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HomeMy WebLinkAbout2020 CON MOU San Diego Metropolitan Transit System (MTS) - Bus Shelter and Bus Bench AdvertisingMTS Doc. No. G2222.0-19 MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE CITY OF NATIONAL CITY AND THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM REGARDING BUS SHELTER AND BUS BENCH ADVERTISING This MOU, dated MAY 19 , 2020, is entered into by and between the CITY OF NATIONAL CITY (CITY), a municipal corporation, and the SAN DIEGO METROPOLITAN TRANSIT SYSTEM (MTS), a public entity (also known as San Diego Metropolitan Transit Development Board or MTDB). RECITALS A. MTS is the statutorily designated public transit provider for the portion of San Diego County that includes the CITY, as set forth in Public Utilities Code section 120000, et seq. ; B. MTS and CITY are authorized by Public Utilities Code section 120268 to enter into cooperative agreements to establish uniform policies and procedures governing the use of bus passenger loading zones and establishing responsibility and standards for the maintenance of bus loading zones and any associated improvements; C. MTS and CITY had a Memorandum of Understanding (MTS Doc. No. 00-89-535) dated April 11, 1989 (1989 MOU), which expired in 2004, in which the CITY gave MTS the exclusive authority to install, or cause to be installed, transit shelters within the public right-of-way of the CITY; D. Notwithstanding the expiration of the 1989 MOU, in order to improve transit amenities for its passengers, including CITY residents and visitors, MTS has continued to install, maintain and replace bus shelters at locations where ridership is sufficiently high; E. MTS has recently purchased new transit shelters with solar lighting and receptacles for trash and recycling; F. MTS has recently purchased new bus benches that will improve the streetscape of the CITY; G. MTS has a third -party contract for installation, maintenance and advertising at transit shelters throughout MTS's jurisdiction, including within CITY; H. MTS has a third -party contract for the maintenance and advertising at transit benches throughout MTS's jurisdiction, including within CITY; The revenue generated from the MTS advertising contracts is intended to fund the purchase of the new transit shelters and benches, as well as to fund continued transit services within MTS's jurisdiction, including the CITY; and J. MTS and CITY desire to enter into a new MOU to formally acknowledge their cooperative agreement regarding bus stop improvements within the CITY. Page 1 of 9 MTS Doc. No. G2222.0-19 AGREEMENT NOW, THEREFORE, the CITY shall grant to MTS for the period of 10 years, the exclusive authority to install, or cause to be installed, transit shelters and benches within the public -right- of-way of the CITY, provided the following conditions are complied with by MTS: 1. Term. This MOU shall commence upon , 2020. MTS shall have the right to administer its transit shelter and bus bench programs from 2020 through , 2030. This MOU may be extended by mutual agreement by both parties. Any extension of this MOU must be approved in writing by the City Council. 2. Location Criteria for Transit Shelters and Transit Bus Benches a. Transit shelters and bus benches with advertising shall be permitted only in commercial, industrial or multifamily housing areas in CITY unless otherwise authorized by the City Manager. b. Transit shelters and bus benches without advertising shall be permitted in all areas where a MTS bus stop is located, so long as CITY has not exercised its authority under this MOU to reject a proposed transit shelter or bus bench location or to request the removal of an existing transit shelter or bus bench. c. As transit shelter and bus bench maintenance contracts depend on advertising revenue to be sustainable, CITY shall allow a ratio of at least 4-to-1 advertising to non - advertising shelters and benches. d. CITY, through the City Manager, shall have final authority to approve or deny the installation of any transit shelter or bus bench notwithstanding the fact that any proposed installation otherwise complies with the terms of this MOU; provided, however, that MTS shall not be required by CITY to install a transit shelter or bus bench at any specific location. e. MTS shall provide a list of existing locations of all bus benches and transit shelters to the CITY and notify the CITY whenever changes are made in the CITY. All new installations shall conform to the terms of this MOU. f. The CITY shall have the authority to cause a transit shelter or bus bench to be removed or relocated from any location at no cost to the CITY, upon making written demand to MTS for such removal. g. There shall be no other criteria used for the placement of advertising shelters or benches. 3. Advertising Policy and Permissible Signage Page 2 of 9 MTS Doc. No. G2222.0-19 a. Transit shelter advertising is typically limited to two advertising panels that do not exceed four feet in width and six feet in height. Other permissible advertising includes digital advertising and "wrap" materials that are applied to the shelter structure. b. All advertising shall comply with MTS Policy No. 21 titled "MTS REVENUE - GENERATING DISPLAY ADVERTISING, CONCESSIONS, AND MERCHANDISE," attached as Exhibit A, which may be revised from time -to -time by the MTS Board of Directors. c. The CITY may request that MTS exercise its right to remove any advertisement, commercial, or noncommercial that does not conform to MTS Policy No. 21. Such demand shall be in writing and state reasonable grounds for the demand. Within thirty days' receipt of such demand, MTS shall consider and act upon the demand in accordance with the policy and legal requirements. Within thirty days of such consideration and action, if MTS fails to remove the Subject Material, MTS shall provide the CITY a written response identifying all reasons why the Subject Material was not removed. 4. Maintenance a. MTS, through its Contractors, shall be responsible for providing ongoing maintenance for every transit shelter or bench which it caused to be installed and currently exists in the public right-of-way. b. Transit shelters and bus benches shall be maintained in a state of good repair throughout the life of this MOU, and such services shall include, but not be limited to, refurbishing, reconditioning, and replacing wom or damaged transit shelters or bus benches if necessary. c. Routine inspections and trash removal shall be performed. d. Transit shelters and bus benches shall be repaired or replaced within 48 hours of notification to MTS of any damage, vandalism, or graffiti found on any transit shelter or bus bench. 5. Notices. MTS shall use its best efforts to notify the underlying property owners, as indicated on the most recent tax assessor's rolls, and building occupants that a new transit shelter or bus bench with or without advertising is proposed to be installed within 100 feet of their property in the public right-of-way prior to any transit shelter installation. Such notice will not be required if a shelter or bus bench currently exists and is simply being replaced by a new shelter or bus bench unless it is significantly modified. 6. Permits. MTS's contractor will be required to comply with all rules, regulations, and laws of the CITY and any applicable state or federal laws. All traffic control shall be per the San Diego Regional Standard Drawings and the California Manual on Uniform Traffic Control Devices, Latest Edition. Page 3 of 9 MTS Doc. No. G2222.0--19 7. Electrification. MTS's contractor will secure all electrical permits necessary for the installation of new shelters. Solar -powered shelters shall not require any permit, MTS's contractor shall assume all costs associated with lighting and powering transit shelters. 8. CITY and Private Furniture a. Notwithstanding that the CITY has granted to MTS the exclusive authority to install bus benches and transit shelters within the public right-of-way in the CITY, MTS agrees to allow the CITY to authorize others to place transit shelters, benches and appurtenances in the public right-of-way conditioned upon those shelters, benches, and appurtenances being placed in such locations as the CITY and MTS may agree to from time to time. Process. Private entities authorized to install transit shelters, benches, and appurtenances pursuant to this amendment will be required to provide the design, construction, and maintenance for the shelter and bench. Installation will be permitted through a CITY encroachment permit process. The location of the shelters or benches shall conform to the MTS Design Standard Guidelines. MTS will provide the plan review for comment, but will not be responsible or liable for design, construction, or maintenance of the transit shelters or benches that are not installed as part of its existing shelter or bench contract. ii. Indemnity. The CITY undertakes and agrees to defend, indemnify, and hold harmless MTS and any and all of MTS's officers, agents, employees, assigns, and successors in interest from and against all suits and causes of action, claims, losses, demands, and expenses including, but not limited to: attorney's fees and costs of litigation, damage or liability of any nature whatsoever for death or injury to any person including CITY employees and agents, or damage or destruction of any property of either party hereto or any third person in any section on the part of the CITY or its permitted private entities whether or not contributed to by an act or omission whether passive, active, or otherwise except for the sole negligence of MTS or any of MTS's officers, agents, and employees, in which case MTS shall hold the CITY harmless. Advertising. Advertising on the CITY's shelters or benches shall be solely for the purpose of announcing events of noncommercial nature taking place at an adjacent public facility owned or operated by the private entity authorized to install the shelter or bench and shall not be used for posting schedules of public meetings at the facility. Advertising space shall not be leased to any third party. Acknowledgement of sponsorship shall be permitted within the space reserved for advertising posters. All advertising posted on the shelters and benches must conform to the advertising criteria set forth in Section 2 of this MOU. MTS may make demand upon the CITY for the removal of any advertisement that does not conform to the aforementioned advertising criteria. Such demand shall be in writing and shall state reasonable grounds for the demand. The CITY shall consider and act upon the demand in accordance with those advertising criteria. Page 4 of 9 MTS Doc. No. G2222.0-19 Advertising display panels shall be configured in such a way to be similar to MTS's shelters and benches. Advertising display panels shall be no greater in size than those used in MTS's shelters and benches. MTS shall be given first - right -of -refusal to utilize one advertising panel in each shelter for the purpose of posting transit information. iv. Insurance. The CITY shall require any permitted private entity to maintain insurance to same extent required of MTS pursuant to this Memorandum of Understanding. v. Maintenance. For pre-existing and future benches, shelters, trash receptacles, and other bus stop infrastructure and amenities not installed by MTS: MTS does not assume any responsibility in this MOU for repairs, maintenance, cleaning, installation, replacement, removal, trash and recycling service, graffiti abatement, painting, or any other work not agreed to elsewhere. MTS will not be responsible for damage caused by furniture and amenities installed by the City or others (apart from MTS and/or its designees), nor for the restoration of the area to City standard from any condition caused by the installation, damage, repair, or removal of any such infrastructure. MTS shall maintain responsibility for all work related to the bus stop pole (if any), bus stop blade, and any MTS-provided information or amenities attached to the bus stop pole, including installation, repair, replacement, removal, cleaning, and graffiti abatement. MTS shall be responsible for MTS-provided and installed benches and shelters as specified in this MOU. 9. Indemnity & Hold Harmless. MTS undertakes and agrees to defend, indemnify, and hold harmless the CITY and any and all of the CITY's officers, agents, employees, volunteers, assigns, and successors in interest from and against all suits and causes of actions, claims, loss, demands, expenses, including, but not limited to, attorneys' fees and costs of litigation, damage or liability, or any nature whatsoever, for death or injury to any person, including MTS'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 MOU on the part of MTS, except for active negligence of the CITY or any of the City's officers, agents, contractors or employees, in which case the CITY shall hold MTS harmless and MTS shall have no obligation to defend and indemnify the CITY or its officers, agents, employees, volunteers, assigns or successors. CITY will cooperate reasonably in the defense of any action, and MTS shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this MOU for any alleged or actual omission, act, or negligence under this MOU that occurred during the term of this MOU. 10. Termination of this MOU. Page 5 of 9 MTS Doc. No. G2222.0-19 a. By CITY: The CITY may terminate this MOU if MTS or its contractor materially breaches the terms and conditions set forth herein, and the CITY shall owe no payment to MTS or its contractor. If the CITY terminates this MOU, the CITY may require MTS to remove every transit shelter and/or bus bench in the public rights -of -way. The City may terminate this MOU without cause, by serving upon MTS written notice of termination of this MOU one hundred twenty (120) days in advance of said date of termination, and the CITY shall pay MTS the current value for every transit shelter or bus bench in the public right-of-way. The method of calculating the current value of a transit shelter or bus bench will be as follows: CURRENT VALUE = Transit Shelter/Bus Bench Unit Price Depreciation Period (in months) r Depreciation Period - Months in Service (in months) For purposes of calculating the current value the transit shelter or bus bench: • the unit price shall be the unit price listed in the contractor's financial plan submitted with the bid documents plus the installation costs of the bus bench or transit shelter; • the depreciation period for transit shelters and bus benches will be ninety-six (96) months; and • the number of months in service will be calculated from the date the transit shelter or bus bench is placed in service to the date of termination. b. By MTS: MTS may terminate this MOU without cause, by serving upon CITY written notice of termination of this MOU three hundred sixty five (365) days in advance of said date of termination. No later than the date of termination, MTS shall either (i) reach an agreement with CITY for CITY to take possession and ownership of the transit shelters and bus benches that remain installed within the CITY, or (ii) remove each and every transit shelter and bus bench and restore the sidewalk to a safe and usable condition. 11. Insurance. During the term of the MOU, MTS shall require its contractor, at no cost to the CITY, to maintain the following levels and types of insurance: a. Commercial general liability insurance for bodily injury (including death) and property damage, which provides total limits of not less than two million dollars ($2,000,000.00) combined single limit per occurrence and $4,000,000 aggregate. Coverages included shall be: Premises and operations; Page 6 of 9 MTS Doc. No. G2222.0-19 ii. Contractual liability expressly, including liability assumed under this MOU, with deletion of the exclusion as to performance of operations within the vicinity of any railroad bridge, trestle, track, roadbed, tunnel, underpass, and crossway; iii. Personal injury liability; iv. Independent contractors; and v. Cross -liability clause providing that the insurance applies separately to each insured except with respect to the limits of liability. vi. Such insurance shall include the following endorsement (copies of which shall be provided): (1) Inclusion of the CITY, its officers, agents, employees, and volunteers as additional insureds with respect to activities, services, or operations under this MOU; (2) Inclusion of MTS, and its subsidiaries, its officers, agents, and employees as additional insureds with respect to activities, services, or operations under this MOU; and (3) Stipulation that the contractor's insurance is primary insurance and that no insurance of the CITY or MTS 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 two million dollars ($2,000,000.00) combined single limit per occurrence applicable to all owned, nonowned, and hired vehicles. This policy shall name the CITY and its officers, agents, employees, and volunteers, as well as MTS and its subsidiary agencies, as additional insureds, and a separate additional insured endorsement shall be provided for each additional insured. c. Statutory workers' 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 MOU, including an insurer's waiver of subrogation in favor of both the CITY and MTS along with their directors, officers, representatives, agents, employees and volunteers d. MTS shall also provide CITY with satisfactory evidence of self-insurance that meets or exceeds the types and levels of insurance outlined above. 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 certified mail, return receipt requested, as follows: Page 7 of 9 To The CITY: Roberto Yano Director of Public Works / City Engineer City of National City 1243 National City Blvd National City, CA 91950 MTS Doc. No. G2222.0-19 To MTS: Paul C. Jablonski Chief Executive Officer Metropolitan Transit System 1255 Imperial Avenue, Suite 1000 San Diego, California 92101 Notices so mailed shall be deemed to have been given forty-eight (48) hours after the deposit of same in any United States Post Office mailbox. 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 effective. 12. Attorneys' Fees & Governing Law. If legal action be commenced to enforce or to declare the effect of any provisions of the MOU, the court as part of its judgment shall award reasonable attorneys' fees and costs to the prevailing party. This MOU shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. 13. Prevailing Wages. State prevailing wage rates may apply to work performed under this MOU. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771. MTS is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 14. No Waiver. The waiver by one (1) party of the performance of any covenant, condition, or promise shall not invalidate this MOU 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 required to be performed at a later time. The exercise of any remedy provided by law and the provisions of this MOU for any remedy shall not exclude other consistent remedies unless they are expressly excluded. 15. Severance. If any provision of this MOU is found to be unenforceable, the remainder of the provisions shall continue to be given full force and effect. 16. Amendments. No change in or addition to this MOU or any part hereof shall be valid unless in writing and properly authorized by the CITY and MTS. 17. Entire Agreement. This MOU supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. Page 8 of 9 MTS Doc. No. G2222.0-19 18. Construction. The parties acknowledge and agree that (I) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this MOU, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this MOU, (iv) each party and such parry's counsel and advisors have reviewed this MOU, (v) each party has agreed to enter into this MOU following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this MOU, or any portions hereof, or any amendments hereto. SAN DIEGO METROPOLITAN TRANSIT CITY OF NATIONAL TY SYSTEM Paul C. Jablonski Chief Executive Officer APPROVED AS TO FORM: Karen Landers General Counsel By: Ale. . d Title: Mayor APPROVED AS TO FORM: ,rgil P. City Page 9 of 9 RESOLUTION NO. 2020 - 94 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM (MTS) AND THE CITY OF NATIONAL CITY REGARDING BUS SHELTER AND BUS BENCH ADVERTISING WHEREAS, the San Diego Metropolitan Transit System ("MTS") is the statutorily designated public transit provider for the portion of San Diego County that includes the City of National City ("City"); and WHEREAS, MTS desires to enter into a ten (10) year Memorandum of Understanding ("MOU") with the City in order to install shelters and benches within the public -right-of-way at no cost to the City; and WHEREAS, the City had a previous MOU with MTS that expired in 2004; and WHEREAS, since then, MTS has continued to work with the City to install shelters and benches within the City's public -right-of-way; and WHEREAS, MTS desires to formally acknowledge their cooperative agreement regarding bus stop improvements within the City; and WHEREAS, the MOU provides the criteria for locating transit shelters and transit bus benches, among other things; and WHEREAS, the MOU also establishes the City as final authority to approve or deny the installation of any shelter or bus bench and remove or relocate any shelter or bus bench at no cost to the City; and WHEREAS, the advertising policy and permissible signage are regulated under the MTS Policy No. 21 titled "MTS revenue -generating display advertising, concessions, and merchandise" and that all maintenance for every shelter is the sole responsibility of MTS; and WHEREAS, the revenue generated from MTS advertising contracts is intended to fund the purchase of new transit shelters and benches as well as to fund services within MTS's jurisdiction; and WHEREAS, City Staff is recommending the Council to adopt the resolution authorizing the Mayor to execute the Memorandum of Understanding ("MOU") between the San Diego Metropolitan Transit System ("MTS") and the City of National City regarding bus shelter and bus bench advertising. /// /// /// /// Resolution No. 2020 — 94 Page Two NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a ten (10) year Memorandum of Understanding ("MOU") between the San Diego Metropolitan Transit System ("MTS") and the City of National City regarding bus shelter and bus bench advertising. PASSED and ADOPTED this 19th day of May, 202 Alejandra Sotelo-Solis, Mayor ATTEST: Mi /1City Clerk c el R. Dalla APPROVED AS TO FORM: ngil ?. .rris-Jones Cam.•" ttorney Passed and adopted by the Council of the City of National City, California, on May 19, 2020 by the following vote, to -wit: Ayes: Councilmembers Cano, Morrison, Quintero, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2020-94 of the City of National City, California, passed and adopted by the Council of said City on May 19, 2020. City Clerk of the City of National City, California By: CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT d2O20- a-5- MEETING DATE: May 19, 2020 AGENDA ITEM NO. 8 I 1 EM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Memorandum Of Understanding (MOU) between the San Diego Metropolitan Transit System (MTS) and the City of National City regarding bus shelter and bus bench advertising. PREPARED BY: Luca Zappiello, Assistant Engineer - Civil PHONE: 619-336-4360 EXPLANATION: See attached. DEPARTMENT: Engine- in. J' ubl; Works APPROVED BY: JANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution authorizing the Mayor to execute an MOU between MTS and the City of National City BOARD / COMMISSION RECOMMENDATION: N/A —TACHMENTS: 1. Explanation 2. Memorandum Of Understanding (MOU) 3. Resolution iet-dok-bd-N 71 426.20- f EXPLANATION The San Diego Metropolitan Transit System (MTS) is the statutorily designated public transit provider for the portion of San Diego County that includes the City of National City (City). MTS desires to enter into a 10 year Memorandum Of Understanding (MOU) with the City of National City (City) in order to install shelters and benches within the public - right -of -way at no cost to the City. It should be noted that the City had a previous MOU with MTS that expired in 2004. Since then, MTS has continued to work with the City to install shelters and benches within the City's public -right-of-way. Attached is an exhibit illustrating MTS bus stops within National City, followed by two tables identifying MTS ' owned bus shelters and benches. At this time, MTS desires to formally acknowledge their cooperative agreement regarding bus stop improvements within the City. This new MOU provides the criteria for locating transit shelters and transit bus benches, among other things. It also establishes the City as final authority to approve or deny the installation of any shelter or bus bench and remove or relocate any shelter or bus bench at no cost to the City. The advertising policy and permissible signage are regulated under the MTS Policy No. 21 titled "MTS revenue -generating display advertising, concessions, and merchandise" (see attachment "A"). All maintenance for every shelter is the sole responsibility of MTS. The revenue generated from MTS advertising contracts is intended to fund the purchase of new transit shelters and benches as well as to fund services within MTS's jurisdiction. Staff recommends Council adopt the resolution authorizing the Mayor to execute the MOU between MTS and the City of National City. -1- City of National City MTS Stops MTS Routes MTS Bus Stop Amenities ielters City of National City 12503 48 National City Blvd. 2nd St 1 SE.NB NS 13 06 19/17 929 50142 49 National City Blvd 12th St 1 SEMIS NS 13' 06/19/17 932 50111 51 National City Blvd 13th St 1 SW SB.FS 13 06/19/17 932 50139 52 D Ave_ E 15th St (Morgan Towers; 1 NE.NB.FS 13' 10;08119 967 12133 54 Highland Ave. E 12th St (Wal-Mart) 1 S'W.SB-FS 13' 06128/17 929 50031 55 Plaza Blvd Highland Ave 1 SE,EB FS 13' 07117/17 962. 963 50031 280 Division St. Euclid Ave. 1 NW.WB.FS 13' 07/25/18 967 50194 654 D Ave 15th St (Boys & Girls Club) 1 N .SB.NS 13' 08/13/18 967 Total: 8 Benches STOP # STREET CROSS STREET CRNR CITY TYPE COUNT 99338 HIGHLAND AVE. 4TH ST NE NC METAL 1 50115 HIGHLAND AVE. 4TH ST NW NC METAL 1 50121 EUCLID AVE DIVISION ST NW NC METAL 1 59005 PLAZA BLVD EUCLID AVE. SW NC METAL 1 50085 PLAZA BLVD EUCLID AVE. NW NC METAL 1 50042 4TH ST EUCLID AVE. SE NC METAL 1 50042 4TH ST EUCLID AVE. SE NC METAL 1 50090 PLAZA BLVD HARBISON AV. NW NC METAL 1 50095 D AV. E 8TH ST. NW NC METAL 1 11714 NATIONAL CITY BL. 3RD ST. NW NC METAL 1 11714 NATIONAL CITY BL. 3RD ST. NW NC METAL 1 50001 PLAZA BLVD D AV. SW NC METAL 1 60507 NATIONAL CITY BL. 7TH ST. NE NC METAL 1 60280 NATIONAL CITY BL. W. 8TH ST. SW NC METAL 1 60280 NATIONAL CITY BL. W. 8TH ST. SW NC METAL 1 50051 MILE OF CARS WY HOOVER AVE. NE NC METAL 1 50003 PLAZA BLVD HIGHLAND AV. SS NC METAL 1 50003 PLAZA BLVD HIGHLAND AV. SS NC METAL 1 50035 PLAZA BLVD L AVE SE NC METAL 1 50035 PLAZA BLVD L AVE SE NC METAL 1 -3- 50058 PLAZA BLVD. HIGHLAND AVE. NE NC METAL 1 11730 HIGHLAND AVE. 14TH ST SW NC METAL 1 12873 HIGHLAND AVE. 18TH ST NE NC METAL 1 11733 HIGHLAND AVE. 18TH ST NW NC METAL 1 99483 HIGHLAND AVE. 21ST ST NE NC METAL 1 99484 HIGHLAND AVE. 21ST ST SW NC METAL 1 99485 HIGHLAND AVE. 28TH ST SW NC METAL 1 12884 HIGHLAND AVE. 28TH ST NE NC METAL 1 50062 30TH ST HIGHLAND AVE. NW NC METAL 1 60073 NATIONAL CITY BL. 33RD ST. NE NC METAL 1 60073 NATIONAL CITY BL. 33RD ST. NE NC METAL 1 50080 D AV. 30TH ST. NE NC METAL 1 50080 D AV. 30TH ST. NE NC METAL 1 99418 NATIONAL CITY BL. 35TH ST SW NC METAL 1 50009 PLAZA BLVD PALM AV. SW NC METAL 1 50186 PLAZA BLVD. 1858 NW NC METAL 1 50082 18TH ST. NEWELL ST. NW NC METAL 1 50068 18TH ST. PALM AVE. NE NC METAL 1 99285 18TH ST. L AVE. NE NC METAL 1 50065 18TH ST. N AVE. NE NC METAL 1 50083 18TH ST. PROSPECT ST. NW NC METAL 1 50043 PLAZA BLVD GROVE ST SE NC METAL 1 50043 PLAZA BLVD GROVE ST SE NC METAL 1 50070 PLAZA BLVD. GROVE ST. NE NC METAL 1 50133 EUCLID AVE. RIDGEWAY DR. SW NC METAL 1 50063 PLAZA BLVD N AVE. NE NC METAL 1 99486 E. 8TH ST HIGHLAND AVE. NW NC METAL 1 99286 18TH ST. HIGHLAND AVE. NE NC METAL 1 99286 18TH ST. HIGHLAND AVE. NE NC METAL 1 99315 18TH ST. HIGHLAND AVE. SW NC CONCRETE 1 -4- 50084 SWEETWATER RD PROSPECT ST. NW NC METAL 1 50091 SWEETWATER RD VALLEY RD NW NC METAL 1 50093 SWEETWATER RD STOCKMAN ST NE NC METAL 1 50093 SWEETWATER RD STOCKMAN ST NE NC METAL 1 99338 HIGHLAND AVE. 4TH ST NE NC METAL 1 50115 HIGHLAND AVE. 4TH ST NW NC METAL 1 99306 4TH ST HIGHLAND AV NW NC CONCRETE 1 99276 PARADISE VALLEY RD PLAZA ENT SW NC METAL 1 99279 PARADISE VALLEY RD PLAZA ENT NW NC METAL 1 50190 PLAZA BLVD 2721 BLK NE NC METAL 1 50072 PLAZA BLVD EUCLID AVE. NE NC METAL 1 , 50132 EUCLID AVE E 24TH ST F-S/B NC METAL 1 50158 EUCLID AVE E 24TH ST F-N/B NC METAL 1 50127 EUCLID AVE 1ST ST SW NC METAL 1 50176 EUCLID AVE 1ST ST F-N/B NC METAL 1 99290 D AV. PLAZA BLVD NW NC METAL 1 50145 D AV. 4TH AVE SE NC METAL 1 Total: 67 -5- 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101-7490 (619) 231-1466 • FAX (619) 234-3407 / Metropolitan Transit System �.._1\\\\\0 Policies and Procedures No. 21 SUBJECT: Board Approval: 4/12/2018 PURPOSE: MTS REVENUE -GENERATING DISPLAY ADVERTISING, CONCESSIONS, AND MERCHANDISE To establish a policy and guidelines concerning a revenue -generating advertising, concessions, and merchandise program encompassing trolley stations, San Diego Metropolitan Transit System (MTS) property and facilities, and selected printed materials. Advertising on bus shelters and benches within the public rights -of -way shall be governed by the policies of the applicable jurisdiction. The City of San Diego policy is included as Attachment A. BACKGROUND: Public transit operators and administration agencies have historically utilized advertising, concessions, and merchandising programs to supplement operational and capital funds. A sound advertising and concessions program can be a viable, alternative income source while promoting transit use and ensuring rider convenience and safety. This policy advances the advertising program's revenue -generating objective while also prohibiting advertisements that could detract from that goal, such as by harming advertisement sales, reducing ridership or tarnishing's MTS's reputation. MTS's justifications for its advertising program and policy include: 1) Generating advertising revenue; 2) Increasing ridership by promoting MTS's services, programs and benefits; 3) Informing MTS riders of local, state or federal programs, services or benefits; 4) Preserving ridership by avoiding controversial content; 5) Preventing the risk of imposing controversial views on a captive audience; 6) Preserving the marketing potential of the advertising space by avoiding controversial content; 7) Maintaining a position of neutrality on matters of public debate; and 8) Reducing the risk of diversion of resources from transit operations that are caused by controversial content. 1255 Imperial Avenue, Suite 1000, San Diego, CA 92101-7490 • (619) 231-1466 • www.sdmts.com eoo Metropolitan Transit System (MTS) is a California public agency comprised of San Diego Transit Corp.. San Diego Trolley, Inc. and San Diego and Arizona Eastern Railway Company (nonprofit public benefit corporations). MTS is the taxicab administrator for seven cities. MTS member agencies include the cities of Chula Vista. Coronado, El CalorEoXE{r.`_,Bsl. L mcnAe, National City, Poway, San Diego, Santee, and the County of San Diego. -6- POLICY: It is the policy of MTS that advertising spaces on MTS property, which includes the exterior and interior of buses and light rail vehicles (LRVs), bus benches, bus shelters, related transportation facilities and selective printed materials, shall constitute a non- public forum subject to uniform viewpoint -neutral restrictions. This policy has been drafted to ensure a non-public forum status on its advertising spaces and MTS staff will accordingly enforce this policy with that intention. The following guidelines will be reviewed by staff to reflect the current policies of the MTS Board of Directors and to reflect changes in the trends of social and economic acceptance and appropriateness of various forms of advertising and concessions. 21.1 Advertising - Procedure 21.1.1 Safety, rider convenience, and information needs will take precedence over revenue generation. 21.1.2 Quantity, quality, and placement of all advertising will be controlled by and subject to the specific approval of MTS. 21.1.3 MTS reserves the right to reject any advertisement that does not meet the MTS Board of Director's standards as set forth in this policy. 21.1.4 Upon written demand by the Chief Executive Officer on stated grounds that shall be reasonable, any advertisement or other display deemed to be noncompliant with this policy shall immediately be removed. No refund shall be made for the time such objectionable material was on display. 21.1.5 MTS reserves the right to allow exceptions to the policy if MTS determines that application of the policy as written would likely be unconstitutional in any particular situation. 21.2 Advertising - Permitted Content The subject matter for all advertising materials displayed on MTS property shall be limited to Commercial Speech. Commercial Speech is speech that: does no more than propose a commercial transaction; or is an expression related solely to the economic interests of the speaker and its audience (e.g. promotes for sale, lease or other financial benefit a product, service, event or other property interest). Notwithstanding the above general rule requiring Commercial Speech, the following content are allowed: 21.2.1 MTS Operations Advertising that promotes MTS transit services, programs or products, including co -sponsorships with third parties that would increase ridership or otherwise support MTS's mission. 21.2.2 Public Service Advertisements from Local, State or Federal Governmental Agencies regarding public programs, public services and public events that are not otherwise prohibited under this Policy. EXHIBIT A -7- 21.3 Advertising — Prohibited Content No advertisement will be permitted that in whole or in part: a. intends to demean or disparage any individual, group, company, product or institution; b. contains false, deceptive or grossly misleading information; c. expresses or advocates an opinion, position or viewpoint on matters of public debate about economic, political, religious, social or moral issues; d. directly or indirectly refers to religion; e. is of a political or electoral nature; f. portrays, solicits or condones acts of violence, murder, sedition, terrorism, vandalism, or other unlawful acts against any individual, group, animal, company or institution; g. depicts nudity or portions of nudity that would be considered as pornographic, erotic or obscene. The rule of "public acceptance" should be used in such cases (i.e., if the advertisement has already gained public acceptance, then it may be considered as acceptable to MTS); h. contains messages or graphic representations of adult entertainment, such as escort services, adult telephone services, adult internet sites and other adult entertainment establishments; j. contains messages or graphic representations describing or suggesting explicit sexual acts, sexual organs, or excrement where such statements or words have as their purpose or effect of sexual arousal, gratification, or affront; promotes the use or ingestion of or offers in commerce the sale of alcohol, marijuana, tobacco, electronic smoking product or any other device that causes smoke, mist or vapor, firearms, or firearm -related products; k. condones any type of discrimination; contains profane language and/or appearance or suggestion of profane language; m. contains any material that is an infringement of copyright, trademark or service mark; n. implies or declares an endorsement of MTS of any service, product or point of view without written authorization from MTS; EXHIBIT A o. depicts unsafe transit behavior aboard buses, trolleys, rail line tracks or other transit facility; P. is reasonably foreseeable that it will result in harm to, disruption of, or interference with the normal operations of MTS's transportation system; q. conflicts with any applicable federal, state, or local law, statute, or ordinance; r. impedes vehicular or pedestrian traffic, restricts the visibility of directional/traffic signs and informational material, encroaches on necessary sight lines (e.g., driver/operator view of waiting patrons) or presents any other safety risks or hazards (e.g., flashing lights, sound makers, mirrors or other special effects); s. contains a website address or telephone number that directs visitors or callers to material that violates any of the prohibitions within this policy; or t. is mischaracterized as a commercial advertisement but upon examination is intended to distribute a non-commercial message. 21.4 Advertising — General Conditions 21.4.1 Advertising industry standard sizes will be used for all advertising treatments. 21.4.2 Advertising treatments will be maintained in "like -new" condition. Damage to the advertisement or its housing will be corrected within forty-eight (48) hours. 21.4.3 All advertisements shall clearly identify the sponsor(s). 21.5 Advertising - LRVs and Buses 21.5.1 LRVs and buses, may carry wrap advertising formats rather than conventional advertising formats, at the discretion of the Chief Executive Officer. 21.5.2 Transit information material may be placed inside LRVs and buses at the discretion of the Chief Executive Officer. Such information can include, in accordance with this policy, the promotion of regularly scheduled public transit routes that will serve major community events. The subject matter and proposed advertisement regarding such event must comply with the provisions set forth under this policy. 21.5.3 Super King and Mural formats are approved for acceptable use on buses. The size specification for the Super King is 226 inches x 30 inches and is placed between the front and rear wheel wells on the street side of the bus. Murals are defined as encompassing the space under the vehicle EXHIBIT A -9- passenger windows on each side of the bus and extending from the front of the bus to just past the rear wheel well. 21.6 Advertising - Transit Centers, Major Transit Points, Stations, and Stops 21.6.1 Advertising treatments (housings) will be designed to complement the architecture of the transit centers/stations and the flavor of the surrounding community. MTS plan specifications will be followed wherever applicable. Advertising treatments will be designed, constructed, and placed in accordance with all applicable local, state, and federal standards. 21.6.2 Any unsold display advertising space within transit centers, major transit points, and stations will be allocated for MTS related advertisements and displays. 21.7 Advertising - Printed Materials 21.7.1 Advertising space may be allowed in printed materials (e.g., timetables, maps, and informational brochures) at the discretion of the Chief Executive Officer. 21.7.2 Advertising space may be allowed on the reverse side of regional passes, tickets, and transfers at the discretion of the Chief Executive Officer. 21.7.3 No advertising space shall supersede necessary transit information and/or regulations. 21.7.4 At the discretion of the Chief Executive Officer, MTS may allocate space in printed materials to inform transit customers about private entities actively participating in transit services (e.g., pass and ticket -sales outlets). 21.8 Concessions 21.8.1 Concession formats, quantity, and placement will be approved and controlled by the MTS Board of Directors. 21.8.2 Contracts for any concession format or related development will be awarded in accordance with existing MTS policies. 21.8.3 During hours of business, concessionaires will provide the public with transit information materials as directed and supplied by MTS or its designated representative. 21.8.4 Concession treatments/structures will be designed to complement the architecture of the transit centers/stations and the flavor of the surrounding community. MTS plan specifications will be followed wherever applicable. Concession treatments/structures will be designed, constructed, and placed in accordance with all applicable local, state, and federal standards. EXHIBIT A 21.9 21.8.5 Concession treatments/structures will not impede vehicular or pedestrian traffic, will not restrict the visibility of directional signs and informational materials, and will not encroach on necessary sight lines. 21.8.6 Concessionaire contracts will include remittance to MTS on a monthly basis. 21.8.7 Any and all concession on -site signing and displays will be in accordance with existing MTS policies and subject to approval of the Chief Executive Officer. Merchandise 21.9.1 Any and all system -related merchandise will be of the highest available quality and project a positive transit image. 21.9.2 Merchandise licensing agreements and royalty payments will be made in accordance with existing MTS policies. 21.10 Revenue All revenue received from any form of advertising shall be accrued according to MTS policy and allocated during the annual budget process. 21.11 Contractor Services MTS may engage contractor(s) services for the development, implementation, management, and maintenance of advertising, concessions, and/or merchandise programs in conformance with existing MTS Board of Directors policies and in the best interests of MTS. Attachment A — City of San Diego Advertising Policy Original Policy ap Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on Policy revised on proved on 5/9/1983. 6/6/1985. 7/9/1987. 6/23/1988. 3/22/1990. 3/14/1991. 4/9/1992. 5/12/1994. 8/11/1994. 6/22/1995. 3/27/1997. 6/11/1998. 2/22/2001 2/26/2004. 12/10/2009. 6/18/2015 1/18/2018 4/12/2018 EXHIBIT A -11- Subject: Background: Purpose: Policy: ATTACHMENT A MTS POLICY NO. 21 CITY OF SAN DIEGO ADVERTISING POLICY ADVERTISING ON BUS STOP SHELTERS AND BENCHES The City of San Diego (City) entered into a Memorandum of Understanding (MOU) with the Metropolitan Transit Development Board (MTS), adopted July 25, 1988, and amended February 25, 1991, and June 21, 1999, authorizing MTS to install bus stop shelters and bus benches in public rights -of -way in the City. Pursuant to the MOU, MTS contracted with third parties for the construction, installation, and maintenance of the bus stop shelters and benches. In exchange, MTS's contractors receive the proceeds from the sale of advertising space on the shelters and benches. MTS regulated the content of the advertising placed on the bus stop shelters and benches according to its Policies and Procedures No. 21. After advertising containing a religious message was removed pursuant to that policy, valid concerns were raised that the policy may violate due process and first amendment rights governing public speech. It is the intent of the City Council to establish a policy governing advertising on bus stop shelters and benches in the public rights -of -way within the City that will be included by amendment in the MOU between the City and MTS, and administered by MTS. It is the further intent of the City Council to prohibit advertising on bus stop shelters and benches of alcoholic beverages, tobacco products, and firearms in recognition of the fact that many public transit patrons are minors, that possession of these products by minors is illegal and dangerous, and that advertising is a persuasive medium for encouraging the use of these products by minors. This policy applies only to advertising space located in designated areas on bus stop shelters and benches, as described in the MOU between the City and MTS. Advertising on Bus Stop Shelters and Benches: 1. In its agreement with its advertising contractors, MTS shall reserve the right to reject any advertisement, commercial or noncommercial, which does not meet the standards set forth in this policy. 2. All advertising posted on bus stop shelters and benches must conform to the following criteria: EXHIBIT A -12- A. Defamatory Advertising. No advertising will be permitted that falsely disparages any person, product, or company, or that is likely to damage the reputation of any person, product, or company. B. Advertising Condoning Criminal Conduct. No advertising will be permitted that is likely to incite or produce imminent unlawful activity. C. Obscene Advertising. No advertising will be permitted that contains obscene matter or matter harmful to minors, as defined in California Penal Code Sections 311 and 313. D. False Advertising. No advertisement will be permitted that contains false or grossly misleading information. E. Alcohol, Tobacco, and Firearms. No advertisement will be permitted that promotes the sale of alcoholic beverages, tobacco or tobacco products, or firearms. F. Existing Laws. All advertisements must conform to applicable federal, state, and local laws. 3. The City may make demand upon the Chief Executive Officer of MTS for the removal of any advertisement, commercial or noncommercial, that does not conform to this policy. Such demand shall be in writing and shall state reasonable grounds for the demand. MTS shall consider and act upon the demand in accordance with this policy. EXHIBIT A MTS Doc. No. G2222.0-19 MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE CITY OF NATIONAL CITY AND THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM REGARDING BUS SHELTER AND BUS BENCH ADVERTISING This MOU, dated , 2020, is entered into by and between the CITY OF NATIONAL CITY (CITY), a municipal corporation, and the SAN DIEGO METROPOLITAN TRANSIT SYSTEM (MTS), a public entity (also known as San Diego Metropolitan Transit Development Board or MTDB). RECITALS A. MTS is the statutorily designated public transit provider for the portion of San Diego County that includes the CITY, as set forth in Public Utilities Code section 120000, et seq.; MTS and CITY are authorized by Public Utilities Code section 120268 to enter into cooperative agreements to establish uniform policies and procedures governing the use of bus passenger loading zones and establishing responsibility and standards for the maintenance of bus loading zones and any associated improvements; C. MTS and CITY had a Memorandum of Understanding (MTS Doc. No. 00-89-535) dated April 11, 1989 (1989 MOU), which expired in 2004, in which the CITY gave MTS the exclusive authority to install, or cause to be installed, transit shelters within the public right-of-way of the CITY; D. Notwithstanding the expiration of the 1989 MOU, in order to improve transit amenities for its passengers, including CITY residents and visitors, MTS has continued to install, maintain and replace bus shelters at locations where ridership is sufficiently high; E. MTS has recently purchased new transit shelters with solar lighting and receptacles for trash and recycling; F. MTS has recently purchased new bus benches that will improve the streetscape of the CITY; G. MTS has a third -party contract for installation, maintenance and advertising at transit shelters throughout MTS's jurisdiction, including within CITY; H. MTS has a third -party contract for the maintenance and advertising at transit benches throughout MTS's jurisdiction, including within CITY; The revenue generated from the MTS advertising contracts is intended to fund the purchase of the new transit shelters and benches, as well as to fund continued transit services within MTS's jurisdiction, including the CITY; and J. MTS and CITY desire to enter into a new MOU to formally acknowledge their cooperative agreement regarding bus stop improvements within the CITY. Page 1 of 9 -14- MTS Doc. No. G2222.0-19 AGREEMENT NOW, THEREFORE, the CITY shall grant to MTS for the period of 10 years, the exclusive authority to install, or cause to be installed, transit shelters and benches within the public -right- of-way of the CITY, provided the following conditions are complied with by MTS: 1. Term. This MOU shall commence upon , 2020. MTS shall have the right to administer its transit shelter and bus bench programs from 2020 through , 2030. This MOU may be extended by mutual agreement by both parties. Any extension of this MOU must be approved in writing by the City Council. 2. Location Criteria for Transit Shelters and Transit Bus Benches a. Transit shelters and bus benches with advertising shall be permitted only in commercial, industrial or multifamily housing areas in CITY unless otherwise authorized by the City Manager. b. Transit shelters and bus benches without advertising shall be permitted in all areas where a MTS bus stop is located, so long as CITY has not exercised its authority under this MOU to reject a proposed transit shelter or bus bench location or to request the removal of an existing transit shelter or bus bench. c. As transit shelter and bus bench maintenance contracts depend on advertising revenue to be sustainable, CITY shall allow a ratio of at least 4-to-1 advertising to non - advertising shelters and benches. d. CITY, through the City Manager, shall have final authority to approve or deny the installation of any transit shelter or bus bench notwithstanding the fact that any proposed installation otherwise complies with the terms of this MOU; provided, however, that MTS shall not be required by CITY to install a transit shelter or bus bench at any specific location. e. MTS shall provide a list of existing locations of all bus benches and transit shelters to the CITY and notify the CITY whenever changes are made in the CITY. All new installations shall conform to the terms of this MOU. f. The CITY shall have the authority to cause a transit shelter or bus bench to be removed or relocated from any location at no cost to the CITY, upon making written demand to MTS for such removal. g. There shall be no other criteria used for the placement of advertising shelters or benches. 3. Advertising Policy and Permissible Signage Page 2 of 9 -15- MTS Doc. No. G2222.0-19 a. Transit shelter advertising is typically limited to two advertising panels that do not exceed four feet in width and six feet in height. Other permissible advertising includes digital advertising and "wrap" materials that are applied to the shelter structure. b. All advertising shall comply with MTS Policy No. 21 titled "MTS REVENUE - GENERATING DISPLAY ADVERTISING, CONCESSIONS, AND MERCHANDISE," attached as Exhibit A, which may be revised from time -to -time by the MTS Board of Directors. c. The CITY may request that MTS exercise its right to remove any advertisement, commercial, or noncommercial that does not conform to MTS Policy No. 21. Such demand shall be in writing and state reasonable grounds for the demand. Within thirty days' receipt of such demand, MTS shall consider and act upon the demand in accordance with the policy and legal requirements. Within thirty days of such consideration and action, if MTS fails to remove the Subject Material, MTS shall provide the CITY a written response identifying all reasons why the Subject Material was not removed. 4. Maintenance a. MTS, through its Contractors, shall be responsible for providing ongoing maintenance for every transit shelter or bench which it caused to be installed and currently exists in the public right-of-way. b. Transit shelters and bus benches shall be maintained in a state of good repair throughout the life of this MOU, and such services shall include, but not be limited to, refurbishing, reconditioning, and replacing worn or damaged transit shelters or bus benches if necessary. c. Routine inspections and trash removal shall be performed. d. Transit shelters and bus benches shall be repaired or replaced within 48 hours of notification to MTS of any damage, vandalism, or graffiti found on any transit shelter or bus bench. 5. Notices. MTS shall use its best efforts to notify the underlying property owners, as indicated on the most recent tax assessor's rolls, and building occupants that a new transit shelter or bus bench with or without advertising is proposed to be installed within 100 feet of their property in the public right-of-way prior to any transit shelter installation. Such notice will not be required if a shelter or bus bench currently exists and is simply being replaced by a new shelter or bus bench unless it is significantly modified. 6. Permits. MTS's contractor will be required to comply with all rules, regulations, and laws of the CITY and any applicable state or federal laws. All traffic control shall be per the San Diego Regional Standard Drawings and the California Manual on Uniform Traffic Control Devices, Latest Edition. Page 3of9 -16- MTS Doc. No. G2222.0-19 7. Electrification. MTS's contractor will secure all electrical permits necessary for the installation of new shelters. Solar -powered shelters shall not require any permit, MTS's contractor shall assume all costs associated with lighting and powering transit shelters. 8. CITY and Private Furniture a. Notwithstanding that the CITY has granted to MTS the exclusive authority to install bus benches and transit shelters within the public right-of-way in the CITY, MTS agrees to allow the CITY to authorize others to place transit shelters, benches and appurtenances in the public right-of-way conditioned upon those shelters, benches, and appurtenances being placed in such locations as the CITY and MTS may agree to from time to time. Process. Private entities authorized to install transit shelters, benches, and appurtenances pursuant to this amendment will be required to provide the design, construction, and maintenance for the shelter and bench. Installation will be permitted through a CITY encroachment permit process. The location of the shelters or benches shall conform to the MTS Design Standard Guidelines. MTS will provide the plan review for comment, but will not be responsible or liable for design, construction, or maintenance of the transit shelters or benches that are not installed as part of its existing shelter or bench contract. ii. Indemnity. The CITY undertakes and agrees to defend, indemnify, and hold harmless MTS and any and all of MTS's officers, agents, employees, assigns, and successors in interest from and against all suits and causes of action, claims, losses, demands, and expenses including, but not limited to: attorney's fees and costs of litigation, damage or liability of any nature whatsoever for death or injury to any person including CITY employees and agents, or damage or destruction of any property of either party hereto or any third person in any section on the part of the CITY or its permitted private entities whether or not contributed to by an act or omission whether passive, active, or otherwise except for the sole negligence of MTS or any of MTS's officers, agents, and employees, in which case MTS shall hold the CITY harmless. Advertising. Advertising on the CITY's shelters or benches shall be solely for the purpose of announcing events of noncommercial nature taking place at an adjacent public facility owned or operated by the private entity authorized to install the shelter or bench and shall not be used for posting schedules of public meetings at the facility. Advertising space shall not be leased to any third party. Acknowledgement of sponsorship shall be permitted within the space reserved for advertising posters. All advertising posted on the shelters and benches must conform to the advertising criteria set forth in Section 2 of this MOU. MTS may make demand upon the CITY for the removal of any advertisement that does not conform to the aforementioned advertising criteria. Such demand shall be in writing and shall state reasonable grounds for the demand. The CITY shall consider and act upon the demand in accordance with those advertising criteria. Page 4 of 9 -17- MTS Doc. No. G2222.0-19 Advertising display panels shall be configured in such a way to be similar to MTS's shelters and benches. Advertising display panels shall be no greater in size than those used in MTS's shelters and benches. MTS shall be given first - right -of -refusal to utilize one advertising panel in each shelter for the purpose of posting transit information. iv. Insurance. The CITY shall require any permitted private entity to maintain insurance to same extent required of MTS pursuant to this Memorandum of Understanding. v. Maintenance. For pre-existing and future benches, shelters, trash receptacles, and other bus stop infrastructure and amenities not installed by MTS: MTS does not assume any responsibility in this MOU for repairs, maintenance, cleaning, installation, replacement, removal, trash and recycling service, graffiti abatement, painting, or any other work not agreed to elsewhere. MTS will not be responsible for damage caused by furniture and amenities installed by the City or others (apart from MTS and/or its designees), nor for the restoration of the area to City standard from any condition caused by the installation, damage, repair, or removal of any such infrastructure. MTS shall maintain responsibility for all work related to the bus stop pole (if any), bus stop blade, and any MTS-provided information or amenities attached to the bus stop pole, including installation, repair, replacement, removal, cleaning, and graffiti abatement. MTS shall be responsible for MTS-provided and installed benches and shelters as specified in this MOU. 9. Indemnity & Hold Harmless. MTS undertakes and agrees to defend, indemnify, and hold harmless the CITY and any and all of the CITY's officers, agents, employees, volunteers, assigns, and successors in interest from and against all suits and causes of actions, claims, loss, demands, expenses, including, but not limited to, attorneys' fees and costs of litigation, damage or liability. or any nature whatsoever, for death or injury to any person, including MTS'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 MOU on the part of MTS, except for active negligence of the CITY or any of the City's officers, agents, contractors or employees, in which case the CITY shall hold MTS harmless and MTS shall have no obligation to defend and indemnify the CITY or its officers, agents, employees, volunteers, assigns or successors. CITY will cooperate reasonably in the defense of any action, and MTS shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this MOU for any alleged or actual omission, act, or negligence under this MOU that occurred during the term of this MOU. 10. Termination of this MOU. Page 5 of 9 -18- MTS Doc. No. G2222.0-19 a. By CITY: The CITY may terminate this MOU if MTS or its contractor materially breaches the terms and conditions set forth herein, and the CITY shall owe no payment to MTS or its contractor. If the CITY terminates this MOU, the CITY may require MTS to remove every transit shelter and/or bus bench in the public rights -of -way. The City may terminate this MOU without cause, by serving upon MTS written notice of termination of this MOU one hundred twenty (120) days in advance of said date of termination, and the CITY shall pay MTS the current value for every transit shelter or bus bench in the public right-of-way. The method of calculating the current value of a transit shelter or bus bench will be as follows: CURRENT VALUE = Transit Shelter/Bus Bench Unit Price Depreciation Period (in months) Depreciation Period - Months in Service (in months) For purposes of calculating the current value the transit shelter or bus bench: • the unit price shall be the unit price listed in the contractor's financial plan submitted with the bid documents plus the installation costs of the bus bench or transit shelter; • the depreciation period for transit shelters and bus benches will be ninety-six (96) months; and • the number of months in service will be calculated from the date the transit shelter or bus bench is placed in service to the date of termination. b. By MTS: MTS may terminate this MOU without cause, by serving upon CITY written notice of termination of this MOU three hundred sixty five (365) days in advance of said date of termination. No later than the date of termination, MTS shall either (i) reach an agreement with CITY for CITY to take possession and ownership of the transit shelters and bus benches that remain installed within the CITY, or (ii) remove each and every transit shelter and bus bench and restore the sidewalk to a safe and usable condition. 11. Insurance. During the term of the MOU, MTS shall require its contractor, at no cost to the CITY, to maintain the following levels and types of insurance: a. Commercial general liability insurance for bodily injury (including death) and property damage, which provides total limits of not less than two million dollars ($2,000,000.00) combined single limit per occurrence and $4,000,000 aggregate. Coverages included shall be: Premises and operations; Page 6 of 9 -19- MTS Doc. No. G2222.0-19 ii. Contractual liability expressly, including liability assumed under this MOU, with deletion of the exclusion as to performance of operations within the vicinity of any railroad bridge, trestle, track, roadbed, tunnel, underpass, and crossway; iii. Personal injury liability; iv. Independent contractors; and v. Cross -liability clause providing that the insurance applies separately to each insured except with respect to the limits of liability. vi. Such insurance shall include the following endorsement (copies of which shall be provided): (1) Inclusion of the CITY, its officers, agents, employees, and volunteers as additional insureds with respect to activities, services, or operations under this MOU; (2) Inclusion of MTS, and its subsidiaries, its officers, agents, and employees as additional insureds with respect to activities, services, or operations under this MOU; and (3) Stipulation that the contractor's insurance is primary insurance and that no insurance of the CITY or MTS 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 two million dollars ($2,000,000.00) combined single limit per occurrence applicable to all owned, nonowned, and hired vehicles. This policy shall name the CITY and its officers, agents, employees, and volunteers, as well as MTS and its subsidiary agencies, as additional insureds, and a separate additional insured endorsement shall be provided for each additional insured. c. Statutory workers' 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 MOU, including an insurer's waiver of subrogation in favor of both the CITY and MTS along with their directors, officers, representatives, agents, employees and volunteers d. MTS shall also provide CITY with satisfactory evidence of self-insurance that meets or exceeds the types and levels of insurance outlined above. 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 certified mail, return receipt requested, as follows: Page7of9 -20- To The CITY: Roberto Yano Director of Public Works / City Engineer City of National City 1243 National City Blvd National City, CA 91950 MTS Doc. No. G2222.0-19 To MTS: Paul C. Jablonski Chief Executive Officer Metropolitan Transit System 1255 Imperial Avenue, Suite 1000 San Diego, California 92101 Notices so mailed shall be deemed to have been given forty-eight (48) hours after the deposit of same in any United States Post Office mailbox. 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 effective. 12. Attorneys' Fees & Governing Law. If legal action be commenced to enforce or to declare the effect of any provisions of the MOU, the court as part of its judgment shall award reasonable attorneys' fees and costs to the prevailing party. This MOU shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. 13. Prevailing Wages. State prevailing wage rates may apply to work performed under this MOU. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771. MTS is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 14. No Waiver. The waiver by one (1) party of the performance of any covenant, condition, or promise shall not invalidate this MOU 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 required to be performed at a later time. The exercise of any remedy provided by law and the provisions of this MOU for any remedy shall not exclude other consistent remedies unless they are expressly excluded. 15. Severance. If any provision of this MOU is found to be unenforceable, the remainder of the provisions shall continue to be given full force and effect. 16. Amendments. No change in or addition to this MOU or any part hereof shall be valid unless in writing and properly authorized by the CITY and MTS. 17. Entire Agreement. This MOU supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. Page 8 of 9 -21- MTS Doc. No. G2222.0-19 18. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this MOU, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this MOU, (iv) each party and such party's counsel and advisors have reviewed this MOU, (v) each party has agreed to enter into this MOU following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this MOU, or any portions hereof, or any amendments hereto. SAN DIEGO METROPOLITAN TRANSIT SYSTEM Paul C. Jablonski Chief Executive Officer APPROVED AS TO FORM: (M,1 ((/(iL Karen Landers General Counsel CITY OF NATIONAL CITY By: Alejandra Sotelo-Solis Title: Mayor APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney Page 9 of 9 -22- RESOLUTION NO. 2020 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM (MTS) AND THE CITY OF NATIONAL CITY REGARDING BUS SHELTER AND BUS BENCH ADVERTISING WHEREAS, The San Diego Metropolitan Transit System ("MIS") is the statutorily designated public transit provider for the portion of San Diego County that includes the City of National City (City); and WHEREAS, MTS desires to enter into a ten (10) year Memorandum of Understanding ("MOU") with the City of National City ("City") in order to install shelters and benches within the public -right-of-way at no cost to the City; and WHEREAS, the City had a previous MOU with MTS that expired in 2004; and WHEREAS, since then, MTS has continued to work with the City to install shelters and benches within the City's public -right-of-way; and WHEREAS, MTS desires to formally acknowledge their cooperative agreement regarding bus stop improvements within the City; and WHEREAS, the MOU provides the criteria for locating transit shelters and transit bus benches, among other things; and WHEREAS, It also establishes the City as final authority to approve or deny the installation of any shelter or bus bench and remove or relocate any shelter or bus bench at no cost to the City; and WHEREAS, the advertising policy and permissible signage are regulated under the MTS Policy No. 21 titled "MTS revenue -generating display advertising, concessions, and merchandise" and that all maintenance for every shelter is the sole responsibility of MTS; and WHEREAS, the revenue generated from MTS advertising contracts is intended to fund the purchase of new transit shelters and benches as well as to fund services within MTS's jurisdiction; and WHEREAS, City Staff is recommending the Council to adopt the resolution authorizing the Mayor to execute the Memorandum of Understanding (MOU) between the San Diego Metropolitan Transit System ("MTS") and the City of National City regarding bus shelter and bus bench advertising. /// /// /// /// Resolution No. 2020 — Page Two NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a ten (10) year Memorandum of Understanding ("MOU") between the San Diego Metropolitan Transit System ("MTS") and the City of National City regarding bus shelter and bus bench advertising. PASSED and ADOPTED this 19th day of May, 2020. Alejandra Sotelo-Solis, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney CONTRACT TRANSMITTAL FORM (Attach as Cover Sheet to Documents dropped off to City Clerk's Office) Date: From (Dept.): (To relc/Pi Submitted by (First & Last Name): ..(1 p� / )-h 2 f n, Vendor: 7�5 Resolution: YE / NO 0 Resolution No. (if applicable): a0 PO- 9 y 2 3 4 Originals Provided to City Clerk (Select Quantity) 000 Department has Copy / Duplicate Original Vendor has Copy / Duplicate Original