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HomeMy WebLinkAboutCC Ord 1614 2012-01-23ORDINANCE NUMBER 1614 AN ORDINANCE OF THE CITY OF SEAL BEACH GRANTING A FRANCHISE TO COASTLINE ADVERTISING CORPORATION TO INSTALL, OPERATE, AND MAINTAIN BUS BENCHES IN THE CITY OF SEAL BEACH The City Council of the City of Seal Beach does ordain as follows: Section 1. Article XI of the Seal Beach City Charter (hereinafter the "Charter ") authorizes the City Council to grant a franchise to any person, firm, or corporation, to use the public streets, ways, alleys, and places subject to the terms of the Charter and such Ordinances adopted by the City Council governing the terms and manner of granting a franchise. Section 2. Pursuant to Section 6.05.005 of the Municipal Code, a duly noticed public hearing was held at the regular meeting of the City Council on January 23, 2012 regarding whether to grant a franchise to Coastline Advertising Corporation (hereinafter "Franchisee ") to install, operate, and maintain bus benches in and on the public right -of -way and to consider objections to the proposed franchise. Section 3. The City Council hereby finds and determines that the granting of the franchise contemplated herein is categorically exempt from the California Environmental Quality Act ( "CEQA "), Pub. Res. Code § 42000 et seq., pursuant to CEQA Guidelines, Sections 15303 (Class 3 exemption for new construction or conversion of small structures) and 15311 (Class 11 exemption for accessory structures) because the franchise only authorizes the construction of benches along the City's rights -of -way. Section 4. The City Council hereby grants franchisee a franchise to install, operate, and maintain bus benches in and on the public right -of -way subject to the terms and conditions of the proposed Bus Bench Franchise Agreement, a copy of which is attached to this Ordinance as Exhibit A and hereby incorporated as if set forth in full. Section 5. The City Manager is hereby authorized and directed to execute the Bus Bench Franchise Agreement. Section 6. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published as required by law. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a regular meeting held on the 23rd day of January , 2012. 1 1 1 1 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 Ordinance was introduced for first reading at a regular meeting held on the 12th day of December , 2011 and was passed, approved and adopted by the City Council at a regular meeting held on the 23rd day of January , 2012 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ( Council Member Council Members Council Members Council Members And do hereby further certify that Ordinance Number 1614 has been published pursuant to the Seal Beach City Charter and Resolution Number 2836. A (-\ City Clerk , P 14-1-0 1 Ordinance Number 1614 Ordinance Number 1614 PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA, County of Orange I am a citizen of the United States and a resident of the county afore- said; I am over the age of eighteen years, and not a party to or inter- ested in the above - entitled matter. am the principal clerk of the printer of the SEAL BEACH SUN, a newspaper of general circulation, printed and published weekly in the City of Seal Beach, County of Orange and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Orange, State of California, under the date of 2/24/75. Case Number A82583; that the notice of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: F6 \Iu o all in the y ear 2012. I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Seal Beach, CA, this_day of Signature PUBLICATION PROCESSED BY: THE SEAL BEACH SUN 216 Main Street Seal Beach, CA 90740 (562) 430 -7555 This space is for the County Clerk's Filing Stamp Proof of Publication of SUMMARY ORDINANCE NUMBER 1614 00000000004 AN ORDINANCE OF '0000000000 THE CITY OF SEAL• BEACH GRANTING A FRANCHISE TO COASTLINE ADVERTISING '0000000000 CORPORATION TO INSTALL, OPERATE, AND MAINTAIN BUS BENCHES IN THE CITY OF SEAL BEACH 00000000000 Article XI of the Seal Beach City Charter (hereinafter the "Charter") authorizes the City Council to grant a franchise to any person, firm, or cor- poration; to use the public streets, ways, alleys, and places subject to the terms of the Charter and such Ordinances adopted by the City Council governing the terms and manner of granting a franchise. Pursuant to Section 6.05.005 of the Municipal Code, a duly noticed pub= lic hearing was held at the regular meeting of the City Council -on January 23, 2012 regarding whether to grant . a franchise to Coastline Advertising Corporation . (hereinafter "Franchisee ") to install, ope?ate, and maintain bus benches in and on the public right -of -way and to consider objections to the proposed franchise. Ordinance Number 1614 was introduced at a regu- lar City Council. meeting of . December 12;2011. Waiver of further reading and adop- tion of Ordinance Number • 1614 was at the January 23, 2012 regular City Council meeting by the following vote: AYES: Levitt, Miller, Shanks, Sloan NOES: None ABSENT: Deaton Motion carried Copies of Ordinance Number 1614 are avail- able from the office of. the City Clerk, City Hall, 211 - 8th Street, Seal Beach; telephone (562) 431 :2527 ext. 1305., DATED THIS 24th day of January 2012 - SB -553 Published in the Seal Beach Sun 2/2/2012. 1 1 1 EXHIBIT "A" BUS BENCH FRANCHISE AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 & Coastline Advertising Corporation 7108 Katella Ave #511 Stanton, CA 90680 714.441.1300 This Bus Bench Franchise Agreement ( "the Agreement ") is made as of January 23, 2012 (the "Effective Date "), by and between Coastline Advertising Corporation ( "Grantee "), an Oklahoma corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). RECITALS A. City owns and maintains the public right -of -way within City for the benefit of its residents and other members of the public and has the authority to establish terms and conditions for its use. B. Grantee desires to install, operate, and maintain bus benches in the public right -of -way of the City and represents and warrants that it has the financial, legal, and technical ability to do so. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. 1.0 Grant AGREEMENT 1.1. Subject to the terms of this Agreement and the issuance of all required permits, including but not limited to any permits required under the Seal Beach Municipal Code (the "Code "), City grants during the term of this Agreement to Grantee an exclusive franchise to construct, erect, install, insure, operate, maintain, and repair bus benches at Grantee's sole expense at locations in the public right -of -way of the City upon which the Parties mutually agree. 1.2. All work in the public right -of -way undertaken by on behalf of Grantee pursuant to this Agreement must be accomplished in a skillful and workmanlike manner, free of defects. 1.3. City shall not during the term of this Agreement grant to any other corporation, firm, person, or persons a similar franchise to construct, erect, install, insure, operate, maintain, and repair bus benches in the public right -of- way of the City. Nothing in this section or Agreement shall prohibit the City from installing its own benches throughout the City provided the benches do not contain advertising. 1.4. Grantee shall during the Term of this Agreement provide bus benches at locations upon which the Parties mutually agree. 1.5. This Agreement shall not convey any property interest to Grantee nor shall Grantee claim under this Agreement any property interest in the City's public right -of -way. Grantee further acknowledges and agrees that this Agreement does not create a landlord- tenant relationship and Grantee is not entitled to avail itself of any rights afforded to tenants under the laws of the State of California. Any and all rights granted to by and through this Agreement are subject and subordinate to the continuing right of the City and its assigns to use all of the public- right -of way in the performance of their duties, functions, and operations, which include but are not limited to laying, installing, maintaining, protecting, replacing, and removing, traffic signals, street lights, sanitary sewers, water mans, storm drains, gas mains, poles, overhead and underground electric lines, telephone lines, cable television lines, and other utility and municipal uses, together with appurtenance thereof and with right of ingress and egress, along, over, across, and in the public right -of -way. Grantee shall have the duty to remove, relocate, and rearrange its bus benches in accordance with the reasonable and necessary requirements of the City and the terms of this Agreement. 1.6. In the performance and exercise of its rights and obligations under this Agreement, Grantee must not interfere in any manner with the existence and operation of any public or private rights -of -way, traffic signals, street lights, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television and telecommunications facilities, utilities, or municipal property, without the express S7296 -0001 \1392577v1.doc 2 of 17 written approval of the owner or owners of the affected property or properties, except as authorized by applicable laws or this Agreement. 1.7. This Agreement shall not be construed to authorize Grantee to use any City property located outside the public right -of -way or any City facilities or infrastructure located within the public right -of -way without the express written agreement of the City. 1.8. Grantee shall comply with all applicable laws in the exercise of its rights and performance of its obligations under this Agreement. "Laws" as used in this paragraph means any and all statutes, constitutions, charters, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, directives, judgments, decrees, permits, approvals, or other applicable requirements of the City or other governmental entity or agency having joint or several jurisdiction over the Parties to this Agreement or having jurisdiction that is applicable to any aspect of this Agreement, that are in force on the Effective Date and as they may be enacted, issued, or amended during the term of this Agreement. Grantee shall upon City's request and at Grantee's sole cost and expense produce evidence of such compliance. 2.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 10 years unless previously terminated as provided by this Agreement. 3.0 Fees 3.1. Administrative Fee. On or before the fifth day after the Effective Date of this Agreement, Grantee shall pay to the City a one -time Administrative Fee of $5,000, which amount shall not be counted toward any other fees owed to City. No other provision of this Agreement shall have any effect unless and until Grantee makes such payment to the City. 3.2. Franchise Fee. For each quarter or portion thereof during the Term of this Agreement, Grantee must pay to City a Franchise Fee equal to the greater of either (1) the Guaranteed Minimum Payment, or (2) the Percentage Advertising Revenue. For these purposes "quarter" means a quarter of a year measured as three -month period. The first quarter shall be from July through September. The second quarter shall be from October through December. The third quarter shall be January through March. The fourth quarter shall be April through June. Grantee must make each quarterly Franchise Fee payment within 15 calendar days following the end of the previous quarter to: City of Seal Beach, Attn: Administrative Services, 211 Eighth Street, Seal Beach, California 90740. 3.2.1. The Guaranteed Minimum Payment shall be equal to $900.00 quarterly per year Grantee constructs, erects, installs, operates, maintains, or repairs in the public right -of -way of the City pursuant to this Agreement during the relevant quarter. 3.2.2. The Percentage Advertising Revenue shall be equal to the sum of the following: 20% of the quarterly gross advertising revenue received by Grantee for rental of advertising space on all transit benches located on public property within the City. 20% of the quarterly gross advertising revenue received by Grantee for rental of advertising space on all transit benches located on private property within the City. 3.2.3. For purposes of this Agreement, "gross advertising revenue" means all rental and fees charged by Grantee, whether for cash or credit. All advertising contracts Grantee enters into for the rental of advertising space on S7296 -0001 \1392577v1.doc 3 of 17 benches covered by this Agreement must clearly show the location of the bench and the total advertising costs per panel, per time period (e.g., monthly, quarterly, etc.). 3.2.4. At the time of any quarterly Franchise fee payment, Grantee shall simultaneously deliver to City a Statement of Accounts prepared according to standard accounting practices in line with generally accepted accounting practices for the advertising industry. The Statement of Accounts must include the following information: (1) the location of all bus benches installed, that Grantee has in the City; (2) a list of each advertiser for each bus bench Grantee has in the City; (3) The gross advertising revenues received for each advertising panel at each advertising bus bench Grantee has in the City; and (4) A calculation of the total gross advertising revenues multiplied by the percent revenue on a month -to -month basis. 3.3. Additional Fees. All payments made by Grantee to City under this Section shall be non - refundable, non - cancelable, and in addition to any of the City's customary and usual permit fees for which Grantee may be liable. 3.4. Late Payment. Grantee hereby acknowledges that the late payment of any fee due to City under this Agreement will cause City to incur costs not otherwise contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include but might not be limited to, costs associated with the administrative processing of delinquent notices, increase accounting costs, etc. Accordingly, if any payment due to City under this Agreement that is not received by City or postmarked by the due date, a late charge of 5% of the payment due and any unpaid amount shall be added to the payment due and the total sum shall become immediately due and payable to City. An additional charge of 10% of the overdue payment (excluding previously assessed late charges) shall be added for each 15 calendar days or portion thereof that the overdue payment remains unpaid. Grantee and City agree that such late charges represent a fair and reasonable estimate for the costs that City will incur in the event of Grantee's late payment. City's acceptance of any late payment or a portion of either such late payment or late charges shall under no circumstances, constitute a waiver of Grantee's default with respect to such late payment, nor prevent City from exercising any of other rights and remedies available to it under law or equity. 4.0 Records and Accounting 4.1. Grantee must at all times during the term of this Agreement and for two years thereafter, keep or cause to be kept true and complete books, records, and accounts of all financial transactions, including but not limited to advertising sales, in the operation of all business activities, of whatever nature, conducted in connection with the rights granted by and exercised pursuant to this Agreement. The records must be supported by source documents such as sales slips, purchase invoices, or other pertinent documents. 4.2. Grantee must maintain a method of accounting to the reasonable satisfaction of the City that correctly and accurately reflects the gross receipts and disbursements, of Grantee in connection with its advertising sales from such transit benches. 4.3. Upon not Tess than 7 calendar days prior written notice to Grantee, Grantee must make all documents, books and accounting records relating to the Grantee's bus benches open for inspection by an authorized City official or representative at any reasonable time during the Term of this Agreement. City may from time to time also conduct an audit of the books and business conducted by Grantee and observe the operation of Grantee's business so that the accuracy of the above records can be confirmed. All information obtained in connection with the City's inspection of records or audit shall be treated as confidential information and exempt from public disclosure thereof to the extent allowed under law. S7296-0001\1 392577v 1. doc 4 of 17 4.4. In the event that an audit or review conducted by the City or its authorized officials or representatives finds that Grantee has failed to pay to City any amount owed to the City under this Agreement, the City may bill Grantee for the unpaid revenue. Grantee must pay such amounts within 30 calendar days following billing by the City. 4.5. City shall bear the cost of the any audit that the City conducts pursuant to this Section, unless either of the following conditions are met, in which case Grantee shall bear the full cost: 4.5.1. The audit reveals that additional Percentage Revenue due and payable to the City exceeds five 5% of the total amount that Grantee should have paid as determined by such review or audit and observation; or 4.5.2. Grantee has failed to maintain true and complete books, records, accounts, and supporting source documents in accordance with the terms of this Agreement. The adequacy of Grantee's books, records, accounts, and supporting documents shall be determined at the discretion of City's Finance Director. If Grantee does not agree with the determination made by the City's Finance Director, Grantee may obtain at its sole cost and expense an independent professional opinion from a Certified Public Accountant of Grantee's choosing subject to the City's reasonable consent and provided that such Certified Public Accountant shall not have previously been employed by Grantee. The Certified Public Accountant's reasonable determination as to the sufficiency of Grantee's books, records, accounts, and supporting source documents shall be final. 5.0 Transit Service Standards 5.1. All bus benches shall meet the minimum design requirements as defined in OCTA's "Bus Facilities Handbook" dated April 1996, as amended, made available through that agency, and incorporated herein by this reference. In addition, all work performed within the City boundaries shall conform to City's Standard Plans on file, the latest edition of the Standard Specifications for Public Works Construction (Green Book),), or pursuant to the direction of the City Manager or his or her designee. 5.2. All work must comply with the conditions of the City's Public Works permit issued for each individual location, and all other conditions of this Agreement. City will waive all fees related to issuance of public works permits. Grantee shall obtain and pay, at its sole cost and expense all other fees. 5.3. Design of each bus bench and their sites must be compatible with the landscaping in its vicinity in a manner satisfactory to the City Manager or his or her designee. Bus benches that are designated on an existing landscaped slope will require special design and landscaping modifications. Design of all bus benches must be consistent within the immediate surrounding community, unless otherwise directed by the City. 5.4. Grantee must permanently affix an owner identification tag that includes Grantee's business name and 24 -hour service telephone number in a conspicuous area on all bus benches it owns and operates in the City. 6.0 Design Standards and Amenities 6.1. For any new or replacement benches approved pursuant to this Franchise, Grantee must provide the services contemplated by this Agreement consistent with the existing design standards as well as those established by this Agreement, as mutually agreed between the Parties and as may be directed by the Public Works Director of City, and as more specifically set forth in this Section: S7296 -0001 \1392577v 1.doc 5 of 17 6.2. Bench Design Standards 6.2.1. The bench's design(s) must be submitted by Grantee and must be reviewed and approved by the City prior to implementation of the installation program. 6.2.2. All benches must be anchored to the site or otherwise be build to prevent theft , vandalism or toppling over. 6.2.3. Each bus stop that has an advertising bus bench must be accompany by a location drawing. The location drawing must show that the placement of the bench will not interfere or affect the required sight visibility for vehicles entering or exiting any driveway or street, or affect the sight visibility at crosswalks, curb returns, fire hydrants, fire call boxes, police call boxes, or emergency facilities. The required sight visibility shall provide between 5 and 7 1/2 seconds of visibility, dependent upon the speed of traffic on the street. 6.2.4. Grantee must repair, replace, and restore at Grantee's sole cost and expense any sidewalk, curbing, landscaping, sprinklers, etc., that is damaged by Grantee's installations. 6.3. Bus Benches Design Standards 6.3.1. For those bus stops without a shelter, as identified by the City, Grantee will have the option to install 1 to 2 bus benches subject to City approval — each a minimum of 7 feet long with backs, anchored to the site in concrete. Benches must be concrete or metal, at the City's sole discretion, and monogrammed as may be required by the City. A Civil or Structural Engineer must certify bench support and attachments for safety. Bench material must be graffiti- resistant. Grantee must submit for review advertising designs for said bus benches. 6.3.2. Grantee must, at the City's discretion, display the City's logo on the bus benches. Said logo must be provided by the Grantee, at no cost or expense to the City, nor shall any funds be deducted from Grantee's payment for providing City's logo. 7.0 Force Majeure The time within which the Grantee is obligated to commence and to complete construction of benches shall be extended for a period of time equal in duration to, and performance shall be excused on account of and for, and during the period of, any delay caused by strikes, threat of strikes, lockouts, war, threats of war, insurrection, invasion, acts of God, earthquakes, calamities, violent action of the elements, fire, delays in electrical service provider permit issuance, and action or adoption of any regulation, law, or ordinance by any governmental agency, precluding Grantee's performance. 8.0 City Business License Grantee and any contractor or subcontractor of Grantee must have a valid City business license at all times during the term of this Franchise. 9.0 Maintenance And Repair 9.1. At all times during the Term of this Agreement, Grantee must, at its sole cost and expense, to the satisfaction of the City and in compliance with all applicable laws and regulations, maintain, repair, clean, and service all benches, keeping them, their appurtenances, and the immediately surrounding areas in a safe, neat, attractive, environmentally clean, and sanitary condition 9.2. Grantee shall be authorized to enter upon and into the bench sites at any reasonable time with personnel and all necessary equipment and materials, to provide for the satisfactory maintenance of the sites and facilities. S7296 -0001 \1392577v1.doc 6 of 17 9.3. Grantee's personnel, equipment, and /or vehicles must not block automobile or bicycle travel lanes unless proper warning signs and traffic delineation devices are properly placed in accordance with the Work Area Traffic Control Handbook, latest edition, published by Building News, Inc., or equivalent. All travel lane closures will require the use of a "Flashing Arrow Board" device. Failure to provide this device will be cause for stopping work and vacating the job site until the situation is remedied. In the sole discretion of City, whenever Grantee's operations create a condition hazardous to traffic or to the public, Grantee must furnish and maintain as necessary: fences, barricades, lights, signs, safety cones, and other devices, per the State of California Manual of Traffic Controls (SAFT, latest edition), or as determined by the City Manager or his /her designee. 9.4. Grantee must provide for routine cleanup /maintenance at each bench site at least once per week. Grantee must initially monitor each location to determine an appropriate routine cleanup schedule. Grantee must make additional maintenance calls as conditions warrant, or as may be determined by City. Grantee specifically understands that some sites will require increased maintenance cleaning. Each bench must be completely steam cleaned at least once per quarter, or monthly for high traffic areas. City shall have the right to inspect the benches and sites at any time for cleanliness and safety. Routine cleanup /maintenance must include but not be limited to, removal of all graffiti, stickers, debris, litter, weeds, etchings, etc., cleaning shall include keeping the pad and an area within 15 feet of the benches clean and litter -free at all times. In addition to the above, weed abatement and any pruning work that may be required must be provided by Grantee on an "as- needed" basis, or as requested by the City. Grantee must not perform any maintenance during peak traffic hours, which are defined as Monday through Friday from 7:00 a.m. to 9:00 a.m. and from 4:00 p.m. to 6:00 p.m., unless Grantee obtains prior written authorization from City to perform maintenance services during the above stated hours. Notwithstanding the above, Grantee must remove all graffiti within 48 hours of discovery by Grantee or notification by City, unless graffiti of a derogatory or offensive nature is at issue, in which case such graffiti must be removed within 6 hours of discovery by Grantee or notification by City. 9.5. Grantee shall, at their sole cost and expense replace or repair any and all damaged, defaced or worn out benches, or individual parts thereof, to "like new" condition, no later than 7 calendar days after discovery and receipt of written approval from the City to proceed with such repairs. Replacement or repair of bench parts and components must include broken, missing, or graffitied glass /plastic panels and benches. 9.6. If the condition of a bench is such that the public could be exposed to danger, Grantee must respond immediately and rectify the hazard no later than 4 hours of discovery by or notification to Grantee, and leave the site in a safe condition. Grantee will assume all cost expended in the repair of the site to a safe condition. 9.7. Grantee must designate in writing to City, a name, business address, business telephone, and facsimile number of an employee who shall be responsible for the day -to -day operations, maintenance, cleanliness, and general order of the benches. Grantee shall furnish to City and maintain a 24 -hour emergency telephone number for City's and general public's use. All personnel employed by Grantee who will be responsible for cleaning, maintenance, and repair work must be properly licensed, trained, equipped, and supplied. 9.8. In the event Grantee fails to reasonably correct, repair, replace, or remove a bus bench as required by this Agreement, the City may, at its sole discretion, cause the correction, repair, replacement, or removal of the transit bench Any costs incurred by City, including but not limited to, inspection and overhead costs (each individual cost to be evidenced and substantiated by specific receipts and documentation), must be paid directly to City by Grantee S7296 -0001 \1392577v1.doc 7 of 17 within 30 calendar days following receipt by Grantee of City's invoice for such work. 9.9. Grantee must furnish City any maintenance operation information as may be requested by City. 9.10. At City request, Grantee shall install trash receptacle at locations within the City at Grantee's sole cost and expense. City shall pay Grantee $10.00 for each occasion that Grantee disposes of waste placed in a trash receptacle at a designated City facility. 10.0 Advertising Standards 10.1. General Provisions. 10.1.1. Bench advertising shall be limited to 1 ad panel per bench, Alternative advertising panel designs as required on a site -by -site basis will require the specific approval of the City Manager or his or her designee. All advertising must conform to the requirements of the Seal Beach Municipal Code and any other applicable laws. 10.1.2. Should the City, in its sole discretion, determine that any advertising on any bench is improper, offensive, or constitutes a display that is likely to interfere with, mislead, or distract traffic, or conflict with any traffic control system, Grantee shall be so advised and must not utilize such advertising. In the event City determines that any advertising is improper for any reason set forth herein, Grantee must remove such advertising within 24 hours after the City provide written notice thereof by certified mail or fax. 10.2. Prohibited Advertising. In addition, no advertising, signs or devices shall be permitted to be displayed on or about the bench that: 10.2.1. Display the words "STOP ", "DRIVE -IN ", "DANGER ", or any other word, phrase, symbol, or character that the City determines, may interfere with, mislead, confuse, or direct vehicular traffic; devices; 10.2.2. Comprise of rotating, revolving, or flashing lighting 10.2.3. Promote material that the City, in its sole discretion, determines is offensive to the community standards of good taste; 10.2.4. Makes a personal attack on any individual, or upon any company, product, or institution, or falsely disparages any service or product, or is defamatory in any respect; 10.2.5. Condones, solicits, or encourages any type of criminal or unlawful act, or that might be considered as derogatory toward any aspect of the law enforcement profession; 10.2.6. Portrays acts of violence, murder, seduction, terror, vandalism, or other acts of violence against persons or institutions; 10.2.7. Violates any applicable Federal, State, or local law, statute, or ordinance; 10.2.8. Contains false or grossly misleading information; 10.2.9. Depicts nudity that is offensive, distasteful, pornographic, erotic, or obscene, or any contains advertising for adult entertainment; S7296 -0001 \1392577v1.doc 10.2.10. Promotes tobacco products; 8 of 17 10.2.11. Contains any political advertisements or material; 10.3. The City Manager or his or her designee shall make the final determination as to unacceptable advertising. In the event that an advertisement is determined to be unacceptable, Grantee agrees to remove said advertising within 24 hours of official notification, which notice may be made by telephone. 10.4. Public Service Messages. Grantee must make available to the City annually, 4 advertising panels, each for a 4 -week segment and must, in cooperation with the City, design, print, install, and remove posters at no cost to City for use at these locations. City shall utilize these sites to promote the City of Seal Beach and its public events. 10.5. Unsold Advertising Panels. Unsold bench advertising panels may be used by the City for public service announcements. The City shall be responsible for all costs associated with the design and printing of the public service announcements and will immediately be removable by Grantee upon the sale of such advertising panel(s). 11.0 Additional Benches The City reserves the right to request that Grantee install additional benches as the need may arise and at City's sole cost and expense, subject to the provisions herein, and upon written amendment to this Agreement. Payment to City of Percentage Advertising Revenue for any additional benches required by this paragraph shall be paid by Grantee from the date City issues the approval for the additional bench. Any additional bench sites shall be mutually agreed upon between the City and Grantee. Grantee shall make every effort to meet the need for additional benches requested by the City. If Grantee cannot meet City's request for additional benches, Grantee must document in writing within 14 calendar days why Grantee cannot meet the increased needs of City. Grantee's failure to respond to City's written request for additional benches within 14 calendar days from receipt of the request for additional benches shall release City to fill the need for additional benches at its discretion and from another source. No benches other than those specified by the City shall be installed by the Grantee without written authorization from the City. 12.0 Site Relocation or Removal 12.1 The City, on its own accord or upon written request by Grantee, may, at the sole cost and expense of Grantee, require, or permit a bench to be removed or relocated, if there is demonstrable evidence that Grantee is unable to properly maintain the bench because of excessive vandalism or any other reasonable cause. For the purpose of this Agreement, "excessive vandalism" is defined as damage inflicted to an individual bench during any consecutive 6- month period that requires cumulative expenditures for replacement and repair that exceed the original cost of construction and installation of the bench. 12.2 In the event that a bus route is altered or deleted such that a bench will no longer serve as an active bus stop, Grantee must, at the sole cost and expense of the Grantee remove the bench completely, or relocate the bench to a new location designated by the City within 10 calendar days after notification by the City. 12.3 Grantee shall give written notice to City of all unpermitted advertising bus benches not operated by the Grantee and retains the right to remove any such unpermitted advertising benches, with 30 days written notice to the City. 12.4 In the event any restriction of the construction or maintenance of advertising is imposed by statute or by ordinance of City or State in which the bench is located, or in the event Federal, State, County, or other proper authorities should hereafter establish any rules, regulations, or taxation which shall have the effect of so restricting location, construction, maintenance, or S7296 -0001 \1392577v1.doc 9 of 17 operation of benches, so as to significantly diminish the value of said bench for advertising purposes the Grantee shall have the right to remove the bus benches and this agreement maybe be terminated. 13.0 Tax Interest Grantee recognizes and acknowledges that, pursuant to California Revenue and Taxation Code Section 107.6, use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest that may be subject to the payment of property taxes levied upon such interest. Grantee agrees to assume and shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Grantee's right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this Agreement. Grantee shall not be barred from challenging any amounts assessed pursuant thereto. For purposes of any property taxes levied in conjunction with California Revenue and Taxation Code Section 107.6, City and Grantee agree that Grantee's sole interest is in the advertising space available on the benches and it is expressly acknowledged that Grantee's interest shall not include the benches, benches, garbage cans or similar property which are owned and controlled by the City. 14.0 Termination 14.1. General Provisions. 14.1.1. This Agreement shall be subject to cancellation upon the occurrence of any one or more of the events of default hereinafter described. As a condition precedent thereto, the City will give Grantee 30 calendar days notice by registered or certified mail, of the date set for cancellation thereof; the grounds therefore; and that an opportunity to be heard thereon will be afforded on or before said date, if a request to be heard is made. 14.1.2. Grantee shall be considered to have defaulted on its contractual obligations when any of the conditions of default continue or are not remedied to the City's satisfaction within 10 calendar days following written notice by City to Grantee. Where Grantee shall have commenced performing a cure of any particular default identified by the City within 10 calendar days after such notice by the City, and continues to perform diligently, said 10 calendar day time limit may be extended or waived in a manner and to the extent expressly allowed by the City. 14.2. Events of Default 14.2.1. A Party's failure to punctually pay or make the payments specified herein when due, or non - payment or non - performance of any indebtedness, liability, or obligation due from one Party to the other Party. 14.2.2. The failure of Grantee to operate and maintain the benches, and the required improvements pursuant to this Agreement, in the state of repair required, and in a clean, sanitary, safe, and satisfactory condition. 14.2.3. A Party's failure to keep, perform any of its obligations, and observe all other promises, covenants, and conditions as set forth in this Agreement. 14.2.4. The filing of a voluntary petition in bankruptcy by a Party; the adjudication of a Party as bankrupt; and appointment of any receiver of a Party's assets; the making of a general assignment for the benefit of creditors; a petition or answer seeking an arrangement for the reorganization of the Grantee under any Federal Reorganization Act, including petition or answers under Chapters X or XI of the Bankruptcy Act; the occurrence of any act which operates to deprive a Party permanently of its rights, powers, and privileges necessary for the proper conduct and operation of the benches; the levy of any S7296 -0001 \1392577v1.doc 10 of 17 attachment or execution which substantially interferes with a Party's operations under this Agreement and which attachment or execution is not vacated, dismissed, stayed, or set aside within a period of 60 calendar days. Notwithstanding any other provision contained in this Agreement, upon the occurrence of any of the events set forth in this paragraph, the defaulting Party shall be deemed to have terminated this Agreement forthwith and without further notice. 14.2.5. Determination by the City, the State Fair Employment Commission, or the Federal Equal Employment Opportunity Commission, of discrimination having been practiced by Grantee in violation of State or Federal laws in connection with this Agreement, and the Grantee's failure to comply with any orders making that determination within the time frame specified by said agency. 14.2.6. A Party's material misrepresentation of fact in its literature, forms, or affidavits, which were submitted in the response to the Request for Proposals used in the solicitation process for this Agreement. 14.2.7. Transfer of the majority controlling interest of a Party to persons other than those who are in control at the time of the execution of this Agreement, without the approval thereof of the other Party. 14.2.8. Failure to have submitted plans and /or other documents required by a Party in relation to the required permits on or before the date(s) or within the time periods designated in this Agreement. 14.2.9. Failure of Grantee to have commenced required construction of specified improvements or any phase thereof on or before the date(s) designated in this Agreement for commencement thereof. 14.2.10. Failure of Grantee to have completed construction of bus bench improvements on or before the date designated in the Agreement for completion thereof. 14.2.11. The abandonment, vacation, or discontinuance of bus bench operations for more than 15 consecutive days. 14.2.12. City fails to receive notice of renewal of the Insurance Coverage, on or before the expiration date thereof, or if they are canceled, either separately or collectively, and no equivalent coverage is filed with City on or before the expiration date of such coverage, or upon termination of this Agreement for any reason. 14.2.13. A Party defaults on a loan secured by a transit bench. 14.2.14. An assignment for the benefit of creditors by a Party of the collateral. any part of it. S7296 -0001 \1392577v1.doc 14.2.15. The levy, seizure, or attachment of the collateral or 14.2.16. Dissolution, merger, consolidation, or transfer of a substantial part of the property of a Party without the approval of the other Party. 14.2.17. A Party becomes insolvent. 14.3. Notice of Non - Compliance. If a Party is not performing in accordance with this Agreement, such non - performing Party will be issued a notice of noncompliance that shall state specific factors and a time frame to remedy the noncompliance. If the non - performing Party fails to remedy the noncompliance in a timely manner, the other Party (i.e., in the case of the City, the City Manager or his designee) may find that the non - performing Party is in compliance with this Agreement or that the non - performing Party is in material 11 of 17 default of the terms and provisions of this Agreement. If the other Party finds that the non - performing Party is in default, the other Party may terminate this Agreement. 14.4. Liquidated Damages. Grantee and City hereby agree that the following liquidated damages represents a fair and reasonable estimate of the costs and lost revenue a Party will incur in the event this Agreement is terminated by a Party for cause as set forth herein, or wrongfully terminated by a Party, including, but not limited to, abandonment of the benches or nonpayment of monies owed. If any of these events occur, the non - defaulting Party shall be entitled damages in an amount equal to the Percentage Advertising Revenue in the immediately preceding month. 14.5. Option to Purchase. 14.5.1. Upon termination of this Agreement, City reserves the right, but shall not have the obligation, to purchase from Grantee, any or all of the benches installed pursuant to this Agreement. The price to be paid for each bench shall be the value remaining in each unit (including all appurtenances) at the time of termination. For the purpose of this Agreement "value remaining" shall mean the original value of the unit at its installation, which is listed in the Grantee's Proposal, minus one -tenth (1/10) of the value per year for each full year or portion thereof after installation. 14.5.2. In the event that City decides not to purchase one or more benches or upon termination of this Agreement, Grantee shall not remove the Grantee -owned benches until so notified to do so by the City (in any event, notice of City's intent with respect to the benches shall not be delivered later than 30 days from the termination of this Agreement or such notice shall be deemed given). Upon receipt of a removal notice from the City, Grantee shall, within 30 calendar days from said notice, restore each site to its original condition or better at a cost reasonably agreed upon between the Parties. 15.0 Party Representatives 15.1. The City Manager is the City's representative for purposes of this Agreement. 15.2. Michael A. Culver is the Grantee's primary representative for purposes of this Agreement. 16.0 Notices 16.1. Unless otherwise specified in this Agreement, all notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: To City: To Grantee: S7296- 0001 \1392577v1.doc City of Seal Beach 211 -8th Street Seal Beach, California 90740 Attn: City Manager Coastline Advertising Corporation 7108 Katella Ave., #511 Stanton, CA 90680 -2803 Attn: Michael A. Culver 16.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 12 of 17 17.0 Independent Contractor 17.1. Grantee is an independent contractor and not an employee of the City. All services provided pursuant to this Agreement shall be performed by the Grantee or under its supervision. Grantee will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Grantee shall also not be employees of City and shall at all times be under Grantee's exclusive direction and control. Grantee 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. Grantee 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. 17.2. Grantee shall indemnify and hold harmless City and its elected officials, officers, 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 Grantee's personnel practices. City shall have the right to offset against the amount of any fees due to Grantee under this Agreement any amount due to City from Grantee as a result of Grantee's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 18.0 Assignment Grantee 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. Assignment shall not be unreasonably withheld. 19.0 Insurance 19.1. Grantee shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Grantee has secured all insurance required under this Section. Grantee shall 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 shall 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 shall 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. 19.2. Grantee 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 shall 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); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Grantee shall 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: $2,000,000 per accident for bodily injury and property damage. S7296 -0001 \1392577v1.doc 13 of 17 19.3. The insurance policies shall contain the following provisions, or Grantee shall 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, shall stand in an unbroken chain of coverage excess of the Grantee'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 Grantee'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 Grantee, 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 Grantee or for which the Grantee is responsible. 19.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 19.5. Any deductibles or self- insured retentions shall be declared to and approved by the City. Grantee 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 Grantee shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 20.0 Indemnification, Hold Harmless, and Duty to Defend Grantee shall defend, 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 Grantee, 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, except for such loss or damage arising from the sole negligence or willful misconduct of the City. 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, Grantee shall defend Indemnitees, at Grantee's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Grantee 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. Grantee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Grantee, the City, its directors, officials, officers, employees, agents or volunteers. All duties of Grantee under this Section shall survive termination of this Agreement. 21.0 Equal Opportunity Grantee affirmatively represents that it is an equal opportunity employer. Grantee shall not discriminate against any subcontractor, employee, or applicant S7296 -0001 \1392577v1.doc 14 of 17 for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non - discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 22.0 Labor Certification By its signature hereunder, Grantee 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 Workers' 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. 23.0 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. This Agreement may only be modified by a writing signed by both parties. 24.0 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. 25.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 26.0 Rights and Remedies Cumulative The rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies available for the same default or any other default by the other Party. 27.0 Non - Liability of City Officers and Employees No officer, official, employee, independent contractor acting as official, agent, representative, or volunteer of the City shall be personally liable to Grantee, or any successor in interest, in the event of any default or breach by the City, or for any amount which may become due to Grantee or its successor, or for breach of any obligation of the terms or provisions of this Agreement. 28.0 Interpretation This Agreement shall be construed in accordance with the meaning of the language used and neither for nor against either Party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 29.0 Headings The section headings of this Agreement are not to be considered part of the Agreement and are included solely for convenience, and are not intended to modify or explain or to be a full or accurate description of the content thereof, nor shall they be construed to limit or extend the meaning of this Agreement. 30.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. S7296 -0001 \1392577v 1.doc 15 of 17 31.0 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. 32.0 Prohibited Interests Grantee maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Grantee, to solicit or secure this Agreement. Further, Grantee 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 Grantee, 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. 33.0 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 attorneys' fees and other costs incurred in connection therewith. 34.0 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. 35.0 Ownership 35.1. Prior to commencing performance under this Agreement, Grantee shall provide the CITY with a written statement, executed under penalty of perjury, containing the following information: 35.1.1. If the Grantee is a corporation, the name of the corporation shall be set forth exactly as shown in its Articles of Incorporation or Charter, together with the State and date of incorporation, and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than 5% of the stock of that corporation. 35.1.2. If the Grantee is a corporation or partnership, Grantee shall designate one of its officers or general partners to act as its responsible managing employee. Prior to the Effective Date, Grantee shall deliver to CITY proof of the designation of the responsible managing employee pursuant to appropriate authority. The responsible managing employee shall complete and sign all the statements required by this Agreement. 36.0 Corporate Authority The person executing this Agreement on behalf of Grantee warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, the Grantee is formally bound to the provisions of this Agreement. S7296 -0001 \1392577v1.doc 16 of 17 1 1 1 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 By: Attest: By: By: S7296-0001\1 392577v 1. doc . Ingram, City Baer Li da Devine, City Clerk Approved as to Form: nn Barro — , City Attorney 17 of 17 GRANTEE By: By: Name: Its: G OA,3' %�rvez /lie 'r ri si t " �d ice✓ Name: /P4t Its: Af- s i (Intentionally Left Blank) 1 1 1