HomeMy WebLinkAboutA5858 - SUNLINE TRANSIT AGENCYAMENDMENT NO. 1
TO AGREEMENT BETWEEN
CITY OF PALM SPRINGS
AND
SUNLINE TRANSIT AGENCY
CONCERNING ADVERTISING INSTALLATION AND MAINTENANCE
RELATED TO BUS SHELTERS
This Amendment No. 1 to that certain Agreement between City of Palm Springs and
Sunline Transit Agency Concerning Advertising InstallatiLqn and Maintenance Related to Bus
Shelters (the "Agreement") is made and entered into thisday of2019, by
and between the City of Palm Springs, a California charter city and municipal corporation,
("City"), and SunLine Transit Agency, a Californiajoint powers authority, ("SunLine").
RECITALS
A. The City and SunLine have previously entered in to the Agreement, the term of which is
set to expire on July 30, 2019.
B. The City and SunLine mutually desire to extend the term of Agreement and amend
Agreement to include certain other provisions.
NOW, THEREFORE, in consideration of the mutual covenants and promises in this Agreement,
the parties hereto covenant, agree to bind themselves as follows:
AGREEMENT
Section 3.01. Section 3.01 of Section III of the Agreement is hereby amended to read:
"3.01 The term of this Agreement shall commence on the date first written
above and shall, unless earlier terminated, continue through July 30, 2023."
2. Section 6.10: A new Section 6.10 is added to read as follows:
"6.10 Covenant Against Discrimination
In connection with its performance under this Agreement, SunLine shall
not discriminate against any employee or applicant for employment because of
actual or perceived race, religion, color, sex, age, marital status, ancestry, national
origin (i.e., place of origin, immigration status, cultural or linguistic
characteristics, or ethnicity), sexual orientation, gender identity, gender
expression, physical or mental disability, or medical condition (each a "prohibited
basis"). SunLine shall ensure that applicants are employed, and that employees
are treated during their employment, without regard to any prohibited basis. As a
condition precedent to City's lawful capacity to enter this Agreement, and in
executing this Agreement, SunLine certifies that its actions and omissions
hereunder shall not incorporate any discrimination arising from or related to any
55575.18000/32104614.1
prohibited basis in any SunLine activity, including but not limited to the
following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship."
3. Applicability
This Amendment is attached to and made a part of the Agreement. In the event of any
contradiction or inconsistency between the terms and provisions of this Amendment and the
terms and provisions of the Agreement to which it is attached, the terms and provisions of this
Amendment shall control and be interpreted in such a manner as to override any provision of the
Agreement that would prevent the spirit and letter of the terms and provisions of this
Amendment from being given full force and effect. All defined terms not specifically defined in
this Amendment shall be given the same meaning as the defined terms in the Agreement. All
other terms and conditions contained in the Agreement shall remain unchanged.
4. Joint Authorshin
This Amendment has been entered into as an act of free will, without duress, and no
presumption of authorship shall attach to same, and any ambiguity in the terms and conditions of
this Agreement shall not be attributed to one party over the other.
[SIGNATURES ON THE FOLLOWING PAGES]
55575. 18000i32104614A - 2
In witness whereof, the Parties have executed this Amendment No. I as of the date first
written above.
CITY OF PALM SPRINGS,
a California Charter City
David H. Ready, City
APPROVED AS TO FORM:
By: 1
QJeffrc?SVBallingcf, City Attorney
Date:, 2$f Zell
55575.19000,32104614 1
SUNLINE TRANSIT AGENCY
a Calif is Joint Powers Authority
Laure Skiver, CEO/General Manager
APPROVED BY CITY COUNCIL
R585N �11-09
AGREEMENT BETWEEN CITY OF CiTY OF PALM SPRINGS AND SUNLINE
TRANSIT AGENCY CONCERNING ADVERTISING INSTALLATION AND
MAINTENANCE RELATED TO BUS SHELTERS
This Agreement is made and entered into this ^0^ day of July, 2018, by and
between SunLine Transit Agency ("SunLine"), a California joint powers authority and the
City of Palm Springs ("City"), a California municipal corporation.
SunLine is a government entity composed of and represented by the County of
Riverside and the cities of Desert Hot Springs, Palm Springs, Cathedral City, Rancho
Mirage, Palm Desert, Indian Wells, La Quinta, Indio, and Coachella. The Board of
Directors of SunLine is composed of one elected official from each of its member entities.
SunLine is the public transit provider for the City which enables both its citizens
and visitors to enjoy a safe, reliable, nonpolluting mode of public transportation. SunLine's
installation and maintenance of bus shelters in the City provides great benefit to citizens
and visitors alike by providing clean sheltered places for travelers to wait for public
transportation services. The placement of shelters within the City also provides an
amenity of great benefit to the elderly and to senior citizens within the City.
SunLine owns certain advertising bus shelters within the City and wishes to provide
for continued advertising in such shelters.
Revenue from advertising enables SunLine to Install new additional shelters as a
transit amenity at no cost to the public. Advertising revenue also pays for maintenance of
shelters and for additional transit services at no cost to the public.
SunLine and City are now desirous of entering into an agreement with regard to
the placement of present and future shelters and to provide for continued advertising in
such shelters.
NOW, THEREFORE, the parties hereto agree as follows:
I.
GENERAL TERMS
1.01 City hereby grants SunLine the exclusive right to place advertising
associated with bus shelters placed by SunLine within the public right of way within the
City's jurisdiction. In exercising the exclusive right granted it under this Agreement,
SunLine shall ensure that the following standards and requirements are met:
(a) Shelter designs meet and comply with all applicable SunLine design
requirements and City building codes, zoning ordinances, vehicular code ordinances and
regulations, and all other applicable City resolutions, ordinances and codes;
(b) All City design criteria and approvals have been obtained; and.
Page 1 of 6
(c) Adequate easements, encroachment permits, licenses, and/or rights-of-
way have been obtained.
1.02 The City shall waive all permit and/or license fees imposed by or on behalf
of the City that may pertain to SunLine's installation and operation of the bus shelters
within its jurisdiction.
1.03 In consideration for the grant of the exclusive rights referred to in paragraph
1.01 above, SunLine shall continue to clean and maintain all bus shelters as well as the
area within a 25-foot radius of each shelter including emptying trash and separating
recyclable items from collected trash. In addition, SunLine will remove or cause the
removal of all graffiti appearing on any shelter within the City in an expeditious manner.
1.04 In the event that the City has any problems or questions related to
advertising placed on the bus shelters within its jurisdiction, it shall contact SunLine. In
any such case, SunLine shall endeavor to secure a prompt resolution of any issue within
its legal power to resolve. City acknowledges and recognizes that certain limits may arise
in connection with SunLine's ability to regulate the content of advertising, particularly
those limits arising under the First Amendment to the United States Constitution and the
California Constitution. Within such limits, SunLine will endeavor to correct or address
any problem that the City might have with advertising placed in bus shelters within its
jurisdiction in an expeditious manner.
1.05 Sunline will place and install a minimum of 20 City provided
advertisements for City sponsored events, programs and City sponsored agencies on
available bus shelter advertising space not occupied by a revenue generating
advertisement within that City's city limits. The City may elect to provide less than the
minimum amount of advertisements should they deem it to be in their best interests.
(a) Any advertising produced and provided by the City shall comply with
Sunline's Advertising Policy attached in Exhibit "A" - Sunline Advertising Policy.
(b) Sunline reserves the right to relocate any City sponsored advertisement to
another location if a revenue generating advertisement has requested the same location
as the City advertisement.
II.
COMPENSATION
2.01 In lieu of payment for revenue generating advertisements, Sunline will
place and install City provided advertisements for City sponsored events, programs and
City sponsored agencies on available bus shelter advertising space not occupied by a
revenue generating advertisement within that City's city limits.
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III.
DURATION
3.01 The term of this Agreement shall be for a period of one (1) year commencing
on the date first ascribed above.
3.02 Either party may terminate this agreement, with or without cause, upon thirty
(30) days written notice to the other party. In the event this Agreement is terminated, the
City may require SunLine to remove any or all paid advertisements from SunLine bus
shelters within the City after the expiration or termination of any contracts between
SunLine and third parties for such advertisements. All SunLine bus shelters that were
installed with appropriate City permits and approvals shall be allowed to remain in place
despite the termination of this Agreement.
IV.
MAINTENANCE AND INSURANCE
4.01 Throughout the term of this Agreement and any extensions thereof, SunLine
has the duty to maintain, at its sole cost and expense, all shelters and required
appurtenances in good repair and in a safe condition, including without limitation the duty
to replace or remove any shelter or appurtenance that becomes unavailable for public
use. To that end, SunLine shall procure and maintain, and provide evidence to the City,
of self-insurance or one or more policies of insurance, which insurance shall fund
SunLine's performance of this duty.
V.
SPECIAL PROVISIONS
5.01 It is SunLine's intent to illuminate all shelters during hours of darkness
whenever possible and SunLine agrees to utilize its best efforts to accomplish
illumination. However, the City acknowledges that illumination is not always feasible and
agrees that SunLine is excused from providing illumination in such cases. SunLine and
the City shall jointly approve the placement of any vending machines in any shelter in the
City. No vending machine will be placed without the approval of both City and SunLine.
5.02 SunLine shall, upon at least 30 days' written notice, provide for the
relocation or removal of any shelter at any time the City requires use of the right of way
upon which any shelter is situated, whether for street or sidewalk realignment, street,
highway, or utility line repairs, or for any other lawful purpose, and whether such removal
or relocation is temporary or permanent. Upon a determination by the City that urgency
dictates removal in a shorter period of time, SunLine shall act within ten (10) days to
cause removal of the shelter if reasonably feasible.
Page 3 of 6
5.03 City shall ensure that the cost of removal or relocation of shelters within the
right of way is included in the budget of projects where such removal or relocation is
required. In any case where the cost is included, SunLine shall be reimbursed for
relocation or removal costs referenced in paragraph 5.02. In any case where the cost has
not been budgeted, SunLine and the City shall negotiate and endeavor to agree upon an
arrangement to share in the cost of removal or replacement of any shelter as provided
under paragraph 5.02.
5.04 The City reserves the right to require conformity with design review
standards, including site plan review showing actual physical locations with setbacks,
sidewalk space remaining, adequate distances from corners and from driveways. All such
features must be satisfactory to the City and to SunLine and shall be in compliance with
the Americans with Disabilities Act ("ADA") and with Federal Transit Administration
("FTA") requirements. SunLine shall provide an adequate cement pad under shelters.
Within the limits imposed by the FTA and the ADA, the City shall have the right to approve
or deny approval to any particular design as to its specific site plan and location, including
the right to specify a particular design for a specific location.
5.05 The parties acknowledge and agree that ADA and FTA requirements as to
the configuration and approach to newly installed bus shelters may be extremely costly,
depending upon the existing condition of the planned location and the adjoining or existing
access features. In the event that the City requests placement of a bus shelter in an area
that requires substantial expenditures in order to comply with the ADA and with FTA
requirements, the City will be requested by SunLine to bear ail or a major portion of the
costs of installation. The parties shall cooperate in placement of shelters and in the
negotiation of costs required to accommodate ADA and with FTA requirements.
VI.
MISCELLANEOUS PROVISIONS
6.01 Attornevs' Fees
In any dispute between the parties resulting in litigation, the prevailing party shall
be entitled to recover from the other party all reasonable costs, including, without
limitation, reasonable attorneys' fees. "Prevailing party" shall include, without limitation, a
party which dismisses an action for recovery in exchange for sums allegedly due, or in
exchange for performance for covenants allegedly breached, or in exchange for
considerations substantially equal to the relief sought in the action, or which receives, in
connection with any dispute, performance from the other party substantially equivalent to
any of these.
6.02 Entire Agreement
This Agreement contains the entire agreement of the parties relating to the rights
granted and the obligations assumed herein. Any oral representations or modifications
concerning this instrument shall have no force or effect unless contained in a subsequent
written modification signed by the parties.
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6.03 Indemnity
SunLine shall indemnify, defend, and hold harmless the City, and its elected
officials, officers, employees, agents, and representatives, against all liability, demands,
claims, costs, losses, damages, recoveries, settlements, and expenses (including
interest, penalties, attorney fees, expert witness fees, costs, and expenses) incurred by
the City, known or unknown, contingent or otherwise, directly or indirectly arising from or
related to any suit, action or claim that may arise from SunLine's performance under this
Agreement.
The City shall indemnify, defend, and hold harmless SunLine, and its board of
directors, officers, employees, agents, and representatives, against all liability, demands,
claims, costs, losses, damages, recoveries, settlements, and expenses (including
interest, penalties, attorney fees, expert witness fees, costs, and expenses) incurred by
SunLine, known or unknown, contingent or otherwise, directly or indirectly arising from or
related to any suit, action or claim that may arise from City's performance under this
Agreement.
6.04 Counterparts
This Agreement may be executed in counterparts, which shall be treated as
originals in all respects.
6.05 This Agreement is entered into at Riverside County, California.
6.06 This Agreement shall not be construed in any way to create a partnership
or joint venture in any respect between SunLine and the City, or between City and any
contractor of SunLine or any of SunLine's remaining member entities. SunLine is acting
purely as an independent contractor and not as an officer, agent, partner, joint venture
and/or employee of City.
6.07 Notices
Any notices given under this Agreement shall be in writing and shall be served
either personally or delivered by U.S. Mail, postage prepaid, registered or certified mail,
return receipt requested. Notices shall be deemed received at the earlier of actual receipt
or three days following deposit in U.S. Mail, postage prepaid. Unless otherwise specified,
time limits based upon notice shall be computed from the date of mailing. Notices shall
be directed to the following addresses:
Lauren Skiver Dr. David H. Ready, Esq.,PhD.
CEO/General Manager City Manager
SunLine Transit Agency City of Palm Springs
32-505 Harry Oliver Trail 3200 E. Tahquitz Canyon Way.
Thousand Palms, CA 92276 Palm Springs, CA 92240
David.readv@palmsprinasca.aov/
Shari.wrona@palmspringsca.gov
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Either party may change its address for notice purposes by giving notice to the
other, provided that the address change will not be effective until 10 days after notice of
the change.
6.08 Non-Assionment
Neither SunLine nor City shall assign or otherwise transfer their rights and
obligations under this Agreement without prior written consent of the other. Any such
assignment without consent shall be void.
6.09 Headings
The title and headings of the various sections of this Agreement are intended solely
for convenience of reference and are not intended to explain, modify, or alter the terms
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the
date first written above.
DATED;
SUNLINE TRANSIT AGENCY
auren Skiver
CEO/General Manager
CITY OF PALM SPRINGS
DATED:
Dr. David H. Re
ATTEST:APPROVED BY CITY MANAGER
Page 6 of 6
EXHIBIT "A"
SunLine Transit Agency
Advertising Policy
Policy No: B-020598
Adopted: 01/28/98
Revised: 04/25/18
ADVERTISING POLICY
PURPOSE
SunLine Transit Agency (STA), acting in a proprietary capacity, operates public bus service
in the Coachella Valley. STA's desire to sell advertisement space stems from the
recognized need to earn revenues to supplement operating costs that are not otherwise met
through farebox revenue and local, state and federal levies, taxes and grants.
SCOPE
This policy applies to all SunLine Transit Agency employees or contractors.
POLICY
It is STA's policy that its buses, bus shelters and any and all other forums for advertising
under this policy are not public forums for political discourse or expressive activity.
These areas are not intended to provide a forum for all types of advertisements, but only the
limited advertisements accepted under the policy. All advertising shall be subject to this
uniform view point neutral policy.
Excluded advertising: Copy may not be displayed and, if displayed, will be removed by STA
if it falls within the categories listed below.
In excluding said advertising, STA seeks to maintain a professional advertising environment
that will maximize advertising revenue and minimize interference with or disruption to its
transit system.
It further seeks to maintain an image of neutrality on political, religious and other issues
that are not the subject of commercial advertising and may instead be the subject of public
debate and concern. Finally, STA's goal is to continue to build and retain ridership.
Subject thereto, a proposed advertisement will be excluded if Sunline, in its sole discretion,
determines it:
1. Contains defamatory, libelous or obscene matter.
POLICY B-020598 PAGE 1 OF 4 REVISED 04/25/18
2. Is false, misleading or deceptive.
3. Supports or opposes any labor organization or any action by, on behalf of or against
any labor organization.
4. Relates to or promotes any illegal activity.
5. Contains implicit or explicit sexual references, pictures or text, or includes material
harmful to minors.
6. Depicts or promotes the sale of alcohol, cannabis, tobacco products, any illegal
products, service or entity and/or firearms.
7. Depicts or advocates violence.
8. Includes language that is obscene, vulgar or profane.
9. Demeans, degrades or has the effect of promoting discrimination against any group
or individual on the basis of race, color, religion, national origin, age, sex, disability,
ancestry or sexual orientation.
10. Opposes the nomination or election of a candidate for public office, the investigation,
prosecution or recall of a public official or the passage of a levy or bond issue.
Constitutes an unauthorized endorsement defined as advertising that implies or
declares that STA endorses a product, service, viewpoint, event or program. This
definition does not include advertising for a service, event or program for which STA
is an official sponsor, co-sponsor or participant.
11 .Constitutes a religious advertisement defined as advertising that contains direct or
indirect reference to religion, a deity or which includes reference to the existence,
non- existence or other characteristics of a deity or any religious creed,
denomination, belief, tenet, cause or issue relating to, opposing or questioning any
religion. This includes, text, symbols, images commonly associated with any religion
or deity or any religious creed, denomination, belief, tenet, cause or issue relating to,
opposing or questioning any religion.
12. Advertising that encourages person to refrain from using SunLine Transit
Agency services or public transit in general.
13. Advertising that explicitly and directly promotes or encourages the use or means of
transportation in direct competition with public transit.
PERMITTED ADVERTISING
In permitting limited advertising, STA seeks only to supplement fare revenue and other
income that funds its operations and to promote its services.
POLICY B-020598 PAGE 2 OF 4 REVISED 04/25/18
STA does not desire to have Its passengers subject to advertisements containing
controversial material relating to political, religious or other issues about which public
opinion can be widely divergent.
To realize the maximum benefit from the sale of space, all advertising programs must be
managed in a manner that will generate as much revenue as practicable while ensuring that
the advertising does not discourage use of the system, does not diminish STA's reputation
in the communities it serves and is consistent with the goal of providing safe and efficient
public transportation.
1. Commercial advertising has a sole purpose of promoting a business or to sell
products, goods or services. It does not include advertising that both promotes a
business or offers to sells products, goods or services and also conveys a political or
religious message or can be construed as issue advocacy or which expresses
an opinion or position.
2. Operations advertising is permitted. This is defined as advertising that promotes
STA and its services.
3. Governmental advertising is permitted. This is defined as advertising that promotes
programs and events of governmental entities, political subdivisions and state
agencies.
4. Political advertising is permitted. Ad content must be approved and must state "Paid
Advertisement" as part of the creative artwork. The font must be an appropriate size.
5. Entering into barter deals is permitted if Sunline determines that it is a benefit to
Sunline Transit Agency.
6. Customers requesting advertisement orders will need to provide payment upfront -
before each advertising period (flight) begins.
ADMINISTRATION AND ENFORCEMENT OF POLICY
Review by the General Manager.
The CEO/General Manager or designee shall review all advertisement content and
determine whether it complies with this policy.
If the CEO/General Manager or designee determines that the advertisement does not
comply, written notification of same shall be provided to the advertiser with a copy of this
policy.
On an as needed basis, the CEO/General Manager may refer any controversial proposed
ad content to the Board for approval or rejection with a majority vote.
POLICY B-020598 PAGE 3 OF 4 REVISED 04/25/18
The Board of Directors may override any decision by the CEO/General Manager on ad
content with a majority vote.
Sunline Transit Agency shall submit bus shelter ad content to the corresponding city,
delegated to the City Manager, for approval. The cities have five business days to respond.
Sunline Transit Agency will have ad content approval discretion, if the corresponding city
fails to respond within the five day period.
The Board designates the General Manager to administer the Advertising Policy. This
delegation is with the power of re-delegation to appropriate staff.
POLICY B-020598 PAGE 4 OF 4 REVISED 04/25/18