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HomeMy WebLinkAboutCC AG PKT 2008-11-10 #KAGENDA STAFF REPORT DATE: November 10, 2008 TO: Honorable Mayor and City Council THRU: David Carmany, City Manager FROM: Vince Mastrosimone, Director of Public Works SUBJECT: APPROVE AGREEMENT WITH CLEAR CHANNEL OUTDOOR FOR BUS SHELTERS SUMMARY OF REQUEST: The Cary Council is asked to adopt Resolution No. 5805 approving an agreement with Clear Channel Outdoor to provide and maintain bus shelters at 24 locations city-wide. BACKGROUND: The City entered into an agreement for bus shelters with Metro Display Advertising, Inc. in January 1997. Eller Media Company, a subsidiary of Clear Channel Communications purchased Metro Display Advertising and on July 21, 2001 changed the name to Clear Channel Outdoor. In 2002, the term of the agreement was extended to January 2007. They have been operating on a month to month basis since then. In consideration of the nght to install the bus shelters, maintain them and sell advertising, Clear Channel agreed to pay to the City a fee equal to 20.1 % of the gross advertising revenues received less a minimum annual payment of $49,200. The last payment received from Clear Channel was for $24,600 and based on the minimum rather than the percentage of gross advertising revenues. They showed advertising revenue of $51,108 for the period of July 1, 2007 to December 31, 2007. Advertising revenues would have to be $244,776 per year in order for the percentage calculation to factor into the payment to the City. Based on the reported revenue, it would be unlikely for the percentage calculation to ever be a factor in the payment. It is more likely the payment to the City will be the minimum annual payment. Although the agreement allows 26 shelters to be in place, only 24 shelters are on the street currently. Staff met with Clear Channel representatives on November 29, 2007 to discuss a new agreement. Contract terms offered by Clear Channel were the same as the previous agreement except for the following: Agenda Item K Page 2 The percentage of gross advertising revenue offered to the City would be reduced from 20.1 % to 15% while the minimum annual payment would remain $49,200. If the City offered a ten year term, Clear Channel would replace the existing structures, Exhibits Al-3, with the shelter of the City's choice selected from Exhibits B1-2 (or go to http.//www.tolarmfg.com/shelters- withads.htm). If the City offers a five year term, Clear Channel would leave the existing shelters in place. Staff calculated that if the minimum annual payment was increased based on the Consumer Price Index, the payment would be about $68,000 per year in today's dollars. This was presented to Clear Channel and they declined to change their offer. The existing shelters are well maintained and still serviceable. Staff recommends that the City offer only the flue year term. Staff surveyed other Southern California cities to identify potential vendors and to compare fees. The monthly fees ranged from $0 in Los Alamitos to $290 in West Hollywood. Of the eight agencies in the survey, six were served by Clear Channel. The City Attorney's office provided survey data to which they had access. This data covered 24 agencies throughout the state. The monthly fees ranged from $0 to $267. However, most of the fees were In the $100- $160 range. The predominant vendor in this survey was CBS Outdoor. The $170 per month per shelter offer on the table from Clear Channel compares favorably to the survey data FINANCIAL IMPACT: The General Fund currently receives $49,200 per year. RECOMMENDATION: It is recommended that the Ciiy Council adopt Resolution No. 5805 agreement with Clear Channel Outdoor to provide and maintain bus shelters at 24 locations NOTED AND APPROVED: Cam' 'ublic Works David Carman City Manager Attachments: A Resolution No. 5805 B Letter Proposal from Clear Channel Outdoor C Proposed agreement with Clear Channel D Bus Stop Shelter Locations RESOLUTION NUMBER 5805 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH APPROVING THE PROFESSIONAL SERVICES AGREEMENT WITH CLEAR CHANNEL OUTDOOR TO PROVIDE AND MAINTAIN BUS SHELTERS AT 24 LOCATIONS CITY-WIDE THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY RESOLVE SECTION 1 The City Council hereby approves the professional services agreement between the City of Seal Beach and Clear Channel Outdoor ("Agreement") SECTION 2 The Council hereby directs the City Manager to execute the agreement PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach, at a meeting hereof held on the 10th day of November , 2008 by the following vote AYES' COUNCILMEMBERS NOES. COUNCILMEMBERS ABSENT COUNCILMEMBERS ABSTAIN COUNCILMEMBERS Mayor ATTEST. City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Dewne, City Clerk of Seal Beach, California, do hereby certify that the foregoing resolution is the original copy of Resolution Number 5805 on file in the office of the City Clerk, passed, approved, and adopted by the City Council of the City of Seal Beach, at a regular meeting thereof heltl on the 10th day of November , 2008. City Clerk ~ CLEARCHANNEL OUTDOOR June 30, 2008 To Whom It May Concern: On January 13, 1997, the City of Seal Beach and Clear Channel Outdoor (Metro Display Advertising at the time of initial signing) entered into the current transit shelter agreement. The original agreement was for five (5) years, with the possibility of a five (5) yeaz extension option The contract has been on a month to month contract since January 2007. After negotiations between representatives of both parties, Clear Channel Outdoor has offered the City of Seal Beach a five (5) year term, and 15% of the revenue or $49,200, whichever is greater. At the City's request, there will be no new shelters, and no refurbishment of the currently existing shelters. We look forward to working with the Ctty of Seal Beach during the duration of this contract. If you have any questions or comments regazding the terms of this renewal, please feel free to contact me at your eazliest convenience. Very ~Y.Y sa ~~•: Layne on Director of Public Affairs Clear Channel Outdoor i10 7s5.7z00 r,. GearChannel Outdoor 1755.7300 i ,. 19320 Hubmga« C9ay ° Ianance. CA 90501 • www daauhaaneloutdom com AGREEMENT FOR BUS SHELTER MAINTENANCE AND ADVERTISING between City of Seal Beach 211 - 8th Street Seal Beach, California 90740 Clear Channel Outdoor, Inc. [19320 Harborgate Way Los Angeles California 90501] [Phone Number] This Agreement ("the Agreement") is made as of ;~' M~'n~:7?~, 2008, by and between Clear Channel Outdoor Inc. ("Contractor"), a Delaware corporation, and the City of Seal Beach ("City"), a California charter city, (collectively, "the Parties"). RECITALS A. City desires bus shelters, each individually hereinafter referred to as a "shelter," to be provided and maintained at various designated bus stop locations throughout the City. B. Contractor represents that it is willing and qualified to provide such shelters under the terms and conditions hereinafter set forth. WHEREFORE, in consideration of the respective covenants and promises herein contained and subject to all of the terms and conditions hereof, the Parties hereby agree as follows: AGREEMENT 1.0 Applicability This Agreement applies to the shelters located within the City as depicted in ExliibitA to this Agreement, which is hereby incorporated by this reference. This Agreement contains all covenants and agreements between the Parties with respect to these shelters and supersedes any and all other agreements between the Parties, either oral or written, with respect to these shelters. Each Party to this Agreement acknowledges that no representation, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that aze not embodied herein, and that any amendment to this Agreement shall be effective only if executed in writing and signed by both City and Contractor. 2.0 Grant of License by City 2.1 City hereby grants Contractor, subject to the terms and conditions of the Agreement, an exclusive license to maintain and repair shelters at the locations depicted in Exhibit A. 2.2 This Agreement shall not be construed as granting Contractor any interest in real property owned by the City, and Contractor hereby expressly disclaims any such interest. 3.0 Fee Payable to City 3.1 Contractor must pay City an annual fee equal to the greater of either (1) 15% of the gross advertising revenue generated by the shelters, or (2) $49,200. Contractor must pay the fee on asemi-annual basis. Contractor must make payment for the first half of each calendar year not later than July 31 of that yeaz, which payment must be in an amount equal to the greater of: (1) the fees accrued during the first half of the calendaz yeaz, or (2) $24,600 Contractor must pay the balance of the fee for each calendar year no later than January 31 of the following yeaz. Any amounts not paid when due shall bear interest at the rate of 1% per month, compounded monthly (but in no event more than the greatest rate permitted by applicable law). 3.2 All payments from Contractor to City must be accompanied and supported by a Statement of Account showing all shelters subject to this Agreement and the revenues received for each. Contractor must allow City or City's agents or representatives to inspect Contractor's 1 of 8 books and records at Contractor's offices during reasonable business hours, upon no less than 15 days prior notice, to verify the fees due to City. City's right to inspect Contractor's books and records pursuant to this Section shail survive for two years following the termination of this Agreement. 4.0 Contractor's Services 4.1 Contractor must, at its sole cost and expense, maintain, repair, clean, and service the shelters. 4.1.1 Contractor's personnel may enter upon and into shelters for purposes of maintaining, repairing, cleaning, and servicing the shelters at any time reasonably necessary therefor. 4.1.2 Contractor must maintain the shelters in a state of good repair and must promptly repair any damage to the shelters and remove any graffiti from the shelters. 4.1.3 Contractor must clean and collect trash from all shelters not less than 2 times per week. 4.2 Contractor must, in performance of this Agreement, comply with all applicable federal, state, and local law. 4.3 Contractor must obtain and maintain all necessary permits for each shelter and is solely responsible for payment of all fees, costs, and permit charges regularly assessed by City. 4.4 Contractor must maintain all shelters in accordance with designs, plans, and specifications approved by the City Manager or his or her designee. Contractor must display its name in a conspicuous location on each shelter. Contractor must submit any proposed change in the design or configuration of any shelter to the City Manager for his or her prior written approval at least 30 days prior to the change. 4.5 Contractor must pay all sums that may become due for electrical energy supplied to the shelters and must indemnify City against any and all such costs. 4.6 Contractor may utilize the shelters for advertising subject to the requirements of California Business & Professions Code, Section 5408.5 and the terms and conditions set forth in this Section 4.6. 4.6.1 Contractor must make at least 10% of the advertising space on the shelters available at no charge to the City for the display of public service announcements. 4.6.2 All advertising and design diagrams are subject to the approval of the City Manager or his or her designee. 4.6.3 Contractor must not display any advertisement or sign on any shelter outside the area of the shelter designated for advertising pursuant to the design diagrams. 2of8 4.6.4 Contractor must not display any advertisement or sign on any shelter that would be offensive or objectionable to the public. 4.6.5 Contractor must not display any advertisement or sign on any shelter for competing services or products within aone-block radius of real property primarily devoted to providing those services or products. 4.6.5 Contractor must not display any adult oriented advertising or advertising for alcoholic beverages or tobacco products. 4.6.6 Contractor must not display on any shelter any work, phrase, symbol or character likely to interfere with, mislead, or distract traffic, or conflict with any traffic control device. Advertising panels must not be excessively illuminated or include rotating, flashing, or revolving lighting devices or moving parts. 4.6.7 If the City, in rts sole discretion, determines that any advertising on any shelter violates the terms and conditions of this Section 4.6 Contractor must remove the advertising within 24 hours or receiving notice from the City. City may cover the advertisement until such time as Contractor has removed the advertisement. 5.0 Additional Shelters 5.1 Contractor may install shelters at additional locations if it obtains the prior written approval of the City. Such shelters must comply with all provisions of this Agreement. Notwithstanding anything to the contrary herein, Contractor is not and shall not be obligated to install or construct any new or additional shelters under this Agreement. 5.2 Where installation of a new shelter requires disturbing existing pavement, Contractor must promptly replace that pavement in a manner satisfactory to City. If Contractor's work results in any damage to utilities, street furniture, vegetation, or private property, Contractor must promptly restore, repair, or replace the damaged property to its original or a better condition. 6.0 Shelter Removal 6.1 Contractor may remove any shelter subject to this agreement upon 30 days written notice to the City if federal, state, or local taxes or regulations substantially diminish the value for advertising purposes of any shelter subject to this Agreement. 6.2 Contractor may remove any shelter subject to this agreement upon 30 days written notice to the City if the shelter is subject to chronic vandalism, For these purposes, chronic vandalism is damage inflicted to a shelter during any 1 yeaz period that requires cumulative expenditures for replacement and repair in excess of the original cost of construction and installation of the shelter. 6.3 If upon expiration or termination of this Agreement, the City opts for the removal of any or all shelters, Conh~actor must immediately remove any or all such shelters as the City requests be removed. If Contractor does not remove all shelters within 30 days after notice to 3 of 8 remove, City shall have the right to remove the iema;n;ng shelters, in which event Contractor must reimburse City for all costs of removal and site restoration. 6.4 Upon removal of any or all shelters under any circumstances, Contractor must also remove all material on the site, including but not limited to, all wires, and restore the site to the condition existing prior to installation of the shelter, including complete restoration of any sidewalk upon which the shelter was located. 7.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a tens of 5 years unless previously terminated as provided by this Agreement. 8.0 Termination 8.1 This Agreement may be temvnated by City, without cause, or by Contractor based on reasonable cause, upon giving the other party written notice thereof not less than thirty 30 days prior to the date of termination. 8.2 Tbis Agreement may be terminated by City upon 10 days' notice to Contractor if Contractor 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. 9.0 Independent contractor Contractor is an independent contractor and not an employee of the City All services provided pursuant to this Agreement shall be performed by Contractor or under its supervision. Contractor will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Contractor 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. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment msurance, disability insurance, and workers' compensation insurance. 10.0 Insurance 10.1 Contractor must not commence work under this Agreement until it has provided evidence satisfactory to the City that Contractor has secured all insurance required under this Section. Contractor 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 must 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. 4of8 10.2 Contractor must, 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). Contractor 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. 10.3 The insurance policies must contain the following provisions, or Contractor 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 must 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 Contractor'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 Contractor's insurance and must 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 Contractor, including materials, parts or equipment famished 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 Contractor or for which the Contractor is responsible. 10.4 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. 10.5 Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor 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 Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, clauns and administrative and defense expenses 11.0 Representatives and Notices 11.1 The City Manager is the City's representative for purposes of this Agreement. Sof8 11.2 Director of Public Affairs for Cleaz Channel Outdoor -Southern California Division is the Contractor's sole representative for purposes of this Agreement. 11.3 Notices and written communications sent by one party to the other must be personally delivered or sent by certified or registered U.S. Mail, return receipt requested, postage prepaid, to the following addresses (or such other addresses as may be designated by notice given in accordance with this pazagraph): If to City: City of Seal Beach 211 Eighth Street Seal Beach, CA 90740 Attn: City Manager If to Contractor: Cleaz Channel Outdoor, Inc. 19320 Harborgate Way Los Angeles CA 90501 Attn: President -Southern California Division 12.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Contractor is fully responsible to City for the performance of any and all subcontractors. 13.0 Assignment Contractor must 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. Notwithstanding anything to the contrary herein, Contractor shall have the right to assign or transfer this Agreement to an entity controlled, under common control with or affiliated with Contractor or that acquires all or substantially all of concessionaire's assets or stock without the consent of City. 14.0 Indemnification snd Hold Harmless Contractor must defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents 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, omissions, or misconduct of Contractor, its employees, or its agents, arising out of or 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. Contractor must defend, at Contractor's own cost, expense, and risk, any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Contractor must pay and satisfy any judgment, awazd, or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor must reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal 6of8 expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers. All duties of Contractor under this Section shall survive termination of this Agreement. 15.0 Labor Certification By its signature hereunder, Contractor 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. 16.0 Validity 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. 17.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 18.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either Party as a result of this Agreement. 19.0 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. 20.0 Prohibited Interests Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor 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 Contractor, 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 nght 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 7of8 any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 21.0 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 all other costs incurred in connection with such action. IN WITNESS WHEREOF, the Parties hereto have date and year first above written. / CTTY OF SEAL BEACH By: Attest: sy: Linda Devine, City Clerk Approved as to Form: By: Quinn Barrow, City Attorney David Carmany, City Manager this Agreement as of the OUTDOOR, INC. (o rcrj ~ c G .=f-C OyI~G/.'1 ~ rte`/.~n: •u T'^a$•-f+~pM1~ i ~• By: C./J// Nam '. Lw yrn t Lp,^ Sri--'' Its: IJ~rp~F,rr a~~1o~i~;'c I~KFa)rS 8of8 s~C4F l B IT D seat B ~~ m a 9,~Hr, p¢ emo To: From: Noah Busch CC: Steve Badum Date: 7/1/97 Re: Bus Stop Shelters Bus Stop Shelter Locations All sites verified to be built LOCATIONS Date venfled EB Marina NS 1st T-47D1 6/30/97 WB Marina F5 5th T-4712 6/30/97 SB Seal Beach Blvd. FS 2201 Rockwell T~688 6/30/97 SB Seal Beach Blvd. FS Beverly Manor T-4684 6/30/97 SB Seal Beach 81vd FS Bolsa T~572 6/30/97 SB Seal Beach Blvd. FS Bradbury T~4689 6/30!97 SB Seal Beach Blvd. OPP Lampson T~711 6!30/97 NB Seal Beach Blvd FS Oki Ranch T-4715 6/30/97 NB Seal Beach Blvd. FS PCH T-0691 6/30/97 SB Seal Beach Blvd FS PCH T31687 6!30!97 58 Seal Beach Blvd FS Regency T-4710 6130/97 NB Seal Beach Blvd. FS Road C T~690 6Y30/97 SB Seal Beach Blvd FS Rossmoor T-3571 6/30/97 SB Seal Beach Blvd. FS St Andrews T~1706 6/30/97 SB Seal Beach Blvd NS St Cloud T-4717 6/30/97 NB Seal Beach Blvd. FS Westrnmster T-3574 6/30/97 EB Westminster AT 2900 Westminster T-0698 6l3Dl97 • Page 1 The follovnng sites require CALTRANS perrnhs NB PCH NS 1st T-4692 6/30/97 SB PCH FS 1st T3570 6!30/97 SB PCH NS Anderson T-0571 6/30197 NB PCH FS Balboa T~698 6/30/97 NB PCH FS Bolsa T-4695 6!30/97 NB PCH FS Mar Vista T-4694 6/30!97 NB PCH FS Seal Beach Blvd T~683 6P30/97 SB PCH FS Seal Beach Blvd T-4693 6!30197 • Page 2