HomeMy WebLinkAbout2001-11-14 City CouncilTO:
ATTN:
FROM:
DATE:
SUBJECT:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
POLICY AND SERVICES COMMITTEE
CITY MANAGER
NOVEMBER 14, 2001
AGREEMENT WITH
DEPARTMENT: PUBLIC WORKS
CMR:408:01
SANTA CLARA COUNTY VALLEY
TRANSPORTATION AUTHORITY FOR THE TRANSIT SHELTER
MAINTENANCE AND ADVERTISING PROGRAM
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RECOMMENDATION
Staff requests that the Policy and Services Committee recommend that Council:
Approve the City’s participation in the Santa Clara County Valley Transportation
Authority’s (VTA) Transit Shelter Advertising Program;
o Authorize the Mayor to execute the attached Implementation Agreement
(Attachment C) with VTA for the Transit Shelter Advertising Program; and
Adopt the attached ordinance (Attachment D) amending the Sign Ordinance of the
Palo Alto Municipal Code to provide for bus shelter advertising.
4.Rescind current VTA Agreement dated March 6, 1996.
BACKGROUND
In 1995, Palo Alto assumed maintenance of the bus shelters in the City from the Santa
Clara County Transit District. This was due to the fact that the County was relinquishing
maintenance responsibility of these shelters to a private contractor. The contractor was
proposing to place advertisements at selected shelter sites to offset maintenance costs and
Palo Alto was opposed to the idea because of the length of the agreement, the City’s lack
of control over the advertisements placed, and the aesthetic quality of the advertisements.
DISCUSSION
During the 2001-03 budget process, the City Manager, in an effort to "Strengthen the
City’s Bottom Line" and address the City’s infrastructure needs, requested that
departments review and identify areas in their budgets where costs could be reduced
and!or areas that could possibly produce revenue for the City. The Public Works
Department staff identified bus shelter maintenance as an activity that could be returned
to the County for maintenance, thereby redirecting staff time to work on traffic safety
issues, and possibly generating revenues for the City to strengthen the bottom line
through the advertisement program. Revenues received by the maintenance contractor
CMR:408:01 Page 1 of 3
for the advertisements are split equally between the County and each City. Staff met with
the VTA (formerly the Santa Clara County Transit District) and the maintenance
contractor and toured the bus shelter locations, identifying the sites where advertisements
could be placed. The list provided to the VTA by the maintenance contractor indicates
that 75 percent of the bus shelters would have advertisements, i.e. the thirty new shelters
being installed, eight would be non-advertisement shelters with the remaining 22 being
advertisement shelters. Most of the advertisement shelters run along E1 Camino Real
(nine shelters), the Stanford Research Park (12 shelters), Middlefield and Colorado (one
shelter), and none of the shelters are in the downtown areas (Attachment A). The City
could use advertising spacenot being utilized during any period for public service
announcements. All of the bus shelters returned to the VTA for maintenance would be
replaced with new, lighted shelters (Attachment B). Staff has been advised that solar
powered lighting will be utilized at all locations.
Current maintenance of the shelters by City staff is completed twice per month and
graffiti is removed within the two and five day guidelines determined by Council. VTA’s
maintenance schedule would be weekly, with high traffic areas cleaned twice each week.
Twenty-four hour emergency response is available as needed. VTA currently contracts
with 10 jurisdictions in Santa Clara County for the bus shelter maintenance program.
Staff contacted the cities of Mountain View, Milpitas and Gilroy about the program and
found that the maintenance contractor provided excellent service and that there had only
been one objectionable advertisement that was promptly removed. One of the cities had
received favorable comments about the new shelters.
RESOURCE IMPACT
Revenues from advertisement placements at the shelters could provide the City up to
$50,000 annually, although the revenue to the other cities contacted was less than
$10,000. Actual revenue will vary based on advertisements sold, although VTA’s
contractor expects that there will be a high demand for advertising space in Palo Alto.
When responsibility for bus shelter maintenance was assigned to the City, no additional
funds were added to the existing department budget. Approximately $28,000 in labor
charges are expended each year for bus shelter maintenance. Those funds will now be
redirected to other critical tasks related to traffic control.
The current bus shelters are reaching the end of their useful lives. Funding for replacing
the existing bus shelters is not identified in any current CIP requests. In the event that
shelter maintenance remains with the City, additional funding for new shelters would be
requested in the next budget cycle. Estimated replacement cost would be $200,000.
POLICY IMPLICATIONS
Transferring the bus shelter maintenance to the VTA is consistent
Comprehensive Plan regarding increasing bus rider comfort and safety.
with the
CMR:408:01 Page 2 of 3
ENVIRONMENTAL IMPACT
This project is categorically exempt from California Environmental Quality Act.
ATTACHMENTS
Attachment A:Advertisement Locations
Attachment B:Photo of New Shelters
Attachment C:Agreement with Valley Transportation Agency
Attachment D:Former Agreement with Valley Transportation Agency
PREPARED BY:
DEPARTMENT HEAD:, _~~ Sup~ilte~Operati°ns
GLENN S. ROBERTS
Director of Public Works
CITY MANAGER APPROVAL:
EMILY HARRISON
Assistant City Manager
CMR:408:01 Page 3 of 3
ATTACHMENT A
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ATTACHMENT B
ATTACHMENT
IMPLEMENTATION AGREEMENT FOR
TRANSIT SHELTER ADVERTISING PROGRAM
’This Implementation Agreemen~ ("Agreement") for Transit Shelter Advertising
Program is made tiffs 3 ! st day of October, 1995 (here~ referred to as the "Execution
Date"), by and among the Santa ~Clam County Transit District ("SCCTD"); Patrick Media
Group, Inc. ("Con~ac.tor’’); and the following Cal~ornia county and cities: the County
of Santo Clara and the Cities of. San Jose, Sunnyvale, Santa Clara, Mountain View,
Mitpitas, Gilroy, Cupertino, and Los Altos (the foregoing county and cities are
hereinafter sometimes referred to collectively as the "Participating Entities" and
i.udividtmIly as a "Participating Entity" or the "County" and/or a "City", as the case may
be.)
RECITALS
A. SCCTD andC0ntractor entered into that certain Transit Shelter
Advertising Program Agreement dated June 9, 1994 (the "Advertising Agreement"). The
Advertising Agreement provides for the construction by Contractor of up to 564 new bus
shelters at bus stop locations throughout the County of Santa Clara, with three-fourths
(3/4) of all bus shelters to contain advertising panels. The Participating Entities are not
parties to the Advertising Agreemeg. t A~ of January 1, 1995, there are approximately
420 e~ SCCTD bus.shelters located in areas covered by. the Advertising Agreement.
B. The contemplated distribution.of the proposed 564 bus shelters and the ..
current distribution of the exL<dng b.us shelters are shown o~ Exhibit A, attachedhereto
and incorporated herein by this reference.
C. Subject to the terms and conditions contained in this Agreement, the
¯Participating Entities are willing to participate in the Transit Shelter Advertising
Program, as set forth in the Advertising Agr~ment and as amended by this Agreement.
(The Transit Shelter Advertising Program, as set forth in .the Advertising Agreement and
amended by this Agreement, is hereinafter referred to as the "Program").
NOW,’TI~REFORE, the parties agree as follow:
1. Term of A_m~eement. Subject to Sections 3 a~ 10 hereof, this Agreement
shall be for a term of Kitten (15) years and shall commence on that.date (hereinafter
referred to as the "Effective Date" of this Agreement) when all ¢onditiom set forth in
Section 3 have been satisfied. Contractor and SCCTD shall notify the Participating
Entities in writing of the satisf.aeti0a of the conditions set forth in Section3 and of the
Effective Date of this Agreement.
2. Sublcq~. erat Execution. The parties acknowledge that, pursuant to Section
3, this Agreement may become effective even though not all of the county and the cities
" covered by the Advertising Agreement have executed this Agreement, and, furthermore,
that such county and/or some of such cities may determine to execute this Agreement
subsequent to the Eff’eetive Date hereof and subsequent to the commencement of the term
¯ of this Agreement. The parties hereby agree that such county and/or such cities may
execute this Agreement, and thereby become subject to this Agreement, at any time after
the Effective Date by means of an amendment hereto so providing as long as such
amendment is signed by all those entities who are parties to this Agreement at the time. of
the amendment. Each party hereby agrees that it will not unreasonably withhold or delay
its execution of such amendments and each Participating Entity hereby authorizes its
Executive Direet0r, City Manager, or equivalent executive officer, as the ease may be, to
execute any such amendment from time to time.
3. Condition__toEffectiveness of A_a~eement. The effectiveness of this
Agreement shall be coatingent upon the satisfaction of the following condition:
The execution ofthis Agreement no later than October 3!, 1995,
by a sufficient number of the county and ci.ti~s covered by the Advertising Agreement to
r~ttlt in the incorporation into the Program ofa m~nlrnum of one hundred fifty (150)
advertising shelters during Phase One offlae Program, as provided in Section 4 below.
4.~Ouanti~ and Location of Shelters.
a.Phased Implementation. AS provided in Exhibit B, attached hereto
and incorporated herein by this ieference, the Program shall be implemented in three (3)
phases, as follows:
(1) ~. In the first year afar the Effective Date, a
minimum of one hundred fifty (I50) advexdsing shelters shall be constructed, subject to
the maximum quantifies per city set forth in Exhibit B. During Phase One, all remaining
existing shelters shall, be upgraded to a first-class condition as necessary and maintained
in aeeordaiaee with Section 6 hereof.
.(2) ~ Subject to Section 4.b.(3) below, in the second
year after the Effective Date,. with regard to areas ofjUrisdietion of Parti.cipating Entities
which have approved the Program by complying with Section 3. hereof, all remaining
existing shelters shall be replaced, .and the aggregate maximum number of advertising
shelters in each of the Participating Entities shal! be as provided in Exhibit B. "
(3) ~. Subject to Section 4.b.(3) below, in the third
year after the Effective Date, with regard to areas ofjttdsdiction of Participating Entities
which have approved the Program by complying with Section. 3. hereof, up to one
¯liundred forty (I40) additional new shelters shall be constructed, with the maximum
amount of types of shelters for each Entity as provided in Exhibit B.
b.Locationof Shelters.
(1) With.regard to each Phase~ Contractor and SCCTD shall
meet and agree in advance in writing with each Participating Entity as to the location of
the shelters to be constructed during that Phase in such Participating Entity’s area of .
jurisdiction. Each Participating Entity, in its sole discretion, may approve or reject any
proposed location for a new shelter or for an advertising shelter in its area.
(2). Attached hereto as Exhibit C, and incorporated herein by
this reference, is the list of approved locations for shelters to be constructed in Phase One.
in each Participating Entity’s area of jurisdiction.
(3) If Contractor, SCCTD and a Participating Entity cannot
agree, as provided in Subsection (1) above, upon the locations for advertising shelters to
be construeted in each area in Phase Two, the Program shall not proceed to Phase Two
and Phase Three for that Entity. IfContractor, SCCTD and a Participating Entity agree
upon the locations for advertising shelters to be constructed in Phase One and Phase Two
but cannot agree upon the location for new shelters and!or advertising shelters to be
constructed in each area in Phase Three, then Phase Three shall not proceed for that .
Entity: The parties expressly acknowledge and agree that the Program may be expanded
from Phase One to Phase Two, or from Phase Two to Phase Three for a particular
Participating Entity, upon an accelerated schedule, upon agreement of that Participating
Entity, Contractor and SCCTD. Notwithstanding that the Program does not proceed to
Phase Two or Three for a particular Entity as set forth above, all shelters in such Entity’s
area of jurisdiction shall continue to be maintained by Contractor as set forth herein for
the term of this Agreement, Subject to the provisions hereof.
c.Post-Installati0n Change~.
(1) Change to Non-Advertising or to Advertising:
Notwithstanding Section 4.b, at any time after a new shelter is installed, Contractor, upon
written request by the_Jurisdictional Participating Entity from time to time with sixty (60)
days’ prior written notice, shall change an advertising shelter to a non-advertising shelter;
or a non-advertising sheker to an advertising shelter¯ Such Entity’s request for such
change shall not be denied or delayed by Contractor so long as the ratio of advertising
shelters to non-advertising shelters in the Participating Entity’s area of jurisdiction does
not fall below 2 to 3, respectively, in Phase One and 3 to 1, respectively, in Phases Two
and Three.
(2) Removal and Relocation of Shelters. Each of the
Participating Entities shall have the right, for any reason, to require Contractor from time
to time, at Contractor’s sole cost, to remove and relocate within thirty (30) days of written
notice to Contractor and to a location-determined by the Entity in its sole discretNn, up to
five percent (5%) oft he shelters annually or a minimum of one shelter in the Participating
Entity’s area of jurisdiction. Such right shall be in addition to any right of SCCTD under
the Advertising Agreement to require the relocation of shelters; however, the tota!
removal and relocation of shelters pursuant to this subsection and Section VIII F of the
Advertising Agreement by SCCTD and the Participating Entity together shall .not exceed,
as specified in Section VIII F, a maximum often percent (10%) of the total number of
existing shelters per year.
d.Shelter Illumination. At the option of any Participating Entity in
its sole discretion, any new non-advertising shelter in the Participating. Entity’s area of
jurisdiction may be an illuminated shelter. All factors related to shelter lighting,
ii~cluding without limitation type of lighting, placement and direction of lighting, and
wattage, shall be subject to approval in adv.ance by the applicable department of the
Participating Entity where the shelter is located. Contractor shall be solely responsible
for the costs of shelicer ligtiting, including electricity charges and hookup. Contractor. and
the Participating Entities expressly agree that the advertising shelters may be illuminated,
subject to all terms and conditions of this Section 4.d., during the hours when bus service
is available at the shelter, but may not be illuminated at other hours without the express
written consent of the Participating Entity in whose jurisdiction the shelter is located.
e.Maximum Advertising Shelter~. Under no circumstances shall the
quantity of advertising ~helters in any city/county exceed the quantities shown on Exhibit
D, attached hereto and incorporated herein by this reference, unless agreed to by the
individual city/county; provided, however, that the foregoing shall not be deemed to alter
the requirements of Section 4.a(1).
f.Encroachment Permita. Unless waived in writing by a
Participating Entity where a shelter is located, each new or relocated shelter constructed
pursuant to this Agreement shall require (i) an encroachment permit issued by the
applicable department of the Participating Entity where the shelter is located and. (ii)
insurance satisfactory to the Participating Entity which shall name the Participating Entity
as an additional insured. Contractor shall pay all required encroachment permit fees and
shall comply with all conditions set forth by the Participating Entity in the permit
consistent with this Agreement. Contractor shall provide all necessary materials to
process encroachment permits in an organized, batched manner. Participating Entities
hereby agree to a per permit processing fee of not more than $300.00, increased annually
by the increase in the Consumer Price Index for the San Francisco-Oakland-San Jose
Metropolitan. Area for All Urban Consumers. Participating Entities shall issue such
permits within thirty (30) days of complete.application therefor.
5. Shelter Design. Unless expressly provided otherwise in this Agreement,
shelter design shall be as set forth in the Advertising Agreement. Any Participating
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Entity, at its sole option, may ~:equest a non-standard design for any new shelter
constructed in its area pursuant to this Agreement, provided that (i) the Participating
Entity requests such non-standard design at the time of the approval of the sheker
location pursuant to Section 4.b, and (ii) the Participating Entity reimburses Contractor
for any additional expense for the construction, installation and/or maintenance of such
non-standard design shelter. With regard to shelters of non-standard design existing in
any Participating Entity’s jurisdiction prior to the Effective Date, (a) sflch shelters may
only be replaced by Contractor if Contractor, at Contractor’s cost, replicates the existing
non-standard design in the replacement shelter, and (b) no additional expense may be
charged by Contractor for the maintenance of such existing non-standard shelters or any
replication thereof.
6.Maintenance of Shelters.
a.Maintenance Obligation. During the term of this Agreement,
Contractor shall maintain all new and existing shelters in the areas of jurisdiction of
Participating Entities in a clean, safe, and first-class condition and in accordance with all
provisions of this Section 6.
b.Minimum. Weekly Maintenance. Contractor shall inspect each new
and existing shelter at least once each week and shall perform at least the following
maintenance:
(1)All trash shall be collected;
(2)Shelter shall be cleaned, including without limitation
removal of all graffiti, stickers, extraneous posters; litter, dust and dirt;
(3) Weeds and litter shall be removed from a 15-foot radius
around each sheker;
illuminated shelters.
C.
(4)
(5)
Shelter shall be washed if needed; and
Defective lights shall be repaired to working order on
Repair of Damaged or Vandalized Shelters.
(1)Contractor shall repair any vandalism, graffiti or other
damage, to a shelter within forty-eight (48) hours of the earlier of(i) the observation of
such vandalism or damage by Contractor during weekly maintenance, or (ii) telel~honic or
written notice of such vandalism or damage to Contractor and SCCTD by the
Participating Entity where the shelter is located.
(2) Notwithstanding the foregoing, ifshelter vandalism or
damage is of a hazardous nature, or if light sources need repair or repiacement,
Contractor shall repair such deficiencies within twenty-four (24) hours.
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(3) Contractor expressly agrees that, if Contractor fails to meet
its obligations as set forth in Subsections (1) and (2) above, then SCCTD or the ’
Participating Entity where the shelter is located shall have the right to perform such
obligations on Contractor’s behalf, without notice to Contractor with regard to those
obligations in Subsection (2) and after three (3) days’ telephonic or written notice to
Contractor with regard to those obligations in Subsection (1). Contractor shall reimburse
SCCTD or such Participating Entity upon demand for the expenses incurred by SCCTD
or such Entity in such performance by SCCTD or such Entity on Contractor’s behalf.
d.High-Maintenance Shelters. In addition to the other maintenance
responsibilities of Contractor hereunder, Contractor shall,at its sole cost, at least twice a
week inspect and perform the maintenance set forth in subparagraph (b) above, for those
shelters de~.ignated by a Participating Entity from time to time as a "high-maintenance
Shelter." A Participating Entity may not designate from time-to-time more than one-third
(1/3) of the Shelters in its area of jurisdiction as "high-maintenance shelters."
e.Maintenance Log. Contractor shall submit a montl~y log of shelter
inspection and maintenance to SCCTD and, for the shelters in the Participating Entity’s
jurisdiction, to each Participating Entity wh6 has requested in writing to receive the
monthly log.
7.Advertising A_m’eement Rights.
a.Approvals and Rights. Notwithstanding .anything in the
Advertising Agreement, SCCTD and Contractor expressly acknowledge and agree that
the following approvals or rights granted to SCCTD in the Advertising Agreement shall,
instead, be approvals and fights granted to each Participating Entity where the shelters are
located, and SCCTD shall have no right of participation in such approvals Or rights
except as set forth below:
Section I-B-3
of Advertising
Agreement
Section I-D-4
Option to require illumination of shelters, as
amended by Section 4id hereof
Right to approv.e removal or relocation of"unsuital~le
or economically unfeasible" shelters (to be jointly
exercised with SCCTD)
Section III Right to require that an advertising shelter be changed
to a non-advertising shelter, as amended by Section 4.c
hereof
Section IV-B Right to use available unsold advertising display space.
SCCTD. shall provide to each Participating Entity the
right of first refusal to utilize any such space. If such
right is not exercised by a Participating Entity for a
par~.icular available space, SCCTD may utilize such
space.
Thegranting of the foregoing approvals or rights to the Participating Entities as
set forth above shall not affect any conditlons or limitations on such approvals or rights
set forth in the Advertising Agreement.
8.Advertising Content.
a.Replacement.pr0visi0ns. With regard to the implementation of the
Program, this Section 8 replaces Sections VI -B and C of the Advertising Agreement in
their entirety.
b.Prohibited Displays. Because of each Participating Entity’s
substantial interest in protecting the health and welfare of its citizens, Contractor agrees
that the following displays shall not be allowed on any Program bus shelters:
(1)
(2)
(3)
(4)
Commercial advertising for tobacco products.
Commercial advertising for alcoholic beverages.
Any sign depicting physical violence against any person or
Any display containing any of the following:
(a) Any statements or words describing explicit sexual
acts, sexual organs, or excrement.
(b) Any nudity (picture or illustration) showing
genitals, pubic hair, perineums, anuses, or anal
regions of any person or animal, or any portionof
the breast, at or below the areola thereof, of any
female person.
(c)"Explicit sexual acts", as used in this Subsection
(5), means depictions of sexual intercourse, oral
copulation, anal intercourse, oral~anal copulation,
bestiality, sadism, masochism or excretory
functions in conjunction with sexual activity,
masturbation or lewd exhibition of the genitals,
whether any of the above conduct is depicted or
described as being performed among or between
members of the same or opposite sex or between
humans and animals, or other acts involving any
physical contact with a person’s or animal’s
genitals, pubic region, pubic hair, perineum, anus,
or anal region.
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(5)Any display specifically prohibited by law or order of any
court of competent jurisdiction. "
c.Indemnification ofParticipating.Entitiea. SCCTD hereby agrees to
indemnify and hold harmless each Participating Entity and its officers, agents and
employees from any claim, liability, loss, injury or damage arising out of the tejection of
advertising by SCCTD pursuant to Sections VI-A and VI-D through G£ inclusive, of the
Advertising Agreement.
d.No Other Content Restrictions. Except for the express prohibitions
set forth in Subsection b above, the Participating Entities shall not impose any other
restrictions based on content and nothing herein shall otherwise interfere with the rights
of the Contractor in the selection of advertising material for the shelters.
9.Revenue Pass-Through.
a.. Pursuant to the Advertising Agreement, Contractorhas agreed to
pay SCCTD eighteen percent (18%) of cumulative, net revenues (as defined in the
Advertising Agreement) producedby advert, fsing shelters in the Program, subject to a
minimum payment of $50 per advertising shelter per month. (Such payments are referred
to hereinafter as the "Shared Advertising Revenue".) The Advertising Agreement
~Srovides that such payments of Shared Advertising Revenue shall, be paid to SCCTD, at
various times, by means of a withdrawal from an advance deposit, or by a quarterly
payment, Or by an end-of-calendar-year payment.
b.SCCTD shall pay each Participating Ent.ity fifty percent (50%) of
all Shared Advertising Revenue received by SCCTD for advertising shelters located in
each Entity’s respective jurisdiction. SCCTD shall make quarterly payments .to each
ParticipatingEntity of such revenue, as earned by each Participating Entity for the
previous quarter, within thirty (30) days after the beginning Of each calendar quarter.
Shared Advertising Revenue shall not include the fee paid by Contractor to Santa Clara
County Transit District for administration costs.
c.In addition to the fights of each P .a(dcipating Entity to receive a
share of revenue as set forth above, each Participating Entity may, in .its discretion, obtain
a proportionate share of one-half of the $750,000 advance revenue payment to be paid by
Contractor to SCCTD under the Advertising Agreement. After the $750,000 advance
payment has been made by Contractor to SCCTD~ SCCTD shall remit to any
Participating Entity, within thirty (30) days of written request by such Entity, a portion of
$375,000 for that Entity determined by the percentage that the number of advertising
shelters in that En.tity’sjurisdiction in PhaSe One bears to the total number of advertising
shelters, for all Entities, in Phase One. Such advance portion shall be credited against the
9% share to be paid to such Participating Entity under this Agreement. Furthermore, !f
under this Agreement or the Advertising Agreement, SCCTD becomes obligated to remm
and returns the $750,000 advance revenue payment~ or any portion thereof, to Contractor,
then each Participating Entity that had received an advance portion hereunder shall remit
such advance portion, or portion thereof, to SCCTD, within_forty-five (45) days of
written request by SCCTD. Any such Participating Entity shall also return to SCCTD,
within forty-five (45) days of a written.request, any unearned portion of such advance
portion if the. Program is terminated in the jurisdiction of that Participating Entity under
the terms hereof.
d.Contractor and SCCTD shall maintain any and all ledgers, books
of account, invoices, vouchers, and other records or documents evidencing or relating to
revenues produced by the advertising shelters in the Program for a minimum period of
three (3) years, or for any longer period required by law, from the date of any payment of
Shared Advertising Revenue to Participating Entities pursuant to this Agreement. Any
documents or records required to be maintained pursuant to this Subsection shall be made
available for inspection or audit, at any time during regular business hours, upon written
request by any officer or authorized representative of a Participating Entity. Copies of
such documents shall be provided for such inspection.or audit at a location in Santa Clara
County.
10.Termination and Suspension.
a.Termination of Advertising A~eementl. This Agreement shall
terminate automatically if the Advertising Agreement is terminated. Without limiting the
foregoing, the parties acknowledge that the Advertising Agreement provides that it may
be terminated by Contractor at any time if the number of advertising shelters for any
reason drops below one hundred fifty (150) shelters. The parties hereto agree that
shelters for which advertising has been suspended for whatever .reason shall not be
considered as reducing the number of advertising shelters in determining such one
hundred fifty (150) minimum.
b.Suspension and Termination By participating Entities orContractor~ In addition to the termination rights provided to SCCTD and Contractor in
the Advertising Agreement, each Participating Entity shall have the fight to terminate this
Agreement with regard to its area and to suspend and terminate the Program in its area,
and Contractor shall have the fight to suspend and terminate, as f~llows:
(1) Suspension and Termination Thereafter. In addition to any
other.termination fights herein, a Participating Emity may suspend the fight Of Contractor
to advertise under the Program in that Entity’s area of jurisdiction, at any time if a legal
challenge is filed with a court of law against its sign laws arising out of or in connection
with or reasonably related to the implementation or continuation of the Program, whether
or not the Program is specifically mentioned in any such legal challenge, and the
Participating Entity determines, in its sole discretion based upon a good faith analysis,
that the~ existence of the Program in its area makes defense of its sign laws more difficult.
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If a Participating Entity decides to suspend the Program as aforesaid, it shall provide
written notice of such decision to SCCTD and Contractor. Contractor shall remove all
Program advertising displays in the area of jurisdiction of the Participating Entity within
ten (10) working days of Contractor’s receipt of such notice. During the suspension
period, all shelters in the suspending Entity’s jurisdiction shall be maintained in
accordance with all provisions of this Agreement, and Contractor, SCCTD and the
Participating Entity shall equally share in the cost of such maintenance.
Furthermore, if advertising under the Program in a Participating Entity’s
jurisdiction is suspended by an order of court during all or a portion of the pendency of
such a legal challenge, despite good-faith opposition to the issuance of such an order by
the Participating Entity if the Entity is defending the suit itself or through counsel of its
own choosing, then maintenance (including illumination) for all shelters in that
jurisdiction shall be performed in accordance with all provisions of this Agreement
during such suspension period, and the cost for such maintenance shall be equally shared
by Contractor and SCCTD, without repayment of such cost by the affected Participating
Entity to either Contractor or SCCTD.
If the court action giving rise to the suspension results in any final court action
that prohibits enforcement of the sign lawsof the Participating Entity, or any portion
thereof as written, then the Participating Entity may terminate this Agreement as to that
Particip.ating Entity upon thirty (30) days’ written notice. Otherwise, the suspension
period shall end and the Program shall resume in that Participating Entity, including
advertising and maintenance by the Contractor, and the term of the Agreement shall be
extended by a period of time equal to ttie length of the suspension period. For purposes
of this subsection, the term "final court action" shall mean an action that has become final
after all appeals have been exhausted or the time to obtain, appellate review has expired.
Furthermore, if at any time advertising for more than 0ne-half (1/2) of the
advertising shelters in the Program has been suspended as provided above, the Contractor
may, in its sole discretion, suspend the entire Program, including its obligation to provide
maintenance for any and all shelters in the Program, and obtain a refund from SCCTD
within forty-five (45) days of such suspension of the unearned portion of the advanced
revenue share of $750,000, pro-rated on the date that notice of Program suspension is
given by Contractor to. SCCTD. Upon resumption of the Program, such unearned portion
shall be returned.to SCCTD, and the term of the Agreement shall be extended by a period
of time equal to the length of the suspension period.
Furthermore, if advertising for more than one-half (1/2) of the advertising shelters
in the Program has been suspended as provided above for a period of three (3) years, or
more, the Contractor may, in its sole discretion, terminate the entire Program effective
after thirty (30) day’s written notice is served upon SCCTD and the Participating Entities.
In such an instance, Contractor’s duty to indemnify the Participating Entities i~ursuant to
Section -11 hereof with respect to any and all legal challenges to a Participating Entity’s
10
[Entities’] sign laws shall cease as of the date thirty (30) days after the datenotice of
termination is given, except for any covered claims asserted prior to such termination date
in accordance with Section ! 1 hereof, for which indemnification shall continue. Further,
Contractor’s duty to indemnify shall not so terminate andshall continue for any covered
claims for personal injury or property damage relating to advertising shelters asserted
after the termination date in accordance with Section 11 hereof and for which the date of
occurrence of such injury or damage is a date prior to the.termination date.
(2) A Participating Entity may terminate this Agreement with
regard to its area of jurisdiction if SCCTD or Contractor is in default of any of their
obligations hereunder or under the Advertising Agreement with regard to the bus shelters
in the area of jurisdiction of the.Participating Entity and such default is not cured within
thirty (3 0) days after written notice from the Participating Entity specifying such default.
(3) A Participating Entity may terminate this Agreement with
regard to its area of jurisdiction if Participating Entities terminate the Agreement as
provided above with a result that less than 125 advertising shelters continue to be in the
Program.
Section IX B of theAdvertising Agreement shall be applicable to any termination
of the Advertising Agreement pursuant to or as a result of the foregoing provisions of this
Section 10.b. Except in the case of a default by Contractor, Contractor shall, in addition
to any rights under Section IX B of the Advertising.Agreement, be entitled to a return of
its letter of credit and. the pro-rata portion of the unearned portion of the advance revenue
share of $750,000 from SCCTD, and, provided that no claim~ or potential claims
affecting such bonds remain outstanding, rescission of its obligation to maintain the
performance and payment bonds under the Advertising Agreement
c.Rights and Remedie~. The Participating Entities shall have all
rights and remedies available to them under this Agreement or applicable law; without
limiting the foregoing, upon termination of this Agreement, the Participating Entities~
shall each have the right, in its sole discretion, which shall not constitute its sole remedy
hereunder, to require that all advertising displays be removed from the bus shelters in its
area of jurisdiction, at no cost to such. Participating Entity.
11. Indemnification. Contractor shall indemnify, defend, and hold harmless
each Participating Entity and its officers, agents and employees from any claim, liability,
losS, injury or damage arising out of or in connection with or reasonably related to the
implementation or continuation of the Program, whether or not the Program is
specifically mentioned in any claim; without limiting the foregoing, Contractor expressly
acknowledges that such indemnification includes indemnification for any claim, liability,
loss, injury or damage arising out of or in connection with any legal challenge to the
implementation or continuation of the Program; provided, however, that the
indemnification set forth in this Section 11 shall not include indemnification of any
Participating Entity for any claim, liability, loss, injury oi: damage caused solely by the
acts or omissions of such Entity’s officers, agents or employees. It is the intent elf the
parties to thi~ Agreement to provide the broadest possible indemnification coverage for
the Participating Entities. The obligations set forth in this Section 11 shall survive any
termination of this Agreement.
If a claim for indemnification (a "Claim") is tO be made by a Participating Entity
hereunder against Contractor,such Participating Entity shall give written notice (a
"Claim Notice") to Contractoras soon as practicable after the Participating Entity
becomes aware of any fact, condition or event which, in the reasonable judgment of the
Participating Entity, is likely to give.rise to a Claim. If any lawsuit or any enforcement
action is filed against the P .articipating Entity, a Claim Notice with respect thereto shall
be given to Contractor as promptly as practicable. After receipt of a Claim Notice, if
Contractor acknowledges in writing its obligation under the terms of its indemnity
hereunder in connection with such losses or actions, then Contractor shall be entitled, if it
so elects, and subject to the last paragraph in this Section 11 (i) to take control of the
defense and investigation of such lawsuit or action; (ii) to employ and engage attorneys of
its own choice to handle and defend the same at Contractor’s cost, risk and expense; and
(iii) to compromise or settle such claim in crnsultation with the Participating Entity. A
Participating Entity shall cooperate in all reasonable respects with the Contractor and its
attorneys in the investigation, trial and defense of any Claim or lawsuit or action and
appeal arising therefrom; provided, however, that if the Contractor has assumed the
defense of any claim, a Participating Entity may, at its own cost, participate in the
investigation, trial and defense of any lawsuit or action and any appeal arising therefrom.
The Pa_cties shall cooperate with each other in any notifications toinsurers.
For any challenge tO the validity of a Participating Entity’s sign laws, a
Participating Entity, at its sole cost and expense; may elect to retain counsel of its own
choosing or defend such claim or. lawsuit itself, with no right of indemnification from
Contractor for the costs or expenses of such counsel or defense. Furthermore, each
Participating Entity, whether or not it so elects to choose its own counsel or defend such
claim or lawsuit itseK, shall have the sole discretion to approve any compromise or
settlement of a claim or lawsuit, or portion thereof, .to the. extent such compromis.e or
.settlement, or portion thereof, is related to the Participating Entity’s sign laws; such sole
discretion shall not include discretion over any monetary settlement. The Participating
Entity shall consult with Contractor prior to any such compromise or settlement. If the
Participating Entity has so assumed the defense of any claim, Contractor may, at its own
cost, participate in the investigation, trial and defense of any lawsuit or action and any
appeal arising therefrom.
12. Waiver of Statutory Damages. Contractor, on behalf.of itself, its
successors and assigns, hereby waives and relinquishes any and all statutory rights to,
compensation related to the removal or relocatiofi of any of the shelters in the.Program,
including, but not limited to, those established in Business and Professions Code sections
12
5412 ~ Such waiver shall not affect or diminish any fights to compensation
expressly set forth in this Agreement or in the Advertising Agreement.
13.Integration; Amendment or Implementation of Advertising Agreemen~.
a.To the extent of its express provisions, this Agreement amends the
Advertising Agreement as such Adve.rtising Agreement and the Program applies to the
Participating Entities and supersedes all prior negotiations between the parties with
regard to the implementation of the Advertising Agreement. Notwithstanding the
foregoing, and except as amended hereby, the Advertising Agreement, and each provision
thereof, shall remain in full force and effect.
b.Contractor and SCCTD expressly agree that (i) they shall not
amend the Advertising Agreement to materially alter any provision of the Program,
without the prior written approval of the Participating Entities, which approval may be
given or withheld by any of such entities.in its sole discretion, and (ii) they Shall not
implement the Advertising Agreement in any area unless and until the governmental
body in such area (whether a county or a city) has become a party to this Agreement, as
provided in Section2 hereof.
14. Nondi~criminafiQn. Contractor and SCCTD shall not discriminate, in any
way, against any person on the basis of age, sex, race, color, creed or national origin in
connection with or related to the performance of this Agreement or the performance of
the Advertising-Agreement.
15.Conflict of Interest; Prohibition of
a..Contractor shall at all times avoid conflict of interest or appearance
of conflict of interest in the performance of this Agreement. Contractor shall disclose any
conflict of interest, or.potential conflict of interest, which exists or arises at any time
during the term of this Agreement. Any Participating Entity shall have the right to treat
any violation of this Subsection as a material breach of the Agreement, and shall have the
.right to terminate the Agreement and/or pursue any and all legal or equitable remedies for
said breach of this Agreement. .
b.(1) Contractor shall not at any time offer any officer oremployee of a Participating Entity any gift that is prohibited by the laws of such
Participating Entity.
(2) The offer or giving of any such prohibited gift shall
constitute a material breach of this Agreement. In addition to any other remedies the
Participating Entity whose laws have been violated may have in law Or equity, such
Entity may terminate this Agreement for such breach as provided in Subsection a. above.
16. Notices. All hotices and other communications required or permitted to be
given under this Agreement shall be in. writing and shall be personally served or tnailed,
postage prepaid and return receipt requested, addressed to the respective parties as
follows:
to Contractor:
to SCCTD:
to Participating Entities:
Patrick Media Group, Inc.
1601 Maritime Street
Oakland, CA 94607
Attn: David McWalters, Real Estate Manager
Santa Clara County Transit District
3331 North First Street, Bldg. C-2
San Jose, CA 95134-1906
Atm: Peter M. Cipolla, General Manager
As provided on Exhibit E attached t~ereto
and incorporated herein by this r(ference.
or to such other address as any party may designate by notice in accordance with this
Section 16.
Notices shall be deemed effective on the date of delivery.
17.Choice 0fLaw; Venue.
a. The parties agree that the law governing this Agreement shall be
that of the State of California.
b.In the event that suit shall be brought by any party hereunder, the
parties agree that trial of such action shall be exclusively vested in a state court in the
County of Santa Clam or, where appropriate, in the United States District Court for the
Northern District of Califomia,San Jose, California.
18: Execution by Counterpart. This Agreement may be executed in any
number of counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute one and the same instrument.
19.Area~ of Authority_,
a.Notwithstanding anything else in this Agreement, the parties
expressly agree that .any shelters located on State thoroughfares within a City’s legal
boundaries shall be considered shelters in that City’s area ofjurisdictibn for all purposes
of this Agreement.
14
b.For purposes of Sections 4.b (location of shelters). 4.c. (post
installation changes), 4.d. (shelter illumination), 5. (shelter design), 6. (maintenance of
shelters), 7. (advertising agreement rights), and 8. (advertising content) (collectively, the
"Joint Authority Provisions"), the parties expressly agree that (I) a City’s area of
jurisdiction shall include County bus shelter sites on County roadways within such City’s
legal boundaries and sites in County unincorporated pockets that are totally surrounded "
by such City, and (ii) such City (A) shall have joint authority with the County of Santa
Clara with regard to any Participating Entity approvals and/or rights allowed under the
Joint Authority Provisions and (B) shall have full independent authority, with or without
County concurrence, to enforce any .and all requirements of the Joint Authority
Provisions."
20.Third Party. Beneficiary_ Right~
a.Contractor and SCCTDexpressly acknowledge and agree that, to
the extent of Contractor’s obligations under the following provisions of the Advertising
Agreement, each Participating Entity shall be a third-party beneficiary of such obligations
with regard to shelters in such Entity’s area of jurisdiction and shall have all rights and
remedies available at law to enforce such obligations:
b. For purposes of this Section 20, shelters within a City’s area of
jurisdiction shall include, without limitation, shelters located on State and/or County
thoroughfares within such City’s legal boundaries and shelters located in County
unincorporated pockets that are totally surrounded by such City.
21. Administrative Authority..
Any approval, request or other act required or permitted to be
given by SCCTD or a Participating Entity underthis Agreement, except for that approval
required by Section 3.a. hereof, may be given on behalf of SCCTD or the Participating
Entity by the Executive Director, City Manager, or equivalent executive officer, as the
case may be, of SCCTD or the Participating Entity.
i5
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first set forth above.
"Contractor"
PATRICK MEDIA GROUP, INC.
By:
William G. Hooper
Regional President
"SCCTD"
Approved as to Form:
Legal
¯SANTA CLARA COUNTY
.TRANSI~.CT .
Peter M. Cipolla
General Manager
16
"SCCTD"
s,v,rrA CLARA COUNTy
TR.~ N~IT DISTINCT
COUNTY OF SANTA CLARA
ATTEST:
~hyl~erez z¢7
Clerk of the Board of Supervisors
By:
s~m cla_~, Co.unty 0CI 3
Board of Stipe’rvispr,.s ,
APPROVED AS TO FORM AND
LEGALITY: "
Deputy County Counsel
Approved as to Form:CITY OF SAN JOSE
Deputy City Attorney
By:
Name:
Title:
CITY OF SUNNYVALE
By:
Name: Thomas F. Lewcock
Title: City Manager
"Participating Entities"
COUNTY OF SANTA CLARA
ATTEST:
By:
Michael M. Honda, Chairperson
Santa Clam County
Board of Supervisors
Phyllis Perez
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND
LEGALITY:
Kathy Kretehmer
Deputy County Counsel
Approved as to form:
/Sr. Deputy City Attorney
CITY OF SAN JOSE
By:
Nh~a S. G~?ayson
Assistant to the City Manager
CITY OF SUNNYVALE
By:
Name: Thomas F. Lewcock
Title:. City Manager
"Participating Entities"
. COUNTY OF SANTA CLARA
ATTEST:
Michael M. Honda, Chairperson
Santa Clara County
Board of Supervisors
Phyllis Perez
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND
LEGALITY:
Kathy Kretchmer
Deputy. County Counsel
Approved as to form:CITY OF SAN JOSE
Sr. Deputy City Attorney By:
Regina V: K. Williams
City Manager
-’NSproved /:~s To Form
¯A T. CITY ATTORNEY
CITY oF SUNN iY~ALE
B -
Name: Tl~rilas F. Lewcock
Title: City Manager
CITY OF GIL~OY
By:
Name:
Title:
CITY OF CAMPBELL
By:
Name:
Title:
CITY OF CUPERTINO
Bv:\Name:
Title:,,,,
CITY OF MORGAN HILL
By:
Name:
Title:
CITY OF LOS ALTOS
By:\
Name:\
Title:\
18
Approved as to form:
City Attorney
Approved as to form:
City Attorney
CITY OF CUPERTINO:
Mayor
City Clerk
CITY OF LOS ALTOS:
Mayor
City Clerk
CITY OF CUPERTINO
By:
Name:
Title:
APPROVED AS TO FORM:CITY OF LOS ALTOS
Legal Counsel
By:
Name:DIANNE
Tide: CITY MANAGER
CITY OF SAIqTA CLARA
ATTEST:
~CCIGNONE, ~ty Clerk
By:
Mayor
APPROVED AS TO FORM:
Assistant City Attorney
~ty MaLhager
Address:1500 Warburton Avenue
Santa lara,..CA 95050Telephone: .(408) 984-3000
Implementation Agreement For Transit Shelter Advertising Program
CITy OF SANTA CLARA.
APPROVED AS TO CONTENT:
~ub/i " ~~~-~~~~"Works Director
FINANCIAL APPROVAL:
By:~
Name:-------
Title:~
CITy OF MouNTAIN VIEW,
a municipa! c, orpomtion
By:
By: ~.
Title:
CITY OF MILPITAS
By:.
-Name:
Tit!e:
CITY OF GILROY
By:
Name:
Tide:
CITY OF SANTA CLARA,
By:
Name:
Title:
APPROVED AS TO CONTENT:CITY OF MOUNTAIN VIEW,
a municipal corporation
Public Works Director
By:
City Manager
FINANCIAL APPROVAL: .
Finance and Administrative Services
Director
By:
Title:
CITY OF MILPITAS
ity Attorney
GNIL BLALOCK, City Clerk
¢/~q"arne: LAWRENCE M. ~O0RF,
Title: City Manager
CITY OF GILROY
By:
N .agae:
Title:
Exhibit A
EXISTING AND PROPOSED TRANSIT SHELTERS
PARTICIPATING
JURISDICTION
San Jose
.Sunnyvale
Santa Clara
Mountain View
Milpitas
!County
Gilroy
Cupertino
Los Altos
Other (Light Rail,Cal-,.
Train, Fed, College)
Additional Available Shelters for Phase 3
TOTAL
EST. TOTAL
EXISTING
SHELTERS
180
31
26
18
18
39
10
11
5
44
382
EST. TOTAL NEW
SHELTERS
(PHASES 1, 2, & :3)
243
42
35
25
25
53
14
1
7
54
51
564
Z
ATTACHMENT D
BUS SHELTER MAINTENANCE AGREEMENT
The Bus Shelter Maintenance Agreement is made effective
March I, 1996, by and between the City of Palo Alto ("City") and the
Santa Clara County Transit District ("District").
RECITALS:
A. The Transit District owns bus shelters at selected
bus stops !ocated within the City of Palo Alto; and
B. The City and District have mutually agreed that
these bus shelters should be retained for the convenience of
transit riders; and
C. The City has agreed to assume maintenance
responsibility for the existing District-owned shelters within its
jurisdiction;
AGREEMENT:
NOW, THEREFORE, for valuable consideration, District and
City agree as follows:
I. Beginning on March i, 1996, City agrees that it will
be solely responsible for all maintenance and repair of the
shelters covered by this Agreement.
2. City agrees that it will maintain the referenced
shelters in a reasonably clean and safe condition; collect trash,
empty trash cans and remove weeds and litter around each shelter.
3. City agrees that it will repair any vandalism,
graffiti, broken or damaged glass or other damage to a shelter.
4. City will inspect each shelter at regular intervals
to assure that the shelters are being maintained and repaired.
5. City will be solely responsible for any claim,
liability, loss, injury or damage arising out of or in connection
with the bus shelter maintenance and repair obligations of City set
forth herein.
6. City will provide to District a telephone number
that can be reached during normal business hours, Monday through
Friday from 7:00 a.m. to 5:00 p.m. for the reporting of maintenance
needs or concerns in regard to the shelters specified herein. For
emergencies after normal hours, weekends, and holidays, the
District shall contact the City of Palo Alto Communications at
960903 lac 0031338
1
(415) 329-2413 for hazards or damage to the shelters which could
imperil, harm and injure users of the shelters. Non-emergency
calls shall be held by the District until the next business day.
7. During the term of this Agreement, City agrees not
to remove or relocate any of the shelters specified herein without
the prior written approval of District.
8. In performing its maintenance duties hereunder, City
will not remove, and shall preserve, any identifying or
informational notices or materials placed on or within any of the
shelters by District for its patrons.
9. TO the ext~nt inconsistent herewith, this Agreement
shall supersede the provisions of any permit or agreement between
City and District relating to the subject matter hereof.
I0. This Agreement shall continue in effect as long as
mutually agreed upon by both parties.
CITY
By:Fleming
lity Manager
DISTRI
Peter M Cipo
General Manager
A~PR0VED AS TO FORM:
Senior Asst. City Attorney
APPROVED AS TO FORM:
Kevi~ Allman(
Senior Assistant Counsel
960903 ]a: 0031338
2