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HomeMy WebLinkAbout205017 OUTDOOR PROMOTIONS - CONTRACT - RFP - P793 BUS SHELTERS BENCHES ADVERTISING ON SAME (2)SERVICES AGREEMENT THIS AGREEMENT made and entered into this 1ST day of September, 2001, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and Outdoor Promotions, Inc., hereinafter referred to as "Contractor". W ITNESSETH: WHEREAS, the Contractor submitted a proposal in response to the City's May 11, 2001, Request for Proposal No. P- 793, regarding providing bus shelters and bus benches and sale of advertising space on same. WHEREAS, the Contractor has agreed to provide the bus shelters and bus benches and advertising services on same to Transfort for a term beginning September 1, 2001, subject to reasonable conditions and restrictions upon said shelters and benches and advertising as set forth herein: and WHEREAS, the City wishes to permit the Contractor to place bus shelters and bus benches and advertising on same under the terms of this agreement for the term hereof, subject to such conditions as are hereinafter specified. NOW, THEREFORE, in consideration of the mutual covenants and obligations herein expressed and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is agreed by and between the parties hereto as follows: 1. Term of the Agreement. This agreement shall be in effect for an initial term from the date of execution through December 31, 2001. Upon the adoption by the City Council of the City of an ordinance authorizing an additional term of twenty (20) years beyond the initial term, the term of this agreement shall extend through December 31, 2021, unless otherwise terminated by law or in accordance with the terms of this agreement. 1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, in duplicate, as of the day and year first herein written. TTEST: City Cleric roved as to form: Assistant City Att r ATTEST: CORP ATE S R TA CITY OF FORT COLLINS, COLORADO a municipal corporation James B O'Neill II, CPPO Dir cto of Purchasing and Risk Management Date: OUTDOOR PROMOTIONS, INC By: G ry Yo g resiont Date: � �o i C roro p ate Seal) 10 EXHIBIT "A" r� 't rcites outd p R or ofions, Inc. Ft Collins K932 200 (Big Hrt) 20 $ism $1520 $1460 $1400 100 12 $1080 $1044 $1008 $972 75 9 $837 $810 $783 $756 50 6 $576 $558 $540 $522 25 3 $297 $288 $279 $270 1-2 $125 each $125 each $125 each $125 each Cheyenne 53,687 200 (Big Hit) 20 $950 $899 $848 $800 100 9 $468 $444 $420 $396 75 7 $395 $364 $343 $322 50 5 $292 $274 $257 $240 ' 25 3 $185 $172 $161 $150 ce Cast Per 4 Week Period Ft Collins 94,932 100 12 $3178 $2970 $2776 $2595 Cb&gesm&:$325 75 9 $2448 $2288 $2138 $1998 r m CAegr,kgks: a3oo 50 6 $1680 $1580 $1980 $1380 25 3 $900 $850 $803 $750 Loveland 45,728 100 8 $1600 $1531 $1463 $1395 75 6 $1295 $1232 $1150 $1080 50 4 $950 $882 $816 $750 25 2 $495 $465 $430 $395 1 $250 $250 $250 $250 Ti ' IT 972, S ce Cost Per 4 Week Period Per ' MARKET• • • PERIODS PERIODSPERIODS Ft Collins 'bight Heavy 10+ $204 $195 $184 %dilght Medium 5 to 9 $215 $205 $195 Tffight light 1 to 4 $225 $215 $204 A Collins Street Heavy 10+ $173 $162 $153 Street Medium 5 to 9 $192 $181 $171 A Collins Sheet light 1 to 4 $215 $205 $194 Crab Heavy 10+ $163 $153 $144 Ft- Collins Curb Medium 5 to 9 $181 $171 $161 Curb light 1to4 $204 $194 $184 MINI -BUS 1-10+ $100 $90 $80 Space Cart Per f Space Cost Per 4 Week Period f I I 4�Week Period • •ST lkl,av, • 6+ads $90 per ad rp;erad Hill $550 $475 plad 3-5 ads $95 perad IrAermediate $550 $375 p1-2 ads $100perad Uans $550 $275 per Effective 811101 2. Scope of Service. The Service Provider agrees to provide the following services to at least the extent indicated, with such limitations as provided in this Agreement. a. At all times during the performance of this Contract, Contractor shall strictly observe and conform to all applicable federal, state and local laws, rules, standards, regulations and orders that have been or may hereafter be established. All shelters and benches will be per the city standard as stated in the City of Fort Collins Transit Design Standards and Guidelines manual for transit stop designs, including without limitation City Code section 24-1 (b) (5) as the same may from time to time be amended. On one-way streets the Contractor and City will work together on the design with the goal of providing two advertising panels visible to traffic, where possible. b. Contractor agrees to provide bus benches and bus shelters conforming to the requirements of this Section at all approved Transfort bus stops. The Contractor shall furnish, install, repair and maintain bus shelters and benches as specified and directed by the City representative and written approval from same, at all approved Transfort bus stops, Contractor will retain ownership of all such shelters and benches throughout the term of this contract and must provide a lien waiver to the City. All shelters and benches shall become the property of the City at the end of the contract term. If contract is terminated prior to its full term, the City shall have the option of purchasing any bus shelters or benches. c. Contractor agrees to make a "good faith" effort to sell appropriate advertising space on the bus benches and bus shelters. Advertising must be sold on all benches and shelters except those reserved for the City and on shelters in neighborhoods d. Contractor agrees to be solely and completely responsible for the maintenance, repairs, and upkeep of all bus benches and bus shelters and to maintain such benches and shelters in a clean, sanitary, graffiti free and reasonably litter -free condition. Trash receptacles are to be emptied every two days. Graffiti removal must comply with City Policy which currently calls for removal within 24 hours. Sweeping, cleaning, removing graffiti, litter and debris shall be completed no less frequently than once every four-(4) days. Steam cleaning of pad and sidewalk areas shall be completed no less frequently than once every six-(6) months. Contractor shall be responsible for ensuring that all bus shelter and bench locations and access to the nearest sidewalk are promptly cleared of snow for each snowfall of five (5) or more inches within 4 hours after the snowfall. All sites will have a notification sign posted with the name and phone number of the contact person for users to contact contractor of problems with the site. Contractor shall repair or replace any damaged or defaced shelters or benches or, individual parts thereof, as promptly as reasonably practicable after either Contractor discovers such damages, or is notified by the City of same, but in any event within five (5) days (immediately if deemed a safety hazard). If the Contractor fails to complete the required repair or replacement within the specified period, the City may make such removal or repair and bill the Contractor for the actual cost incurred plus a 20% administrative fee. e. Contractor agrees to bear all costs relating to the operations of this project. f. Contractor agrees that all advertising shall be sold at the rates set forth on the rate sheet attached hereto as Exhibit A and incorporated herein by this reference. F Contractor may not charge any rates or fees except as listed in Exhibit "A", unless the City grants to Contractor express written permission to deviate from such rates. g. Contractor agrees not to place advertising, on any bench or shelter in the City prior to receiving written acceptance from the City for the placement, installation, style and condition of each individual bench or shelter. Once such approval has been obtained no subsequent modification of any bench or shelter shall be permitted without written approval from the City. Contractor shall provide an acceptance form listing the date of installation, location, re -location and date of acceptance by the City of any bench or shelter. Contractor shall also submit for City review any advertisement and shall have received written approval from the City of the same prior to placement of the same hereunder. In reviewing any request by the Contractor for approval or modification of each individual advertisement, bench or shelter, the City shall consider, but not be limited to the following factors: 1. The size of the bench or shelter 2. The design of the bench or shelter 3. The materials used for the construction of the bench or shelter 4. The appearance and content of the advertising to be displayed 5. The placement of the bench or shelter with respect to pedestrian and vehicular traffic 6. The need for the bench or shelter h. Contractor is not subject to general restrictions regarding the use of color on advertising panels; provided, however, that the City reserves the right to review and approve or disapprove all advertising content, copy, design, and colors to be displayed on bus benches and shelters based on aesthetic considerations within the sole discretion of the City. i. The parties acknowledge that the City's objectives for the advertising program to be carried out through the performance of the Agreement are to: (1) generate revenue for the City through the placement of advertising on bus benches and bus shelters; (2) maintain a neutral position on political, religious and ideological matters; and (3) limit advertising to advertising that proposes a legitimate commercial transaction and that will promote healthful, family -oriented products and services appropriate for citizens of all ages. Because the City's sale of advertising space is for the purpose of raising revenue, and not for the purpose of establishing a forum for public speech, the City reserves to itself the sole and final authority as to whether proposed advertising is consistent with these objectives. All advertising in place during the term of this Agreement shall comply with this provision. Advertising that is determined by the City to be inconsistent with these objectives shall be removed immediately upon receipt of a written request for such removal by the Contractor. j. Contractor shall relocate any bus shelters or benches to a location determined by the City, within thirty (30) days after its receipt of a written request to do so by the City. Contractor shall remove any bus shelter upon thirty (30) days written notice thereof to the City in the event that any city, state, federal, or other governmental authority hereafter imposes any rules, regulations or laws which Contractor and City representative determines to have effect of materially diminishing the value of such transit shelters/benches for advertising purposes. In the event of such removal, 3 Contractor shall not retain or recover any costs associated with the construction and installation of the removed shelter and benches. k. Contractor shall submit on a monthly basis a location report of all bus shelters and benches to the City representative. Advertising hereunder may not include or constitute the following: i. advertising that primarily conveys a political, religious, ideological or other non-commercial message; ii. advertising of alcohol or tobacco products; advertising that promotes illegal activities or transactions; iv. advertising that is misleading or deceptive, or that constitutes a public nuisance; V. advertising of products or services available to adults only by law; vi. advertising of any product or service primarily related to sexual or violent activities or practices, or advertising of any product or service in a manner that is sexually suggestive or that displays or suggests violence or is inappropriate for minors; vii. any advertising reasonably determined to be inconsistent with the above -stated objectives of the advertising program; and viii. advertising that is not in compliance with the City sign code at any time, as the same may be modified or supplemented by the City Council of the City. 3. Payment. In consideration of the right to erect bus shelters and bus benches and sell advertising thereupon within the City, the Contractor agrees: a. To remit to the City within ten (10) days after the end of each month throughout the term of the this Agreement an amount equal to Fifteen percent (15%) of the gross revenues received by the Contractor during that period from advertising displayed on Transfort benches and bus shelters, to include an itemized invoice listing all companies and amounts they are paying. After the fifth year of the agreement, the percentage of gross revenues to be paid to the City hereunder shall increase to twenty percent (20%). Contractor may adjust its gross revenues by subtracting fees paid to national account advertising agencies, provided, however, that no adjustment for any such fee may exceed Fifteen percent (15%) of the monthly gross revenues from that national advertising account for which the fee is charged. b. To pay the City a minimum guaranteed amount for advertising under this Agreement of no less than One Hundred Thousand Dollars ($100,000.) per year. The guarantee amount is formulated on the 2001 basis of 105 shelters and 400 benches. Any additions or deletions from these numbers will result in the same percentage increase or decrease in the annual guarantee amount. C. Contractor shall at all time during the term of this Contract maintain such detailed and accurate books and records as shall sufficiently and properly reflect all direct costs of any nature on the performance of this Contract, and shall utilize such bookkeeping procedures and practices as will reflect these costs. All books and records shall be subject, at any reasonable time, to inspection, audit or copying by City personnel, or such independent auditors or accountants as are designated by the City. Contractor shall cooperate in the completion of any audits. Any adjustments required as a result of such audits, shall take place during the quarter in which the audit is conducted. d. To provide the City one (1) bench for every ten (10) benches installed on which advertising is permitted, and one (1) shelter for every ten (10) shelters installed on which advertising is permitted, which benches and shelters may be used by the City in areas where advertising is not permitted. e. To provide the City ten (10) benches and ten (10) shelter faces for the City use, in its discretion, for advertising and public announcements of the City's sole choice, at no cost to the City, for the use of such benches and shelters or for production cost or materials for up to 3 changes per bench and shelter face for year. Such cost will 5 be born by the Contractor. f. Contractor may deduct a total sum of up to ten thousand dollars ($10,000) for the payment of City permit fees required for the installation of shelters and benches. Contractor must submit copies of invoices monthly for fees paid. 4. Insurance. The Contractor agrees to designate the City as an additional named insured upon a Commercial general liability insurance policy with not less than One Million Dollars ($1,000,000.00) combined single limit coverage. Such general liability insurance shall remain in full force and effect during the term of this Agreement and any renewal thereof. The Contractor agrees to provide evidence of such liability insurance upon execution of this agreement. 5. Conditions of the Agreement. It is further agreed by and between the City and the Contractor as follows: a. The Contractor shall neither assign any of the rights nor delegate any of the duties imposed upon him under the provisions of this Agreement without having first obtained the written permission of the City. Which permission can be given at the sole discretion of the City. b. This Agreement may not be enlarged, modified, or altered except in writing signed by the parties as amended hereto. C. No waiver of any breach of this Agreement shall be held or construed to be a waiver of any subsequent breach thereof. d. This agreement shall not constitute an exclusive franchise for the benefit of the Contractor. e. In entering into this Agreement, Contractor acquires no status, rights, or benefits of an employee of the City. Furthermore, the Contractor shall be considered as an independent contractor and the City shall incur no liability due to the operations of the Contractor. 6 6. Indemnification. The Contractor shall defend, indemnify and hold the City free and harmless from and against any and all liabilities, demands, claims, damages, suits, judgements and decrees, and Court awards including costs, expenses and attorneys' fees, on account of injuries to or death of any person or persons or damage to any property arising out of or related to the Contractor's intentional or negligent acts, errors or omissions or that of its agents, officers, and employees, subcontractors or assignees, whether contractual or otherwise, during the performance of this Contract and pursuant to it terms. Nothing in this section shall be deemed to waive or otherwise limit the defenses available to the City pursuant to the Colorado Governmental Immunity Act or otherwise provided by law. 7. Notices. Notices permitted or required to be given shall be in writing and shall be deemed given upon personal delivery or upon deposit in the United States Mail, certified, return receipt requested, postage fully prepaid, addressed as follows or to such other address as the parties may designate from time to time by notice given in accordance with this paragraph: City: City Clerk City of Fort Collins PO Box 580 Fort Collins, CO 80522 With Copy to: Linda Dowlen, Transportation and Purchasing City of Fort Collins PO Box 580 Fort Collins, CO 80522 8. Early Termination. Contractor: Outdoor Promotions, Inc. 5724 South College Avenue Fort Collins, Colorado 80525 Attn: Gary Young, President a. In the event of default the City shall provide written notice of the default and the City may terminate this agreement if such default is not cured within thirty (30) days of written notice. In the event of a default recurring within 180 days of 7 original default or substantial failure to perform by the Contractor under the terms and conditions of this Agreement, the City may terminate this agreement immediately upon the written notice to the Contractor. If this Agreement is terminated as herein provided, all rights of the Contractor shall become null and void. b. In the event that the City determines, for any reason whatsoever, to discontinue, for a period of at least one (1) year, the use of City bus benches or shelters for paid advertising, the City may terminate this Agreement by making payment to the Contractor in an amount sufficient to purchase the shelters at a rate of $10,000 per shelter, and the benches at a rate of $1,000 per bench, minus fourteen and three tenths percent (14.3%) depreciation per year; provided however, that the right of early termination shall be contingent upon the City Council having first appropriated sufficient funds to meet this payment obligation. For the purposes of this provision, depreciation shall start from the date a new bench or shelter is put into service. In addition, the City will provide written notice to Contractor of such termination no fewer than sixty (60) days in advance of the date of termination. In the even of such early termination, the Contractor shall be entitled to retain ninety percent (90%) of all revenues generated from advertising sold during the sixty (60) days just prior to such termination date. 9. Survival. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein, including Paragraph 5 , shall survive and shall not be affected by the expiration or termination of this Agreement. 10. Contract Documents, Entire Agreement. This writing, together with the exhibits attached hereto, constitutes the entire agreement between the parties, their officers, employees, agents and assigns and supersedes all prior agreements, understandings, warranties or promises between the parties hereto, whether written, spoken or implied from the conduct of the parties I hereto; provided, however, that in the event the terms of such documents conflict, the requirements of this writing shall supercede any such previous documents. 11. Benefit. This Agreement is made for the sole and exclusive benefit of the parties and shall insure to the benefit of their respective survivors, heirs, personal representatives, successors and assigns. It is not made for the benefit of any third party. 12. Severability. In the event any covenant, condition or provision of this Agreement is held to be invalid by final judgement of any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall not in any way affect any of the other covenants, conditions or provisions of this Agreement, provided that the validity of any such covenant, condition or provision does not materially prejudice either party in its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. 9