HomeMy WebLinkAboutR-2006-077 Bus Shelters (Clear Channel) RESOLUTION NO. 2006-077
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
EXECUTE AN AGREEMENT WITH CLEAR CHANNEL OUTDOOR, INC., A
DELAWARE CORPORATION, REGISTERED IN FLORIDA AS CC
OUTDOOR, INC., AND DOING BUSINESS IN FLORIDA AS CLEAR
CHANNEL OUTDOOR, A FLORIDA CORPORATION, PERTAINING TO
BUS SHELTERS TO BE INSTALLED AND MAINTAINED BY THE
COMPANY AT BUS TRANSIT LOCATIONS WITHIN THE CITY;
PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA:
Section 1. That the proper City officials are authorized to execute an agreement with
Clear Channel Outdoor, Inc., a Delaware corporation, registered in Florida as CC Outdoor, Inc.,
and doing business in Florida as Clear Channel Outdoor, a Florida corporation, pertaining to bus
shelters to be installed and maintained by the Company at various bus transit locations within the
City; a copy of the Agreement is attached as "Exhibit A" and incorporated into this Resolution
by this reference.
Section 2. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 3. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED AND ADOPTED on April 25, 2006.
PATRICIA FLURY
MAYOR—COMMISSIONER
ATTEST:
LOUISE,STILSON, CMC
CITY CLERK
APPROVED AS TO AND CORRECTNESS:
BY:
THO- AS .O AN BRO
CITY AT" RNEY
7* 4
{
CITY OF DANIA BEACH
MEMORANDUM
TO: Mayor and Commissioners
CC: Ivan Pato, City Manager
Dominic Orlando, Public Services Director
Patricia Varney, Finance Director
Larry Leeds, Community Development Director
Kristen Jones, Parks and Recreation Director
Mary McDonald, Human Resources Director
FROM: Tom Ansbro, City Attorney
DATE: April 17, 2006
RE: Proposed Bus Shelter Agreement with Clear Channel Outdoor, Inc.
Last year, the City was separately approached by Clear Channel Outdoor, Inc. and a
local competitor company, each of which proposed to install new bus shelters bearing
advertising panels at various stops located within the City. Each company proposed to install
the same type of shelter. They are designed to provide night illumination derived from solar
panel energy.
We determined that in our locale, the two companies appear to be the only providers of
such bus shelters. Therefore, an informal "request for proposal" process was begun. Recently,
however, the competitor company, for unknown reasons, has chosen not to submit a response,
leaving Clear Channel as the only company interested in providing the shelters. The company
submitted a proposed Agreement which I have substantially modified. The most important
features of the Agreement are:
1) a ten year term, with two five year option terms, to be granted at the City's
sole discretion;
2) up to 30 shelters would be installed at mutually agreeable locations;
Mayor and Commissioners
April 17, 2006
Page 2 of 2
3) for the first year, a payment of $6,000.00 would be made upon execution of
the Agreement and subsequently, annual fee of $650.00 (prorated if not in existence for a full
year) for each shelter would be paid subject to an annual 3% upward adjustment;
4) the company is solely responsible to maintain, repair and replace the shelters,
and to keep them and an area within ten feet around each shelter in a clean and presentable
condition;
5) the City can require objectionable material displayed in any advertising panel
to be removed; and
6) advertising panels will be available for City messages if a panel has not been
"rented".
A copy of the Company's detailed proposal, depicting the proposed type of shelter, is
attached for your information. A copy of the Agreement is also attached.
If you find the proposal acceptable, a Resolution has been prepared, authorizing
execution of an agreement with the Company.
TJA:slw
Attachments
AGREEMENT
THIS IS AN AGREEMENT (the "Agreement") entered into on l�'l��L- , 2006,
between the CITY OF DANIA BEACH, a Florida municipal corporation (the "CITY"), and
Clear Channel Outdoor, Inc., a Delaware corporation, registered in Florida as CC Outdoor, Inc.,
and doing business in Florida as Clear Channel Outdoor, a Florida corporation ("COMPANY").
In consideration of the mutual covenants, terms and conditions contained in this
Agreement, and other good and valuable consideration, the adequacy and receipt of which are
acknowledged, the parties agree as follows:
1. Right to Place Shelters. The CITY shall permit the COMPANY, as an
exclusive right, to use the public rights-of-way over which CITY maintains control for the
placement by the COMPANY of bus shelters upon the terms and conditions stated in this
Agreement. The CITY covenants that it shall use its best efforts to cooperate with the
COMPANY in connection with the COMPANY'S installation, maintenance and repair of bus
shelters, including, but not limited to, assistance with the issuance of any and all permits,
authorizations, or other approvals of governmental agencies or utilities that may be required.
CITY agrees to assist COMPANY with relocation of any objects over which City has direct
control, so that COMPANY's view corridors to its advertising panels in its shelters are not
obstructed. No shelter shall be equipped with electrical service for any reason, unless approved
in writing in advance by CITY. The CITY will waive all permit fees related to bus shelter
installation.
2. Installation, Maintenance and Ownership of Shelters.
a. The COMPANY shall install shelters in compliance with the Florida
Building Code and other applicable technical codes of any governmental agency
having jurisdiction. Any and all shelters are, and shall remain, the sole and
exclusive property of the COMPANY. The type, materials used, color and design
of all shelter shall be approved in advance in writing by CITY.
b. Shelter sites shall be selected by both parties and identified in writing, and
COMPANY shall coordinate with such other governmental agencies as may be
necessary for their installation. COMPANY shall furnish the City Manager a
schedule showing the location of each bus shelter at the time the license fee is to
be paid. No bus shelter shall be placed at any location without the prior written
approval of the City Manager as to its location and placement. Bus shelters shall
not be placed in such a manner so as to be an ADA (Americans with Disabilities
Act) violation or so as to obstruct traffic or otherwise constitute a traffic hazard.
The COMPANY shall install and maintain up to thirty (30) shelters during the
term of this Agreement
C. COMPANY shall not permit advertising of adult entertainment, massage
parlors, adult bookstores, adult theaters, adult escort services, pornographic or
other material deemed objectionable by CITY. The determination as to whether
any material is objectionable material shall not be determined unreasonably by the
1
CITY. When such a determination is made, the advertising shall be promptly
removed upon written request of the CITY.
d. Inspection and general maintenance shall be performed by COMPANY on
all shelters weekly and damage to the shelters shall be repaired by COMPANY
within forty-eight (48) hours of the time damage is reported to or identified by the
COMPANY. COMPANY shall also use its best efforts to maintain an area in
clean condition ten (10) feet from each side of the shelters. In the event a shelter
is not maintained in good repair and in clean condition, or becomes a hazard or
nuisance as determined by the City Manager, the CITY shall notify the
COMPANY in writing and repairs or corrective action must commence as
provided in this Agreement. If the condition is not corrected to the CITY's
reasonable satisfaction within five (5) working days after the date of notice, the
CITY shall have the right to remove the shelter and charge the COMPANY for
the costs of such removal (inclusive of personnel expenses, labor and materials),
or assess a $150.00 per day penalty fee, starting on the sixth day until the
condition is corrected. In order to minimize any liability, the COMPANY agrees
to remove or repair damaged shelters within five (5) days of an accident or any
damage which creates, in the reasonable opinion of CITY, a hazardous condition
for the public at large.
3. Ri2ht of Company to Remove Individual Shelters. Except as provided for in
this Section, the COMPANY shall not remove any shelters installed at a bus stop location during
the term of this Agreement without first having obtained written consent of the City Manager. It
is agreed, however, that the COMPANY shall have the right to remove individual shelters (after
ten (10) days' written notice to the CITY) in the event that such shelters have been subjected to
"chronic vandalism" or such shelters have been extensively damaged, resulting in a hazardous
condition and cannot be replaced without risk of substantial future damage. The phrase "chronic
vandalism" shall be defined to mean damage inflicted to an individual shelter during any three
(3) consecutive month period which require cumulative expenditures for replacements or repairs
that exceed $1,000.00.
4. Relocation of Shelters. In the event of a change in bus stops or other
transportation systems' designations, changes in street design or rights-of-way or changes the
City Manager deems necessary for the public health, safety, welfare and convenience, or changes
in demographics which materially affect the pedestrian and vehicular traffic flow at or near
shelters established as provided above, the COMPANY, at the CITY'S written request, shall
relocate a designated shelter to another location mutually agreed to in writing by the CITY and
the COMPANY. If requested by the CITY, a shelter must be removed even if CITY and
COMPANY cannot agree on a new site.
The expense in connection with such relocation shall be borne by the COMPANY, and
the COMPANY shall act expeditiously in order to relocate any such shelter, and in the event that
a change of street design or right-of-way location shall require the relocation of a shelter, the
COMPANY shall coordinate its work with the contractors or other personnel performing labor in
connection with the change of street design or right-of-way location in order to accomplish the
relocation expeditiously and without interference to the work related to with the relocation of
streets or rights-of-way.
2
5. Payment of Fees. All monies to be paid to the CITY in the form of fees shall
be paid in the following manner:
a. A payment of six thousand ($6,000.00) dollars shall be aid to CITY b
PY P Y
COMPANY on the date COMPANY executes this Agreement.
b. Upon full execution of this Agreement, the COMPANY shall pay the
CITY the sum of six hundred and fifty dollars ($650.00) per shelter/per
year with advertising during the first year of the Agreement on an annual
basis. Each bus shelter constructed mid-year shall be prorated. Payments
shall increase each year per shelter with advertising effective as of the
anniversary date of the Agreement, until the expiration of the term of the
Agreement. The annual payment per shelter shall be adjusted on April 1
of each year of the term by multiplying the applicable payment then being
paid by a fraction, the numerator of which shall be the Consumer Price
Index-U.S. South Urban for all items (1982-84 equals 100) ("CPI") for
March of the year in which adjustment is being made, and the
denominator of which shall be the CPI of April of the prior year. Should
the CPI become unavailable, the payment will be made using the then
current rate until the CPI is available. In no case shall the adjustment be
less than three percent (3%) of the amount being paid in the prior year.
The payment shall be prorated for partial years during which any shelter is in place for less than
• a full calendar year. At the end of the initial five (5) year term of the contract, a five (5) year
extension may begin in accordance with Section 10 below, provided that COMPANY or its
assigns remains in good standing in connection with this Agreement as decided at CITY's sole
discretion and option.
C. All payments shall be promptly submitted to the City Finance Director and
shall reference this Agreement and the particulars of the payment. A list
of then existing shelter locations related to the payment shall accompany
the payment. Any unpaid balance of fees not paid when due shall bear an
interest charge of eighteen (18%)percent per annum until paid.
6. Community Service. The COMPANY shall provide space for CITY sponsored
advertising messages on a space available basis. In the event space is available for CITY
sponsored advertising messages, the COMPANY shall provide the CITY with one (1)
advertising panel, per shelter, per month. In no event shall a paying customer be removed from
an ad space that the City Manager wants to utilize for CITY messages. The COMPANY shall
not be responsible for paying for public service message materials. The CITY will provide all
necessary materials at its sole cost and expense. However, the COMPANY will install at no
additional cost to the CITY, such public service advertisements within a reasonable time after the
advertisements are provided to the COMPANY for installation.
3
7. Insurance. COMPANY, at its own expense, shall procure insurance as
follows:
a. Workers' Compensation insurance as required by law.
b. Employers' liability insurance in the amount of$1,000,000.00.
C. Comprehensive general liability insurance to be written on the
comprehensive form of policy. The policy must contain minimum limits
of liability: $1,000,000.00, each person, $1,000,000.00, each occurrence,
bodily injury, $500,000.00, each occurrence, property damage. CITY
shall be named as additional insured under (b) and (c) above. COMPANY
shall provide proof of insurance to CITY.
8. Indemnification. COMPANY agrees to defend, indemnify and hold harmless
the CITY, its elected and appointed officers, agents, servants and employees, from and against
any and all claims, demands, or causes of action of whatsoever kind or nature sustained by any
person whomsoever, arising out of, by reason of, directly or indirectly resulting from, or in
connection with this Agreement, and from and against any resulting losses, costs, expenses,
reasonable attorney fees, liabilities, damages, orders,judgments, or decrees.
9. Payments. Any and all payments to the CITY shall be made to the following
address:
City of Dania Beach
Finance Department
• 100 W Dania Beach Blvd
Dania Beach, FL 33004
10. Term of the Agreement. This Agreement shall become effective upon
execution by the parties and shall remain in full force and effect for a period of five (5) years
beginning with the actual date the Agreement is fully executed by the parties, with an option of
the CITY for renewal for a five (5) year term.
In addition to the foregoing, the CITY shall have the option at its sole discretion to
extend this Agreement for a second additional five (5) year period upon the same or similar
terms and conditions as contained in this Agreement. For each such renewal, COMPANY shall
notify CITY in writing within ninety (90) days in advance of the expiration of the applicable
term and CITY shall grant or deny the request which, if granted, will be evidenced by an
amendment to this Agreement.
11. Amendment. This Agreement may only be amended by the mutual written
consent of the parties. This Agreement, or any interest-in it, shall not be assigned, transferred or
otherwise encumbered without the prior written consent of CITY.
12. Entire Agreement. This Agreement sets forth all of the promises, covenants,
agreements, conditions and understandings between the parties and supersedes any and all prior
or contemporaneous agreements, understandings, inducements or conditions, express or implied,
oral or written,except as contained in it.
4
13. Termination Right of CITY. Notwithstanding anything contained in this
Agreement which is or appears to be to the contrary , the CITY by and through its City Manager
• shall have the unilateral right to cancel and terminate this Agreement in the event that the
COMPANY becomes insolvent or if the COMPANY commits an act of bankruptcy, makes a
general assignment for the benefit of creditors, or if there is filed by or against the COMPANY a
voluntary petition in bankruptcy or for the appointment of a receiver, or if a proceeding is
commenced under any law relating to bankruptcy, insolvency, reorganization, or for
composition, extension, arrangement or adjustment of COMPANY'S obligations and which
proceedings are not withdrawn or dismissed within ninety (90) days after commencement or if
the COMPANY dissolves itself, or assigns, sells or transfers this Agreement or any portion of it
without the CITY's prior written approval. In any such event, the COMPANY shall have the
absolute right and responsibility to remove the existing shelters located within the CITY. If
shelters are not removed, CITY will be authorized to remove them and dispose of them after
thirty(30) days' advance written notice to COMPANY.
14. Termination for Cause. Subject to the force majeure provision set forth
below, neither party shall terminate or cancel this Agreement, whether by Court action or
otherwise unless there is a material default by the other party. For purposes of this Agreement, a
material default shall be any monetary default not cured by the COMPANY within fifteen (15)
days of receipt of notice from the CITY, or any non-monetary default by a party, not cured by
such party within thirty (30) days of receipt of written notice. In the event of a default by either
party, the non-defaulting party shall have the right to institute a cause of action in the court of
appropriate jurisdiction and, under such circumstances, the prevailing party shall be entitled to
reimbursement of its reasonable attorney fees and costs by the non-prevailing party. Neither
• party shall be obligated to perform and neither shall be deemed to be in material default under
this Agreement if performance of a non-monetary obligation is prevented by the occurrence of
any of the following acts ("Force Majeure acts") including, but not limited to, acts of a public
enemy, hurricanes, other storms, strikes, laws, rules and regulation of applicable governmental
bodies or any other causes that are not reasonably within the control of the party claiming the
right to delay performance on account of such act.
15. Assignment. This Agreement shall not be assigned or transferred without the
advance written consent of the CITY which consent shall not be unreasonably withheld. A sale
of fifty one percent (51°Io) or more shares of corporate common stock of the COMPANY shall be
deemed an assignment for purposes of this section. The COMPANY shall inform the CITY of
its intent to transfer ownership with at least thirty (30) days' advance written notice.
16. Notices. All notices provided shall be in writing and transmitted by
overnight mail, certified mail return receipt requested, or by hand-delivery, and shall be mailed
or delivered as follows:
AS TO CITY: Ivan Pato, City Manager
City of Dania Beach
100 West Dania Beach Blvd.
Dania Beach, FL 33004
5
With a copy to: Thomas J. Ansbro,City Attorney
City of Dania Beach
100 West Dania Beach Blvd.
Dania Beach, FL 33004
AS TO COMPANY: Jasper Johnson President/GM, South Florida Division
Clear Channel Outdoor
5800 N. W. 77 Court
Miami, FL 33166
17. Governing Law and Venue.This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, and any proceeding arising between the
parties in any manner pertaining to this Agreement shall, to the extent permitted by law, be
addressed in the appropriate court of competent jurisdiction located in Broward County, Florida.
18. Binding Effect. The obligations imposed pursuant to this Agreement shall
be binding upon and enforceable by and against each of the parties, their successors, grantees
and assigns.
IN WITNESS OF THE FOREGOING, the parties have executed this Agreement as of the
day and year first written above.
CITY:
CITY OF DANIA BEACH,
a Florida Municipal Corporation
ATTEST-
LOUISE STILSON, CMC PATRICIA FLURY
CITY CLERK MAYOR
Ir/N P O, dITY MANAGER
APPROVED FOR FORM
AND CORRECTNESS:
f �
E THOMAS J. ANSBRO
• CITY ATTORNEY
4
E
rt 6
Clear Channel Outdoor, Inc.
registered in Florida as CC Outdoor,Inc.
d/b/a in Florida as Clear Channel
Outdoor, a Florida corporation
WITNESS:
Signature J p Johnson, Pre d
th t/GM
Florida Divi n
G c
PRINT Na
'
fitness
7 ���.
PRINT Name
STATE OF FLORID
COUNTY OF
The foregoing instrument was acknowledged before me on 2006, by Jasper
Johnson as President/General Manager, respectively, of Clear Channel Outdoor, Inc. registered
in Florida as CC Outdoor, Inc. d/b/a in Florida as Clear Channel Outdoor, a Florida corporation
on behalf of the corporation. He is personally known to me or produced
as identification and did (did not)take an oath.
y� , ell-/
NOTARY PUBLIC, tate of Florida
My commission expires:
doWe
W Cwmft m DD3N811
« Expires November 13,2WO
7