include any liability, suits, actions, proceedings, judgments, or claims arising solely out of the active negligence of Seal Beach or its officers, agents, employees or representatives. C. AAB's indemnity obligations shall survive the termination of this Agreement. 3 of 7 57296- 0001 \1043352v2.doc • • Section 8. Insurance A. Without limiting AAB's indemnification obligations under this Agreement, AAB shall provide and maintain, at its own expense during the term of this Agreement, the following programs of insurance covering its services and operations as defined in this Agreement. 1. General Liability (including premises and operations, contractual liability, personal injury, independent contractors liability). AAB shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of comprehensive General Liability insurance, with limits of $1,000,000.00 for each occurrence and in the aggregate, combined single limit, against any personal injury, death, loss or damage resulting from the acts or omissions of AAB, its officers, employees, agents, and independent contractors. If such insurance contains a general aggregate limit, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be 3 times the occurrence limit. The general liability policy shall be endorsed to state that Seal Beach, its officers, officials, employees, agents, representatives, and volunteers shall be covered as additional insureds with respect to the actions taken by AAB pursuant to this Agreement. Automobile Liability (including owned, non - owned, and hired autos). AAB shall at all times during the Term of this Agreement carry, maintain, and keep in full force and effect a policy or policies of commercial automobile liability insurance with a combined single limit of $1,000,000.00, single limit, per occurrence for bodily injury and property damage, which will cover all drivers and automobiles used to fulfill any of AAB's obligation under this Agreement. Such insurance shall include coverage for owned, non - owned, and hired automobiles. The automobile liability policy shall be endorsed to state that Seal Beach, its officers, officials, employees, agents, representatives, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any automobile owned, leased, hired or borrowed by AAB or for which AAB is responsible. Workers' Compensation. AAB shall, to the extent required by state law, provide Workers' Compensation Insurance, including employer's liability coverage, for the protection of AAB's employees, with a minimum limit of $1,000,000.00 or the amount required by law, whichever is greater. AAB shall file a certificate of insurance which evidences that AAB is in compliance with said Workers' Compensation Insurance requirement. AAB shall require all subcontractors similarly to provide such Workers' Compensation Insurance and certificates of insurance for their respective employees. B. AAB shall deliver satisfactory proof of all insurance policies to Seal Beach on or before the beginning of the term of this Agreement. Such evidence shall specifically identify this Agreement and shall contain express conditions that Seal Beach is to be given written notice at least thirty (30) days in advance of any modification or termination of any program of insurance: C. All insurance policies required by this Section 8 shall be primary to any coverage available to Seal Beach, its officers, officials, employees, agents, representatives, and volunteers, and must provide that any insurance or self - insurance maintained by Seal Beach shall be in excess of AAB's insurance and shall not contribute with it. 4 of 7 S7296- 0001 \1043352v2.doc D. All insurance policies required by this Section 8 shall be issued by an insurer admitted in the State of California with a rating of at least B +, VII in the latest edition of A.M. Best's insurance guide. E. All insurance policies required by this Section 8 shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non - renewed, or materially changed for any reason, without 30 days prior written notice thereof given by the insurer to Seal Beach by U.S. mail, certified, or by personal delivery. In addition to such notice provided to Seal Beach by the insurer, AAB shall also provide Seal Beach with 30 days prior written notice, by certified mail return receipt requested, of the suspension, voiding, cancellation, reduction in coverage or in limits, non - renewal, or material change for any reason, of any such insurance policy or policies. F. Nothing contained in this Section 8 shall be construed as limiting in any way AAB's obligations of indemnification under this Agreement or any other extent to which AAB may be held responsible for payment of damages to persons or property resulting from its operations. G. Failure on the part of AAB to procure or maintain any insurance program required by this Agreement shall constitute a material breach of contract upon which Seal Beach may immediately terminate or suspend this Agreement. Section 9. Default and /or Termination A. The parties agree that, without prejudice to any other rights available to them at law or pursuant to this Agreement, a party shall be deemed to be in default ( "breaching party") and another party ( "non- breaching party ") shall have the right to terminate this Agreement: 1. If breaching party shall fail to perform its obligations under this Agreement after thirty (30) days written notice, except if such failure to perform is due to fire, earthquake, labor dispute, or other events reasonably beyond the control of the breaching party, in which case the non - breaching party shall extend the time in which the breaching party may meet its obligations, the length of time for such extensions to be determined by the non- breaching party; or 2. If a party shall become bankrupt or insolvent, or enter into liquidation, or have a receiver appointment and be prevented from fulfilling its obligations as a result thereof. B. The parties understand that the "selling season" to find Clients for the program begins in the month of January prior to the summer season. It is also understood that the prime season to have advertisements on the beach runs through October 15th of each year. With this in mind, either party may elect to terminate this agreement with the following provisions: Written termination notification received between January 1 and October 15 of any year can go into effect the latter of (a) 90 days from receipt of notification or (b) October 16 of such year, 5 of 7 57296- 0001\ 1043352v2.doc • • Written termination notification received between October 16 and December 31 of any year can go into effect, 90 days from receipt of notification. Section 10. Notices: A. All notices and statements to be given hereunder shall be given at the respective addresses of the parties as set forth below, unless notification of a change of address is provided in writing. Seal Beach: City of Seal Beach 211 8th Street Seal Beach, CA 90740 Attention: Director of Public Works AAB: Adopt A Highway Maintenance Corporation 1211 E. Dyer Rd. #110 Santa Ana, CA 92705 Attention: Jason Stern B. Any notice may either be hand delivered, sent by reputable overnight delivery service or by registered or certified mail and shall be effective upon receipt. AAB shall maintain an address within California as the address to which such notice shall be given. AAB shall designate an agent with a California address to accept service of process. Section 11. Miscellaneous A. If any changes are proposed to the design of the Trash Receptacles, prior approval must be obtained from both parties, which approval shall not be unreasonably withheld. B. AAB shall not assign any of its rights or obligations hereunder without the prior written consent of Seal Beach. C. Failure or inability of any party to enforce any right hereunder shall not waive any right to enforce said right in the future. D. AAB shall conform to and abide by all federal, state and, local policies, rules and regulations insofar as the same or any of them are applicable; provided, however, that if the adoption or enactment of any law after the date hereof results in it becoming not feasible for economic reasons for AAB to fulfill its obligations under this Agreement, AAB shall have the right to terminate this Agreement upon ninety (90) days written notice E. Should any individual provision of this Agreement be declared void, the validity of the remainder of this Agreement will not be affected and will remain in full force and effect. F. Any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance, or nonperformance of this Agreement (including the validity, scope and enforceability of this arbitration provision) shall be settled by mutual agreement of the parties and, in the absence of such agreement, through binding arbitration by 6 of 7 57296- 0001 \1043352v2.doc • • submission to arbitration or mediation. The location for the arbitration or mediation shall be within the County of Orange or a mutually agreeable location. G. Nothing herein contained shall be deemed to constitute this a joint venture or partnership between the parties and none of them shall be responsible for any obligations of the other, except as herein specifically provided. H. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. I. This Agreement contains the entire understanding between the parties relating to the subject matter herein contained. Any amendment of this Agreement must be in writing. IN WITNESS WHEREOF, the duly authorized representatives of each party have executed this Agreement on the day and year written. CITY OF SEAL BEACH ADOPT A HIGHWAY MAINTENANCE CORPORATION By: oaen By: 91-916:1 DavidCarmany, City Manager [NAME, TITLE] 1 Date: Date: Attest: BY: - t A . inda Devine, City Clerk Approve to Forme r "-- By: 'nn Barrow, City Attorney 7 of 7 57296- 0001 \1043352v2.doc