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HomeMy WebLinkAboutCC RESO 15,860RESOLUTION NO. 15,860 RESOLUTION OF THE CITY COUNCIL NATIONAL CITY AUTHORIZING THE CITY A MEMORANDUM OF UNDERSTANDING BETWEEN CITY AND THE METROPOLITAN TRANSIT OF THE CITY OF MANAGER TO EXECUTE THE CITY OF NATIONAL DEVELOPMENT BOARD BE IT RESOLVED by the City Council of the City of National City that the City Manager is hereby execute a Memorandum of Understanding between authorized to the City of National City and the Metropolitan Transit Development Board concerning implementation of the Transit Shelter Program. Said Memorandum of Understanding is on file in the Office of the City Clerk. PASSED and ADOPTED this 17th day of January, 1989. GEORGE H. WATERS, MAYOR ATTEST: ilh-p LOE PEOPLES, CITY CLERK .I AlAN APPROVED AS TO FORM: MTDB Doc. No. 00-89-535 T 491.89 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NATIONAL CITY AND THE SAN DIEGO METROPOLITAN TRANSIT DEVELOPMENT BOARD THIS AGREEMENT is entered into by and between the City of National City, a municipal corporation, herein called "CITY," and the SAN DIEGO METROPOLITAN TRANSIT DEVELOPMENT BOARD, a public entity, herein called "MTDB." WHEREAS, public funding is unavailable for the construction and maintenance of transit shelters; and WHEREAS, in an effort to improve conditions at transit stops within the MTDB area of jurisdiction, MTDB has researched the potential of a transit shelter program; and WHEREAS, MTDB has proposed a transit shelter program which would result in the construction, installation and full maintenance of lighted transit shelters at designated transit stops at no public cost by selling advertising space within a certain percentage of the total number of transit shelters installed; and WHEREAS, the transit shelter program would provide a significant improve- ment in the area's transit system, potentially increasing ridership without incurring any public costs; and WHEREAS, all revenues derived from the transit shelter advertising by MTDB shall be used solely and exclusively for the administration of the transit shelter program; and WHEREAS, MTDB has proposed that it be granted the exclusive authority to install in the public right-of-way within CITY transit shelters and their requisite services; and WHEREAS, MTDB proposes to issue a Request for Proposals, herein in called "RFP," to qualified transit shelter companies in an effort to contract with one (1) company to provide the construction, installation and ongoing maintenance services for the full -term of a proposed 15-year contract for the MTDB area of jurisdiction; and WHEREAS, the Cities of El Cajon, Imperial Beach, La Mesa, National City San Diego, and Santee have approved such a transit shelter program; and WHEREAS, MTDB proposes to enter into an agreement such as this one with each of those cities wishing to participate in the program; and NOW, THEREFORE, be it ordained by the City Council of the City of National City, that CITY and MTDB agree as follows: 1. CITY hereby grants to MTDB for a period of 15 years the exclusive authority to install, or cause to be installed, transit shelters within the public right-of-way of the CITY, provided the following conditions are complied with by MTDB: A. Location Criteria for Transit Shelters (1) Transit shelters with advertising will be permitted only in commercial, industrial or multifamily zones in CITY unless otherwise authorized by CITY. B. Ratio of Nonadvertising to Advertising Transit Shelters (1) Within CITY, MTDB shall seek to maximize, through its competitive bidding process, the number of shelters without advertising. C. Permissible Signage (1) Transit Shelters with advertising shall be limited to a maximum of two (2) advertising panels. Panels shall not exceed four (4) feet in width or six (6) feet in height. (2) MTDB, through its competitive bidding process, shall seek to ensure that the percentage of nonadvertising shelters within CITY will be at the combined average of nonadvertising shelters in the MTDB area of jurisdiction throughout the duration of this agreement. D. Distribution of Transit Shelter Advertising (1) Transit shelters without advertising and transit shelters with advertising shall be installed concurrently in CITY in the same ratio as bid by MTDB's Contractor. (2) Transit Shelters shall not be installed in CITY unless MTDB endeavors to install transit shelters concurrently in all other participating jurisdictions. (3) Transit shelters shall be installed in specific increments. Additional increments of transit shelters or individual transit shelters shall not be installed in CITY until the previous increment of transit shelters is completely installed within the MTDB area of jurisdiction. E. CITY, shall have final authority to approve or deny the installation of any transit shelter, notwithstanding the fact that any proposed installation otherwise complies with the terms of this agreement. F. Maintenance (1) MTDB, through its Contractor, shall be responsible for providing ongoing maintenance for every transit shelter which it causes to be installed and that currently exists in the public right-of-way. -2- (2) Transit shelters shall be maintained in a "like -new" condition throughout the life of this agreement, and such services shall include, but not be limited to, refurbishing, reconditioning and replacing worn or damaged transit shelters if necessary. (3) Routine inspection calls shall be performed on each transit shelter at least twice per week. More frequent inspections shall be made if conditions warrant. (4) Transit shelters shall be repaired or replaced within 48 hours of notification to MTDB of any damage, vandalism or graffiti found on or around any transit shelter. If the damage, vandalism or graffiti is of an emergency, offensive or hazardous nature, or if light sources need replacing, MTDB will repair, replace, or remove the same within 24 hours of notification, or as needed. If the transit shelter is destroyed, it shall be removed within 24 hours of notification and shall be replaced within 30 days. In conjunction with such removal, the curbs and sidewalk, if affected by the removal, shall be restored to a safe, finished condition. (5) Should MTDB's Contractor fail to perform basic maintenance as defined herein, MTDB shall be responsible for ongoing maintenance and shall seek to terminate the agreement with its Contractor and enter into a new agreement with another Contractor. G. Notices (1) MTDB shall use its best efforts to notify the underlying fee property owners, as indicated on the most recent tax assessor's rolls, and building occupants that a transit shelter (with advertising or without) is proposed to be installed in the public right-of-way in front of their property prior to any transit shelter installation. If the property owner or occupant objects to the installation of the transit shelter within 30 days of the date the letter is mailed or served upon them, MTDB will notify CITY and hold a public hearing to determine the status of that particular shelter location. H. Permits (1) Transit shelters shall not be installed without all required permits, including CITY encroachment, excavation, and building permit. Permit applicants will be required to comply with all rules, regulations and laws of the City, County, State and Federal Government. Permit fees shall be paid by the applicant for each such permit issued. Permit applications will not be accepted unless accompanied by proof of notification of the proposed -3- transit shelter installation to the adjacent property owners and tenants. I. Income to MTDB (1) MTDB shall not derive any profits, revenues or income by virtue of CITY granting to MTDB these exclusive rights to, place or cause to be placed in the public right-of-way transit shelters. Costs of administering any program or contract related to these exclusive rights shall not be considered profits, revenues or income. J. Additional Shelters (1) Nothing herein, however, shall preclude CITY from placing additional shelters without advertising as a condition of development permits or as otherwise desired by CITY. 2. HOLD HARMLESS MTDB undertakes and agrees to defend, indemnify and hold harmless CITY, and any and all of the CITY'S officers, agents, employees, assigns and successors in interest from and against all suits and causes of action, claims, loss, demands, expense, including, but not limited to, attorneys' fees and costs of claims administration, litigation,damage or liability of any nature whatsoever, for death or injury to any person, including MTDB's employees and agents, or damage or destruction to any property of either party hereto or third person in any manner arising by reason of or incident to the performance of this agreement on the part of MTDB, whether or not contributed to by any act or omission, active or passive, negligent or otherwise, except for sole negligence of CITY any of the CITY'S officers, agents or employees, in which case CITY shall hold MTDB harmless. 3. INSURANCE During the term of this Agreement, MTDB shall cause policies of insurance to be maintained as described below. A. Comprehensive general liability insurance for bodily injury (including death) and property damage which provides total limits of not less than two million five hundred thousand dollars ($2,500,000.00) combined single limit per occurrence. Coverages included shall be: (1) Premises and operations; (2) Contractual liability expressly including liability assumed under this Agreement, with deletion of the exclusion as to performance of operations within the -4- vicinity of any railroad bridge, trestle, track, roadbed, tunnel, underpass and crossway; (3) Personal injury liability; (4) Independent contractors; (5) Cross liability clause providing that the insurance applies separately to each insured except with respect to the limits of liability. (6) Such insurance shall include the following endorsements, copies of which shall be provided: a. Inclusion of CITY, its officers, agents and employees as additional insureds as respects activities, services or operations under this Agreement; b. Stipulation that the insurance is primary insurance and that no insurance of CITY will be called upon to contribute to a loss. B. Comprehensive automobile liability insurance for bodily injury (including death and property damage) which provides total limits of not less than two million five hundred thousand dollars ($2,500,000TUUT combined single limit per occurrence applicable to all owned, non -owned and hired vehicles. C. Statutory worker's compensation coverage including a broad form all states endorsement; employer's liability insurance for not less than one million dollars ($1,000,000.00) per occurrence for all individuals engaged in services or operations to implement this Agreement, including an insurer's waiver of subrogation in favor of CITY, their directors, officers, representatives, agents and employees. 4. CONDITION PRECEDENT Certificates of insurance, satisfactory to CITY, evidencing all coverages above shall be furnished to CITY before commencing any operations under this Agreement, with complete copies of policies to be delivered CITY upon its request. 5. APPROVAL Approval of the insurance by CITY shall not relieve or decrease the liability of MTDB. 6. COPIES OF POLICIES AND GENERAL PROVISIONS MTDB shall submit evidence that the policies will be in effect continuously during the term of this Agreement. - 5- 7. NOTICES No notice, request, demand, instruction or other document to be given hereunder to any party shall be effective for any purpose unless personally delivered to the person at the appropriate address set forth below (in which event such notice shall be deemed effective only upon such delivery) or delivered by mail, sent by registered or certified mail, return receipt requested, as follows: CITY: City Manager City of National City 1243 National City Boulevard National City, CA 92050 MTDB: General Manager Metropolitan Transit Development Board 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101-7490 Notices so mailed shall be deemed to have been given 48 hours after the deposit of same in any United States Post Office mailbox in the state to which the notice is addressed, or 72 hours after deposit in any such post office box other than in th.e state to which the notice is addressed, postage prepaid, addressed as set forth above. Notice shall not be deemed given unless and until, under the preceding sentence, notice shall be deemed given to all addressees to who notice must be sent. The addresses and addressees, for the purpose of this paragraph, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written notice of change is received, the last address and addressee stated by written notice, or provided herein if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder. 8. TIME It is agreed that time is of the essence of this Agreement. 9. ATTORNEYS' FEES If legal action be commenced to enforce or to declare the effect of any provisions of this Agreement, the court as part of its judgment shall award reasonable attorneys' fees and costs to the prevailing party. 10. NO WAIVER The waiver by one (1) party of the performance of any covenant, condition or promise shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise hereunder. The waiver by either or both parties of the time for performing any act shall not constitute a waiver of the time for performing any other act or identical act -6- required to be performed at a later time. The exercise of any remedy provided by law and the provisions of this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded. 11. REMOVAL OF OBJECTIONABLE ADVERTISING MATERIAL MTDB agrees to remove within 48 hours upon written demand by the City of National City any advertisement deemed to be objectionable on stated grounds which shall be reasonable. 12. TERMINATION PRIOR TO TERM OF CONTRACT City may terminate this Agreement without cause, be serving upon MTDB written notice of termination of this Agreement one hundred and twenty (120) days in advance of said date of termination. City shall, thereafter, in its discretion exercise Option A or B below: A. MTDB shall remove the advertising displays from every transit shelter in the public rights -of -way and CITY shall pay to MTDB the current value for every transit shelter in the public right-of-way. The method of calculating the current value of a transit shelter shall be as follows: Current Value = Transit Shelter Unit Price Depreciation Period Depreciation Period Months X (in months) - In Service For the purposes of calculating the current value: the transit shelter unit price shall be the unit price listed in the Contractor's financial plan submitted with their bid documents, plus the installation costs of the transit shelter; the depreciation period for transit shelters shall be ninety-six months; the number of months in service shall be calculated from the date the transit shelter is placed in service, to the date of termination. The month the transit shelter is placed in service and the month of the date of termination shelter is placed in service and the month of the date of termination shall be counted as full months in service for calculating the current value. B. MTDB shall remove or cause to be removed all transit shelters within CITY and restore the respective locations to their original conditions. CITY shall reimburse to MTDB reasonable costs associated with such removal and restoration in addition to the current value of all transit shelters in the public rights -of -way as specified in Option A above. -7- Title to all transit shelters, free and clear of liens and encumbrances, at CITY's option, shall be granted to the CITY upon payment of the amounts to MTDB as specified in Options A or B above. 13. AMENDMENTS No change in or addition to this Agreement or any part hereof shall be valid unless in writing and properly authorized by City Council and MTDB. Dated this /7771 day of , 1989. THE CITY OF /1! irI- )J t_ /717' By: City Manager METROPOLITAN TRANSIT DEVELOPMENT BOARD By: CA Thomas F. Larwin General Manager I hereby approv the form and legality of the foregoing Agreement this // J� day of ,it„/ , 1989. MED:rib AGREEMENTS - 3/23/89 By: /`- By: City Attorney Jack Limber General Counsel -8-