12-15-2013 Pilot Transit AdvertisingPILOT TRANSIT ADVERTISING AGREEMENT
This Pilot Transit Advertising Agreement ( "Agreement ") is made and entered into on
December 15, 2013 by and between TOWN OF AVON, a Colorado Home Rule Municipal
Corporation ( "Town ") and STREETMEDIAGROUP, LLC., a Colorado Limited Liability
Company in good standing, ( "Contractor ").
WITNESSETH:
WHEREAS, the Town desires to implement an Exterior Bus Advertising Program
( "Advertising Program ") pursuant to which the Town's bus fleet shall be made available to the
Contractor for the marketing and placement of exterior bus advertising panels; and
WHEREAS, the Contractor is in the business of marketing, installing and maintaining
advertisements on transit fleets and Contractor currently provides bus advertising services to
ECO transit in Eagle County, Colorado; and
WHEREAS, the Town desires to engage the services of the Contractor with respect to the
marketing of advertising space on the outside of the Town's buses on a pilot program basis for
on year and upon the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the above premises and the terms,
covenants and conditions set forth herein, the Town and the Contractor hereby agree as follows:
ARTICLE I
AUTHORIZATION
The Town hereby authorizes the Contractor at its sole cost and expense to install, repair and
maintain advertising on the outside of the buses which are owned and operated by the Town and
listed on Exhibit A attached hereto. Exhibit A shall be updated from time to time to include new
buses as they are added and any buses removed from operation. The Contractor shall also have
the exclusive right to sell the exterior advertising space and shall be responsible all costs
associated with marketing, printing, installing and maintaining the advertising.
ARTICLE II
SCOPE OF WORK AND SERVICES PROVIDED
1. Basic Services. The Contractor shall market, install, repair and maintain clean and
attractive advertisements on the Town's bus fleet for the purpose of revenue generating
advertisements in compliance with this Agreement and the applicable statutes, rules,
regulations and ordinances. In connection therewith, the Contractor shall provide all
materials, supplies, equipment, services and personnel at its sole cost and expense
without any cost or expense to the Town. The Contractor may subcontract for the
printing, installation and maintenance of the bus advertisements.
November 15, 2013
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2. Maintenance. The bus advertisements shall be maintained and repaired at the sole
expense of the Contractor to keep the advertisements in good condition. The Town shall
be required to wash the buses daily by the automatic bus wash to keep the advertisements
free of dirt and road grime.
3. Repair and Replacement. The Contractor shall as promptly as practicable after its
receipt of notification thereof from the Town, repair or replace any damaged or defaced
bus advertisements thereof no later than seven (7) working days.
4. Advertising. Each bus operated by the Town of Avon shall be available for exterior bus
advertising as applicable and approved by the Town. The allowable advertising spaces
shall consist of industry standard size panels known as King, Queen and Tail panels, Full
Tail wraps, King Kong Wraps, Full bus Wraps, Larger Than Life panels and Headliner
ads above the windows. All advertisements shall be directly mounted to the buses with
the Contractor being responsible for all costs associated with the installation,
maintenance, and removal of the advertising. The Contractor shall use its best reasonable
efforts to obtain revenue - generating advertisements for the advertising display panels on
each bus and shall give advertising priority to Town of Avon businesses and entities over
other businesses or entities in the Vail Valley. Contractor shall notice the Town if it is
not able to secure advertising from any Town of Avon business or entity prior to placing
a wrap of businesses outside of the Town of Avon on a Town bus.
Contractor shall be prohibited from displaying the following types of commercial
advertising:
A. Advertising of marijuana or tobacco products;
B. Advertising that promotes illegal activities or transactions;
C. Advertising that is misleading or deceptive, or that constitutes a public nuisance;
D. 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
E. Any advertising reasonably determined to be inconsistent with the above - stated
objectives of the advertising program.
The Contractor agrees to remove within 48 hours after its receipt of the Town's written
notification requesting such removal, any advertisements which the Town in its sole
discretion deems to be offensive or inappropriate. In the event that the Contractor fails to
remove such advertisements within such 48 -hour period, the Town may remove the materials
at the Contractor's cost and expense.
November 15, 2013
ARTICLE III
REVENUE
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In consideration of the right to sell advertising on the Town of Avon's bus fleet, the
Contractor agrees to the following:
1. To remit to the Town within fifteen (15) days after the end of each month during the
term of this agreement an amount equal to 51% of the gross revenues collected by the
Contractor during that previous month from the advertising displayed on the Avon bus
fleet. Contractor shall provide a report with each payment that shows the advertiser,
fees invoiced, fees collected and the advertising period revenue for which revenue was
received. Contractor may adjust its gross revenues by subtracting fees paid to
advertising agencies; provided, however, that no adjustment for any such fee may
exceed fifteen percent (15 %) of the monthly gross revenues from the advertising
account for which the fee is charged.
2. To maintain such books, records, documents, and other evidence and accounting
procedures and practices as may be necessary to reflect the services performed by it
pursuant to this Agreement. All such records shall be available to the Town at all
reasonable times for inspection, review or audit.
3. The Town shall be entitled to conduct, and Contractor shall cooperate in the completion
of, annual audits of Contractors receipts. Any adjustments required as a result of such
an audit shall take place within fifteen (15) days of the completion of the audit.
4. To allow to the Town the use of any empty exterior bus advertising space on any bus, at
the Town's discretion; provided, however, that the advertising space shall be displaced
when a paying advertiser contracts for the same space.
ARTICLE IV
TERM
This term of this Agreement shall be for one (1) year commencing on December 15, 2013
and ending on December 14, 2014. The parties agree to discuss a renewal, extension or new
agreement in advance of the ending date of the term. Contractor acknowledges that Town may
elect to publicly bid for bus advertising services to commence upon expiration or termination of
this Agreement.
ARTICLE V
INSURANCE
The Contractor shall procure and maintain at its own cost the following insurance coverage:
1. Workers compensation insurance in accordance with the Colorado Workmen's
Compensation Act.
2. Commercial general liability insurance with minimum limits of $150,000 per person and
$600,000 per occurrence.
November 15, 2013
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3. Comprehensive automobile liability insurance with minimum limits for bodily injury and
property damage of $150,000 per person and $600,000 per occurrence.
The foregoing insurance coverage shall be procured and maintained with insurers that are
reasonably acceptable to the Town. The liability insurance polices shall be endorsed to include
the Town as additional insured.
ARTICLE VI
INDEMNIFICATION
The Contractor shall defend, indemnify and hold harmless the Town and its officers and
employees from and against all liability, claims, demands and expenses (including court costs
and reasonable attorney's fees), on account of any injury, loss or damage, arising out of or in
connection with the performance by the Contractor of its services pursuant to this Agreement, if
such injury, loss or damage is caused by the negligent acts, errors or omissions of the Contractor,
a subcontractor of the Contractor, or any officer, employee or agent of the Contractor. Such
indemnity shall not apply to any injury, loss or damage that is caused by the negligent acts,
errors or omissions of the Town or any of its agents or employees.
ARTICLE VII
THE TOWN'S RESPONSIBILITIES
The Town shall provide a heated garage space for the installation of the bus advertisements
and agrees to work with the Contractor in pulling buses from their service schedule for the
necessary time to install and remove the advertisements. The Town also agrees to keep the buses
clean by washing each day through the automatic bus wash contained within the Town's bus
facilities.
ARTICLE VIII
REMOVAL OF BUS ADVERTISEMENTS
The Contractor shall within fourteen (14) days after receipt of written notice from the Town
remove any bus advertisements which are installed or located at discontinued bus stop sites.
The Contractor shall be responsible for removing any bus advertisements upon thirty (30) days
written notice thereof from the Town in the event that the Town of Avon, state, federal or other
governmental authority hereafter imposes any rules, regulations or laws or takes any other action
which makes exterior bus advertising illegal to operate.
ARTICLE IX
ALTERATION OF SERVICES
In the event that the Town desires at any time to alter or change the nature or character of
the services to be provided by the Contractor hereunder and such alteration or change materially
increases the costs and expenses to be incurred by the Contractor or reduces the advertising
revenues which can be generated by the Contractor under this Agreement, such alterations or
November 15, 2013
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changes shall not be effective until the Town and the Contractor have mutually agreed to and
executed an amendment to this Agreement.
ARTICLE X
TERMINATION
Upon any default or breach of this Agreement by either the Contractor or the Town and if
such default or breach continues for a period of seven (7) business days after receipt by the
breaching party of written notification thereof, the non - breaching party may terminate this
Agreement. Upon termination of this Agreement, the Contractor shall remove all bus advertising
installed by Contractor from Town buses. Notwithstanding any other provision in this
Agreement, Town may elect terminate this Agreement by providing ninety (90) prior written
notice to Contractor.
ARTICLE XI
ASSIGNMENT
All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this
Agreement shall not be assigned by Contractor without the express written consent of the Town.
Any written assignment shall expressly refer to this Agreement, specify the particular rights,
duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless
approved by Town. No assignment shall release the Applicant from performance of any duty,
obligation, or responsibility unless such release is clearly expressed in such written document of
assignment.
ARTICLE XII
NON - DISCRIMINATION
Contractor will not discriminate against any employee or applicant for employment because
of race, color, religion, sex or national origin. Contractor will take affirmative action to ensure
applicants are employed, and employees are treated during employment without regard to their
race, color, religion, sex or national origin. 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.
ARTICLE XIII
ENTIRE AGREEMENT
The parties acknowledge and agree that the provisions contained herein constitute the entire
agreement between the parties and that all representations made by any officer, agent or
employee of the respective parties, unless included herein, are null and void and of no effect. No
alterations, amendments, changes or modifications to this Agreement shall be valid unless
contained in a written agreement executed by both parties.
November 15, 2013
ARTICLE XIV
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NOTICE
Any notice required to be given under this Agreement shall be sent postage prepaid,
registered or certified mail, return- receipt requested, addressed as follows:
TOWN OF AVON
Transportation Department
500 Swift Gulch Road
P.O. Box 975
Avon, CO 81620
Phone: (970) 748 -4100
Fax: (970) 845 -8589
jburden @avon.org
STREETMEDIAGROUP, LLC
Attn: Gary Young
5724 S. College Avenue
Fort Collins, CO 80525
Phone: (970) 658 -9070
gary@streetmediagroup.com
ARTICLE XV
BINDING EFFECT /GOVERNING LAW
This Agreement shall be governed by and interpreted according to the law of the State of
Colorado. Venue for any action arising under this Agreement shall be in the appropriate court
for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the
resolution of disputes under this Agreement, the parties hereby waive any and all right either
may have to request a jury trial in any civil action relating primarily to the enforcement of this
Agreement. The parties agree that the rule that ambiguities in a contract are to be construed
against the drafting party shall not apply to the interpretation of this Agreement.
ARTICLE XVI
NO WAIVER OF GOVERNMENTAL IMMUNITY
Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any
governmental immunity that may be available by law to the Town, its officials, employees,
contractors, or agents, or any other person acting on behalf of the Town and, in particular,
governmental immunity afforded or available pursuant to the Colorado Governmental Immunity
Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
November 15, 2013
ARTICLE XVII
ARTICLE X, SECTION 20 /TABOR
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The parties understand and acknowledge that the Town is subject to Article X, § 20 of the
Colorado Constitution ( "TABOR "). The parties do not intend to violate the terms and
requirements of TABOR by the execution of this Agreement. It is understood and agreed that
this Agreement does not create a multi -fiscal year direct or indirect debt or obligation within the
meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary,
all payment obligations of the Town are expressly dependent and conditioned upon the
continuing availability of funds beyond the term of the Town's current fiscal period ending upon
the next succeeding December 31. Financial obligations of the Town payable after the current
fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and
otherwise made available in accordance with the rules, regulations, and resolutions of Town, and
other applicable law. Upon the failure to appropriate such funds, this Agreement shall be
terminated.
ARTICLE XVIII
EMPLOYMENT OF OR CONTRACTS WITH ILLEGAL ALIENS
Contractor shall not knowingly employ or contract with an illegal alien to perform work
under this Agreement. Contractor shall not contract with a subcontractor that fails to certify that
the subcontractor does not knowingly employ or contract with any illegal aliens. By entering
into this Agreement, Contractor certifies as of the date of this Agreement it does not knowingly
employ or contract with an illegal alien who will perform work under the public contract for
services and that the contractor will participate in the e -verify program or department program in
order to confirm the employment eligibility of all employees who are newly hired for
employment to perform work under the public contract for services. The Contractor is
prohibited from using either the e -verify program or the department program procedures to
undertake pre - employment screening of job applicants while this Agreement is being performed.
If the Contractor obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an illegal alien, the Contractor shall be required
to notify the subcontractor and the Town within three (3) days that the Contractor has actual
knowledge that a subcontractor is employing or contracting with an illegal alien. The Contractor
shall terminate the subcontract if the subcontractor does not stop employing or contracting with
the illegal alien within three (3) days of receiving the notice regarding Contractor's actual
knowledge. The Contractor shall not terminate the subcontract if, during such three days, the
subcontractor provides information to establish that the subcontractor has not knowingly
employed or contracted with an illegal alien. The Contractor is required to comply with any
reasonable request made by the Department of Labor and Employment made in the course of an
investigation undertaken to determine compliance with this provision and applicable state law. If
the Contractor violates this provision, the Town may terminate this Agreement, and the
Contractor may be liable for actual and /or consequential damages incurred by the Town,
notwithstanding any limitation on such damages provided by such Agreement.
November 15, 2013
[Signature Page Follows]
Page 7 of 9
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their
respective officers or agents who are duly authorized to bind the party for which their signature
appears.
THE TOWN OF AVON
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STREETMEDIAGROUP, LLC:
By: _ A/,. \'P�' ,
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Name: . r
(Print)
Title: C EC)
November 15, 2013
Page 8 of 9
F .
EXHIBIT A
LIST OF BUSES AVAILABLE FOR ADVERTISING
November 15, 2013
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