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HomeMy WebLinkAboutSEEHEAR MEDIA LLC - CONTRACT - AGREEMENT MISC - SEEHEAR MEDIA LLCServices Agreement SS 2020 - Golf Advertising Page 1 of 8 SERVICES 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 SEE HEAR MEDIA 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 one (1) page and incorporated herein by this reference. Irrespective of references in Exhibit A to certain named third parties, Service Provider shall be solely responsible for performance of all duties hereunder. 2. Contract Period. This Agreement shall commence November 15, 2020 and shall continue in full force and effect until November 14, 2021, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties. Written notice of renewal shall be provided to the Service Provider and mailed no later than thirty (30) days prior to contract end. 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: Service Provider: City: Copy to: See Hear Media LLC Attn: Andrew Cronin 123 N College Avenue Fort Collins, CO 80524 City of Fort Collins Attn: Scott Phelps, Golf Manager PO Box 580 Fort Collins, CO 80522 City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 Services Agreement SS 2020 - Golf Advertising Page 2 of 8 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. Compensation. Neither the Service Provider nor the City shall have any monetary obligation to the other for the performance of services set forth in this Agreement. Compensation under this Agreement shall be of an “in kind” nature. The Service Provider will allow the City’s Golf Division to place ads in (6) mutually agreed upon locations in consideration for the Service Provider’s right to place four (4) advertising frames in the restrooms at each of the City’s three (3) public golf courses. Service Provider reserves the right to sell ads in these frames, provided that the advertisements conform to the City’s advertising requirements set forth in Paragraph 19, and retain the revenue generated by these ads. 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. Subcontractors. Service Provider may not subcontract any of the Work set forth in the Exhibit A, Statement of Work without the prior written consent of the city, which shall not be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of the City), then the following provisions shall apply: (a) the subcontractor must be a reputable, qualified firm with an established record of successful performance in its respective trade performing identical or substantially similar work, (b) the subcontractor will be required to comply with all applicable terms of this Agreement, (c) the subcontract will not create any contractual relationship between any such subcontractor and the City, nor will it obligate the City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor will be subject to inspection by the City to the same extent as the work of the Service Provider. 9. 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. 10. 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 DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 Services Agreement SS 2020 - Golf Advertising Page 3 of 8 the City under this Agreement or cause of action arising out of performance of this Agreement. 11. 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. 12. 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. 13. 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 equitable actions against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs incurred because of the default. 14. 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. 15. 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 DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 Services Agreement SS 2020 - Golf Advertising Page 4 of 8 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 Purchasing Director, 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. 16. 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. 17. Law/Severability. The laws of the State of Colorado shall govern the construction 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. 18. 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 e-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. DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 Services Agreement SS 2020 - Golf Advertising Page 5 of 8 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 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. 19. Special Provisions. The parties acknowledge that the City’s objectives for the advertising program is not for the purpose of establishing a forum for public speech and are to be carried out through the performance of the resulting Agreement: a. Maintain a neutral position on political, religious, and ideological matters. b. 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. c. Service Provider shall be solely and completely responsible for the content of all advertisements and is prohibited from displaying noncommercial advertising, with the exception of advertising placed by the City. In addition the Service Provider is prohibited from displaying the following types of commercial advertising: 1. Advertising that primarily conveys a political, religious, ideological or other non- commercial message 2. Advertising of marijuana, alcohol or tobacco products; 3. Advertising that promotes illegal activities or transactions; DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 Services Agreement SS 2020 - Golf Advertising Page 6 of 8 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. d. 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. e. 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. THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul Purchasing Director DATE: ATTEST: APPROVED AS TO FORM: SEE HEAR MEDIA LLC By: Printed: Title: CORPORATE PRESIDENT OR VICE PRESIDENT Date: DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 President 11/4/2020 Andrew Cronin Assistant City Attorney ll 11/5/2020 City Clerk Services Agreement SS 2020 - Golf Advertising Page 7 of 8 EXHIBIT A SCOPE OF SERVICES 1. SERVICES. The City hereby engages with the Service Provider for the following: a. Description of advertising program at City golf courses: i. Service Provider will install ad frames in the restrooms at the following City owned public golf courses:  City Park Nine Golf Course  Collindale Golf Course  Southridge Golf Course There shall not be more than four (4) frames located at each golf course. The size of the frames, specific locations, and method of attachment to the walls shall be mutually agreed upon. ii. Service Provider shall bear all costs incurred regarding the solicitation, contracting, preparation, production, and maintenance of all such advertising. iii. Service Provider will be allowed reasonable access to the advertising locations during regular business hours for advertising maintenance. iv. Service Provider is responsible for ensuring that advertisements conform with the City’s advertising requirements set forth in Paragraph 19 of this agreement and will submit copies of all advertisements to and obtain approval from the Golf Manager prior to posting the advertisements. v. Service Provider shall be solely responsible for any damage, vandalism, and/or graffiti to the frames and advertising. Service Provider shall be responsible for removal of graffiti within 48 hours of notification by the City. b. Description of “In Kind” Advertising Privileges to be Received by the City: i. In exchange for the advertising privileges described above, the Service Provider shall provide space for ads supplied by the City in 6 mutually agreed upon locations. ii. The City reserves the right to change out ads in each of the six (6) advertising locations up to three (3) times per each one year term of this Agreement. DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 Services Agreement SS 2020 - Golf Advertising Page 8 of 8 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 reduce coverage or limits and will not be cancelled, except after thirty (30) 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 Provider 's 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 Provider's employees engaged in work performed under this agreement: 1. 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 $1,000,000 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 subcontractor's insurance. DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37 DocuSign Envelope ID: D6C0E426-D02F-407F-B71A-39B43E9DAD37