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HomeMy WebLinkAbout12 BUS SHELTER ADV 07-06-99NO. 12 7-6-99 DATE: JULY 6, 1999 !nter-Com TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT APPROVAL OF AMENDMENT #1 TO THE BUS BENCH AND ADVERTISING SHELTER FRANCHISE AGREEMENT WITH E1 J~ER MEDIA COMPANY RECOMMENDATION It is recommended that the City Council approve Amendment #1 to the Bus Bench and Advertising Shelter Franchise Agreement with Eller Media Company. FISCAL IMPACT The approval of this amendment will result in a reduction of annual" Base Concession Fee" revenue from $66,000 to $52,500. BACKGROUND The City Council approved an exclusive Franchise Agreement with Eller Media Company in November 1995 to provide bus benches and bus shelters for transit customers. The agreement called for the installation of forty-four (44) advertising bus shelters, four (4) non-advertising bus shelters and thirty-five (35) bus benches at various locations in the City. The agreement with Eller Media specified: 1) a five year term that started only when the original 44 advertising shelters were installed; 2) that Eller Media pay a monthly base concession fee of $125 to the City for each advertising shelter placed in the City plus 1% of the gross advertising revenue; 3) a performance period for the installation of all shelters and benches, and; 4) that Eller Media pay to the City $132,000 as a two-year advance payment of base concession fees for placement of 44 advertising bus shelters. The advance payment covered the period from January 1996 through December 1997. During that timeframe, only 25 of the anticipated 44 shelters were installed due to siting problems. All installations occurred after November of 1996. Prior to shelter installation, while performing site level review of the locations idemified in the agreement, staff and Eller Media discovered that the Orange County Transportation Authority (OCTA) was completing a county-wide survey of bus stops to determine the level of compliance with the Americans with Disabilities Act (ADA). OCTA had developed new bus stop siting guidelines that substantially narrowed the list of available sites for shelters and benches. Based on these guidelines, OCTA reviewed bus stop locations and eliminated or relocated several bus stops that were identified in the original agreement with Eller Media. Resistance was also encountered from several local businesses that opposed the placement of bus shelters in front of their storefronts or offices. Those sites where a conflict existed with a local business were also eliminated from the list. Of the 44 advertising bus shelters identified in the original agreement, only 28 sites were determined to be suitable by Staff and Eller Media. Staff and Eller Media identified 7 additional suitable sites, bringing the total installed advertising shelters to 35. These issues have delayed or prevented the installation of the original number of the benches and shelters identified in the agreement and have resulted in several compliance issues. The identified issues and proposed resolutions are identified below: ISSUE The number of advertising shelters to be installed per the agreement (44) does not reflect the number of available sites. The calculation formula for base concession fees is unclear. Agreement start date currently starts when all shelters and benches are installed. Eller disputes the amount of fees currently due to the City due to installation delays (Lump sum of $132,000 paid when contract began). RESOLUTION Lower advertising shelters from 44 to 35 and allow increases and decreases by mutual agreemem. Use momh-by-momh basis and refer to the actual dates of shelter installation. Fix start date effective June 1, 1999 and retain ability to renew twice for two years each. The $132,000 advance will be applied to cover the period from January 1996 to June 1,1999. Eller is required to pay $52,500 now. Annual ~payments of $52,500 or an adjusted amount are thereafter due June 1 of each year. Staff and Eller Media have agreed that these provisions in the current agreement must be corrected in order to assure that Eller Media is in compliance with all provisions in the agreement and assure that the City is properly compensated. The City attorney has reviewed and approved the proposed amendment. Tim D. Seflet Public Works Director TDS:JM:Eller Media Agmt Amendment.doc J~l~eyers Senior Management Analyst, Public Works AMENDMENT Itl TO AN AGREEMENT BETWEEN THE CITY OF TUSTIN AND ELLER MEDIA COMPANY TO CONSTRUCT AND MAINTAIN BUS SHELTERS AND BENCHES WITHIN THE CITY OF TUSTIN, CALIFORNIA This Amendment #1 (the "Amendmem") to the Agreemem to Construct and Maintain Bus Shelters and Benches within the City of Tustin, California dated November 20, 1995 (the "Agreemem") is made and entered into by and between the City Of TUSTIN, a municipal corporation (hereinafter "City"), and ELLER MEDIA COMPANY, a Delaware corporation, (hereinafter the "Contractor"), to be effective as of the 1 st day of June, 1999. RECITALS 1. The parties to this Amendment heretofore entered imo the Agreement with the intent to provide seating accommodations for public transit patrons. o The parties have determined that the Agreement requires an amendment to A) establish a fixed date to start the contract term; B) adjust downward the number of advertising shelters to be installed; C) to revise the payment terms for the base advertising shelter concession fees; and D) to make other corrections consistent with the issues identified above. AGREEMENT For and in consideration of the mutual promises and covenants contained herein and other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereby agree that the Agreement is hereby amended in the following particulars only: 1. Section 1.2, is amended in its entirety to read as follows: 1.2 City will permit Contractor to construct a minimum of thirty-five (35) advertising shelters initially, with increases or decreases in the number of shelters permitted by mutual consent during the term of the Agreement. Contractor shall install and maintain four (4) non- advertising bus shelters and thirty-five (35) non-advertising benches as a condition of this Grant of Right by the City. Contractor shall also maintain seven (7) existing City owned shelters in the Old Tustin area and perform trash pickup at a maximum of fifteen (15) bus stop locations to be identified by the City. 2. Section 2.1 is amended in its entirety to read as follows: 2.1 The term of the Agreemem shall be for a period of five(5) years, commencing on the first day of June 1999. 3. Section 3.1 is amended in its entirety to read as follows: 3.1 Base Concession Fee. The Contractor shall pay to the City annually a base concession fee equivalent to the sum derived from the following calculation: ($125 per advertising shelter X the number of months a shelter is installed)X the total number of advertising shelters installed. The Contractor shall pay the base concession fee 'to the City each year in advance or before the anniversary date of the approval of this agreement (June 1). If; at any time, the City and the Contractor agree to add or remove advertising shelters, then the base concession fee shall be adjusted for payment on a monthly basis of $125 per each advertising shelter for each shelter over or under the ~ny-five (35) advertising shelters required by this agreement. Said adjustments to the base concession fee shall become due and payable on the 25th day of the month immediately following the first month during which the advertising shelters are constructed or removed in the City. A Statement of Account identif~g each shelter location, installation date and a calculation demonstrating the method utilized to determine the required base concession fee, shall support all Base Concession Fee payments from Contractor to City. 5. In Section 5.1, in the first line beginning with the word "approvals", the word "forty- four (44)"is replaced with "thirty-five (35)" 6. In Section 5.1, in the first line beginning with the word "sidewalks", the words "in Exhibit A" are removed 7. In Section 5.1, in the first line beginning with the word "sidewalks", the words "of the type" are removed. 8. In Section 5.1, in the first line beginning with the word "specified", the word "specified'' is removed 9. Section 6.1 is amended in its entirety to read as follows: 6.1. The location of each shelter and bench shall be specifically approved by the City. The City will require design review and the issuance of building and encroachments permits for any locations selected subsequent to the initial issuance of any permits or other City approvals. 10. Exhibit A is deleted in its entirety from the Agreement. 11. In consideration of the changes identified above in items 1- 10, the Contractor shall pay the City the amount of $52,500 on or before July 15, 1999. 12. This amendment supercedes any and all other agreements, either oral or written, between the parties as to the subject matter herein, except that unless specifically amended by this amendment, all provisions of the Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first shown above. City of Tustin CONTRACTOR: Eller Media Company Mayor of the City of Tustin By: Title: Date Dated: ATTEST: City Clerk [NOTARY REQUIRED] APPROVED AS TO FORM: Lois Jeffrey City Attorney Dated STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS On ,19 , before me personally appeared proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to within the instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his authorized capacity, and that by his signature on the instrument the person, or the entity upon the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal.