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HomeMy WebLinkAbout99-110 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 99- 110 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Mediacom Inc., Toronto , Ontario, for Transit Passenger Shelter Advertising. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington with the Corporation Seal, a contract between Mediacom Inc., Toronto , Ontario, and said Corporation; and 2. THAT the contract attached hereto as Schedule "A"form part of this By-law. By-law read a first and second time this 5 day of July, 1 999. By-law read a third time and finally passed this 5 day of July, 1999. Acting yor,` 7 Clerl THIS AGREEMENT made in triplicate this 20 day of septembM9 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON hereinafter called the"Municipality" OF THE FIRST PART AND MEDIACOM INC. hereinafter called the"Company" OF THE SECOND PART WHEREAS the Company has requested the Municipality for the exclusive right to install and maintain, at the expense of the Company, transit shelters for the convenience of the public on selected streets in the Municipality of Clarington and also for the right and privilege of placing advertisements on such transit shelters: AND WHEREAS the Municipality is willing to approve the Company's request upon the terms and conditions hereinafter set forth. NOW THEREFORE in consideration of the covenants and conditions herein contained, it is mutually agreed by and between the Parties hereto as follows: Page 2 ARTICLE 1: The following documents are to be read herewith and conjunction with RFP99-2 and form part of this Agreement as fully and completely to all intents and purposes as though all the stipulations thereof had been embodied therein and are referred to herein as the "Contract Documents" 1. Part A- Information to respondents - Pages 1 to 3 2. Part B - Background - Page 4 3. Part C -Specifications and Conditions - Pages 5 to 8 4. Part D - References - Page 9 5. Part E -Advertising Revenue to Municipality - Page 10 ARTICLE 2: The Company undertakes and agrees: a) To provide all materials, except as otherwise specified, and perform all work described in the Contract Documents entitled Request for Proposals: For Transit Passenger Shelter Advertising which were prepared by the Director of Public works, acting as and entitled, the "Director", and b) To do and fulfil everything indicated by this Agreement and the Contract Documents, and C) To complete substantially all the work as specified in the specifications. d) To pay the Municipality of Clarington in current funds the following guaranteed minimum payment schedule plus all applicable taxes due on the specified date: On signing the agreement Mediacom will pay in advance the first and second year guarantee in the amount of$52,500.00, plus GST. JANUARY 1, 1999 payment of$1,500.00 per shelter x 15 shelters JANUARY 1, 2000 payment of$2,000.00 per shelter x 15 shelters JANUARY 1, 2001 payment of$2,000.00 per shelter x 15 shelters JANUARY 1, 2002 payment of$2,050.00 per shelter x 15 shelters JANUARY 1, 2003 payment of$2,100.00 per shelter x 15 shelters Minimum payment per shelter per annum shall be as above. In the event of an increase or decrease to the number of shelters, it is agreed that revenues will be adjusted on a monthly basis. e) To replace one (1) Municipally owned transit shelter on King Street at Roenigk Drive in Bowmanville with a Company owned and operated transit shelters utilizing the standard fee structure. To install one on the north side of King Street west of Galbraith Court (Bowmanville) and one at Newcastle Memorial Park. Page 3 f) The Company shall supply and install, at its sole expense, such transit shelters (including the supply of all personnel, materials, tools, equipment and service necessary or incidental thereto) in a thoroughly workmanlike manner in all aspects and strictly in accordance with the plans and specifications therefore supplied by the Company to the Municipality and approved by the Director of Public Works and in accordance with the terms of this agreement and all to the satisfaction of the said Director and thereafter the company shall maintain the same at its sole expense as herein provided. g) The said transit shelters shall be entirely at the risk of the Company in respect to loss, damages, destruction or accident from whatsoever cause arising, whether due to the negligence of the Municipality, their agents or employees or otherwise. The Company shall indemnify and save harmless the Municipality of Clarington and the Region of Durham from all suits, claims, proceedings, legal costs, causes of action and demands (including libelous advertisements or the use of any copyright material) arising by reason of or connected in any way by the installation, maintenance, and operations of such transit shelter pursuant to this agreement. As further security for such indemnity, carry a comprehensive general public liability insurance policy with an insurer satisfactory to the Treasurer of the Municipality of Clarington in an inclusive amount of not less than Two Million Dollars ($2,000,000.00) per occurrence. The insurance policy shall name the Municipality, the Region of Durham and the Company as named insured and shall only be cancellable on thirty (30) days written notice to the Purchasing Manager by the insurer and the Company shall ensure the Purchasing Manager is provided a certified copy of a new policy of insurance forthwith. Proof of new or renewed insurance shall be filed with the Purchasing Manager and subject to approval of the Municipality's Treasurer at least thirty (30) days prior to the expiration dates in such policies. h) In additions to the plans and specifications for the transit shelters which shall be supplied at the expense of the Company and approved by the Director of Public Works, the company shall also, at its expense, strictly adhere to the following requirements in supplying, installing and maintaining the transit shelters, namely: i). All advertising panels shall be located on shelters in a manner that will not adversely affect the safety of the public and in a manner satisfactory to the Municipality. ii) The Company shall install fifteen(15) advertising transit shelters at locations approved by the Municipality within three (3) months after the date of execution of the contract. The Company can increase the number of shelters subject to approval by the Municipality. The Company will provide and maintain for the Municipality up to 5 additional non advertising shelters at the company's expense should the Director of Public Works identify passenger demand in area's which are not suitable for advertising display. Page 4 i) The Company shall, at its expense, maintain and keep, all transit shelters installed under this agreement, clean and in good repair and safe condition and to the complete satisfaction of the Municipality. The Company shall clean each shelter once every week and will keep each shelter free of any noticeable accumulation of dirt, dust, marks, graffiti, stickers, posters, litter or weeds. The Company will remove all garbage and containers must be added by the Company at its expense if requested by the Director of Public Works on a site by site basis. The Company will remove snow / ice which restricts access between the bus stop and entrance of the shelter, in accordance with Municipal By-laws or instructions from the Director of Public Works. An emergency 1-800 service number must be posted next to the shelter identification number. j) The Company shall ensure that no transit shelter is moved to or installed at a location that is not approved by the Municipality for a transit shelter. k) In the event that a transit shelter at any location has been subject to repeated damage due to vandalism, the Company may apply to the Municipality for permission to remove or relocate the said transit shelter. If such relocation occurs, the Company shall be responsible to ensure that a shelter acceptable to the Director of Public Works replaces the shelter that was relocated from any given location. The cost of such removal or relocation shall be at the expense of the Company. I) In the event a shelter proves , in the opinion of the Director of Public Works, to be hazardous or dangerous, the Director reserves the right to direct the Company to take necessary steps at its expense to repair, remove or relocate the shelter creating the hazard and the Company shall abide by such direction within forty-eight (48) hours on receipt of notice thereof or as soon as reasonably practicable in an emergency situation. m) The Company shall refrain from exhibiting or permitting to be exhibited on any transit shelter any matter or advertising which shall be deemed objectionable by the Director of Public Works, and shall remove such advertising as may be deemed objectionable within seven (7) days of written notice given by the Director, provided that the Company shall have a right to appeal to the Municipality within seven (7) days of the giving of such written notice. n) The Company agrees to comply with the regulations and standards as set down by the Canadian Advertising Foundation including the Canadian Code of Advertising Standards and Sex Role Stereotyping Guidelines and the following additional requirements with respect to the soliciting and exhibiting of advertising: (i) The company covenants and agrees to display only advertising that is of acceptable high moral standard and acceptable by the Municipality, and is not contrary to public order and good taste, and the Company further agrees that such advertising will not be directly competitive with adjacent businesses. Page 5 (ii) The Company agrees to display municipal public service or Municipality self-advertising faces on a "no-charge" basis as "filler" copy for unsold available advertising space. The cost of production of advertising copy shall be borne by the Company for a maximum of three (3) messages with any additional messages being borne by the Municipality or municipal public service organization utilizing the filler space. Where "filler" space is limited, the Company agrees to display such Municipal public service advertising faces on a rotating basis for a minimum of six (6) months per year on a "no-charge" basis. Design and appearance of all public service messages shall be subject to approval by the Company. (iii) The Company agrees that no advertisements for alcohol, tobacco, political, religious or abortion issues including pro-life or pro-abortion messages will be displayed. o) The Company shall not be at liberty to assign the rights hereby granted without the previous consent in writing of the Municipality, consent to not be unreasonably withheld. P) If the exclusive right herby granted shall be at any time seized or taken in execution or in attachment by any creditor of the Company, or if the Company shall become bankrupt or make any assignment of the exclusive right herby granted in violation of the terms of this agreement, or if the Company shall wilfully break or neglect to observe or perform any of the terms of the agreement and.fail to remedy such break or neglect within thirty (30) days of receiving written notice from the Municipality it shall be lawful for the Municipality forthwith at any time absolutely to determine all the rights of the Company by mailing to the Company at its usual or at last known place of business a notice in writing to that effect signed by the Director and thereupon all rights hereby conferred on the said Company shall immediately cease and determine without prejudice to any other rights and remedies of the Municipality hereunder. q) The Company agrees that on its default to observe any of the provisions of this agreement, the Municipality may at its option, but without thereby incurring any obligation or liability on the part of the Municipality, cant' out and perform on behalf of the Company the provisions hereof in respect of which the default has occurred and any expense incurred by the municipality in so doing shall, upon demand be forthwith repaid by the Company, failing which payment the permission hereby granted and this agreement shall forthwith therefrom cease and determine. S) The Company will install Daytech Transit Passenger Shelters as described in Schedule"A" in sizes 5 feet by 10 feet or 5 feet by 12 feet or as otherwise approved by the Municipality. S) Accessories-The Company will install one(1) Easy Access Bench and a Route and Schedule Holder in each shelter. Page 6 ARTICLE 3: The Municipality undertakes and agrees: The term of the proposal shall be for a five (5) year period with a built-in option for a second five years provided performance and revenues are satisfactory. Continuation for each year will be based on a satisfactory annual performance review. Should it be determined that satisfactory service has not been maintained, the Municipality of Clarington may cancel the contract upon thirty (30) days prior written notice. In this regard, the decision of the Director of Public Works shall be final and binding. a) The Municipality hereby grants to the Company the exclusive right to install and maintain transit shelters, of design and character approved by the Director of Public Works, for the convenience of the public, at each of the locations agreed to by the Director and the Company from time to time and to place advertisements therein provided that in so doing the Company shall at all times strictly comply with all of the covenants, agreements, stipulations, terms conditions and provisions of the agreement. b) In the event that a bus route changes, which renders any shelters unnecessary, the Municipality reserves the right to direct the Company to take the necessary steps to remove and/or relocate the transit shelter, at the Company's expense, and the Company shall abide by such direction within thirty (30) days of receipt of notice thereof. c) During the time this agreement is in force and subject to its terms, the Company shall have exclusive right to display advertising on any or all of the transit shelters covered by this agreement. d) It is understood and agreed that the Municipality will not impose upon the company any taxes, license or permit fees, service costs or other similar charges with respect to the installation or maintenance of transit shelters on Municipal roads under the said Agreement. It is also understood and agreed that the Municipality will not be responsible for payment if any such charges shall be imposed by some other authority. e) The Municipality covenants and agrees where the means are within its control to reasonably prohibit other forms of advertising to be placed on, or within, or immediately adjacent to the transit shelters, or to allow any containers, benches or other such appurtenances to obstruct, or interfere with the clear visibility of the advertising faces which are an integral component of the transit shelters. This provision will not prevent the reasonable placement of advertising benches, if such company has a legal agreement with the Municipality and has followed the terms and conditions of such agreement. Page 7 ARTICLE 4: The Company and the Municipality for themselves, their successors, executors, administrators and assigns, hereby undertake and agree to the full performance of the covenants contained herein and in the Contract documents, and that this Agreement with the Contract Documents constitute the Contract and the following is an exact enumeration of the Specifications: 1. Schedule"A" Information to Bidders-Pages 3 to 6 Background-Page 7 2. Schedule"B" Standard Terms&Conditions—Page S- 18 3. Schedule"C" Specifications-Pages 19-22 4. Schedule"D" References-Page 23 5. Schedule"E" Pricing Schedule-Page 24-25 a) The company shall have the option of negotiating a renewal contract with the Municipality prior to the expiration of this agreement, however, if a new agreement has not been entered into between the Municipality and the Company within one(1) month after the termination of the initial five (5)year term or in the event that this agreement is cancelled or terminated for any other cause, the Municipality may order the Company to remove the transit shelters and foundations parts from the road allowance and to restore the highway or sidewalk to its former condition at the Company's expense. If the Company fails to comply with such an order, the Municipality may assume ownership of the said transit shelters without any rights to compensation on the part of the Company therefore. b) Any notice to be given pursuant to this agreement shall be effectively given in case of notice to the Company, if mailed in a prepaid registered envelope addressed to the Company at 377 Homer Avenue, Toronto, Ontario M8W 1Z6 or to the last known place of'residence of business of the Company and in case of notice to the Municipality if mailed in a prepaid envelope addressed to the Municipality of Clarington, Director of Public Works at 40 Temperance St, Bowmanville, Ontario, U C 3A6 and will be considered as having been so given_at the time ofthe deposit thereof in the post office at Bowmanville, Ontario. C) 1) In the event of a dispute not covered by other terms of this agreement between the Company and the Commission during the terms of this agreement,either party hereto shall give to the other notice of such dispute. 2) The Company and the Municipality shall jointly choose a single arbitrator, acceptable to both to here and decide the matters in dispute. The decision of the arbitrator shall be binding on both parties. 3) In the event that the parties should be unable to agree on the choice Of a single arbitrator, each party shall appoint an arbitrator and they shall jointly select a third, and the decision of any two shall be binding and final upon the parties. Page 8 4) In the event the selection of arbitrators shall take place within seven (7) days of the giving of the notice of a dispute as herein before provided. If selection has not occurred in seven (7) days then the arbitrator selected by one party shall be the sole arbitrator. 5) In all cases the cost of the arbitration shall be paid jointly by the Company and the Municipality and the arbitrator(s) shall determine what portion each party shall pay. 6) The ruling of the single arbitrator, or a majority of the three arbitrators, shall be final and binding upon the parties and complied with by the parties forthwith._ 7) During the period of arbitration proceedings, there shall be no interruptions relating to the terms of this Agreement. 8) Should the Company fail to comply with any directives issued by the Commission under the terms of this Agreement or with any directives issued then the Municipality shall have the right to terminate this Agreement. Page 9 IN WITNESS THEREOF The Parties hereto have executed this Agreement the day and year first written. The Corporation of the Municipality of Clarington SIGNED, SEALED AND ( Mayor ( DELIVERED in the ( Cl ( presence of ( Mediacom Inc. y SEAL-P-3-7- Company G.S.T. Registration Number 4 A - +, nk-• IW(IiMyB� :' v�tN.'Y•v M rol.. 1a