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HomeMy WebLinkAboutELLER MEDIA COMPANY 1-2000 . . A-2000-1 79 i~!SUR~NCE O~I RLE \t.J(:;;~{ ~,.:~AY r!~cr.:.:r:D Lh.i::L INSU::;.;;',E EXPIRES __-4:..LQ ,()/ CL,-,..~::( GF COUNCIL c;.,;:: IJ - 'is - OJ L ',f(::J T~is Agreement (the" Agreement") is made and entered into as oft~is ~.p"J day of y..{r, ~~OOO, by and between the City of Santa Ana, a charter city and mumclpal corporation duly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY" and Eller Media Company, a Delaware corporation, hereinafter referred to as "GRANTEE". AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ELLER MEDIA COMPANY FOR THE PROVISION FOR BUS SHELTERS AND BUS BENCHES WITNESSETH WHEREAS, the CITY is authorized to enter into agreements for the installation, operation and maintenance of bus shelters and bus benches, and otherwise regulate the use and encroachments into the public-right-of-way within the city's boundaries by virtue of its Charter, its police powers, by its authority over its public rights of way and by other CITY powers and authority; and WHEREAS, the GRANTEE has agreed to comply with the applicable regulations pertaining to transit advertising services, including but not limited to applicable provisions of the Santa Ana Municipal Code; and WHEREAS, GRANTEE represents that it has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in this Agreement; and WHEREAS, the terms and conditions of this Agreement are reasonable to meet the future transit-related needs and interests of the community, taking into account the cost of meeting such needs and interests. NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows: I. GRANT OF RIGHTS The CITY hereby grants to GRANTEE the exclusive right to place advertising bus shelters and non-advertising bus benches in such numbers and at approved locations throughout the City of Santa Ana, pursuant to the terms and conditions of this Agreement (hereinafter the "Agreement"). 2. TERIvl OF AGREEMENT This Agreement shall commence on the date set forth above, (the "Effective Date") and shall continue in effect for a period of approximately ten (10) years (the" Term"), and , . . shall expire on the thirtieth day of June, 2010 unless this Agreement is terminated earlier, pursuant to the provisions of this Agreement, or otherwise according to law. 3. COMPENSATION TO CITY As consideration for the exclusive rights granted hereunder, GRANTEE hereby agrees to an initial capital fee of$l,OOO,OOO.OO. Additionally, for each year during the term of this Agreement, in consideration for the rights granted hereby, GRANTEE agrees to pay to CITY a annual use fee equal to the annual rates set forth in Attachment A. If at any time during the Term, GRANTEE and CITY agree to add additional shelters to the number of shelters initially authorized, the payment shall be increased for each additional shelter in the amount reflected in Attachment A. 4. BUS SHELTERS AND BENCHES- INST ALLA TION GRANTEE shall initially provide CITY with a minimum of 160 advertising bus shelters, and approximately 616 non-advertising bus benches, with at least one associated trash container at each shelter or bench; the goal of this agreement being to provide at least one shelter or one bench at each OCT A bus stop in the City of Santa Ana. GRANTEE shall also provide an additional eight (8) non-advertising shelters (and associated trash containers) at locations selected by the CITY, from time to time. In addition to the foregoing minimums, GRANTEE shall provide 50 custom, distinct non-advertising benches and 100 matching trash containers to be installed in the City's downtown area as designated by the CITY. Installation of all shelters and benches shall conform to the Orange County Transportation Authority's "BUS FACILITIES HANDBOOK" dated April, 1996, made available through that agency, and made a part hereof by this reference. The GRANTEE shall be responsible for coordination with OCT A to obtain any required approvals for location of shelters or benches by OCT A. The bus shelters and benches shall be installed in accordance with the schedule attached hereto as Attachment B. GRANTEE shall permanently affix in a conspicuous area on each shelter and/or bench an owner identification tag which includes GRANTEE'S business name and 24 hour service telephone number. The GRANTEE shall apply for, and obtain at its own cost any necessary electrical service permits from the Southern California Edison Company. Metered electrical charges shall be at the GRANTEE'S sole expense. Solar powered electrical lighting systems are not to be used, except as expressly permitted as set forth in Attachment C. 2 . . The GRANTEE shall obtain a City Business License for each year that it is doing business in the City. Furthermore, the GRANTEE shall secure all necessary permits and licenses from the City, County, State, and/or Federal agencies for the installation, operation, and maintenance of the bus shelters and bus benches. GRANTEE shall supply at least one approved trash receptacle, at each site in accordance with the site specifications and size (either 32 or 55 gallons capacity), as approved by Director of Public Works or his/her designee (the "Director"). At the request of the Director, a second trash receptacle shall be installed. Trash receptacles shall not block the bypass space between the sidewalk, shelter/bench, and the curb face. No telephones, vending machines, news racks, or any other devices not specifically authorized pursuant to this Agreement shall be permitted to be installed on or adjacent to the shelters. Prior to commencement of construction, the GRANTEE shall obtain the written approval of all plans and specifications for the bus shelter improvements to be constructed. No modification of said plans, specifications, or improvements shall be made by the GRANTEE without approval thereof by the CITY. GRANTEE agrees that the CITY may have an inspector on site at any time during the construction. The GRANTEE shall construct, perform, complete, and maintain all construction and installations covered by the Agreement in a good and workmanlike manner and with high quality materials, and shall furnish all tools, equipment, labor, and material necessary to perform and to complete the same. Upon completion of the improvements, GRANTEE shall furnish the CITY with one (I) complete set of as-built construction drawings with a maximum size not to exceed 24"x36" in ink on Mylar. 5. BUS SHELTERS AND BENCHES-DESIGN STANDARDS GRANTEE shall install and maintain and replace (as necessary) the shelters and benches in accordance with the design standards set forth in the Shelter and Bench Design and Construction Specifications, attached hereto as Attachment C. 6. SHELTER/BENCH MAINTENANCE AND REPAIR GRANTEE shall maintain, repair, clean, and service all shelters and benches, keeping them, their appurtenances and the surrounding 20 feet of public right-of-way in a safe, clean, attractive, well-painted and sanitary condition. The GRANTEE shall be at liberty to enter upon and into shelters and benches between the hours of 7:00 a.m. and 6:00 p.m., Monday through Saturday, with personnel and all necessary equipment and materials to provide for the satisfactory maintenance, clean-up, and trash removal on each shelter at least twice each week. Each shelter, bus bench and a 20-foot area surrounding the shelter shall be completely steam cleaned as needed, but not less than twice each year. Should 3 . . the CITY determine that any shelter or bus bench and/or surrounding area be in need of a cleaning, GRANTEE shall clean, or have cleaned, such shelter, bench and/or area within three (3) hours after notification by the CITY. The GRANTEE shall repair, remove or replace damage, vandalism, or graffiti, including etching and other forms of graffiti and/or vandalism damage, within twenty-four (24) hours after having been found at the time of a routine maintenance call or upon notification by the CITY. If shelter or bench damage or vandalism is such that the public could be exposed to a dangerous situation while in or near the shelter or bench, the GRANTEE shall repair or if necessary, remove the entire shelter or bench within three (3) hours of notification, and it shall be replaced and fully operation at the same location within five (5) working days after removal. During years 7 and 8 of the Term, the GRANTEE shall repaint/refinish all shelters and benches. Any exceptions thereto shall be approved by the Director. The GRANTEE shall furnish to the Director, a monthly updated database summary report of its shelter maintenance operations in a GIS mapping format (format to be approved by the CITY). All maintenance work and corrective actions shall be performed at the expense of the GRANTEE. GRANTEE's personnel, equipment, and/or vehicles shall not block automobile or bicycle travel lanes without proper warning signs and traffic delineation devices properly placed in accordance with CITY policies. 7. GRANTEE OPERATING RESPONSIBILITIES GRANTEE shall conform to and abide by all CITY and County ordinances, aCTA bus stop standards, and all State and Federal laws and regulations, insofar as the same or any of them are applicable; and where permits and/or licenses are required hereunder and/or any construction authorized herein, the same must be first obtained from the regulatory agency having jurisdiction there over. GRANTEE shall conform to and abide by all rules and regulations of the CITY insofar as the same or any of them are applicable. GRANTEE shall conform to the City's Policy on Drug Free Workplace a. GRANTEE shall employ or subcontract for services (consistent with the terms of this Agreement) adequate personnel in order to competently and timely meet all of GRANTEE'S obligations under this Agreement. If the CITY determines, at any time that the conduct of an employee or representative of the GRANTEE or an authorized and approved subcontractor of GRANTEE, while in performance of GRANTEES obligations under this Agreement, is, in the reasonable belief of the CITY, detrimental to the interest of the CITY or the public, the CITY shall give written notice thereof to the GRANTEE. Following the CITY's written notice therefor, GRANTEE shall all reasonable actions necessary to correct 4 . . such conduct and/or prevent it from occurring in the future including, but not limited to terminating such employee's work assignment within the City of Santa Ana. 8. ADVERTISING STANDARDS Shelter advertising shall be limited to one two-sided, back to back, backlit ad panel per shelter. Alternative advertising panel designs as required on a site by-site basis will require the specific approval of the Director. Any proposed advertising to be located on said shelter ad panels shall not: a. Display the words "STOP" , "DRIVE-IN" , "DANGER. ", or any other word, phrase, symbol or character which may interfere with, mislead, confuse, or direct vehicular traffic. b. Comprise of rotating, revolving, or flashing lighting devises. c. Promote material which the CITY in its sole discretion determines is offensive to community standards of good taste. d. Promote alcohol and/or tobacco products within 1000 feet of any school. e. Contain "off-site business identification signs" or "political advertisements". For the purpose of this Agreement, "off-site identification signs" are defined as ad panels that give specific direction to an advertiser's place of business other than the site's address. The Director will make the final determination on unacceptable advertising. In the event that an advertisement is determined to be unacceptable, GRANTEE agrees to remove said advertising within twenty-hour (24) hours of official notification, which may be made by telephone, thereafter said telephonic notice shall be confirmed in writing by U.S. Mail and/or facsimile. 9. PUBLIC SERVICE MESSAGES The GRANTEE shall, at least four (4) times per year, for at least twenty-eight (28) calendar days each time, display at least one (I) public service announcement in lieu of paid advertising in up to 16 bus shelters identified by the CITY, or 10% of the total number of bus shelters under the agreement. GRANTEE shall arrange, at its own cost and expense, for production, service and installation of the public service announcements upon consultation with the CITY. The CITY shall be entitled to specify certain public service messages to be displayed and shall approve all public service messages. 5 . . 10. SITE RELOCATION. In the event that a bus route or stop is altered or deleted such that any bus shelter will no longer serve as an active bus stop location, the GRANTEE shall, within thirty (30) days after notification from the CITY, relocate the bus shelter and appurtenances to a new location designated by the CITY. The vacated location shall be restored to its original condition, including complete replacement of the affected sidewalk sections, within that same time period by GRANTEE at its own cost and expense. In the event the CITY shall construct or cause to be constructed a new facility or roadway improvement impacting a bus shelter or advertising thereon, this Agreement will continue in full force and effect. GRANTEE agrees to cooperate with the CITY in the event the construction affects the shelter by vacating and removing shelters at its own cost and expense where needed for such periods as are required by the construction of the new facilities. Upon completion of the new facility, GRANTEE shall resume its operations therefrom within thirty (30) days. II. SECURITY FOR PERFORMANCE The GRANTEE shall establish a bond in the sum of $500,000.00 within forty-five (45) days after the effective date of this Agreement to insure faithful performance of GRANTEE'S covenants for construction, maintenance, repair or replacement of the shelters, timely payment of all revenues due the CITY under this Agreement, and restoration of shelter and/or bench sites to the condition existing prior to installation of the shelters and/or benches, whenever a shelter and/or bench is removed or relocated. The bond shall be in a form acceptable to the City Attorney, and issued by a company licensed to do business in the State of California. The bond shall be maintained throughout the term of this Agreement. The GRANTEE shall restore to the bond any amount the CITY withdraws as liquidated damages, within thirty (30) days after the CITY withdraws the money. Failure by the GRANTEE to maintain and/or timely restore the bond shall be deemed to be a material default and grounds for termination by the CITY. The bond shall be released by the CITY at the end ofthe term of this Agreement provided GRANTEE has fully and faithfully performed each and every term, covenant and condition of this Agreement. GRANTEE acknowledges and agrees that its recourse, in the event it believes any draws by the CITY offunds from the bond are improper, shall be through legal action, after the bond has been drawn upon. 6 . . 12. GRANTEE'S NON-COMPLIANCE AND LIQUIDATED DAMAGES If the CITY determines that there are deficiencies in the GRANTEE'S performance under this Agreement, the CITY will provide written notice to the GRANTEE as specified below under "Events of Default", to correct said deficiencies within specified time frames. In the event that the GRANTEE fails to correct the deficiencies within the prescribed time frames the CITY may, at its option; (I) use the Security Deposit as provided for herein, (2) exercise its rights under "Right of Remedy/Entry," and/or; (3) assess liquidated damages. It may be impracticable or extremely difficult to fix the extent of actual damages resulting from the failure of the GRANTEE to comply with GRANTEE'S obligations. Under the current circumstances, a reasonable estimate of such damage is five hundred dollars ($500) per day for each day of the period of time that the deficiencies exist, and that the GRANTEE shall be liable to the CITY for liquidated damages in said amount. 13. METHOD OF PAYMENTS Within ten (10) days of this Agreement being executed by both parties, GRANTEE shall pay the initial capital fee payment set forth in section 3 of this Agreement, less any amounts owing or paid pursuant to interim bus shelter agreements between the CITY and GRANTEE covering the period from July I, 2000 until the effective date of this Agreement. Thereafter, GRANTEE shall pay annually, in advance, on July I, the contract amount for that year. Late payments will be subject to a ten percent (10%) penalty for each fifteen (IS) days that payment is late. 14. SURRENDER Upon expiration or termination of the term hereof, at the option of the City, all bus shelters and bus benches shall become the property of the City of Santa Ana and shall be surrendered to the CITY in a reasonably good condition, subject to the City of Santa Ana's right to demand removal of the shelters and restoration of the respective public improvements to their proper and original condition at GRANTEE'S own cost and expense. The City may choose to take ownership of some or all of the shelters and/or benches. The GRANTEE shall timely remove those not being acquired by the CITY. IS. ACCESS TO RECORDS Grantee shall make its records, documents, books, reports, billing and methods of accounting related to this Agreement available to the CITY's designated representative during normal business hours to allow such person to review, verify and audit said records. Said records shall be available during the term of this Agreement and thereafter 7 . . for two (2) years, or such greater period may be required by law. The Grantee shall maintain financial records in accordance with generally accepted accounting principles. 16. SECURITY INTERESTS Any security interest or lien against the shelters and/or benches shall be subordinate to all rights of the CITY. 17. INTERESTS OF GRANTEE The GRANTEE covenants that it presently has no interest and shall not acquire any interest, directly or indirectly, that would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such an interest shall be employed by or associated with the GRANTEE. By accepting this Agreement, GRANTEE acknowledges that notice is and was hereby given to GRANTEE pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessor interest which may be subject to the payment of property taxes levied upon such interest. GRANTEE shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessor 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. 18. TERMINATION Upon the occurrence of anyone or more of the events of default hereinafter described, this Agreement shall be subject to termination. As a condition precedent thereto, the CITY will give GRANTEE such notice as provided below, by certified mail or personal delivery of the date set for termination thereof; the grounds therefor; and that an opportunity to be heard thereon will be afforded on or before said date, if a request is made therefor. Events of Default: I. The failure of the GRANTEE to punctually payor make the payments herein when due, where the delinquency continues beyond ten (10) days following written notice for payment thereof. 2. The failure of the GRANTEE to operate in the manner required by this Agreement, where such failure continues for more than thirty (30) days after written notice from the CITY to correct the condition therein specified. 3. The failure of the GRANTEE to construct and/or install the bus shelters, bus benches or other improvements pursuant to and in accordance with the 8 . . Installation Schedule, where such failure continues for more than thirty (30) days after service of notice by the CITY as provided above. 4. The failure to maintain the bus shelter, bus benches, and the required improvements pursuant to this Agreement in the state of repair required, and in a clean, sanitary, safe and satisfactory condition, where such failure continues for more than thirty (30) days after written notice from the CITY for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and GRANTEE shall have immediately, following receipt of such notice, commenced to perform whatever may be required to cure the particular default and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the CITY. 5. The failure of GRANTEE to keep, perform, and observe all other promises, covenants, conditions, and agreements set forth in this Agreement, where such failure continues for more than thirty (30) after written notice from the CITY for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and GRANTEE shall have commenced to perform whatever may be required to cure the particular default within ten (10) days after such notice and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the CITY. 6. The filing of a voluntary petition in bankruptcy by the GRANTEE; the adjudication of GRANTEE as bankrupt; the appointment of any receiver of GRANTEE'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 petitions or answers under Chapters X or XI of the Bankruptcy Act; the occurrence of any act which operates to deprive the GRANTEE permanently of he rights, powers, and privileges necessary for the proper conduct and operation of the bus shelters; the levy of any attachment or execution which substantially interferes with the GRANTEE'S operations under this Agreement and which attachment or execution is not vacated, dismissed, stayed or set aside within a period of ninety (90) days. 19. RIGHT OF ENTRY Should the GRANTEE be deemed deficient, as determined by the CITY, in its performance of its obligations, the CITY in addition to all other available remedies may, but shall not be so obliged to, correct GRANTEE'S deficiencies using CITY forces, equipment, and materials, or by employing a separate private GRANTEE. CITY's costs so incurred, including direct and indirect overhead costs as determined by the CITY, shall be reimbursed to the CITY by the GRANTEE and/or its sureties within thirty (30) days of demand thereof. 9 . . 20. HOLD HARMLESS/INDEMNITY GRANTEE shall protect, defend, indemnify and hold harmless CITY, its officers, officials, employees, volunteers and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation, costs and fees of litigation of every nature) arising out of or in connection with GRANTEE's performance of its services under this Agreement, or its failure to comply with any of its obligations contained in this Agreement by GRANTEE, its officers, agents, volunteers or employees, except such loss or damage which was caused by the sole negligence or willful misconduct of the CITY, its officers, agents, volunteers or employees. 21. INSURANCE, CERTIFICATES OF INSURANCE The GRANTEE shall obtain, and shall require its subcontractors, if any, to obtain at its sole cost, and keep in force, the following insurance coverage: 1. Commercial general liability insurance, or equivalent form, with a combined single limit of not less than two million dollars, $2,000,000, per occurrence. 2. Business automobile liability insurance or equivalent form with a combined single limit of not less than one million dollars ($1,000,000) per occurance. Said insurance shall include coverage for owned, hired and non-owned automobiles. 3. Worker's Compensation Insurance in the statutory amount required by the State of California. 4. Further, the GRANTEE shall obtain any additional kinds and amounts of insurance which, in its own judgment, may be necessary for the proper protection in any of its own actions while in an agreement for services with the CITY. Said policy or policies shall be in a form approved by the City Attorney and shall name the CITY, the Santa Ana City Council, its officers, agents, and employees as additional insured by an endorsement to the policy. Said endorsement shall provide that the CITY shall receive not less than thirty (30) days notice of termination of any coverage under which it is an additional insured. GRANTEE shall: (a) Furnish properly executed certificates of insurance in formes) acceptable to the City Attorney prior to commencement of work for this agreement, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed or terminated except on 30 days' prior written notice to the CITY; (b) furnish certificates which are primary with respect to insurance or self-insurance programs maintained by the CITY; (c) attach a completed and signed copy of the CITY's "Additional Insured Endorsement" form to the certificates of insurance noted above; (d) maintain such insurance from the time work first commences until completion of work for this agreement, and (e) replace such certificates and forms for policies expiring prior to completion of work for this agreement. 10 . . The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by GRANTEE under the Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. GRANTEE shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. If for any reason GRANTEE fails to obtain or keep any of such insurance in force, CITY may, but shall not be required to, obtain such insurance, in which event GRANTEE shall promptly reimburse the CITY premium cost therefor plus one and one half percent (I \1,%) monthly interest thereon until paid. 22. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To CITY: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With copies to: Executive Director of Public Works City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-5622 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 11 . . To GRANTEE: George Manyak, President Eller Media Company 1550 W. Washington Blvd. Los Angeles, California 90007 Telefacsimile (323) 234-5038 With a copies to: Paul Meyer, CEO Eller Media Company 2850 East Camelback Road, Suite 300 Phoenix, Arizona 85016 and, Tony Ingegneri VP Public Affairs Eller Media Company Southern California Transit Shelter Division 1539 W. Orangewood, Orange, CA 92868 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 23. ASSIGNMENT; SUBCONTRACTORS CITY and GRANTEE acknowledge that GRANTEE was chosen for this Agreement due in part to its particular experience and expertise in the provision of bus shelters. Therefore, GRANTEE'S rights to assign this Agreement are significantly limited. The GRANTEE shall not subcontract, assign, sell, encumber or otherwise transfer its rights and obligations under this Agreement without the prior written consent of the CITY. 12 . . Notwithstanding the foregoing, the GRANTEE may subcontract maintenance, repair and cleaning obligations to qualified subcontractors, with the prior written consent of the Director. GRANTEE shall provide written notice of its intent to subcontract such services containing the qualifications of the proposed subcontractor. The Director shall grant the consent so long as the Director is reasonably satisfied with the qualifications provided by the GRANTEE. Consenting to a particular subcontractor shall not be deemed to be a wavier of any breach or misconduct by the subcontractor. Any other attempted transfer, assignment or transfer without the CITY'S prior written consent shall be void and shall, at the option ofthe CITY, terminate this Agreement. 24. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between CITY and GRANTEE, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the CITY and by an authorized representative of GRANTEE. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate GRANTEE nor CITY. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 25. INDEPENDENT CONTRACTOR GRANTEE shall perform all services required herein as an independent contractor of CITY and shall remain at all times as to CITY a wholly independent contractor and not an employee of CITY. CITY shall not in any way or for any purpose become or be deemed to be a partner of GRANTEE in its business or otherwise, or a joint venturer, or a member of any joint enterprise with GRANTEE. 26. LEGAL ACTION The Superior Court of the State of California in the County of Orange shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. 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 for the same default or any other default by the other party. Service of process on CITY shall be made in the manner required by law for service on a public entity. Service of process on GRANTEE shall be made in any manner permitted by law and shall be effective whether served within or outside of California. 13 . . 27. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES No officer, official, employee, agent, representative, or volunteer of the CITY shall be personally liable to the 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 of this Agreement. 28. FORCE MAJEURE The time within which the GRANTEE is obligated to commence and to complete construction of shelters and 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, calamities, violent action of the elements, fire, delays in electrical service provider permit issuance, action or adoption of any regulation, law or ordinance by any governmental agency, precluding GRANTEE'S performance. 29. ATTACHMENT, INCORPORATION BY REFERENCE All documents, drawing and specification identified in this Agreement as "attachments" or "exhibits" are hereby incorporated in this Agreement as if set forth in full herein, and are hereby made a part of this Agreement by this reference. 30. INTERPRETATION, SEVERABILITY The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 31. ATTORNEY'S FEES In the event suit is brought by either party to enforce the terms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 14 . . 32. EFFECTIVE DATE The Effective Date of this Agreement shall be the last date on which a party executes this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: ~~.r,,,,,,,,,,,,,,,,,,,,,"'d"') C__~~:='_..:=~ Cl'~'.i G 15 . . A TT ACHMENT A SCHEDULE OF COMPENSA nON Contract Year Annual Monthly Fee Payment Per Shelter* 2000-2001 0 160 2001-2002 180,000 212 2002-2003 180,000 232 2003-2004 445,600 232 2004-2005 484,000 252 2005-2006 480,000 250 2006-2007 576,000 300 2007-2008 576,000 300 2008-2009 672,000 350 2009-2010 672,000 350 Initial Capital Fee 1,000,000 Aggreate Annual fees for 160 shelters 4,265,600 Total Payments 5,265,000 *For all shelters over 160 added, this amount shall be paid per month, in advance, including any partial years in the year a shelter is added. . . ATTACHMENT B INST ALLA nON SCHEDULE Bus Shelters Grantee shall commence the installation of the shelters within 60 days following City's approval ofthe design and color of the transit shelters. Upon the Effective Date of the Agreement, Grantee shall begin working with OCT A to determine requirements for the placement of the transit shelters and benches. Site drawings will be submitted to City for approval 21 days prior to scheduled installation. Site drawings will be submitted to aCTA for approval 35 days prior to scheduled installation. Installation of shelters shall proceed at the rate of 9 shelters per week (approximately 20 weeks) until all shelters are installed, subject to aCTA and/or City permit process. In the event concrete is required for the proper installation of any site, the Grantee shall allow an additional week for the concrete to cure. Non-advertising Bus Benches Grantee shall commence the installation of the benches within 60 days following City's approval of the design and color of the benches. Upon the Effective Date of the Agreement, Grantee shall begin working with OCT A to determine requirements for the placement of the benches. Installation of benches shall proceed at the rate of 30 shelters per week (approximately 21 weeks) until all shelters are installed. In the event concrete is required for the proper installation of any site, the Grantee shall allow an additional week for the concrete to cure. . . ATTACHMENT C SHELTER AND BENCH DESIGN AND CONSTRUCTION SPECIFICATIONS A. SPECIFICATIONS All work performed on the shelter or the shelter site must conform to the requirements of the Standard Specifications for Public Works Construction and all City Building and Electrical codes. In addition, all work must comply with the conditions of the required encroachment permit issued for each location and the conditions of the Santa Ana Development Services Division. The Grantee must also obtain all necessary City building permits. B. SHELTER DESIGN DRAWINGS I. All final designs, plans, and change orders shall be signed and stamped by a California Registered Civil or Structural Engineer before they will be accepted for design or location approval. 2. Before any shelter may be installed in the City of Santa Ana, it shall be reviewed for adequate design by the Planning and Building Agency for electrical wiring and appurtenances, structural integrity, and general soundness of design. C. SHELTER LOCATION DESIGN DRAWINGS Prior to construction of any shelters, a location drawing shall be prepared for each proposed shelter site and shall contain a minimum forty (40) feet to one-inch scale (40 scale) representation of the proposed shelter site, covering the area from the adjacent property line to the street centerline at the intersection. Mid-block sites may be shown with broken line ties. The drawing shall tie the shelter location to the closest curb return and give the distance from the existing curb and adjacent property line to the shelter. It shall also show the location of manholes, catch basins, fire hydrants, poles, trees, and other above-ground facilities within fifty (50) feet of the proposed shelter. The drawings shall be prepared in ink on 8- 1/2" xII" plan using standard City title blocks. . . D. SHELTER SITE SELECTION 1. All shelter sites shall be approved by the City in consultation with the Grantee. In no case shall a shelter be located on any residentially zoned streets, unless approved by the City. Shelters may only be located on commercially zoned arterials. The City may supply the Grantee with a list of preferred shelter sites. All proposed shelter sites shall be subject to the following screening process: a. No shelter site will be approved which would result in a shelter being closer than ten (10) feet to a driveway. b. No shelter site shall be approved which will result in a shelter being located over a storm drain. c. No shelter site shall be approved which will result in a shelter being placed in such a position that less than four (4) feet of contiguous sidewalk remains useable. d. All sites are subject to approval by City staff and based upon the safety of bus riders, traffic and pedestrians. e. Every shelter shall be wheelchair accessible. 2. In the event that the City and Grantee cannot agree on the location of a site, the City's decision on the location shall be final. E. SITE RELOCATION The City shall have the right to require the Grantee to relocate shelters and/or benches, at his/her sole expense, for the convenience of pedestrians and bus patrons or because of a change in bus stop locations or street widening. The Grantee shall not relocate or remove a bus shelter or bench without the City's permission. The City may require or permit a shelter to be removed or relocated if it has been demonstrated to be incapable of proper maintenance due to excessive vandalism or any other reasonable cause. "Excessive vandalism" is defined as damage inflicted to an individual shelter during any six (6) month period, which requires cumulative expenditures for replacement and repair that exceed the original cost of construction and installation of the shelter. F. SHELTER DESIGN SPECIFICATIONS 1. Basic Shelter Design a. Shelter design is subject to approval by the City. All shelters shall be of the same design unless alternate designs are approved by the City. Modifications of structures may be permitted if a unique situation warrants. b. Shelters shall be covered, but do not have to be enclosed structures. c. The roof shall be supported by four corner steel columns, aluminum clad, or other similar construction materials 2 . . d. The shelter roof shall be designed to protect bus patrons from the rain and sun. e. The space between all partitions, ad panels, and sidewalk shall be a minimum of six (6) inches to accommodate a blind person's touching cane. This may be accomplished with either a larger glass panel, a deeper bottom glass support or a flange attached to the bottom of the glass support. 2. Shelter Colors The City will have the choice of two colors for all shelters. 3. Advertising Panels a. Only one, two-sided, back to back, backlighted ad panel per shelter will be allowed. Each shelter shall have a maximum of two (2) advertising panels placed back-to-back. Angled panels may be approved in the sole discretion of the Director of Public Works or his/her designee. a. All ad panels shall be constructed of anodized or painted aluminum and tempered safety glass, or clear acrylic. b. All ad panels shall be locked or secured in a manner that will eliminate or discourage vandalism. 4. Allowable Size of Shelter a. Height: Minimum of7'6" b. Length: \3'0" to 18'0" c. Width: 4'0" to 5'0" The City may consider unique designs in the event a shelter is desired at a location which will not permit construction of the standard shelter meeting the allowable sizes. Obtaining any necessary easements for the construction of a shelter shall be the responsibility of the Grantee. 5. Wheelchair Access All shelters shall be designed to accommodate wheelchairs and meet all Americans with Disabilities Act (ADA) specifications. 6. Shelter Seating a. Shelter seating shall be approved by the City prior to installation. The seating shall be part of the bus shelter. The seating shall not be attached to the shelter, but located under the shelter. b. Color and material samples must be submitted to and approved by the City, as well as color elevations of all sides, materials board and colors scheme, and trash receptacle detail. c. Minimum bench length - 5' Minimum bench width - 1 '6" d. The bench shall be located such that a wheelchair can be placed alongside the bench within the shelter. e. All benches shall be of a design as to not be conducive to lying down. 3 . . 7. Shelter Lighting a. Every shelter shall be illuminated from dusk until dawn by an overhead energy efficient, lighting system, concealed in the roof structure. Failure to light the shelters at night shall be grounds for cancellation of the agreement. Grantee shall be responsible for all electrical charges. b. Solar powered electrical lighting systems will not be permitted unless found to be necessary to provide needed shelter at a location for which electrical service cannot be provided, as determined in the sole and absolute discretion of the Director of Public Works. c. All internal electrical components and wiring of each model shelter used shall be approved by the City Building Department before, during and after installation. All construction shall be subject to plan check by the Planning and Building Agency. 8. Shelter Drainage All shelters shall be designed to prevent dripping water over the edges and for proper drainage with water exiting at approximately sidewalk level. 9. Foundations All post foundations shall be designed in accordance with the Uniform Building Code, latest edition adopted by the City. 10. Trash Receptacles Each shelter shall have at least one (1) covered trash receptacle, designed and placed to promote maximum usage by shelter patrons. Trash receptacles shall be permanently affixed, durable and decorative and consistent with design of the bench and shelter. Preliminary plan sketches should include the details for the trash receptacle. Final design shall be subject to approval by the City. II. Other Installations Prohibited No telephones, vending machines, kiosks, news racks, or any other devices not specifically in these specifications shall be permitted to be installed on or near the shelters. G. SHELTER SIGNAGE 1. OCT A bus route information shall be displayed in a secured frame or sleeve constructed as part of the inside of the shelter, or other manner as may be approved by OCT A and the Director of Public Works. 2. At the discretion of the Director of Public Works, the name of the street on which the shelter is located shall be placed upon the roof facie of the shelter. Minimum letter size for this sign shall three inches high and two one-half (2-1/2) inches wide. 4 . . 3. Grantee(s) shall affix, in a conspicuous area standard on each shelter in each shelter, an owner identification plaque, that includes his business name, address and telephone number. H. SHELTER CONSTRUCTION SPECIFICATIONS I. No welding except for foundation work shall be permitted at the site. 2. All concrete finishing shall conform to the Standard Specifications for Public Works Construction, latest edition, and City of Santa Ana Public Works Construction Standards. 3. Grantee shall have quality control supervisors working for his/her contractor (not the sub-contractor) at every construction site for a minimum of one (1) hour per working day, during installation ofthe shelter and its appurtenances. 1. BUS BENCHES 1. Basic Bench Design No benches shall contain advertising and all shall be of the same design wherever used throughout the City, (except the 50 benches designated for the Downtown area), unless alternate designs are approved by the City. Modifications of structures may be permitted if a unique situation warrants. Each bench location shall have a permanently attached trash can with a design that matches or complements the bench. 2. Parkway bench installation All benches shall be installed on a concrete pad designed to accommodate wheelchairs on either side of the bench and meet all Americans with Disabilities Act (ADA) specifications. Where a concrete pad is not available, the Grantee is responsible to install a concrete pad at his/her own expense. The Public Works Agency Construction Inspection Section shall approve all concrete work. 3. Bench Seating a. Bench seating shall be approved by the City prior to installation. b. Color and material samples must be submitted to and approved by the City, as well as color elevations of all sides, materials board and colors scheme, and trash receptacle detail. c. Minimum bench length - 5' Minimum bench width - 1'6" d. All benches shall be of a design as to not be conducive to lying down. 3. Bench Colors The City will have the choice of two colors for all benches, in addition to the special design and colors for the downtown benches. 5 . . J. DOWNTOWN BENCH DESIGN and INSTALLATION The Grantee shall provide and install 50 distinct high quality benches and 100 matching trash receptacles selected by the City at various locations in the City's downtown area. The benches and trash receptacles are to be permanently affixed by the Grantee at locations identified by the City. 6