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HomeMy WebLinkAboutSTREET MEDIA GROUP LLC - CONTRACT - RFP - 7248 ADVERTISING ON BUSES EXTERIOR & INTERIORSERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and Street Media Group, LLC, hereinafter referred to as "Service Provider'. WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of thirteen (13) pages and incorporated herein by this reference. 2. Contract Period. This Agreement shall commence October 1, 2011, and shall continue in full force and effect until September 30, 2016, unless sooner terminated as herein provided. 3. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. 4. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Service Provider. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: Services Agreement 7248 Advertising on Buses - Interior & Exterior Page 1 of 20 i. Service Provider shall pay for any and all space used by Service Provider for any advertising purpose, and any such use must conform to all other requirements of the contract. II. COMPENSATION & PAYMENTS Service Provider shall propose a compensation plan based on a flat rate for each unsold advertising space plus a percentage of gross monthly revenues collected from the sale of advertising. All cost shall be based on a five (5) year contract. Also submit a minimum anticipated dollar amount you will pay Transfort in addition to your percentage of revenues. The Service Provider shall remit to the Citywithin ten (10) days after the end of each month the percentage as agreed to in the written contract of the gross revenues received by the Service Provider during such month from the advertising displayed on Transfort buses. The City may conduct, and the Service Provider shall cooperate in the completion of annual audits of Service Provider's receipts. Any adjustments required as a result of such audits shall take place during the month in which the audit is conducted. Service Provider shall maintain such books, records, documents, and other evidence and accounting procedures and practices as may be necessary to reflect the services performed. All such records shall be available to the City at all reasonable times for inspection, review or audit. Service Provider shall provide 12 exterior spaces and 6 interior spaces for Transfort ads, which will be produced by the Service Provider at no cost to Transfort. Transfort will have the additional option of placing its own ads in any unused spaces until such space is sold. Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 10 of 20 III. PROPOSED COMPENSATION PLAN FORM Minimum Annual Guarantee of Straight Percentage of Net Revenue. Contractor shall pay the City a Minimum Annual Guarantee (MAG) of $101,000 or a straight 56% of net advertising revenue, whichever is greater, per year for the five-year term of the Agreement. If the number of fixed route buses in service is reduced from the current level of 31 buses, the City agrees to adjust the Minimum Annual Guarantee (MAG) according to following formula: MAG of $101,000 divided by 31 buses equals an annual reduction of $3,258 per bus. Partial year of service will be prorated by the number of months the bus(es) was in service, multiplied by the monthly MAG of $271.50 ($3,258/12=$271.50). If the inventory is increased, the MAG would also increase by $3,258 per bus on an annual basis and $271.50/month for buses in service less than a full year. Adjustments will be made at the anniversary date of each contract year for the previous year's inventory reduction or increase. Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 11 of 20 FEDERAL TRANSIT ADMINISTRATION Federally Required and Other Model Contract Clauses 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, 'Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions 3. ACCESS TO RECORDS AND REPORTS Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 12 of 20 Access to Records - The following access to records requirements apply to this Contract: A. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). 4. FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractors failure to so comply shall constitute a material breach of this contract. 5. CIVIL RIGHTS REQUIREMENTS Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race. Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 13 of 20 requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be 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. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Acme - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, 'Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 6. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is _7.6_ %. A separate contract goal has not been established for this procurement. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as City of Fort Collins deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). The successful bidder/offeror will be required to report its DBE participation obtained through race -neutral means throughout the period of performance. Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 14 of 20 c. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from the City of Fort Collins. In addition, [the contractor may not hold retainage from its subcontractors.] [is required to return any retainage payments to those subcontractors within 30 days after the subcontractor's work related to this contract is satisfactorily completed.] [is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor's work by the City of Fort Collins and contractor's receipt of the partial retainage payment related to the subcontractor's work.] d. The contractor must promptly notify City of Fort Collins whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of City of Fort Collins. 7. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. 8. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) Background and Applicability In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This government -wide regulation implements Executive Order 12549, Debarment and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103- 355, 108 Stat. 3327). The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal or exceed $25,000 as well as any contract or subcontract (at any level) for Federally required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold for application of these rules has been lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in the regulation as "covered transactions." Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) they propose to contract or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition to the contract or subcontract. This represents a change from prior practice in that certification is still acceptable but is no longer required. 49 CFR 29.300. Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 15 of 20 14 Grantees, contractors, and subcontractors who enter into covered transactions also must require the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at all levels). Clause Language The following clause language is suggested, not mandatory. It incorporates the optional method of verifying that contractors are not excluded or disqualified by certification. Suspension and Debarment This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by {insert agency name]. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to {insert agency name), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 9. BREACHES AND DISPUTE RESOLUTION Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of (Recipient)'s [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by (Recipient), Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and Services Agreement 7248 Advertising on Buses — Interior& Exterior Page 16 of 20 other matters in question between the (Recipient) and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the (Recipient) is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the (Recipient), (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 10. LOBBYING Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. - Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying, 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) Services Agreement 7248 Advertising on Buses - Interior & Exterior Page 17 of 20 The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)] (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The Contractor, • . -1,Lcertifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and disc Aure, if any. Signature of Contractor's Authorized Official CA-1 1 Name and Title of Contractor's Authorized Official J]Z I I I Date 11. CLEAN AIR Clean Air- (1) The Contractor agrees to comply with all applicable standards, orders or regulations Services Agreement 7248 Advertising on Buses- Interior & Exterior Page 18 of 20 issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seg. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 12. CLEAN WATER REQUIREMENTS Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 13. ENERGY CONSERVATION REQUIREMENTS Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 14. RECYCLED PRODUCTS Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. Services Agreement 7248 Advertising on Buses - Interior & Exterior Page 19 of 20 City: Copy to: Service Provider. City of Fort Collins City of Fort Collins Street Media Group, LLC Attn: Purchasing Attn: Marlys Sittner, Attn: Gary Young, PO Box 580 Transfort/DAR General President/CEO Fort Collins, CO 80522 Manager 675 Southwood Lane PO Box 580 Windsor, CO 80550 Fort Collins, CO 80522 a streetmedia rou .com In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy for such termination. 5. Contract Sum. Service Provider shall pay the City for the performance of this Contract, subject to additions and deletions provided herein, perthe attached Exhibit "A", consisting of thirteen (13) pages, and incorporated herein by this reference. 6. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests concerning this agreement shall be directed to the City Representative. 7. Independent Service provider. The services to be performed by Service Provider are those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 8. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. Services Agreement 7248 Advertising on Buses- Interior R Exterior Page 2 of 20 EXHIBIT B INSURANCE REQUIREMENTS 1. The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Service Providers general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Providers employees engaged in work performed under this agreement: Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractors insurance. Services Agreement 7248 Advertising on Buses —Interior & Exterior Page 20 of 20 IllaI CERTIFICATE OF LIABILITY INSURANCE FDA EPd/16/11 , 0fl/, 6/1, THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE ACONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must he endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the cettficate holder in lieu of such endorsement(s). PRODUCER CONTACT Fred Allen NAME: PHONE . (970) 218-7979- (888) 215-0112 Welsh Insurance Agency, Inc. eAD a fred@%viainsurance.com 1310 East Eisextholver Blvd. INSURE S AFFORDING COVERAGE NAIL e Loveland, CO 80537 INSURERA: Autc-Oo ers Insurance Company Phone (970)663-5404 Fax 970)663-7183 INSURED INSURER B : INSURER C Streetmedia Croup, LLC INSURER D : 5747 Nic daus Drive INSURER E Fort Collins, CO 80528- 9704200807 NSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS ISTO CERTIFYTHATTHE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TOTHE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REOU IREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO W HICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE NSI RANCE AFFORDED BYTHE POLICIES DESCRIBED HEREIN IS SUBJ ECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TR TYPE OF INSURANCE INSRAOD1 UBR POLICY NUMBER PMIDDmYY MM%DD/YEYXW LIMITS A GENERAL LIABILITY O COMMERCIAL GENERAL LIABILITY e/❑ ❑ CLAIMS -MADE R) OCCUR 7 Y 32-0029-00 10/012011 10/012012 EACH OCCURRENCE S 1,000,000.00 DAMAGE TO RENTED PREMISES a o urr n $ 300,000.00 MED EXP(Any one person) S 10,000.00 PERSONAL 8 ADV INJURY 8 ❑ GENERAL AGGREGATE S 2,000,000.00 GEN'L AGGREGATE LMITAPPLIES PER RO- ❑ LOC © POLICY ❑ PFrT PRODUCTS-COMPIOP AGG $ S AUTOMOBILE LIABILITY ❑ ANY AUTO ALL OWNED SCHEDULED ❑ AUTOS ❑ AUTOS ❑ HIRED AUTOS ❑ AUTOSWNED ❑ ❑ COBIKED SINGLE LIMIT BODILY INJURY (Per person) $ BODILY INJURY(Peraccident S P.0P Rjn,AMAGE P ed $ S ❑ UMBRELLA LIAR ❑OCCUR ❑ E%CESSLIAB ❑CLINMSb1ADE EACH OCCURRENCE S AGGREGATE S DED L RETENTIONS S WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRIETORPARTNER/FJ(ECUTIVE OFFICER/MEMBER EXCLUDED? ❑ m (M detmy In NH) It yes, describe under DESCRIPTION OF OPERATIONS oelon NIA ❑ WC STATU- ❑ OTH- TORYLIMIR EL EACH ACCIDENT S EL. DISEASE - EA EMPLOYE S EL DISEASE -POLICY LIMIT S DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Anach ACORD 101, Additional Remarks Schedule, it more space la required) CERTIFICATE HOLDER CANCELLATION City of Fort Collins & Tronsfcrt PO Box 580 Fort Collins, CO 80522 ACORD 25 (2010105) OF SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WALL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUrFIDmZED REPRESENTATIVE _ 1 /l 01988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 9. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 10. Warranty. a. Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. b. Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. C. Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City -furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired or replaced by Service Provider in a manner and at a time acceptable to City. 11. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default thereof. 12. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or Services Agreement 7248 Advertising on Buses - Interior & Exterior Page 3 of 20 equitable actions against the defaulting party, the defaulting party shall be liable to the non - defaulting party for the non -defaulting parry's reasonable attorney fees and costs incurred because of the default. 13. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 14. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit B, consisting of one (1) page, attached hereto and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, P. O. Box 580 Fort Collins, Colorado 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 15. Entire Agreement. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. 16. Law/Severability. The laws of the State of Colorado shall govern the construction Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 4 of 20 interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 17. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that: a. As of the date of this Agreement: 1. Service Provider does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Service Provider will participate in either the a -Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Service Provider shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Service Provider is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. d. If Service Provider obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Service Provider shall: 1. Notify such subcontractor and the City within three days that Service Provider Services Agreement 7248 Advertising on Buses - Interior & Exterior Page 5 of 20 has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Service Provider shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Service Provider shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Service Provider violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Service Provider shall be liable for actual and consequential damages to the City arising out of Service Provider's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Service Provider violates this provision of this Agreement and the City terminates the Agreement for such breach. Services Agreement 7248 Advertising on Buses - Interior & Exterior Page 6 of 20 ar:rco``. ATTEST: U" City Clerk Attorney CITY OF FORT COLLINS, COLORADO a municipal corporation By: James �. gNeill II, CPPO, FNIGP Director { urchasing and Risk Management Date: ��y L V Street Media Group LLC By: Un4 PRINT NAME CORPORATE PRESIDENT OR VICE PRESIDENT Date: ., ATTEST: (Corporate Seal) CORPORATE SECRETARY Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 7 of 20 EXHIBIT A SCOPE OF SERVICES Introduction The City of Fort Collins Transfort is seeking to contract with a qualified Service Provider to sell appropriate advertising space on the exterior and interior of designated Transfort buses, and other City vehicles as designated by the City, as well as, maintaining an effective advertising sales operation sufficient to supportthe capital and operating expenses of the program. Service Provider shall submit percent of payment based on a 5 year contract. Also submit a minimum yearly dollar amountthat you will pay Transfort in addition to your percentage of revenues. Service Provider shall not contract for advertising beyond the limits of the contract with the City. Service Provider must submit proofs of all proposed advertising to the City representative in advance, forwritten approval of content, design, size, and colors prior to being displayed on any interior/exterior of Transfort buses. The City reserves 6 interior bus spaces and 12 exterior bus spaces for advertising use by the City at no charge for the production of signs or the installation of signs. The Service Provider will provide the following at its sole cost and expense and without any cost or expense to the City, materials and services to at least the extent indicated, with such limitations as provided in the specifications. Service Providerwill be solely and completely responsible forthe maintenance, repairs, and upkeep of all exterior and interior advertising panels. GENERAL REQUIREMENTS for ADVERTISING a. At all times during the performance of this Contract, Service Provider shall strictly observe and conform to all applicable federal, state and local laws, rules, regulations and orders that have been or may hereafter be established. b. Service Provider shall be solely and completely responsible for the fabrication of bus advertising panels, both exterior and interior, and to deliver any such panels to the Transfort facility at 6570 Portner Road at least seven (7) Transfort working days priorto any contractual placement of advertising on any Transfort bus. There are currently 31 buses that use advertising. NOTE: At this point buses for the Mason Corridor MAX Bus Rapid Transit (BRT) Project are not included in the Advertising Contract. c. Current advertising frame sizes on buses are as follows: 10 7/8" X 24" Interior 21.5" X 72" (31 exterior signs) 21.5" X 45 (20 exterior signs) 30.5' X 145" (24 exterior signs) 30.5" X 109" (6 exterior signs) 30.5" X 96" (1 exterior sign) 30.5" X 89" (14 exterior signs) 30.5" X 73" (10 exterior signs) Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 8 of 20 30.5" X 37" (7 exterior signs) d. Service Provider shall bear all costs relating to the arrangement for and preparation of bus advertising for Transfort buses. The Service Provider shall be responsible for the placement of all advertising on Transfort buses and for removing outdated ads from buses. e. Service Provider is not subject to general restrictions regarding the use of color on advertising panels however, the City reserves the right to review and approve or disapprove all advertising content, copy, design, and colors to be displayed in Transfort buses based on aesthetic considerations within the sole discretion of the City. f. Service Provider shall bear all costs relating to the operation of the overall project g. The parties acknowledge that the City's objectives for the advertising program to be carried out through the performance of the resulting Agreement are to: • Generate revenue for the City through the placement of advertising on bus interiors and exteriors. Advertising is 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 the resulting 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 Service Provider. • Maintain a neutral position on political, religious, and ideological matters. • 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. • Service Provider shall be solely and completely responsible for the content of all bus advertisements and is prohibited from displaying noncommercial advertising, with the exception of ads placed by Transfort, or the following types of commercial advertising: 1. Advertising that primarily conveys a political, religious, ideological or other non-commercial message; 2. Advertising of alcohol or tobacco products; 3. Advertising that promotes illegal activities or transactions; 4. Advertising that is misleading or deceptive, or that constitutes a public nuisance; 5. Advertising of products or services available to adults only by law; 6. 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; and 7. Any advertising reasonably determined to be inconsistent with the above - stated objectives of the advertising program. h. Service Provider must provide to the City representative a copy of his City sales tax license and comply with all applicable sales and use tax regulations. Services Agreement 7248 Advertising on Buses — Interior & Exterior Page 9 of 20