HomeMy WebLinkAboutResolution 2014-043 Right-of-Way License and Settlement Agreement with Attention Transit Advertising SystemsMARANA RESOLUTION NO. 2014-043
RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE A RIGHT -OF -WAY LICENSE AND SETTLEMENT AGREEMENT BETWEEN
THE TOWN OF MARANA AND ATTENTION TRANSIT ADVERTISING SYSTEMS LLC
REGARDING BUS BENCHES IN THE TOWN RIGHT -OF -WAY
WHEREAS the Town and Tucson Advertising, Inc. dba Attention Bench Advertising en-
tered into a license agreement dated February 4, 2000, authorizing Attention Bench to install bus
benches with attached advertising features at any public transit bus stops located within the
Town's public right -of -way; and
WHEREAS Attention Bench breached the terms of the license agreement, but its succes-
sor in interest, Attention Transit Advertising Systems LLC dba AdVision Outdoor, continues to
maintain bus benches in public rights -of -way located in the Town, and desires to continue to do
so; and
WHEREAS the Town is willing to settle all pending disputes relating to the breach of the
license agreement and is willing to allow AdVision Outdoor to continue to maintain bus benches
in public rights -of -way located in the Town, subject to and in accordance with the terms of a
Right -of -Way License and Settlement Agreement; and
WHEREAS the Mayor and Council of the Town of Marana find it is in the best interests
of its citizens to enter into this agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The Right -of -Way License and Settlement Agreement between the Town of
Marana and Attention Transit Advertising Systems LLC dba AdVision Outdoor regarding bus
benches in the Town right -of -way attached as Exhibit A to and incorporated by this reference in
this resolution is hereby approved, and the Mayor is hereby authorized to execute it for and on
behalf of the Town of Marana.
SECTION 2. The Town's Manager and staff are hereby directed and authorized to under-
take all other and further tasks required or beneficial to carry out the terms, obligations, and ob-
jectives of the agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 6 day of May, 2014.
Mayor Ed Honea
ATTEST:
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Bronson, Town Clerk
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TOWN OF MARANA RIGHT -OF -WAY LICENSE AND
SETTLEMENT AGREEMENT
(Attention Transit Advertising Systems LLC)
THIS TOWN OF MARANA RIGHT -OF -WAY LICENSE AND SETTLEMENT AGREEMENT (this
"Agreement ") is entered into by and between the TOWN OF MARANA, an Arizona municipal
corporation (the "Town ") and ATTENTION TRANSIT ADVERTISING SYSTEMS LLC, a Delaware
limited liability company dba AdVision Outdoor ( "Licensee "). The Town and Licensee are
sometimes collectively referred to in this Agreement as the "Parties," either of which is
sometimes individually referred to as a "Parry."
RECITALS
A. The Town and Tucson Advertising, Inc. dba Attention Bench Advertising entered into a
license agreement dated February 4, 2000, and recorded in the office of the Pima County
Recorder on February 11, 2000 at Docket 11233, Page 191 (the "Original License ").
B. Licensee is the successor in interest to the licensee under the Original License. For
simplicity, the licensee under the Original License and all of its successors in interest, including
Licensee, will be referred to in this Agreement as "Licensee."
C. Among other things, the Original License:
i) authorized Licensee to install bus benches with attached advertising features at any
public transit bus stops located within the Town's public right -of -way;
ii) was for an initial term of three years, with two one -year options to renew (unless
revoked sooner by the Town at its discretion);
iii) required Licensee to pay the Town a "Base Fee" of $150 per year plus a "Percentage
Fee" consisting of 30% of the net advertising revenue paid to Licensee through the sale of
advertising space on the benches, if and to the extent it exceeded the Base Fee; and
iv) required Licensee to submit annual reports to the Town, containing the Licensee
bench number and location description of each bus bench placed and maintained by Licensee
pursuant to the Original License, the gross and net advertising revenue for the preceding
calendar year, and a sworn certification of the accuracy of the information provided.
D. Licensee breached the terms of the Original License, but continues to maintain
Licensee's bus benches in public rights -of -way located in the Town, and desires to continue to
do so.
E. The Town is willing to settle all pending disputes relating to Licensee's breach of the
Original License and is willing to allow Licensee to continue to maintain Licensee's bus
benches in public rights -of -way located in the Town, subject to and in accordance with the
terms of this Agreement.
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License Agreement—Attention Transit Advertising
AGREEMENT
Now, THEREFORE, based on the foregoing recitals, which are incorporated here by this
reference, and in consideration of the mutual promises made in this Agreement, the Parties agree
as follows:
Article 1. Settlement
I. L Report by Licensee. Within 30 days after the effective date of this Agreement, Licensee
shall submit a report to the Town, containing the Licensee bench number and location description
of each bus bench placed and maintained by Licensee pursuant to the Original License, the gross
and net advertising revenue for each bench from the effective date of the Original License
through December 31, 2013, and a sworn certification of the accuracy of the information
provided.
1.2. Payment by Licensee. Within 30 days after the effective date of this Agreement, Licensee
shall pay the Town 80% of the amount due and owing to the Town for Licensee's use of Town
right -of -way from the effective date of the Original License through December 31, 2013,
calculated pursuant to the terms set forth in the Original License and based on the information
provided in the report required by paragraph 1.1 above. If timely payment is not made by
Licensee, this Agreement is terminated.
1.2.1. Notwithstanding paragraph 1.2 above, if this Agreement is terminated due to
Licensee's default, as set forth in paragraph 4.2 below, Licensee shall then pay the Town the
remaining 20% of the amount due and owing to the Town for Licensee's use of Town
right -of -way from the effective date of the Original License through December 31, 2013,
calculated pursuant to the terms set forth in the Original License and based on the
information provided in the report required by paragraph 1.1 above. This amount shall be
due and payable to the Town within ten days of the termination date of this Agreement.
1.3. Mutual release of all claims. Upon receipt of the 80% payment referenced in
paragraph 1.2 above, all claims whatsoever between and among the Parties relating in any way to
the Original License are fully settled, except that if this Agreement is terminated due to
Licensee's default, as set forth in paragraph 4.2 below, the Town retains the right to claim
payment of the remaining 20% of the amount due and owing to the Town for Licensee's use of
Town right -of -way from the effective date of the Original License through December 31, 2013,
as set forth in subparagraph 1.2.1 above. Upon receipt of the 20% payment referenced in
subparagraph 1.2.1 above, if it occurs, all claims whatsoever between and among the Parties
relating in any way to the Original License are fully settled, including without limitation any
payments claimed by the Town for the use of Town right -of -way from the effective date of the
Original License through December 31, 2013.
Article 2. License
2.1. License. The Town hereby gives Licensee permission to use any public transit bus stops
located within Town of Marana public right -of -way, excluding public school bus stop locations.
The public right -of -way areas Licensee is permitted to use are referred to in this Agreement as
the "Licensed Area."
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License Agreement—Attention Transit Advertising
2.2. Permitted use and restrictions. Licensee may use the Licensed Area for bus bench and
bus bench advertising purposes only (as more particularly described below), subject to the
representations, terms and conditions set forth in this Agreement.
2.2.1. For each existing bench, Licensee shall within 90 days after the effective date of
this Agreement submit to the Town Engineer one of the following:
2.2.1.1. Proof satisfactory to the Town Engineer that the bench location was
previously reviewed and approved by the Town.
2.2.1.2. A scale drawing of the bench location, drawn at a scale of one inch equals
five feet or less, showing the location and orientation of the bench and any curbs,
sidewalks, buildings, signs, landscaping, site visibility triangles, driveways located within
50 feet of the bench (or such larger area as determined by the Town Engineer based on
reasonable traffic engineering and civil engineering judgment). If the Town Engineer for
any reason rejects the bench location, the bench shall be removed or relocated pursuant to
paragraph 2.2.14 or paragraph 2.2.15 below, as applicable.
2.2.2. No new benches shall be installed on the Licensed Area without plans first being
submitted by Licensee and reviewed and approved by the Town and a right -of -way permit
first being obtained by Licensee.
2.2.3. No benches shall be located or installed within sight visibility triangles or the
roadway clear zone, as reasonably determined by the Town Engineer.
2.2.4. Licensee shall not place an advertisement within 500 feet of a business which is in
direct competition with the advertiser, unless the advertiser's business is also located within
500 feet of the advertisement. The Town reserves the right to request removal of any
advertisement placed by Licensee pursuant to this Agreement that the Town deems, in its sole
discretion, to violate the spirit of this provision.
2.2.5. Licensee shall not display advertisements for tobacco products, alcoholic
beverages, sexually oriented businesses, or any other age- restricted activity.
2.2.6. Licensee shall not display advertisements for political messages or candidates.
2.2.7. No bench or advertisement shall obstruct or impede a sidewalk.
2.2.8. All benches and advertisements shall be anchored firmly by a method acceptable to
the Town Engineer.
2.2.9. Licensee shall restore the Licensed Area to its original condition if the Town so
requires, and Licensee shall pay all restoration costs.
2.2.10. Any authorized agent or contractor who installs a bench or advertisement on
Licensee's behalf shall meet the minimum insurance requirements set forth in this
Agreement.
2.2.11. Licensee shall guarantee placement and secure all benches.
2.2.12. Licensee shall maintain all benches installed by or on behalf of Licensee.
Pursuant to this obligation, Licensee shall refurbish or replace each bench as necessary and
upon the request of the Town.
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License Agreement—Attention Transit Advertising
2.2.13. Licensee shall maintain all benches and the area within ten feet surrounding the
location of any bench free and clear of all trash, weeds and graffiti. Licensee shall remove all
trash, weeds and graffiti within 24 hours after the Town notifies Licensee of a violation of
this paragraph. Licensee shall also ensure that any trash receptacles within ten feet of the
location of any bench are maintained and regularly emptied.
2.2.14. Licensee shall, at Licensee's cost, remove or relocate a bench as soon as
reasonably possible, and in any event within 24 hours, after the Town notifies Licensee that
an emergency exists, endangering the public health, safety or welfare, requiring the bench to
be removed or relocated immediately. Nothing in this paragraph shall preclude the Town
from removing or relocating a bench at its own cost without prior notice to Licensee under
exigent circumstances.
2.2.15. In all situations other than those covered by paragraph 2.2.14 above, Licensee
shall, at Licensee's cost, remove or relocate a bench within the time set forth in the removal
or relocation notice from the Town. The Town's notice shall allow Licensee at least one
calendar week for the removal or relocation.
2.3. Conversion of bus benches to covered shelters. Licensee may convert advertising
benches to covered shelters upon approval by the Community Development Director or designee,
provided that the design of the shelters is, in the Community Development Director's or
designee's reasonable opinion, attractive and compatible with other bus shelters in the region,
and the total advertising space available on each shelter does not exceed twice the area of the
total advertising space available on Licensee's typical bus bench. Upon conversion, all
provisions of this Agreement related to bus benches shall apply to the converted bus shelters.
2.4. Accommodation. This Agreement is granted as an accommodation to Licensee, to allow
Licensee to use the Licensed Area for bus bench and bus bench advertising purposes.
2.5. Non - exclusivity. This Agreement grants a non - exclusive right to the Licensee. The Town
reserves the right to issue one or more licenses to use the public right -of -way for similar or
identical services or purposes.
Article 3. Payment
3.1. License fee. Licensee shall pay the Town a quarterly license fee for each quarter (January
through March, April through June, July through September, and October through December) of
each calendar year. Payment shall be made payable to the "Town of Marana" and delivered to the
Marana Community Development Department as indicated in paragraph 5.5 below. The license
fee shall be the larger of the following amounts:
3.1.1. Base fee. A minimum base fee of $40 times the total number of benches located
within the Marana public right -of -way pursuant to this Agreement.
3.1.2. Percentage fee. A fee equal to 10% of the Net Advertising Revenue paid to
Licensee through the sale of advertising space on all benches permitted under this
Agreement.
3.2. Payment due date. The license fee shall be payable on the first day of the second month
following the calendar quarter to which the payment applies. Specifically, the first license fee
payable under this Agreement shall be due and payable on May 1, 2014 for the first calendar
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License Agreement - Attention Transit Advertising
quarter of 2014, and future license fees shall be payable each subsequent August 1, November 1,
and February 1 while this Agreement is in effect.
3.3. Late fee. Failure by Licensee to pay the license fee on or before the due dates established
in paragraph 3.2 above shall result in the Town's imposition of a late fee in the amount of 10% of
the total amount owed by Licensee to Town.
3.4. Definitions. The following definitions apply to this Agreement.
3.4.1. Gross Advertising Revenue. "Gross Advertising Revenue" shall mean the sum of
all monies and the actual value of any non - monetary consideration received by Licensee
(excluding public service use) on account of the sale of advertising space on the transit
advertising benches permitted under this Agreement.
3.4.2. Net Advertising Revenue. "Net Advertising Revenue" shall mean Gross
Advertising Revenue less any advertising agency commissions, copy production charges, or
other third party sales commissions incurred in the sale of advertising space on the transit
advertising benches permitted under this Agreement and actually paid by Licensee to a bona
fide third parry.
3.5. Quarterly written report. The percentage fee described in paragraph 3.1.2 above shall be
calculated in a written report submitted by Licensee prior to or accompanying the quarterly
license fee. The written report shall:
3.5.1. Cover the calendar quarter to which the accompanying license fee applies.
3.5.2. Be reviewed and verified as true, complete and correct by an officer of Licensee.
3.5.3. Set forth the following minimum information with respect to each transit
advertising bench:
3.5.3.1. Licensee bench number and location description.
3.5.3.2. Maintenance and repair schedule.
3.5.3.3. Gross Advertising Revenue.
3.5.3.4. Net Advertising Revenue.
3.6. Preservation of books and records. For a period of seven years after submission of the
quarterly written report, Licensee shall keep and maintain a full set of books and records
supporting the quarterly written report. Such books and records shall include, but is not
necessarily limited to, all advertising contracts, revenue reports, rate cards and any other
supporting data, documents or information, databases or computer programs relating to such
information or the bench location.
3.7. Audit. The Town, its agents, and/or representatives shall have the right to perform an
audit of Licensee's books and records to confirm that Licensee has adequately documented and
paid the license fee payable under this Agreement.
3.8. Underpayment. If the Town determines that Licensee has underpaid the license fee,
Licensee shall immediately pay the amount of the underpayment, plus interest on the unpaid
amount at the rate of 10% per annum.
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License Agreement — Attention Transit Advertising
Article 4. Default, Remedies, Modification, and Termination
4.1. Notice of default. The Town shall give Licensee written notice of any default under this
Agreement. The notice of default shall describe the default with sufficient clarity to allow
Licensee to cure the default.
4.2. Termination for default. The Town may terminate this Agreement if Licensee fails to
cure any default within ten days after the Town gives notice of default.
4.3. Modification or termination at the Town's will. The Town may modify or terminate this
Agreement at any time. The Town shall give Licensee at least 60 calendar days' written notice of
modification or termination, unless the Town determines that a shorter period of notice is
necessary in order to address an imminent health or safety issue.
4.4. Termination at Licensee's will. Licensee may terminate this Agreement at will by giving
written notice to the Town, setting a termination date when all of Licensee's benches and other
personal property shall be removed from the Licensed Area and when Licensee shall have
completed restoration of the Licensed Area, all in accordance with paragraph 4.6 below.
4.5. Final payment upon termination. Licensee shall pay all license fees accrued through the
termination date.
4.6. Removal of personal property and restoration upon termination. Upon termination of
this Agreement, Licensee shall remove all of Licensee's benches and other personal property
from the Licensed Area and Licensee shall restore the Licensed Area to Town of Marana
standards. Restoration may include, for areas where landscaping was removed by Licensee,
installation of native landscape material not requiring scheduled irrigation. Town of Marana
standards for restoration shall be determined by the Town at the time of the notice of termination.
Licensee shall pay for all restoration costs.
4.7. Effect of failure to remove personal property. Any and all benches and personal property
remaining on the Licensed Area on the termination date established pursuant to paragraph 4.3 or
paragraph 4.4 above shall automatically become the property of the Town.
4.8. Restoration and repair of the Licensed Area. If Licensee causes any damage to any Town
property, Licensee shall promptly make and pay for the repairs necessary to restore the Licensed
Area to its pre- damaged condition. At the discretion of the Town, if repairs are not initiated and
completed within 14 calendar days after the Town gives written notice of damage to Licensee,
the Town may make the repairs and bill Licensee for all costs plus a 10% penalty. Licensee shall
pay the Town within ten days of receiving a bill for repairs.
Article 5. General Provisions
5.1. Effective date and duration. This Agreement shall be effective when it has been executed
on behalf of the Town and Licensee, and shall remain in effect unless and until it is terminated
(a) by mutual written agreement of the Town and Licensee, (b) as a result of Licensee's sale of its
bus bench and bus bench advertising business, or (c) in accordance with paragraph 4.3 or
paragraph 4.4 above.
5.2. Licensee's right to assign with consent; binding effect of Licensee's obligations.
Licensee may not assign Licensee's rights or interests under this Agreement without the express
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License Agreement—Attention Transit Advertising
written consent of the Town. Licensee's obligations under this Agreement are binding upon
Licensee, its heirs, assignees and designees.
5.3. Licensee's obligation to defend, indemnify and hold harmless the Town. Licensee shall
defend, indemnify and hold harmless the Town, its officers, agents, and employees from and
against any and all claims, demands, causes of action, complaints, suits, losses, damages,
injuries, and liabilities whatsoever (including those for costs, expenses, and attorneys' fees)
arising out of Licensee's maintenance and use of the Licensed Area or Licensee's negligent acts,
errors or omissions in connection with this Agreement.
5.4. Required minimum insurance. Licensee shall maintain commercial general liability
insurance, with carriers acceptable to the Town, throughout the term of this Agreement in
minimum amounts of $2,000,000.00 per occurrence and $2,000,000.00 aggregate. Licensee may
satisfy the minimum insurance requirement with excess or umbrella liability coverage. Licensor
may, if it deems necessary, require additional coverage.
5.4.1. Licensor shall be named as an "additional insured" on the commercial general
liability insurance.
5.4.2. Licensee shall deliver one or more certificates of insurance and additional insured
endorsements evidencing coverage as described in this paragraph 5.4 to the Town upon
execution of this Agreement, prior to commencing any work pursuant to this Agreement. The
additional insured endorsement form identification number shall be included within the
description box on the certificate of insurance and the applicable policy number shall be
included on the endorsement. Licensee shall also deliver new certificates of insurance and
additional insured endorsements each time the policy is updated or renewed, and at least
annually.
5.4.3. If available through Licensee's insurance carrier, Licensee shall obtain a
"cancellation notice recipient" endorsement, evidenced by endorsement number on the face
of the insurance certificate and submittal of a copy of the cancellation notice recipient
endorsement, in all its insurance policies, requiring Licensee's insurance carrier to provide
notice to Licensor of cancellation or reduction of insurance coverage.
5.4.4. Certificates of insurance and endorsements shall be sent to the Town of Marana
Community Development Department, 11555 West Civic Center Drive, Marana Arizona
85653, annually commencing on the date of execution of this Agreement.
5.5. Service of notice. All notices, filings, consents, approvals and other communications
provided for in or given in connection with this Agreement shall be validly given, filed, made,
transmitted or served when delivered personally or sent by registered or certified United States
mail, postage prepaid, to the following addresses (or to such other addresses as either Party may
from time to time designate in writing and deliver in a like manner):
To the Town: TOWN OF MARANA
Attn: Community Development Department
11555 W. Civic Center Drive
Marana, AZ 85653
With a copy to: TOWN OF MARANA
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License Agreement—Attention Transit Advertising
Attn: Legal Department
11555 W. Civic Center Drive
Marana, AZ 85653
To Licensee: ATTENTION TRANSIT ADVERTISING SYSTEMS LLC
Attn: Lyttleton F. Wilson III
1120 N. Anita Ave.
Tucson AZ 85705
With a copy to: Kevin John McShane, Esq.
McShane & Pugh, LLP
10474 Santa Monica Blvd., Suite 401
Los Angeles, CA 90025
5.6. Compliance with applicable laws. Licensee shall comply with and abide by all existing
and applicable federal, state, and local laws and ordinances.
5.7. Cancellation for conflict of interest. This Agreement is subject to cancellation in certain
instances involving conflict of interest pursuant to A.R.S. § 38 -511.
5.8. Legal authority. The Parties agree each is relying on the legal and lawful authority of the
other Party to perform their respective obligations under this Agreement. By executing this
Agreement, the signatories represent and warrant they have been duly authorized to execute this
Agreement on behalf of the Party for whom they sign.
5.9. Governing law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Arizona.
5.10. Entire agreement. This Agreement represents the entire and integrated agreement
between the Parties and supersedes all prior negotiations, representations or agreements, either
written or oral.
5.11. Severability. If any provision of this Agreement is declared invalid or unenforceable,
the remainder shall continue in full force and effect.
5.12. Amendment. This Agreement may not be changed or modified except by written
agreement signed by all Parties.
5.13. Waiver. Neither Party's waiver of the other's breach of any term or condition contained
in this Agreement shall be deemed a waiver of any subsequent breach of the same or any other
term or condition of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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License Agreement—Attention Transit Advertising
IN WITNESS WHEREOF, the Town and Licensee have executed this Agreement on the last
signature date set forth below.
THE "TOWN"
TOWN OF MARANA, an Arizona municipal
corporation
By:
d Honea, Mayor
"LICENSEE"
ATTENTION TRANSIT ADVERTISING SYSTEMS
LLC, a Delaware limited liability
ATTEST:
Jo n Bron n, Town Clerk
APPROVED AS TO FORM:
company, dba AdVision Outdoor
X
By: . , *
Kevi John McShane, Manager
Z Cas ' , Town Att cyiey
ATE O
SS.
County of � �-�' 1 �/ -�G/�� � �4��/�-'€ -- " (/
The foregoin ' strument was acknowledged be re me this d of
2014 by K in John McShane, Manager of TTENTION TRANSI DVERTISING SYSTEMS LLC, a
Delaware imited liability company, doi usiness as AdVis' Outdoor, on behalf of the LLC.
(Seal)
Notary Public
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License Agreement—Attention Transit Advertising
ACKNOWLEDGMENT
State of California
County of Los Angeles )
On April 16, 2014 before me, David S. Fredricksen, Notary Public,
(insert name and title of the officer)
personally appeared KEVIN JOHN MCSHANE
who proved to me on the basis of satisfactory evidence to be the person whose nameA is /0
subscribed to the within instrument and acknowledged to me that he /sole /tbooy executed the same In
his /IbWtb#_* authorized capacity(isd), and that by his / j ^jAr signature(s) on the instrument the
person(A, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
DAVID S. FREDRICKSEN
WITNESS my hand and official seal. comet. �ssa2ss
co
c� NOTARY PUBLIC - CALIFORNIA z
lOS ANGELES COUNTY
My Comm. Exp July 1, 2014 r
Signature (Seal)