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HomeMy WebLinkAbout17 BUS SHELTERS 06-20-94AG E N NO. 17 6-20- Inter-Com DATE: JUNE 20, 1994 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION SUBJEC~ APPROVAL OF REQUESTS FOR PROPOSALS FOR ADVERTISING BUS SHELTERS AND RESPONSE TO COMMENTS (P.W. FILE NO. 1092) RECOMMENDATION It is recommended that the City Council authorize staff t° advertise and circulate the Request for Proposals (RFP)for bus shelters with advertising in the City of Tustin. FISCAL IMPACT The advertising bus shelters program has potential as a revenue source for' the City. The RFP requires submittal of a base franchise fee to be paid per shelter, as well as a percentage franchise fee for advertising sold and displayed at each shelter. The actual amount of revenue generated will be dependent upon the number of shelters, the franchise fee, advertising sales, and the market. Installation and maintenance of the shelters will be the responsibility of the selected franchisee(s), thus there will be no impact on the City. BACKGROUND ]%ND DISCUSSION -When the Tustin Sign Code was amended in 1991, a section was included regarding advertising display bus shelter signs. Specifically, Section 9404 a(1) (b) states that advertising display bus shelters may only 'be placed within the public right-of-way under a franchise agreement or other contractual agreement. Further, this section of the Sign Code states that the Planning Commission and City Engineer shall review and recommend to the City Council the appropriate locations, design, and construction details for all advertising bus shelters. A Request for Proposals (RFP) for advertising display bus shelters has been drafted and has been reviewed and approved by the Planning Commission. Attached is the final draft RFP recommended for City Council approval. The RFP is divided into five sections: Section I "Request to Franchise Proposals"; Section II "Instructions to Proposers"; Section III Evaluation Criteria and Selection Process"; Section IV "General Specifications ; Section V "Shelter Design and Construction Specifications". At their April 3, 1994 meeting, the City Council requested a report responding to questions raised by a perspective proposer. The following are his concerns as well as concerns expressed by other vendors, followed by staff's response: lw Guaranteed franchise fee of $150.00 per month, per shelter (Section IV(H), page IV-5). When drafting the RFP, staff surveyed several Orange County cities with contracts for advertising bus shelters. The range between the amounts varied from a low-end of $40/monthly per shelter (City of Westminster, contract year' 1989) to a high-end at the City of Newport Beach of $182/mon%~ly per shelter (Newport Beach has a tiered contract, signed in 1990, with the first year at $155/monthly per shelter increasing yearly to the rate of $182/monthly per shelter). Most oJ.the cities' contracts include provisions for a percentage of advertising gross revenue in lieu of the base per shelter fee, whichever is greater. These percentages range anywhere from ten percent (10% - City of Westminster) to twenty-two percent (22% - City of Fullerto~, which also has a tiered system). The majority were in the 15-20% range. While the $150 is at the high-end of the range, it should be noted that many of the contracts were entered into three.to six years ago. Exhibit A details the results of the City's survey. Comments have been. made by potential proposers that the fee provisions as written will encourage imprudent vendors who would take a chance that the fee would be negotiated lower during the contract preparation stage of the process. This concern is unfounded in that all proposals must meet the minimum requirements as set forth in the RFP. If any provisions are to be modified all proposers must be given fair opportunity to respond. When drafting the RFP, it was staff's intent to develop a program that would maximize the revenue potential of a bus shelter program. Based upon our research and through conversations with representatives from other cities, staff felt that although its a unique provision, providing for a guaranteed monthly base shelter fee of $150 per shelter, as well as a percentage of the gross revenue, was not unreasonable. 2. Exclusivity The RFP purposely does not commit the City to an exclusive contract. In order to allow for creativity in developing an advertising bus shelter program in the best interest of the City, it is staff's opinion that committing at this time' to an exclusive agreement would limit the City's ability to negotiate a program tailored to meet the needs of our community. 3. Term (Section III(D), page III-2) Section III(D) has been amended to provide clearer language regarding the intended term of the franchise agreement. The following sentences have been added: "The duration of any agreement shall be for a period of five (5) years. At the end of five (5) years, the City Council may extend the agreement for an additional year for each year that the franchisee has complied with all the terms and provisions of the contract, for a maximum of five (5) additional years, unless terminated earlier, pursuant to other contract provisions." . . ~-. 4. Proposal Guarantee of $500.00 (Section I1 (C) (6) (R), page I1-5) The inclusion of the $500.00 proposal guarantee is intended to recuperate a portion of the City's costs associated with the review of the proposals. The review team will include the Assistant City Manager, Director of Public Works, Engineering Services Manager, Field Services Manager, City Attorney and a senior level Administrative Assistant. It is anticipated that there will be a minimum of three proposals to be reviewed. When calculating the hourly rates of the above individuals, inclusive of administrative overhead and benefits, the cost (calculated at one to two hours review time for each proposal) exceeds the $500.00. 5. Advance of $5,000.00 (Section II(C) (6) (m), page II-5) The proposer(s) selected by the City to enter into franchise negotiations shall be required.to deliver to the City an advance of funds in the amount of $5,000.00. This advance is to be placed by the proposer with the City and can be drawn upon by the City to cover expenses associated with the negotiations. Again, there will be a significant investment of staff time, including the City Manager, Assistant City Manager, Director of Public Works, City Attorney and a senior level Administrative Assistant. The $5,000.00 is to be drawn upon to recover the staff costs associated with the negotiations. Upon successful completion of negotiations, the advance is applied towards the franchise fee. If negotiations are not successful, funds not expended will be refunded. By including this provision, the City will insure that negotiations are entered into in good faith, that they are handled in a professional and timely manner, and ultimately avoid lengthy arduous negotiations. 6. Shelter Ownership (Section IV(Y), page IV-13) In the RFP there is a provision granting ownership of all shelters to the City upon expiration or cancellation of the term of the franchise agreement. The intent of the provision is to protect the City's interest. The same provision also enables the City to demand removal of the shelters and restoration of the public improvements at the franchisee's cost. This provision allows the City to evaluate the overall success of the program and provides us with the ability to eliminate or modify the program should we find that the needs of the community are not being met. The City of Westminster has a similar provision in which the ownership of the shelters reverts to the City at the end of the term of the contract (ten years), unless the contract is extended. The cities of Brea and Laguna Niguel both have provisions in their franchise agreements for City ownership of the benches (non- advertising) and trash receptacles at the end of the contract term, after the shelters themselves are removed. 7. Bonds (Section IV(F), page IV-3) The RFP requires a performance bond in an amount of one hundred percent (100%) of the cost for the construction to be performed. It has been presented by one of the proposers that the performance bonds should only be required for that amount of construction that is undertaken at anytime. This is the intent of the performance bond as presently required, to protect the City by insuring that the project will be fully.implemented and~._hat all shelters will be constructed. This provisions eliminates tgTethreat of only partial completion of the bus shelter capital improvement program. 8. Advance Payment of Franchise Fees (Section IV(H), page IV-5) The RFP requires that the guaranteed base monthly franchise fee of $150.00 per shelter be paid in advance annually. The Cities of Buena Park and Brea also require payment of the contract minimum per shelter in advance. Costa Mesa requires an advance payment annually of $70,000.00 to be applied towards the monthly guaranteed amounts. The City of Laguna Niguel's contract required a one time advance "permit fee" payment of $20,000.00. The Cities of Westminster and Stanton contracts mandate payments of the minimum. fees twice annually (january and June). The advertising revenue franchise fee is to be paid quarterly, separate from the guaranteed based monthly franchise fee. This is a common practice and is included in several other cities' contracts, including the Cities of Fullerton, Laguna Niguel and Cypress. There is also a security deposit in the amount of the first year's franchise fee (Section IV(T)) that shall serve as security for faithful performance of the franchise agreement requirements and which may be applied towards mitigation of damages arising from a breach of the agreement. This includes delinquent or non-payments, maintenance deficiencies, and/or loss of revenue to the City caused by the neglect or fault of the franchisee. · Number of Shelters and Design Criteria (Section V(D) and (F), pages V-2 and 3) The RFP does not set forth the number of shelters to be installed, nor does it present any design criteria. Rather, as previously indicated, it was staff's intent to provide for flexibility, to create a program that best meets the needs of the City of Tustin. Section V(D) does discuss shelter site selection and details the criteria when selecting locations, including ridership demands and right-of-way requirements. 10. Advertising (Section IV(P), page IV-9) One potential proposer has indicated his concern regarding the practicality of the City staff to inspect the ad copy prior to installation. Section IV(P) allows the City to request that the franchisee transmit color copies of any or all advertisements proposed to be placed in the shelters for review. While the same section does enable the City to demand removal of improper, offensive, or distracting advertisements, the purpose of this provision is to eliminate the potential for controversial ad displays. With similar concerns,~inmind the City of Cypress has a comparable section in their contract and the City of Mission Viejo requires advance submittal of a list of advertisers and acceptable subject matter. 11. Public Service Messages (Section Iv(Q), page IV-10) The RFP currently requires the franchisee to display a public service announcement twice a year for ten days at each shelter location. One vendor has indicated that the City should bear the cost of the public service ad copy and print and deliver it to the vendor. Staff feels that the provision as written is not unreasonable and should not constitute a significant burden on the franchisee.. Similar requirements are included in the contracts in the Cities of Orange (10 ads a year, paid for by the franchisee), Laguna Niguel ($4,000.00 in public service advertisements), .and Brea ($1,000.00 per shelter to be applied towards public service advertisements). 12. Tustin Ranch Exclusion Zone (Section V(C), page The RFP specifically excludes the Tustin Ranch area. Subdivision tract, map approvals in East Tustin require installation and maintenance by the property owner(s) of shelters and benches. Concerns have also been expressed by the merchants of Old Town Tustin regarding the aesthetics of the bus shelters in conjunction with the historical appearance of the preserved downtown area. Staff recommends expanding the exclusion zone to include the Cultural Resources District, also. Should the City Council approve this recommendation, the RFP will be revised to reflect the exclusion zone expansion. 13. Negotiation Language A concern was expressed that the language in the RFP does not preclude the possibility of simultaneous negotiations with multiple vendors. As stated above in #2, it is staff's intent to develop a program that best suits the needs of the community. We would like to reserve the right to negotiate with more than one vendor in order to maximize the benefit to the City and develop a program tailored to meet the needs of Tustin. With this in mind, staff is not comfortable with committing to an exclusive negotiation nor an exclusive agreement at this time. 14. Review Committee The RFP Review Committee will include the City Manager, Assistant City Manager, Director of Public Works, Field Services Manager, City Attorney, Public Works Administrative Assistant, and a Planning Commissioner. Staff has also received an inquiry from a citizen who has suggested that a representative from the community be involved in the review process. CONCLUSION At this time staff is requesting that the City Council approve the RFP and authorize staff to advertise. Robert S. Ledendecker Director of Public Works/ City Engineer K~t~~ ~i~c~er - - - Administrative Assistant II A~achmcat "EXHIBIT A" Advertising Bus Shelter Franchise Fees Orange County City $ to City Anaheim Brea Buena Park Costa Mesa Cypress Fountain Valley Fullerton Garden Grove Huntington Beach Laguna Hills Laguna Niguel Lake Forest Los Alamitos Mission Viejo Newport Beach Orange Orange County Santa Ana Seal Beach Stanton Westminster $105 $ 76 $123 $ 95 $ 76 $ 95 $1o5 $ 75 $ o $ 75 $135 $ 75 $1o5 $ 75 $182 $125 $ 75 $ 83 $135 $ 50 $ 70 % to City 17.5% 10.0% 21.3% 18.0% 16.2% 10.0% 22.0% O.O% 10.0% 0.0% 18.0% 0.0% 20.0% O.O% O.O% 2.5% O.O% 0.O% 20.1% 10.0% 10.0% Date Name Address City, State Re: REQUEST FOR FRANCHISE PROPOSALS TO FURNISH AND MAINTAIN BUS SHELTERS WITH BUS BENCHES IN THE CITY OF TUSTIN (P.W. FILE NO. 3.092) Dear · This letter represents an invitation for your company to submit a proposal to the City of Tustin for the construction, installation, and maintenance of bus shelters(with advertising) complete with bus benches (without advertising) at approved locations throughout the City of Tustin, at no cost to the City, and with payment of a fee to the 'City under a franchise agreement. The proposals reCeived will be evaluated for selection of a company to be allowed franchise rights to provide advertising bus shelters with non-advertising benches within the City. If your firm is interested in submitting a proposal for the construction, installation, and maintenance of bus shelters with benches in the City of Tustin, it must be received by 5:00 p.m. Friday, July__, 1994 at the City of Tustin Department of Public Works/Engineering Division, 300 Centennial Way, Tustin, California, 92680. Please note that six (6) copies of your proposal are required to be submitted. Should you require additional information or 'have any questions regarding this Request for Proposal, please contact Katie Pitcher of my staff at (714) 573-3173. Very Truly Yours, Robert S. Ledendecker Director of Public Works/City Engineer cc: William Huston, City Manager Christine Shingleton, Assistant City Manager James Rourke, City Attorney REQ~T FOR FRANCHISE PROPOSALS TO FURNISH AND INSTALL BUS SHELTERS WITH BENCHES IN THE CITY OF TUSTIN REQUEST FOR FRANCHISE PROPOSALS TO FURNISH AND INSTALL BUS SHELTERS WITH BENCHES IN THE CITY OF TUSTIN TABLE OF CONTENTS Section Description Pa~e I. II. Request for Franchise Proposals A. Purpose B. Background C. Scope of Proposals , 2. 3. 4. 5. Request for Proposals Process Public Records Act RFP Package Representations Special Provisions Instructions to Proposers A. Responsiveness to Request for Proposal B. Qualifications C. Proposal Contents 1. Proposal Form 2. Statement of Personal History 3. Affidavit to Accompany Proposals 4. Authorization to Release Information 5. Equal Employment Opportunity Certification 6. Special Information a, g. h. i. j. k. 1. m. Financial Statement General Business Statement Business References Financial References Franchise Fees Cash Flow Analysis and Pro Forma Subcontractor Information Preliminary Design Sketch Capital Improvement Program Maintenance Preparation of Proposals Proposal Guarantee Advance I-1 I-1 I-1 I-1 I-1 I-1 I-2 I-2 I-3 II-1 II-1 II-1 II-1 II-1 II-1 II-1 II-1 II-1 II-1 II-1 II-2 II-2 II-2 II-2 II-3 II-3 II-3 II-3 II-3 II-4 II-5 II-5 TC-1 Section Description Pace II. III. IV. V. Instructions to Proposers (continued) n. Submission of Proposals o. Deadline for Receipt of Proposals Evaluation Criteria and Selection Process A. Selection Process B. Evaluation Criteria C. Evaluation Process D. Approval of Contract General Specifications h. B. C. D. E. F. G. H. I. J. K. L. M.' N. O. P. Q. R. S. T. U. V. W. X. Y. Z. Award of Franchise Performance Schedule Force Majeure Shelter and Bench Maintenance and Repair Specifications Insurance Bonds ' Hold Harmless Payment to City Accounting Records Operating Responsibilities Contract Work Hours and Safety Act Non-Discrimination and Civil Rights Compliance Equal Opportunity Employment Licenses and Permits Electrical Service Advertising Public Service Messages Changed Locations Independent Contractor Security Deposit Construction by City Affecting Bus Shelters Transfers Cancellation Right of Remedy/Entry Surrender Franchisee's Non-Compliance and Liquidated Damages Shelter Design and Construction Specifications A. Specifications B. Shelter Design Drawings II-6 II-6 III-1 III-1 III-1 III-2 III-2 IV-1 IV-1 IV-1 IV-2 IV-2 IV-3 IV-3 IV-5 IV-5 IV-5 IV-7 IV-8 IV-8 IV-9 IV-9 IV-9 IV-9 IV-10 IV-10 IV-10 IV-10 IV-11 IV-11 IV-12 IV-13 IV-13 IV-13 V-1 V-1 V-1 TC-2 Section Description V, Shelter Design and Construction Specifications (continued) C. D. E. F. G. H. I. Shelter Location Design Drawings Shelter Site Selection Site Relocation Shelter Design Specifications Shelter Signage Shelter Construction Specifications Bus Benches V-1 V-2 V-2 V-3 V-5 V-5 V-6 Attachment A Excluded Areas TC-3 SECTION I REQUEST FOR FRANCHISE PROPOSAI~ REOUEST FOR FRANCHISE PROPOSALS A® Purpose The City of Tustin is requesting proposals from qualified firms to provide advertising bus shelters with non-advertising benches throughout the City. The purpose of the bus shelter program is to provide transit patrons shelter and seating out of the direct sun and other elements while awaiting their bus. Be Background Since the Orange County Transit Authority (OCTA) does not provide shelters for its patrons, the City of Tustin determined that implementing a shelter program would provide the City with significant public benefits. Thus, the city of Tustin Sign Code was amended allowing fOr advertising bus shelters at approved locations throughout the City, subject to certain conditions. Co Scope of Proposals 1. Request for Proposals Process The City, at its sole discretion, may reject any or all proposals submitted in response to this RFP. The City shall not be liable for any costs incurred in connection with the preparation and submittal of any proposal. In the event that the City accepts a proposal, a franchise agreement may be awarded to the proposer who has submitted the proposal deemed to be in the best interest of the City. Selection of the best proposal will be made on the basis of the criteria set forth in the RFP. The City reserves the right to negotiate the final terms of the agreement with one or more of the highest rated, responsive proposers. Proposers are cautioned that any response to this RFP shall not be considered a "bid" pursuant to the Public Contracts Code of the State of California. Subsequent to the advertisement and solicitation of proposals by the City, proposals shall be received and evaluated. Thereafter, a final franchise agreement may be recommended to the City Council for its approval. 2. Notice to Proposers Regarding Public Records Act Documents submitted in response to this RFP are subject to public disclosure as permitted by the California Public Records Act. Specifically, responses to this RFP I-1 become the exclusive property of the City of Tustin. At such time as the approval of a contract is recommended to the City Council, and suCh' recommendation appears on the Council's agenda, all proposals submitted in response to this RFP become a matter of public record and shall be regarded as such. Exceptions will be those elements in each proposal which are trade secrets as that term is defined in the California Government Code Section 6254.7 and which are so marked as "Trade Secret," "or "Proprietary" The City shall not, in "Confidential, · any way, be liable or responsible for the disclosure of any such records including, without limitation, those so marked if disclosure is deemed to be required by law or by order of a court of competent jurisdiction. Proposers who, indiscriminately and without justification, identify all or most of their proposal as exempt from disclosure may be deemed unresponsive. · RFP Package An RFP package is available for public inspection at the Department of Public Works/Engineering Division, 300 Centennial Way, Tustin civic Center, Tustin, California, 92680. 4. Representations ae The City will not be bound by any representations that are not set forth in the RFP. be The proposer is responsible for making all necessary investigations and examinations of documents affecting performance. Failure to do so will not act to relieve any condition of the above documents. It is mutually agreed that the submission of a proposal shall be considered conclusive evidence that the proposer has made such investigations and examinations. Ce Any reasonable inquiry to determine the responsibility of a proposer may be conducted. The submission of a proposal shall constitute consent by the proposer to promptly supply information in connection with such inquiry, including, but not limited to, information regarding past performance, financial stability, and ability to perform on schedule. A failure to promptly supply such information may be grounds for a determination of non-responsibility of a proposer, and disqualification from further consideration. de The proposer may withdraw its proposal at any time prior to the date and time which is set forth I-2 ee fe herein as the deadline for acceptance of proposals, upon written request for same. Ail proposals shall be firm offers and may not be withdrawn for a period of one hundred twenty (120) days following the date set to receive proposals. The City reserves the right to consider a late proposal. However, should that happen, all timely, responsive respondents shall also be given an additional period of time equivalent to the late submittal within which to supplement and/or modify the proposals that were submitted on time. · Special Provisions In addition, proposers are required to respond to special provisions identified in Instruction to Proposers. I-3 SECTION' II INSTRUCTIONS TO PROPOSERS INSTRUCTIONS TO PROPOSERS ae B® Co Proposals deemed responsive to the Request for Proposal (RFP) must be made according to the specifications set forth in this section, both for content and sequence. Any proposal failing to comply with said specifications shall be deemed to be unresponsive and shall be subject to rejection by the City. Qualifications Each proposer shall possess the following qualifications in responding to this RFP: le Must have a minimum of five (5) years of experience within the last ten (10) years in providing advertising bus shelters under a contract and/or franchise agreement with a governmental agency or other entity. Preference will be given to those proposers with specific experience with governmental agencies. · Must possess a satisfactory complete past record in operation and maintenance of advertising bus shelters as verified and supported by references or other jurisdictions. The RFP must contain the following information: 1. Proposal Form (page II-7) 2 Statement of Personal History (page II-S) 3. Affidavit to Accompany Proposals (page II-9) 4. Authorization to Release Information (page II-10) 5. Equal Employment Opportunity Certification (page II-11) · Special Information a. Financial Statemen~ A full detailed and audited presentation of the true'condition, including the last fiscal year, of the proposer's assets, liabilities, and net worth. The report must include a balance sheet and income statement. If the proposer is a partnership or a joint venture, individual financial statements must be submitted for each general partner or joint venture partner thereof. In the event funds are to be borrowed to finance any portion of the total inveStment, a Letter of II-1 be Ce de ee Intent from the bank or other financial institution, must be attached, indicating the minimum amount'S'Which will be loaned and any applicable percentage rate. The Letter of Intent may contain the qualification that the loan will only be consummated upon award of a contract to the proposer. General Business Statement A statement of all of proposer's important business activities. This statement should emphasize experience in operation and maintenance of advertising bus shelters similar to those specified herein. In the event that the proposer has provided such services on a contractual or franchise basis to a public agency or to a private entity, the proposer shall submit the name, address, and telephone number of such clientele, a brief description of the services provided and other pertinent data and the person in said agency responsible for administration ~of the franchise agreement or contract. In addition, the proposer must identify any such franchise agreements and/or contracts that-, within the last five (5) years, have been canceled or not renewed. Business References A minimum of five (5) business references, including names, addresses, telephone numbers, and the nature and magnitude of the business association in each instance. These references must be persons or firms with whom you have transacted business during the past five (5) years. Financial References A minimum of five (5) financial references, including names, addresses, and telephone numbers in each instance. It is required that at least two (2) of the five (5) references be banks or savings and loan institutions, and that the type of relationship be indicated; e.g., checking accounts, savings accounts, real estate loans, or construction loans. Franchise Fees The proposed franchise fee is to be paid per shelter and shall include a guaranteed base monthly franchise fee amount of one hundred fifty dollars ($150.00) per shelter. This base franchise fee per shelter shall be paid in advance annually. II-2 A franchise fee payment of advertising percentage fees shall be made at least quarterly and shall be supported by a Statement of Accounts, as detailed in the General Specifications Section H (page IV- 5). f. Cash Flow Analysis and Pro Forma An analysis of the proposer's evaluation of the projected ability of the subject bus shelters and advertising to provide sufficient revenue to recapture proposer's investment, cover operating expenses, service any debt, and provide a fair return. The analysis shall reflect the first five (5) years of operation and indicate the estimated annual revenue and operating expense figures. The Pro Forma shall also include: 1. A list of expected annual gross receipts. · A complete breakdown of anticipated operating expenses. · A list of anticipated funding sources for your proposal. g. Subcontractor Information Proposer shall provide a list of all subcontractors that may be used. h. Preliminary Design Sketch Submitted with the proposal shall be a preliminary plan sketch for a typical shelter, and a list of recommended locations. i. Capital Improvement Program Proposers shall identify the proposed number and their recommended locations for bus shelters to be installed and maintained. The plan should include a time schedule for construction and installation of the shelters by location, covering the first five (5) years. The City will consider a phased installation program. j. Maintenance Proposers shall submit a proposed maintenance, repair and replacement plan including facilities available for such maintenance, repair and replacement. Proposers shall identify the number of employees performing shelter maintenance. II-3 k. PreParation of Proposals lo The proposal shall be typewritten on 8%" x 11" white paper and bound in a secure manner. · If proposer wishes to submit material and data which is not specifically requested, do not include with proposal. This material must be included in an "Additional Data" section only. The following are examples of additional data: a® ce de Standard sales brochures and photographs. Promotional material with minimal technical content. Generalized narrative of supplementary information. Supplementary graphic materials. · If the proposal is submitted by an individual, it shall be signed with the full name and address of the proposer. If it is submitted by a partnership, it shall be signed with the partnership name and by an authorized general partner, and the full name and address of each general partner shall be given. If it is submitted by a joint venture it shall be signed with the full name and address of each partner thereof. If it is submitted by a corporation, it shall be signed by the president and secretary in the corporate name and the corporate seal shall be affixed in the place provided. In all cases, each signature must have the proper acknowledgement of execution attached to the Proposal Form. · When proposals submitted by corporations or partnerships are signed by an agent other than a corporate officer or a general partner, a power of attorney authorizing the signature must be submitted with the proposal; otherwise the proposal will be rejected as unauthorized and irregular. · If the proposal is submitted by a partnership or joint venture, the Statement of Personal History attached to the Proposal Form must be completed by each general partner or joint venturer thereof. If the proposal is submitted by a corporation, a Statement must be completed by each principal officer of said corporation. · More than one proposal from an individual, firm, partnership, corporation, joint venture, II-4 l® me or association under the same or different name will not be considered. · No telegraphic, telephonic, or faxed proposal, or modification to a proposal, will be accepted by the City. Proposal Guarantee Each proposer shall submit with its proposal either a cashier's check or a check certified by a responsible bank in the State of California in the amount of $500.00 made payable to the City of Tustin. This amount shall serve as a proposal fee and shall be non-refundable. No proposal will be considered unless it is accompanied by a cashier's or certified check in said amount. Deposit of such funds shall not guarantee that a franchise will be approved by the City. Advance The proposer(s) selected by the City to enter into franchise negotiations shall be required to deliver to the City an advance of funds in the amount of $5,000.00 in cash, or cashier's or certified check. Deposit of such .funds shall not guarantee that a franchise will be approved by'the City. The City shall have the right to draw down on and to spend whatever portion of the advance as necessary for expenses associated with franchise negotiations, including but not limited to, City staff time, consultant fees and outside legal counsel fees. The City shall maintain accurate documentation of such expenditures. This information shall be made available to the proposer upon request. The advance is the initial amount to be placed by the proposer with the City. In the event, during the franchise negotiation period, all of the initial amount of the advance is expended and the City reasonably believes additional funds are necessary to pay for costs associated with the proposed franchise, the City shall make a written request to the proposer for the funds to cover those additional expenses. No interest shall accrue or be due the proposer on this advance. Funds not expended will be refunded. II-5 n. Submission of Proposals 00 The original proposal and six (6) additional copies shall be submitted in a sealed envelope, plainly marked with the name, address, and telephone number of the proposer and bearing the words: "Franchise Proposal for Bus Shelters - City of Tustin" It is the sole responsibility of the proposer to see that the proposal is received before the submission deadline. The proposer shall .bear all risks associated with delays in the United States Mail. The City reserves the right to consider a late- proposal. However, all timely, responsive proposals shall be given an additional period of time, equivalent to the late submittal, within which to supplement and/or modify the proposals that were submitted on time. Deadline for Receipt of Proposals The proposal shall be received at the location indicated below: City of Tustin Public Works Department 300 Centennial Way Tustin, CA 92680 The date and time set for receipt of proposals is as follows: Friday, May __, 1994 5:00 p.m. II-6 PROPOSAI, FORM Name of Proposer (s) I propose to construct, install, and maintain bus shelters (with advertising) at approved locations throughout the City of Tustin as described in the following attachments: 2. 3. 4. · Minimum Qualifications Special Information Statement of Personal History Compliance with General Specifications and Shelter Design and Construction Specifications Affidavit Authorization to Release Information I have read the related information in this RFP and am familiar with the terms and conditions contained in the RFP and I meet the qualifications for submitting a proposal. I have enclosed a certified or cashier's check in the amount of $500.00, payable to the City of Tustin as a guarantee that I will enter into an agreement in the event that my proposal is accepted. The undersigned hereby respectfully submits this proposal, including all required documents and statements. (Indicate the form of business concern on the line above; i.e., corporation, individual, partnership, joint venture) (Indicate your position, title and/or function) Signature Address Area Code/Telephone Number WARNING: Proposals are subject to being rejected as non-responsive if this proposal form is not fully executed including the certificate of the notary and the notarial seal. II-7 STATEME OF PERSONAI. HISTORY lo · Legal Name: dba (if any): Residence Address: 3. Business Address: · · · · 8· · Telephone: Residence( ) Business ( ) Social Security Number: Driver's License Number and State: Have you or your spouse ever filed bankruptcy or been declared bankrupt? Yes~ No Have you ever been fired or asked to resign? Yes No . Have you, as an adult, ever been convicted, fined, placed on probation, given a suspended sentence in any court, or had any convictions expunged under Sections 1203.4 or 1203.4A of the Penal Code? Yes No 10. Have you, or any principal, ever had a bond or surety canceled or forfeited? Yes No~ NOTE: If you answered "Yes" to.any of the above questions, please~ explain: · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · I hereby certify that all statements made on or in connection with this Statement of Personal History are true to the best of my knowledge and belief, and I understand and agree that any misstatement or omission of material fact may cause forfeiture on my part of all rights to the proposed agreement to be awarded by the City of Tustin. Date: Signature: II-8 AFFIDA .£ TO ACCOMPANY PROPt.. AI STATE OF CALIFORNIA ) ) City of Tustin ) as and states: That he/she is : being first duly sworn, deposes (lns~ "sol~ Owner," partner," "president," "secre.4ary, "~r o~¢r prol~r title) (insert name of proposer/company) who submits herewith to the City of Tustin the attached proposal; Affiant deposes and states: That the proposal is genuine; that the same is not a sham or collusive; that all statements of fact therein are true; that such proposal was not made in the interest or behalf of any person, partnership, company, association, organization, or corporation not therein named or disclosed. Affiant deposes and states: That the proposer has not directly or indirectly by agreement, communication, or conference with anyone attempted to induce action prejudicial to the interest of the City of Tustin, or any other proposer, or anyone else interested in the proposed agreement; that the proposer has not in any manner sought by collusion to secure for himself, itself, or themselves, an advantage Over any other proposer. Affiant further disposes and states: (a) That none of our employees are employees of the City of Tustin, (b) That no City employee or City Council member serves as officers, principals, partners, or major shareholders of this proposer, (c) That we are not former City employees who have been employed by the City of Tustin in the twelve months immediately preceding the date of this affidavit in positions of substantial responsibility in the area of service to be provided by the proposed agreement, and that no such employees have taken part in the development of said proposed agreement or its service specifications, (d) That no person who has been employed by the City within the twelve months immediately preceding this affidavit serves as an officer, principal, partner, or major shareholder of this proposer. I understand and agree that any falsification in this affidavit will be grounds for rejection of this proposal or cancellation of any agreement awarded pursuant to this proposal. I certify under penalty of perjury under the laws of the State of California that the foregoing is correct and true. Signed: WARNING Signature Title PROPOSALS WILL NOT BE CONSIDERED UNLESS THE AFFIDAVIT HEREON IS FULLY EXECUTED INCLUDING THE CERTIFICATE OF THE NOTARY AND THE NOTARIAL SEAL. Dated II-9 CITY OF TUSTIN AUTHORIZATION TO RELEASE INFORMATION I hereby authorize the release of all financial and credit information and/or verification of employment to the City of Tustin as said items relate to my interest in securing an agreement with the City. This form may be reproduced or photocopied to be utilized as my consent to release financial and credit information or employment verification. Print Name Here Signed Date Financial Institution Applicable Account (s): (Number and Type) Financial Institution Applicable Account(s): (Number and Type) II-10 CERTIFICATION WITH REGARD TO THE PERFORMANCE OF PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO THE EQUAL EMPLOYMENT OPPORTUNITY CLAUSE AND THE FILING OF REQUIRED REPORTS The proposer ~, proposed subcontractor ~, hereby certifies that he/she has ~, has not , participated in a previous contract or subcontract subject to the equal opportunity clause, as required by Executive Orders 10925, 11114, or 11246, and that he/she has ~, has not ~, filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President's Committee on Equal Employment Opportunity, all reports due under the applicable filing requirements. (Company) By: (Title) Date: Note: The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor, 41 CFR 60-1.7(b)(1), and must be submitted by proposers and any subcontractors only in connection with contracts and subcontracts which are subject to the equal opportunity clause. Contracts and subcontracts which are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5. Generally only contracts or subcontracts of $10,000 or under are exempt. Currently, Standard Form 100 (EEO-l) is the only report required by the Executive Orders of their implementing regulations. Proposed prime contractors and subcontractors who have participated in a previous contract or subcontract subject to the Executive Orders and have not filed the required reports should note that 41CFR 60-1.7(I>)(1) prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the Federal Highway Administration or by the Director, Office of Federal Contract Compliance, U.S. Department of Labor. II-11 SECTION H! EVALUATION CRITERIA AND SELECTION PROCESS EVALUATION CRITERIA AND SELECTION PROCESS ae Be Selection Process The City of Tustin reserves the right to aCt as sole judge of the content of the proposals submitted for evaluation and selection. Evaluation Criteria Selection of the highest rated responsive proposals will be based upon the following considerations and criteria: 1. Proposer's Experience and Capability ae Proposer's demonstrated financial status and ability to finance the proposal submitted. 0 Proposer's demonstrated ability to provide for the operation of the proposal as submitted. C~ Proposer's verified current and past experience in similar contracts with other governmental agencies. .d. Proposer's verified history of compliance with obligations and responsibilities assumed for similar contractual or franchise operations. 2. Response to Instruction to Proposers 3. Capital Improvements a® The time schedule for construction and installation of shelters by location. 4. Payment of Concession ae The proposed amount of franchise fees to be paid to the City. 5. Advertising ae The variety and scope of the list of firms for which proposer has displayed advertising during the previous year. 6. Shelter a, Strength, quality, durability, and aesthetic appeal of proposed shelters, and adherence to Planning Commission set design details and guidelines for shelters. III-1 7. Maintenance, Repair and Replacement a® Proposed maintenance, repair, and replacement plans, including facilities available, contractor' s proximity to the City and number of contractor's employees performing maintenance. 8. Local Experience ae Additional consideration will be given to proposers who have demonstrated experience in the Southern California area. C. Evaluation Process The evaluation of the proposals will be conducted by an Evaluation Committee selected by the Assistant city Manager. The Committee may be generally comprised of City personnel, a representative from the City's Planning Commission, and may include experts from the private sector. In all cases, the Committee will have the appropriate experience in the conduct, administration, and evaluation of projects, proposals, lease agreements, construction contracts, and bid documents. In connection with its evaluation, the Committee may request interviews. During these interviews, the proposers will be allowed to present such evidence as may be appropriate in order that the Committee can correctly analyze all materials and documentation submitted as part of the proposals. The Committee will employ the applicable criteria and its expertise in evaluating all proposals, and thereafter, shall submit a report to the City Manager detailing a highest-to- lowest ranking of all responsiVe proposals. At his/her option, the Assistant City Manager may reject all proposals submitted, or direct his/her staff to enter into negotiations with one or more of the highest-rated responsive proposers. Such negotiations, utilizing the sample contract provided in the RFP as a base document, are intended to result in a final franchise agreement deemed in the best interest of the City. D. Approval of Contract Subsequent to the evaluation process, the Assistant City Manager will present his/her recommendation to the City Council for its approval of a franchise agreement. Such recommendation shall be presented at a regular meeting of the city Council, and as such, is subject to public review and comment. The duration of any agreement shall be for a period of five (5) years. At the end of five (5) years, the City Council may extend the agreement for an additional year for each year that the franchisee has complied with all the terms and provisions of the contract for a maximum of five additional years, unless terminated earlier, pursuant to other' contract provisions. III-2 CITY OF TUSTIN DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION GENERAL SPECIFICATIONS FOR FURNISHING AND MAINTAINING BUS SHELTERS WITH BENCHES IN THE CITY OF TUSTIN A. AWARD OF FRANCHISE Once they are received, all proposals shall be subjeCt to review and action (acceptance or rejection) by the City Council, with no obligation to award for a period not to exceed one hundred eighty (180) days from the date of receipt, unless an extension is authorized by the selected proposer. B. PERFORMANCE SCHEDULE - BUS SHELTER CAPITAL IMPROVEMENT PROGRAM · A Bus Shelter Capital Improvement Program shall be prepared by the franchisee and approved by the Assistant City Manager which shall indicate the description of each bus shelter improvement project and the projected time frame for commencement and completion of the improvement project. An exhibit will be attached to the Franchise Agreement and prepared by the City and Franchisee providing a list of the Initial Bus Shelter Capital Improvement Program for inclusion as part of the Franchisee's Bus Shelter Capital Improvement Program. Franchisee shall be entitled to modify the Initial Bus Shelter Capital Improvement Program prior to the end of the first year of the term of any Agreement. In addition to the Initial Bus Shelter Capital Improvement Program for the first four (4) years of any Agreement, the Franchisee will be required to submit to the City prior to the end of the first year of the term of any Agreement the Bus Shelter Capital Improvement Program for the bus shelter capital improvements to be commenced after completion of the Initial Bus Shelter Capital Improvements Program. The City shall notify the franchisee of the approval or rejection of said program within ninety (90) days following receipt of same. Prior to commencement of construction, the Franchisee shall obtain the written approval of all plans and specifications for the bus shelter improvements to be constructed. No modification of said plans, specifications, or improvements shall be made by the Franchisee without written approval thereof by the City. The Franchisee agrees that the City may have on site at any time during the construction improvement period an inspector. The Franchisee shall construct, perform, complete, and maintain all construction and installations covered by the Agreement in a good and workmanlike manner and with high quality materials, and shall furnish all tools, equipment, labor, and material necessary to IV-1 perform and to complete same. Upon completion of the improvements, Franchisee shall furnish the City with one (1) complete set of as- built construction drawings on mylar or its equivalent. Upon termination of any Franchise Agreement, whether by expiration of term or cancellation, Franchisee shall assign to City all express warranties furnished by other persons in connection with the provision of labor and/or material to the works of improvement covered by the Agreement. Upon review by and consultation with the City Attorney, the Franchisee shall provide such insurance coverage as the City reasonablY deems necessary for .the contemplated construction project. It is understood that the construction and/or improvements required by the RFP may at the discretion of the Franchisee be constructed in phases, each phase being separated from the other by a period of time to be mutually agreed upon by the Franchisee and the City. In no event shall the phasing of the construction required extend the completion beyond the date provided in the Initial Bus Shelter Capital 'Improvements Program as set forth in an exhibit to be included in a future Agreement. Should the required construction be phased , diligent prosecution shall require commencement of each phase on or before the date selected for commencement thereof. C. FORCE MAJEURE The time within which the Franchisee is obligated to commence and to complete construction of the shelters shall be extended for a period of time equal in duration to, and performance in the meantime shall be excused on account of and for, and during the period of, any delay caused by strikes, threats of strikes, lockouts, war, threats of war, insurrection, invasion, acts of God, calamities, violent action of the elements, fire action or regulation of any governmental agency, law or ordinance, or other things beyond the reasonable control of the Franchisee. The Extension of time for~any such cause shall only be for a period of time equivalent to the enforced delay. Franchisee's inability to obtain financing shall not be grounds for an extension of time. The City shall prepare and execute, and Franchisee shall execute, the appropriate document acknowledging any extension of time granted pursuant to this section. D. SHELTER AND BENCH MAINTENANCE AND REPAIR SPECIFICATIONS The Franchisee shall maintain, repair, clean, and service all shelters and benChes, keeping them, their appurtenances and the immediate surrounding areas in a safe, clean, attractive, and sanitary condition. The Franchisee shall enter upon and into shelters and benches between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, with personnel and all necessary equipment and materials to provide for the satisfactory maintenance, clean- up, and trash removal calls on each shelter at least twice each week, or more as deemed necessary by the City. Each shelter and bus bench shall be completely steam cleaned as needed, but not less than twice each year. IV-2 The Franchisee shall repair, remove or replace any damage, vandalism, or graffiti, including etching and other forms of graffiti and/or vandalism damage, within forty-eight (48) hours after having been found at the time of a routine maintenance call or upon notification by the City. If shelter or bench damage or vandalism is such that the public could be exposed to a dangerous situation while in or near the shelter or bench, the Franchisee shall repair or if necessary, remove the entire shelter or bench within twenty-four (24) hours of notification, and it shall be replaced and fully operation at the same location within five (5) working days after removal. The Franchisee shall furnish to the Director of Public Works a written monthly summary report of its shelter maintenance operations. All maintenance work and corrective actions shall be performed at the expense of the Franchisee. Franchisee's personnel, equipment,and/or vehicles shall not block automobile or bicycle travel lanes without proper warning signs and traffic delineation devices properly placed in accordance with City policies. E. INSURANCE The Franchisee shall obtain, at his/her sole cost, and keep in force, the following insurance coverage: i · Minimum two million dollars ($2,000,000) combined single limit public liability insurance for bodily injury and property damage. · Worker's Compensation Insurance in the statutory amount required by the State of California. Further,the Franchisee shall obtain any additional kinds and amounts of insurance which, in his/her own judgment, may be necessary for the proper protection in any of his/her own actions while in an agreement for services with the City. Said policy or policies shall be in a form approved by the City Attorney and shall name the City, the Tustin City Council, the Tustin Redevelopment Agency, its officers,agents, and employees as additional insured by an endorsement to the policy. Said endorsement shall provide that the City shall receive not less than thirty (30) days notice of cancellation of any coverage under which it is an additional insured. F. BONDS During any period of construction required or otherwise authorized, Franchisee shall provide a performance bond in an amount of not less than one hundred percent (100%) of the cost for the IV-3 construction to be performed, payable to the City of Tustin, and executed by a corporate surety authorized to conduct business as a surety in the State of California and acceptable to the City Attorney. The performance bond shall be deposited by the Franchisee with the city prior to the commencement of work on bus shelter capital improvement construction project. The condition of the bond shall be such that if the Franchisee completes the required construction specified herein in accordance with approved plans and specifications and receives approval for the final shelter from the City the surety shall no longer be bound thereon. Said bond shall be maintained in full force and effect by the Franchisee until said works of improvement have been accepted by the City Council. The bond payment shall also inure to the benefit all claimants, as said term is presently defined by SeCtion 3085 of the California Civil Code, or may hereafter be amended, so as to give such claimants a right of action to recover thereon in any suit brought to foreclose the liens provided for in Title 15 of Part 4, of Division 3 of the California Civil Code or in a separate suit brought upon the bond. The condition of the bond shall be such that if the .Franchisee shall well and truly pay, or cause to be paid, all claims for labor, materials, appliances, teams, or power have been paid, as evidenced by release of mechanics liens'by all claimants. The City Attorney may accept in lieu of the bonds heretofore described, the performance and payment bonds of corporations duly authorized to issue surety bonds by the State, naming as principal a licensed contractor employed by the Franchisee to construct works of improvement on the demised premises provided each bond is in an amount equal to the percentage hereinabove provided: names the city as an additional obligee; contains terms and conditions substantially similar to the requirements heretofore specified; and is satisfactory to the City Attorney as to sufficiency and liability of sureties named thereon. The City Attorney may also accept in lieu of the bonds heretofore described, the deposit and assignment to the City of investment certificates and shares of a savings and loan institution provided the deposits are in an amount equal to the face value of the bonds and comply with the requirements, conditions, and procedures prescribed for the assignment of such accounts by Tustin City Code. Franchisee shall have the option to deposit with the City cash or United States government securities in all respects satisfactory to the City Attorney in lieu of the surety obligations herein required. Said cash or securities shall be deemed deposited with the City to secure full and satisfactory performance of the principal obligations heretofore described for which surety is required, and shall be released upon satisfactory performance thereof, as evidenced by certification of completion by the City and release of mechanic's liens by all claimants. In lieu thereof, the Franchisee may deposit the required amount in a bank whose deposits are insured under the Federal Deposit Insurance Act IV-4 (12U.S.C. 1811 et. seq.) or a savings and loan institution whose deposits are insured under Title 4 of the National Housing Act (12 U.S.C. 1724 et. seq.), provided the account is made payable to the City on demand and the certificates of deposit are delivered to the City. Franchisee shall be entitled to all interest on the deposit and to return of the certificate of deposit upon satisfactory performance as heretofore defined. G. HOLD HARMLESS The Franchisee shall indemnify and save harmless the City of Tustin and all officers and employees thereof from all claims, suits, or actions of every name, kind, and description, brought for, or on account of, injuries to or death of any person including, but not limited to, workmen and the public, or damage to property resulting from the construction of the work or by or in consequence of any negligence regarding the work, use improper materials or equipment in construction of the work, neglect or refusal of the Franchisee to faithfully perform the work and all of the Franchisee's obligations under the Agreement, or by or on account of any act or omission by the Franchisee or his agents or a subcontractor or his' agents or a third party during the progress of the work or at any time before its completion and final acceptance, or which might arise in connection with the agreed upon work or is caused by or happening in connection with the progress of said work. The defense in indemnification by the Franchisee shall include all costs and expenditures including attorney's fees incurred by the City of Tustin or its employees, officers or agents with respect to such claim or suit and the Franchisee will, if requested by the City, defend any litigation arising out of such claims at the sole cost and expense of the Franchisee. H. FRANCHISE FEE - PAYMENT TO CITY Ail franchise fees due to the City shall include a guaranteed base monthly franchise fee in the amount of one hundred fifty dollars ($150.00) as identified in the Instructions to Proposers Section C(6) (e) (page II-2) and shall be paid in advance annually by January 31st. The franchise fee shall also include an advertising percentage fee which shall be made at least quarterly and shall be supported by a Statement of Accounts showing all shelter locations, the advertiser(s) at each location, and gross revenue received for each ad panel. Late payments will be subject to a ten percent (10%) penalty for each fifteen (15) days that payment is late. I. ACCOUNTING RECORDS Ail advertising sales shall be recorded and customer receipts issued. Franchisee shall be required to maintain a method of accounting, to the satisfaction of the City, which correctly and accurately IV-5 reflects the gross receipts and disbursements, construction costs, and construction financing of Franchisee in connection with installation, maintenance, and'~repair of shelter as well as advertising sales. The method of accounting, including bank accounts established for the authorized operations, shall be separate from the accounting system used for any other business operated by the Franchisee or for recording Franchisee's personal financial affairs. Such method shall include the keeping of the following documents: l® · · Regular books of accounting such as general ledgers. Journals including any supporting and underlying documents such as vouchers, checks, tickets, bank statements, etc. State and Federal income tax returns and sales tax returns and checks and other documents providing payment of sums shown which shall be kept in confidence by the City. Any other reporting records that the City Manager, Assistant City Manager, and/or Finance Director deem necessary for proper reporting of receipts. Ail documents, books and accounting records shall be open for inspection and reinspection at any reasonable time during the term of any franchise agreement and for four (4) years thereafter. In addition, the City may from time to time conduct an audit and a reaudit of the books and business conducted by Franchisee and observe the operation of the business so that. accuracy of the above records can be confirmed. All information obtained in connection with the City's inspection of records or audit shall be treated as confidential information and exempt from public disclosure thereof to the extent possible under law. In the event that an audit or review conducted by the City Manager, Assistant City Manager, and/or Finance Director, or authorized representatives (i.e., outside auditor) finds that due to Franchisee's non-compliance with its obligation to report gross receipts in connection with its operations authorized herein, an actual loss and /or projected loss of revenue to the City can be determined, the City may at its option: · · Bill the Franchisee for said losses, said amount to be paid to the city within thirty (30) days following billing thereafter unless otherwise extended by the city; and/or Assess liquidated damages. The parties agree that it will be impracticable' or extremely difficult to fix the extent of actual damages resulting from the failure of the Franchisee to correctly report gross receipts; and a projected loss of revenue due to the City. The parties will agree that under the current circumstances a reasonable estimate of such damages is $500.00 per day for each day of the loss period as determined by the City, and that the Franchisee shall be liable to the City for liquidated damages in said amount. IV-6 Should the City find that the additional franchise fee due to the City exceeds two percent (2%) of the total amount which should have been paid as determined by such review or audit and observation, and there being no reasonable basis for-the failure to report and pay thereon, Franchisee shall also pay the cost of the audit as determined by the City and pay any penalty heretofore provided for the delinquent payments. Franchisee shall furnish the City with a monthly gross receipts report showing the amount payable therefrom to the City. Such a report shall accompany each payment required to be made as provided herein. The monthly reporting period shall be by calendar month, rather than monthly anniversary date of the effective date of this Agreement. In addition thereto, the Franchisee shall furnish the City with a monthly profit and loss statement and an annual profit and loss statement and a balance sheet prepared by a person and in a form acceptable to the City. The monthly profit and loss statements shall be submitted with the franchise payment. The annual financial statement shall be submitted within sixty (60) days of the close of an Agreement year. Said closing date shall be determined by reference to the date for commencement of the term herein provided. J. OPERATING RESPONSIBILITIES Compliance with Laws Franchisee shall conform to and abide by all City and County ordinances, and all State and Federal laws and regulations, insofar as the same or any of them are applicable; and where permits and/or licenses are required hereunder and/or any construction authorized herein, the same must be first obtained from the regulatory agency having jurisdiction thereover. · Compliance with Rules and Requlations Franchisee shall conform to and abide by all rules and regulations of the City Council and the City Manager insofar as the same or any of them are applicable. Franchisee shall conform to the City's Drug free Workplace Policy. Failure to establish a program, notify employees, or inform the City of a drug related workplace conviction will constitute a material breach of the Agreement upon which the City may immediately terminate the Agreement. · Franchisee Staff and Employment Practices Franchisee shall maintain adequate staff. The City may at any time give written notice to the effect that the conduct or action of a designated employee of the franchisee is, in the reasonable belief of the City, detrimental to the interest of the public. Following the City's written notice therefor, Franchisee shall, at the City's discretion: IV-7 a® terminate such employee's work assignment within the public right-of-way; or Franchisee shall meet with representatives of the City to consider the appropriate course of action with respect to such matter and Franchisee shall take reasonable measures under the circumstances to assure the City that the conduct and activities of Franchisee's employee will not be detrimental to the interest of the public patronizing the premises. K. CONTRACT WORK HOURS AND SAFETY ACT Ail persons hired by the Franchisee shall be compensated at a rate not less than 1-1/2 times the workers' base pay rates for all work in excess of eight (8) hours a day of forty (40) hours a week. Further,no person will be required to work in surroundings that are unsanitary, hazardous, or dangerous, as determined under the standards established by the U.S. Secretary of Labor. L. NON-DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE Franchisee shall certify to and agree that they will comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1991, Title IX of the Education Amendments of 1972, where applicable, and Title 43, part 17 of the Code of Federal Regulations Subparts A and B, to the end that no persons shall, on the grounds of race, creed, color, national origin, political affiliation, marital status, sex , age, or disability, be subjected to discrimination under the privileges and use granted by any Agreement or under any project, program, or activity supported by this Agreement. Franchisee shall certify and agree that all persons employed thereby, are and shall be treated equally without regard to or because of race, creed, color, national origin, political affiliation, marital status, sex, age, or disability and in compliance with all Federal and State laws prohibiting discrimination in employment, including, but not limited to, the Federal Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; the State Fair Employment Practices Act; and the Americans with Disabilities Act. Franchisee shall certify and agree that subcontractors, bidders, and vendors thereof are and shall be selected without regard to or because of race, creed, color, national origin, political affiliation, marital status, .sex, age, or disability. Ail employment records shall be open for inspection and reinspection at any reasonable time during the term of any Agreement for. the purpose of verifying the practice of non- discrimination by the Franchisee in the areas heretofore described. IV-8 If the City finds that any of the above provisions have been violated, the same shall constitute a material breech of any Agreement upon which the City may determine to cancel, terminate, or suspend this Agreement. Whole the City reserves the right to determine independently that the non-discrimination provisions of any Agreement have been violated, in addition, a determination by the California Fair Employment and Housing Department or the Federal Equal Employment Opportunity Commission that the Franchisee has violated State or Federal non-discrimination laws or regulations shall constitute a finding by the City that the Franchisee has violated the non-discrimination provisions of any Agreement. In the event that Franchisee violates the non-discrimination provisions contained herein, the City shall, at its option, be entitled to a sum of one thousand dollars ($1,000.00) pursuant to California Civil Code Section 1671 as liquidated damages in lieu of canceling, terminating, or suspending any Agreement. Franchisee further agrees that one thousand dollars ($1,000.00) is a reasonable sum under all of the circumstances existing at the time of the execution of any Agreement. M. EQUAL OPPORTUNITY EMPLOYMENT The Franchisee(g) shall demonstrate, in the performance of any work connected with the franchise between himself and the City, full compliance with all applicable safety and health standards and Equal Employment Opportunity laws and regulations. The Franchisee(s) shall cooperate with the City in meeting its commitments and goals with regard to the maximum utilization of Disadvantaged or Women's Business Enterprises and he/she will use his/her best efforts to ensure that these groups shall have a maximum opportunity to compete for any subcontracted work that may be offered in connection with the franchise. N. LICENSES AND PERMITS The Franchisee shall purchase a City Business License for each year that he/she is doing business in the City. Furthermore, the Franchisee shall secure all necessary permits for the City, County, State, and/or Federal agencies for the installation, operation, and maintenance of the bus shelters and bus benches. O. ELECTRICAL SERVICE The Franchisee shall apply for, and obtain at his/her own cost, any necessary electrical service permits form the Southern California Edison Company. Metered electrical charges shall be the at the Franchisee's sole expense. Solar powered electrical lighting systems will be considered by the City. P. ADVERTISING The Franchisee shall, upon request, transmit to the City color copies of any or all advertisements proposed to be placed in the IV-9 shelters for review prior to the ads being placed. Pursuant to Section 9409 (b) (2) of the City Code, the City of Tustin Planning Commission will recommend standards for advertising. Should the city, in its sole discretion, determine any advertising shelter to be improper, offensive, or constitutes a display that is likely to interfere with, mislead, or distract traffic, or conflict with any traffic control system, the Franchisee shall remove all such advertising within twenty-four (24) hours after the City serves a written notice upon the Franchisee to remove such advertising. Q. PUBLIC SERVICE MESSAGES The Franchisee shall, at least two (2) times per year, for atleast ten (10) calendar days each time, display at least one (1) public service announcement in lieu of paid advertising in each bus shelter. The Franchisee shall arrange for service and install the public service announcements upon consultation with the City. The City Council shall be entitled to specify certain public service messages to be displayed and shall approve all public service messages. R. CHANGED LOCATIONS In the event that a bus route is altered or deleted such that any bus shelter will no longer serve as a n active bus stop location, the Franchisee shall, within, thirty (30) days after notification from the City of Tustin Public Works Director, relocate the bus shelter and appurtenances to a new location designated by the City. The vacated location shall be restored to its original condition within that same time period. S. INDEPENDENT CONTRACTOR Any Franchise Agreement between the city and Franchisee is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, as between the City and Franchisee. Franchisee understands and agrees that all persons furnishing services to the franchisee pursuant to any Franchise Agreement are, for purposes of Workers' Compensation liability, employees solely of the Franchisee and not of the City. The Franchisee shall bear the sole responsibility and liability for furnishing and shall furnish Workers' Compensation benefits to any person for injuries from or connected with services performed on behalf of Franchisee pursuant to this Agreement. T. SECURITY DEPOSIT Prior to the commencement of the term of any Franchise Agreement, the Franchisee shall pay to the City a sum equal to one (1) year's minimum franchise payment as set forth in an exhibit to be attached to any Agreement. In lieu thereof, the Franchisee may deposit said amount in a bank whose deposits are insured under the Federal IV-10 Deposit Insurance Act (12 U.S.C. Section 1811 et. Seq.), provided that a certificate of deposit is delivered to the City giving the City the exclusive right to withdraw any or all of said amount during the term of this Agreement. Franchisee shall be entitled to any and all interest accruing from said certificate of deposit. Said sum shall serve as security for faithful performance of all covenants, promises and conditions to be assumed by Franchisee and may be applied in satisfaction and/or mitigation of damages arising from a breach thereof, including, but not limited to, delinquent payments; correction of maintenance deficiencies; securing required insurance; loss of revenue found by the City to have been caused by the fault or neglect of the Franchisee. The Franchisee agrees to cooperate in the determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the bus shelter program, and permitting examination and audit of all accounting records kept in connection with the conduct thereof. U. CONSTRUCTION BY CITY AFFECTING BUS SHELTERS In the event the City shall construct or cause to be constructed anew facility or roadway improvement impacting a bus shelter or advertising thereon, any Franchise Agreement will continue in full force and effect, except that the payments to be made by the Franchisee will be abated and/or other relief afforded to the extent'that the City may determine the construction interferes with the authorized operations, provided a claim therefor is filed with the citY within one hundred (100) days of the commencement of construction. Franchisee agrees to cooperate with the City in the event the construction affects the shelter by vacating and removing shelters where needed for such periods as are required by the construction of the new facilities. The Franchisee further agrees to cooperate in the determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the operation and permitting examination and audit of all accounting records kept in connection with the conduct thereof. Upon completion of the new facility, Franchisee shall resume its operations therefrom within thirty (30) days. V. TRANSFERS Any Franchisee shall not, without prior written consent of the City, assign, hypothecate, or mortgage this Agreement or sublease or license any portion of the premises. Any attempted assignment, hypothecation, mortgage, sublease, or license without the consent of the City shall render any franchise Agreement null and vOid. SharehOlders and/or partners of the Franchisee may transfer, sell, or exchange, assign, or divert themselves of any interest they may have therein. However, in the event any such sale, transfer, exchange, assignment or divestment is affected in such a way as to give majority control of Franchisee to any persons, corporation, IV-ll partnership or legal entity other than the majority controlling interest therein at the time of execution of this Agreement, approval thereof shall be required. .Consent to any such transfer shall only be refused if the City finds that the transferee is lacking in experience and/or financial ability to render and provide services required herein. w. CANCELLATION Upon the occurrence of any one or more of the events of default hereinafter described, any Franchise Agreement shall be subject to cancellation. As a condition precedent thereto, the City will give Franchisee ten (10) days notice by registered or certified mail of the date set for cancellation thereof; the grounds therefor; and that an opportunity to appeal to the City Council within 15 days thereon will be afforded. Events of Default le The failure of the Franchisee to punctually pay or.make the payments herein when due, where the delinquency continues beyond ten (10) days following written notice for payment thereof. · The failure of the Franchisee to operate in the manner required by any Agreement, where such failure continues for more than ten (10) days after written notice from the City to correct the condition therein specified. · The failure to maintain the bus shelter, bus benches, and the required improvements pursuant to any Franchise Agreement in the state of repair required, and in a clean, sanitary, safe and satisfactory condition, where such failure continues for more than ten (10) days after written notice from the City for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and Franchisee shall have immediately, following receipt of such notice, commenced to perform whatever may be required to cure the particular default and continues such performance diligently, said time limit may be waived in the manner and .to the extent allowed by the City. · The failure of franchisee to keep, perform, and observe all other promises, covenants, conditions, and agreements set forth in any Franchise Agreements, where such failure continues for more than thirty (30) after written notice from the City for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and Franchisee shall have commenced to perform whatever may be required to cure the particular default within ten (10) days after such notice and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the City. IV-12 · The filing of a voluntary petition in bankruptcy by the Franchisee; the adjudication of Franchisee as bankrupt; the appointment of any receiver of Franchisee's assets; the making of a general assignment for the benefit of creditors; a petition or answer seeking an arrangement for the reorganization of the Franchisee under any Federal Reorganization Act, including petitions or answers under Chapters X or XI of the Bankruptcy Act; the occurrence of any act which operates to deprive the Franchisee permanently of he rights, powers, and privileges necessary for the proper conduct and operation of the bus shelters; the levy of any attachment or execution which substantially interferes with the Franchisee's operations under this Agreement and which attachment or execution is not vacated, dismissed, stayed or set aside within a period of sixty (60) days. X. RIGHT OF REMEDY/ENTRY Should the Franchisee be deemed deficient, as determined by the City, in its performance of its obligations, the city in addition to all other available remedies may, but shall not be so obliged to, correct Franchisee's deficiencies using City forces, equipment, and materials, or by employing a separate private contractor. City's costs so incurred, including direct and indirect overhead costs as determined by the City, shall be reimbursed to the City by the Franchisee and/or its sureties within thirty (30) days of demand thereof. Y. SURRENDER Upon expiration or cancellation of the term hereof, all bus shelter improvements shall become the property of the City of Tustin and shall be delivered to the City in a reasonably good condition, subject to the City of Tustin's right to demand removal of the shelters and restoration of the respective public improvements to their proper and original condition at Franchisee's own cost and expense. Z. FRANCHISEE'S NON-COMPLIANCE AND LIQUIDATED DAMAGES If the City determines that there are deficiencies in the Franchisees performance under any Franchise Agreement, the City will provide as specified above under "Events of Default", a written notice to the Franchisee to correct said deficiencies within specified time frames. In the event that the Franchisee fails to correct the deficiencies within the prescribed time frames the City may, at its option; (1) use the security Deposit as provided for herein, (2) exercise its rights under "Right of Remedy/Entry," and/or; (3) assess liquidated damages pursuant to the schedule hereinafter listed. It may be impracticable or extremely difficult to fix the extent of actual damages resulting from the failure of the Franchisee to IV-13 comply with Franchisee's obligations. Under the current circumstances, a reasonable estimate of such damage is one hundred dollars ($100) per day for each day of the period of time that the deficiencies exist,.and that the Franchisee shall be liable to the City for liquidated damages in said amount. IV-14 SECTION V SHELTER DESIGN AND CONSTRUCTION SPECIFICATIONS CITY OF TUSTIN DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION SHELTER DESIGN AND CONSTRUCTION SPECIFICATIONS FOR FURNISHING AND MAINTAINING BUS SHELTERS WITH BUS BENCHES IN THE CITY OF TUSTIN Persons or firms submitting proposals are advised that bus shelters and bus benches to be considered for acceptance by the City must conform to the following specifications. In the event that any design differs materially from these specifications, a full discussion of the relative differences must be submitted with the Proposal. The design and drawing requirements contained in these Specifications are not to be included in the preliminary design sketches required for the Proposal. A. SPECIFICATIONS lo Ail work performed on the shelter or the shelter site must conform to the requirements of the Standard Specifications for Public Works Construction and all City Building and Electrical codes. In addition, all work must comply with the conditions of the required encroachment permit issued for each location and the conditions of the Tustin Community Development Department. Each shelter will be subject to the City of Tustin Design Review procedure. All necessary .City building permits must also be obtained by the franchisee. B. SHELTER DESIGN DRAWINGS I · Ail final designs, plans, and change orders shall be signed and stamped by a California Registered Civil or Structural Engineer before they will be accepted for design or location approval. · Before any shelter may be installed in the City of Tustin, it shall be reviewed for adequate design by the Community Development Department for electrical wiring and appurtenances, structural integrity, and general soundness of design. C. SHELTER LOCATION DESIGN DRAWINGS i · After a franchise agreement has been signed and prior to construction of any shelters, a location drawing shall be prepared for each proposed shelter site and shall contain a minimum twenty (20) feet to one-inch scale (20 scale). representation of the proposed shelter site, covering the area from the' adjacent property line to the street V-1 intersection, cnterline at the Mid-block sites may be shown with broken line ties. The drawing shall tie the shelter location to the closest curb return and give the distance from the existing curb and adjacent property line to the shelter. It shall also show the location of manholes, catch basins, fire hydrants, poles, trees, and other above-ground facilities within fifty (50) feet of the proposed shelter. The drawings shall be prepared in ink on standard 24" x 36" plan mylar using standard City title blocks. East Tustin locations are specifically excluded from this Request for Franchise Proposal. See "Attachment A" for a map detailing the excluded locations. D. SHELTER SITE SELECTION I · Ail shelter sites shall be approved by the City and the Planning Commission in consultation with the Franchisee. In no case shall a shelter be located on any residentially zoned streets, unless approved by the City. Shelters may only be located on commercially zoned arterials. The City may supply the Franchisee with a list of preferred shelter sites. All proposed shelter sites shall be subject to the following screening process: a® No shelter site will be approved which would result in a shelter being closer than ten (10) feet to a driveway. b® No shelter site shall be approved which will result in a shelter being located over~a storm drain. C· No shelter site shall be approved which will result in a shelter being placed in such a position that less than four (4) feet of contiguous sidewalk remains useable. de Ail sites are subject to approval by the City staff and City Planning Commission based upon ridership demands, the safety of bus riders, traffic and pedestrians. e. Every shelter shall be wheelchair accessible. · In the event that the City and Franchisee cannot agree on the location of a site, the City's decision on the location shall be final. E. SITE RELOCATION i · The City shall have the right to require the Franchisee to relocate shelters and benches, at his/her sole V-2 expense, for the convenience of pedestrians and bus patrons or because of a change in bus stop locations or street widening. The Franchisee(s) shall not relocate or remove a bus shelter or bench without the City's permission. The City may require or permit a shelter to be removed or relocated if it has been demonstrated to be incapable of proper maintenance due to excessive vandalism or any other reasonable cause. "Excessive vandalism" is defined as damage inflicted to an individual shelter during any six (6) month period, which requires cumulative expenditures for replacement and repair that exceed the original cost of construction and installation of the shelter. F. SHELTER DESIGN SPECIFICATIONS i · Basic Shelter Design a· Ail shelters shall be of the same design, wherever used throughout the City, unless alternate designs are approved by the City. Modifications of structures may be permitted if a unique situation warrants. be Shelters shall be covered, but do not have to be enclosed structures. C· The roof shall be supported by four corner steel columns, aluminum clad, or other similar construction materials. Roof design is subject to design approval by staff and the City Planning Commission. de The shelter roof shall be designed to increase protection from the rain and sun. e· The space between all partitions, ad panels, and sidewalk shall be a minimum of six (6) inches to accommodate a blind person's touching cane. This may be accomplished with either a larger glass panel, a deeper bottom glass support or a flange attached to the bottom of the glass support. · Advertising Panels a. Only one, two-sided, back-lighted ad panel per shelter will be allowed. b. All ad panels shall be constructed of anodized or painted aluminum and tempered safety glass. V-3 3. Allowable Size of Shelter · · · · a. Height: Minimum of 7'6" b. Length: 13'6" to 18' c. Width: 4'6" t° 5'6" In the event a shelter is desired at a location which will not permit construction of the standard shelter meeting the allowable sizes, unique designs may be considered by the City. Obtaining any necessary easements for the construction of a shelter shall be the responsibility of the Franchisee(s). Ail ad panels shall be locked or secured in a manner that will eliminate or discourage vandalism. Wheelchair Access So Ail shelters shall be designed to accommodate wheelchairs and meet all Americans with Disabilities Act (ADA) specifications. Shelter Seating a® Minimum bench length - 5' Minimum bench width - 1'6" be The bench shall be located such that a wheelchair can be placed alongside the bench within the shelter. Shelter Lighting a· Every shelter shall be illuminated from dusk until dawn by an overhead energy efficient, fluorescent lighting system, concealed in the roof structure. Failure to light the shelters at night shall be grounds for cancellation of the franchise. Franchisee(s) shall be responsible for all electrical charges. be Solar powered electrical lighting systems will be considered. The Franchisee(s) shall demonstrate the ability to have consistent non-stop lighting between dusk and dawn and during times of inclement weather. Co Ail internal electrical components and wiring of each model shelter used shall be approved by the City Buildin~ Division before, during and after installation. All construction shall be subject to plan check by the Community Development Department. V-4 8. Shelter Drainage a® Ail shelters shall be designed to prevent dripping water over the edges and. for proper drainage, with water exiting at approximately sidewalk level. 9. Foundations a® Ail post foundations shall be designed in accordance with the Uniform Building Code, latest edition adopted by the City. 10. Trash Receptacles ae Each shelter shall have at least one (1) covered trash receptacle, designed and placed to promote maximum usage by shelter patrons. Trash receptacles shall be durable and decorative and consistent with design of the bench and shelter. Preliminary plan sketches should include the details for the trash receptacle. Final design shall be subject to approval by the City Planning Commission. 11. No telephones, vending machines, kiosks, newsracks, or any other devices not specifically in these specifications shall be permitted to be installed on or near the shelters. G. SHELTER SIGNAGE lo Franchisee(s) shall ensure that bus route information, City logo, and OCTA logo are displayed in and around the shelter. OCTA bus route information shall be displayed in a secured frame or sleeve constructed as part of the inside of the shelter. · Where appropriate, the name of the nearest cross street shall be placed upon the roof facia on both ends of the shelter. Minimum letter size for this sign shall three (3) inches high and two and one-half (2-1/2) inches wide. · Franchisee(s) shall affix, in a conspicuous area standard on each shelter in each shelter, an owner identification plaque, that includes his business name, address and telephone number. H. SHELTER CONSTRUCTION SPECIFICATIONS 1. No welding except for foundation work shall be permitted at the site. 2. All concrete finishing shall be conform to the Standard V-5 · Specifications for Public Works Construction, latest edition, and City of Tustin Public Works Construction Standards. Franchisee(s) shall have quality control supervisors working for his/her contractor (not the sub-contractor) at every construction site for a minimum of one (1) hour per working day, during installation of the shelter and its appurtenances. I. BUS BENCHES lo Bus benches shall be approved by the City prior to installation. The benches shall be part of the bus shelter. The benches shall not be attached to the shelter, but located under the shelter. Individual seating (i.e. stool-type seats) will be considered by the City. · Color and material samples must be submitted to and approved by the City, as well as color elevations of all sides, materials board and colors scheme, and trash receptacle detail. V-6 ATTACHMENT~ "A" MAP DETAILING EXCLUDED AREA Ittl. lY(llllf If(Ill (~ TUSTIN RANCH Attachment "A"