HomeMy WebLinkAboutAGMT - Clear Channel Outdoor (Bus Stop Shelter Advertising) • •
AGREEMENT FOR
BUS SHELTER MAINTENANCE AND ADVERTISING
between
--, SEA
s* *l
i ce; , .¢;
si q� 2
""�
'ycFCOoNTI, Pc;
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 rJ/ - J OI 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 Exhibit A 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 are 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 a semi - annual basis. Contractor must make payment for the first half of each calendar
year not later than July 31 of that year, which payment must be in an amount equal to the greater
of: (1) the fees accrued during the first half of the calendar year, or (2) $24,600. Contractor must
pay the balance of the fee for each calendar year no later than January 31 of the following year.
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 shall 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.
2 of 8
• •
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 a one -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 its 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 year 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, Contractor 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 remaining 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 term of 5 years unless previously terminated as provided by this Agreement.
8.0 Termination
8.1 This Agreement may be terminated 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 This 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 insurance, 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.
4 of 8
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 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
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, claims 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.
5 of 8
11.2 Director of Public Affairs for Clear 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 paragraph):
If to City: City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Attn: City Manager
If to Contractor: Clear 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 and 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, award,
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
6 of 8
• •
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 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
7 of 8
• •
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 executed this Agreement as of the
date and year first above written.
CITY OF SEAL BEACH CLEAR C NNEL OUTDOOR, INC.
By: 0-41 By:
David Carmany, City Manager /�
N' I are But Crryr'C
Attest:
•
• I Snr,/Lar Cal rnrsf!'e5:Ofe4E
By: Ail 44 4.A.. / ALA, _
Li da Devine, City Clerk -
By:
Approved as to Form: /
Name: �w4a✓
B Its: e0+ .cj . %r g
Quinn Barrow, City Attorney
3
8 of 8
• • EXHIBIT D
• ENGINEERING
•`oFPO �@
P F p2
Memo
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 verified
EB Marina NS 1st T-4701 6/30/97
D�.. WB Marina FS 5th T-4712 6/30/97
�� SB Seal Beach Blvd. FS 2201 Rockwell T-4688 6/30/97
SB Seal Beach Blvd. FS Beverly Manor T-4684 6/30/97
SB Seal Beach Blvd. FS Bolsa T-3572 6/30/97
SB Seal Beach Blvd. FS Bradbury T-4689 6/30/97
SB Seal Beach Blvd. OPP Lampson T-4711 6/30/97
NB Seal Beach Blvd. FS Old Ranch T-4715 6/30/97
NB Seal Beach Blvd. FS PCH T-4691 6/30/97
SB Seal Beach Blvd. FS PCH T-4687 6/30/97
SB Seal Beach Blvd. FS Regency T-4710 6/30/97
NB Seal Beach Blvd. FS Road C T4690 6130/97
SB Seal Beach Blvd. FS Rossmoor T-3571 6/30/97
SB Seal Beach Blvd. FS St.Andrews T-4706 6/30/97
SB Seal Beach Blvd. NS St. Cloud T-4717 6/30/97
NB Seal Beach Blvd. FS Westminster T-3574 6/30/97
EB Westminster AT 2900 Westminster T-4696 6/30/97
•Page 1
• •
The following sites require CALTRANS permits
NB PCH NS 1st T-4692 6/30/97
SB PCH FS 1st T-3570 6/30/97
SB PCH NS Anderson T-0571 6/30/97
NB PCH FS Balboa T-4698 6/30/97
NB PCH FS Boise T-4695 6/30/97
NB PCH FS Mar Vista T-4694 6/30/97
NB PCH FS Seal Beach Blvd. T-4683 6/30/97
SB PCH FS Seal Beach Blvd. T-4693 6/30/97
• Page 2
• ¢ • IP' lJd �� 5-/o
AMENDMENT NO. 1 TO AGREEMENT
FOR BUS SHELTERS
A. RECITALS.
(i) On January 13, 1997, the City of Seal Beach and Metro
Display Advertising, Inc. entered into an Agreement for Bus Shelters
( "Agreement ").
(ii) Eller Media Company, a subsidiary of Clear Channel
Communications, a Delaware corporation, purchased Metro Display
Advertising, Inc.
(iii) On July 1, 2001, Clear Channel Communications changed the
name of Eller Media to Clear Channel Outdoor.
•
(iv) Clear Channel Outdoor has requested that City assign all
interest, rights and obligations arising out of the Agreement to Clear
Channel Outdoor, in accordance with Section 13 of said Agreement.
•
(v) Clear Channel Outdoor wants to extend the term of the
Agreement in accordance with Section 7 of said Agreement to provide for
a five -year contract extension to January 12, 2007.
B. AMENDMENT.
NOW THEREFORE, the parties hereto agree as follows:
1. The City's hereby consents to assignment of Metro Display
Advertising, Inc.'s interest, rights and obligations under the
Agreement for Bus Shelters to Clear Channel Outdoor, a
subsidiary of Clear Channel Communications.
2. The Agreement shall be extended for a five -year period from
January 13, 2002 to January 12, 2007.
3. The undersigned represent that each has the power to bind
his or her respective party.
•
4. Other than expressly amended hereby, the Agreement and
each and every provision contained therein shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have entered into
Amendment No. 1 as of the date set forth below opposite the name of
each such party.
Dated: g! 1.:. ..7 ' z &,2 CITY OF SEAL BEACH
Mayor Willi h, Doane
APPROVED AS TO FORM:
Quinn M. Barrow ATTEST: oanne Yeo City Clerk
City Attorney
City of Seal Beach
Dated: yf / CLEAR CHANNEL • TDOOR
By: .
Geo<ry Mark
re5. wes-f goyer,
•
41. , of /i3/97
� ,. - z if eI( L2 Wes:..
l) C/
AGREEMENT FOR BUS SHELTERS
d r THIS A ENT, made and entered into this 0 day of
%, i . _, 19 by and between the CITY OF SEAL EACH, a municipal
orporation of e . to of California ( "CITY ") and METRO DISPLAY ADVERTISING,
, INC., d.b.a. STOP SHELTERS OF CALIFORNIA, a California corporation
✓ ( "CONTRACTOR ").
WITNESSETH
A. Business and Professions Code Section 5408.5 allows for the placement of
advertising displays located on bus shelters provided that those shelters have met the
standards and are approved by agreement or permit of the public agency having operational
authority over the highway adjacent to the shelter.
B. CITY desires bus shelters, each individually hereinafter referred to as a
"shelter ", at various designated bustop locations throughout the CITY.
C. CITY desires to cause such shelters to be provided without incurring costs and
expenses thereof.
D. CITY has therefore sought competitive proposals for the provision of shelters
at certain designated locations throughout the City.
E. CITY has requested the construction and maintenance of such shelters to be
accomplished by entering into a written agreement between the CITY and CONTRACTOR.
F. CONTRACTOR represents that it is willing and qualified to provide such
shelters under the terms and conditions hereinafter set forth.
G. CITY is willing to provide CONTRACTOR with the right to construct, erect,
install, repair, maintain and insure such shelters on city -owned property 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:
1. Grant of Right by CITY
CITY hereby grants to CONTRACTOR, on the terms hereinafter
described, a license to construct, erect, install, repair, maintain and insure twenty -five
advertising bus shelters at designated bus stop locations, said locations to be determined by
•
• •
{
CONTRACTOR and the City Manager of CITY. Additional shelters may be supplied by
CONTRACTOR with the consent of the City Manager.
2. Fee Payable to CITY
a. In consideration of the rights granted hereby, CONTRACTOR
agrees to pay to CITY a fee equal to 20.1 % of the gross advertising revenues received by
CONTRACTOR for the rental of advertising space in and on the shelters, and in no event
less than a minimum of $49,200 per year. The fee shall be paid on a semi - annual basis.
The payment for the first half of each calendar year shall be paid not later than July 31 of
that year, and shall be in an amount equal to the greater of (i) the fees accrued during the
first half of the calendar year, and (ii) $24,600. The balance of the fee for each calendar
year shall be paid within thirty (30) days after the end of the year. 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).
b. All payments from Contractor to CITY shall be supported by a
Statement of Account showing all shelters located and revenues received. CONTRACTOR
shall allow inspection of its books and records by CITY or CITY's agents at
CONTRACTOR's offices during reasonable business hours to verify the fees due to CITY.
3. CONTRACTOR's Services
CONTRACTOR agrees, at its own costs and expenses to perform as follows:
a. Scope of Service. CONTRACTOR shall construct, install and
maintain a minimum of twenty -five (25) advertising bus shelters in the CITY at locations
approved by CITY in CITY's sole discretion. CONTRACTOR agrees to provide a bus
shelter at any location reasonably desired by CITY.
b. Design of Shelters. The shelters shall be designed and
constructed to conform to the plans and specifications submitted by CONTRACTOR and
approved by CITY. Each shelter shall have displayed in a conspicuous place the name of
CONTRACTOR. Any design change on the shelter shall be submitted for CITY's written
approval at least thirty (30) days prior to installation, and no changes will be made without
prior CITY approval.
c. Permit Requirements. CONTRACTOR shall obtain a
construction permit from CITY for each shelter, and each such permit shall be valid only
for the particular location specified therein. Each application for a permit to install a shelter
must be accompanied by a plan showing the proposed location of the shelter and such other
information as the City Manager or other CITY official may require.
d. Construction. CONTRACTOR agrees to install any new shelter
within thirty (30) days of CITY approval to install such shelter. Where installation of a
shelter requires disturbance of existing pavement, CONTRACTOR shall promptly replace
961216 S7297 -00101 dcs 0260951 1 — 2 -
• •
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 shall
promptly restore, repair or replace the damaged property to its original or a better condition.
e. Permit Charges. CONTRACTOR shall pay all fees, costs and
permit charges regularly assessed by CITY. The shelters shall be constructed in conformity
with the relevant requirements of the Uniform Building Code and applicable CITY codes.
f. Repair and Maintenance. CONTRACTOR shall maintain,
repair, clean and service the shelters and non - advertising benches located at bus stops.
CONTRACTOR may enter upon and into shelters at any reasonable time with personnel and
materials, including but not limited to electric wires, meters, and clock work machinery,
reasonably necessary for repairing and maintaining the shelters. All such work shall be
performed at the sole expense of CONTRACTOR. Each shelter shall be cleaned and trash
collected not less than two (2) times per week.
g. Electricity. CONTRACTOR shall pay all sums that may
become due for electrical energy supplied to the shelters and shall keep CITY indemnified
against any and all such costs.
h. Advertising. CONTRACTOR shall utilize the shelters for
advertising, but shall only do so pursuant to those design diagrams which are approved by
CITY.
(1) No advertisement or sign on any shelter shall be
displayed except in the area designated for advertising pursuant to the design diagrams.
(2) No advertisement or sign on any shelter shall be
displayed which would be offensive or objectionable to the public, or which advertises
competing services or products within a one -block radius of real property primarily devoted
to providing those services or products. Should CITY, in its sole discretion, determine any
advertising on any shelter to be offensive or objectionable to the public , CONTRACTOR
shall remove the advertising within twenty -four (24) hours after CITY serves notice
requiring the removal of such advertising pursuant to this paragraph; CITY may cover the
advertisement until such time as CONTRACTOR has removed the advertisement.
(3) Contractor agrees not to display adult oriented
advertising or advertising for alcoholic beverages or tobacco products.
(4) No advertisement or sign on any shelter shall display any
word, phrase, symbol or character likely to interfere with, mislead or distract traffic, or
conflict with any traffic control device. No advertising panels will be comprised of rotating,
flashing or revolving lighting devices or moving parts or be excessively illuminated.
961216 57297 -00101 des 0260951 1 — 3 -
•
• •
(5) CONTRACTOR will make available to CITY at no
charge not less than ten percent (10 %) of the advertising space on the shelters for the display
of public service announcements.
4. Site Location
The location of shelters shall be initially proposed by
CONTRACTOR for the approval of CITY's City Manager. Shelters may be relocated with
the mutual consent of CONTRACTOR and the City Manager.
5. Interests and Ownership of CONTRACTOR
CONTRACTOR hereby covenants that CONTRACTOR has no
interest and shall not acquire any interest, direct or indirect, which would conflict in any
manner with the performance of the services contemplated by this agreement. No person
having such interest shall be employees or associated with CONTRACTOR in the
performance of services hereunder. CITY and CONTRACTOR hereby acknowledge that the
shelters shall at all times remain the property of CONTRACTOR.
6. Shelter Removal
a. CONTRACTOR may remove any shelter upon thirty (30) days'
notice to CITY if federal, state, municipal or other authorities establish regulations or taxes
which restrict location, construction, maintenance or operation and substantially diminish the
value of the shelter for advertising purposes, or in the event of chronic vandalism.
Chronic vandalism is damage inflicted to a shelter during any one (1) year period which
requires cumulative expenditures for replacement and repair that exceed the original cost of
construction and installation of the shelter.
b. Upon expiration or termination of this Agreement,
CONTRACTOR shall at the option of CITY immediately remove all shelters. If
CONTRACTOR does not remove all shelters within thirty (30) days after notice to remove,
CITY shall have the right to remove the remaining shelters, in which event CONTRACTOR
shall pay all costs of removal and site restoration.
c . Upon removal of any or all shelters erected by CONTRACTOR
hereunder, all material shall be removed from the site, including but not limited to all
wires. The site shall be restored to the condition existing prior to installation of the shelter,
including complete restoration of any sidewalk upon which the shelter was located.
7. Term
This term of this Agreement shall commence as of January 1, 1997,
and shall continue for a term of five (5) years unless previously terminated as hereafter
provided. If this Agreement has not been terminated prior to the expiration of the original
961216 S7297 -00101 dcs 0260951 1 — 4 -
• •
term, CONTRACTOR at its option may extend the term for an additional five (5) year
period.
8. Termination
This Agreement may be terminated 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.
This Agreement may be terminated by CITY upon ten (10) days'
notice to CONTRACTOR if CONTRACTOR fails to provide satisfactory evidence of
renewal or replacement of comprehensive general liability insurance in accordance with
paragraph 10 at least twenty (20) days before the expiration date of the previous policy.
9. Independent Contractor
CONTRACTOR is an independent contractor and not an employee of
the CITY. All personnel shall be employees of CONTRACTOR and not employees of
CITY. CONTRACTOR shall pay all salaries and wages, employer's social security taxes,
unemployment insurance and similar taxes relating to employees and shall be responsible for
all applicable withholding taxes.
10. Insurance
CONTRACTOR shall obtain at its sole cost and file with CITY's City
Clerk, prior to exercising any right or performing any obligation pursuant to this Agreement,
and maintain for the period covered by this Agreement, a policy or policies of liability
insurance or a certificate of such insurance, satisfactory to the City Attorney of CITY,
naming CITY, its officers, agents, and employees, as insureds or additional insureds,
which provides coverage not less than that provided in the form of a comprehensive general
liability insurance policy against liability for any and all claims and suits for damages or
injuries to persons or property resulting from or arising out of the operations of
CONTRACTOR and its officers, agents, or employees. Said policy or policies of insurance
shall provide coverage for both bodily injury and property damage in not less than the
following minimum amounts: Two Million Dollars ($2,000,000.00) liability insurance per
occurrence. The policy or policies shall also contain a provision that no termination,
cancellation or change of coverage or of insured or additional insured shall be effective until
after thirty (30) days' notice thereof has been given in writing to CITY. CONTRACTOR
shall give to CITY prompt and timely notice of claims made or suits instituted arising out of
CON1'RACTOR's operations hereunder. CONTRACTOR shall procure and maintain at its
own costs and expense, any additional kinds and amounts of insurance protection as are
customarily maintained in the prosecution of the work.
961216 S7297 -00101 dcs 0260951 1 — 5
• •
11. Representatives and Notices
CITY's City Manager shall be the representative of CITY for purposes
of this Agreement and may issue all consents, approvals, directives, or agreements on behalf
of CITY called for by this Agreement except as otherwise expressly provided in this
Agreement.
Scott Kraft, President /C.E.O., shall be the sole representative of
CONTRACTOR for purposes of this Agreement, and may enter into any subordinate
agreements with CITY pursuant to this Agreement on behalf of CONTRACTOR.
Notices and written communications sent by one party to the other shall
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 paragraph):
If to CITY, to:
City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Attn: City Manager
If to CONTRACTOR, to:
Scott Kraft, President/CEO
Metro Display Advertising, Inc.
d.b.a. Bustop Shelters of California,
15265 Alton Parkway
Irvine, CA 92718
12. Subcontractors
No portion of this Agreement shall be subcontracted without the
prior written approval of CITY. CONTRACTOR shall be fully responsible to CITY for the
performance of any and all subcontractors. -
13. Assignability
CONTRACTOR 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.
14. Hold Harmless
CONTRACTOR shall indemnify, defend and hold harmless CITY
and CITY's officers and employees from and against any and all claims, losses, damages,
liabilities, demands, suits, actions and proceedings of any kind or nature, including but not
961216 S7297 -00101 des 0260951 1 — 6
• •
.• • . .
limited to worker's compensation claims, arising from or in connection with the operations of
CONTRACTOR under this Agreement .
15. Equal Opportunity
a. CONTRACTOR hereby certifies that it does not and will not
during the term of this Agreement discriminate against any employee or applicant for
employment because of race, color, creed, religion, sex, marital status, national origin,
ancestry, physical handicap or medical condition, in connection with employment,
upgrading, promotion, or transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation and selection for training including
apprenticeship. Such affirmative action shall be in accordance with the affirmative action
guidelines adopted by CITY. CONTRACTOR agrees to post in conspicuous places,
available to employees and applications for employment, notices to be provided by CITY
setting forth the provisions of this nondiscrimination clause.
b. CONTRACTOR shall, in all solicitations or advertisements for
employees placed by or on behalf of CONTRACTOR, state that all qualified applicants will
receive consideration for employment without regard to race, color, creed, religion, sex,
marital status, national origin, or ancestry.
c. CONTRACTOR agrees to cause the foregoing provisions to be
inserted in all subcontracts for any work covered by this Agreement, so that such provisions
will be binding upon each subcontractor provided that the foregoing provisions shall not
apply to contracts or subcontracts for standard commercial supplies or raw materials.
d. Noncompliance with the affirmative action program will
constitute a breach of the terms of this Agreement.
16. 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. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
18. Entire Agreement
This agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the subject matter hereof and contains
all of the covenants and agreements between the parties with respect to said matter, and each
party this Agreement acknowledges that no representation, inducements, promises or
961216 S7297 -00101 des 0260951 1 — 7 -
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that any other agreement shall be effective
only if executed in writing and signed by both CITY and CONTRACTOR.
19. Tax Interest
CONTRACTOR recognizes and understands that this Agreement may
create a possessory interest subject to taxation and CONTRACTOR agrees to assume all
liability and responsibility for payment of taxes levied on such interest.
20. Gender and Number
As used herein, the masculine shall include the feminine and neuter,
and the singular shall include the plural.
21. Third Party Rights
No third party shall be deemed to have any rights hereunder against
any of the parties as a result of this Agreement.
22. Waiver of Breach
No breach of any provision of this Agreement can be waived unless
the waiver is in writing. Waiver of any one breach of a provision shall not be deemed to be
a waiver of any other breach of the same or any other provision of this Agreement.
23. Attorney's Fees
Should any dispute under this Agreement lead to litigation, the
prevailing party shall be entitled to reasonable attorney's fees for the prosecution of the
action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
METRO DISPLAY ADVERTISING,
INC., d.b.a. BUSTOP SHELTERS OF
CALIFORNIA, a California corporation
( "CONTRACT "
By:
961216 S7297-00101 dos 0260951 1 — 8 -
4.. % •
. . . . 0
i f °
' • . 1
r.
CITY OF SEAL BEACH,
a municipal corporation of the
State of California ( "CITY ")
ATTEST:
III ,
i B
City Clerk Mayor
Approved as to Form:
a 17 1 ) jea
City Attorney
961216 S7297 -00101 dcs 0260951 1 — 9 -