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HomeMy WebLinkAbout11897 RESOLUTION NO. 11897 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND CREATIVE OUTDOOR ADVERTISING OF AMERICA, INC. RELATING TO THE INSTALLATION OF RECYCLING CONTAINERS ON UNTRAVELED PORTIONS OF PUBLIC STREETS AND HIGHWAYS AND UPON PUBLIC SIDEWALKS WITHIN THE JURISDICTION OF THE CITY AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement dated May 24, 2010, between City of Pueblo and Creative Outdoor Advertising of America, Inc. relating to a no cost public space recycling program, a copy of which is attached hereto, and having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is hereby authorized and directed to execute said Agreement for and on behalf of the City and the City Clerk is directed to attest same and affix the Seal of the City thereto. INTRODUCED May 24, 2010 BY Chris Kaufman /Councilperson APPROVED: Lawrence Atencio/President City Council ATTESTED BY: Gina Dutcher/City Clerk Background Paper for Proposed RESOLUTION DATE: May 24, 2010 AGENDA ITEM # Q-2 DEPARTMENT: Office of the City Manager Jerry M. Pacheco, City Manager Jenny M. Eickelman, Assistant City Manager TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND CREATIVE OUTDOOR ADVERTISING OF AMERICA, INC. RELATING TO THE INSTALLATION OF RECYCLING CONTAINERS ON UNTRAVELED PORTIONS OF PUBLIC STREETS AND HIGHWAYS AND UPON PUBLIC SIDEWALKS WITHIN THE JURISDICTION OF THE CITY AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve an Agreement with Creative Outdoor Advertising of America, Inc. (COA) that would permit COA to install multiple stream recycling facilities on municipally controlled sites at no cost to the City and to sell advertising space thereon? RECOMMENDATION Approval of the Resolution. BACKGROUND On September 14, 2009, COA made a presentation to City Council at a Work Session regarding a no cost public space recycling program. Following COA’s presentation, Council directed administration to explore an agreement with COA for providing public recycling and to bring back to Council an agreement for the Council’s consideration. This Resolution will approve an agreement between the City and COA. FINANCIAL IMPACT Installation, maintenance, and disposal of waste and recyclables are provided by COA at no cost to the City. Based on an estimated 40 to 60 public recycling facilities, there is a potential for the City to generate approximately $3,000 to $5,000 in revenue each year based on the agreed percentage of sold advertising. AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND CREATIVE OUTDOOR ADVERTISING OF AMERICA, INC. ( "COA ") TO PERMIT CERTAIN PUBLIC RECYCLING CONTAINERS ON CITY RIGHTS OF WAY AND ADVERTISING THEREON This Agreement ( "Agreement ") is entered into this 24th day of May 2010, by and between the City of Pueblo, a Municipal Corporation (City), and Creative Outdoor Advertising of America, Inc. ( "COA "): RECITALS A. COA is engaged in providing public Recycling Containers and related equipment on public rights of way and selling advertising space thereon. B. COA has asked City to permit such Facilities on the untraveled portions of public streets, highways, and sidewalks within the City. C. City has the authority to permit any person, under such conditions as may be agreed upon to place, construct, install, maintain and use objects in, on, under, or over streets, highways, and sidewalks within the City. In consideration of the foregoing recitals, and the terms and conditions set forth herein, the Parties agree as follows: TERMS AND CONDITIONS 1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Commercial" means that the advertisement is designed to sell a product or service, admission to a place or event, or encourage travel or tourism, and does not take a position on or convey a message regarding religious, political, philosophical, economic, or societal issues, or contain libelous, slanderous, or derogatory statements or remarks concerning any person or group of persons. (b) "Facility" means Recycling Containers, and all of their component parts, including but not limited to the surfaces of each container ( "Advertising Faces "), the advertising placed on any surface of the Recycling Containers, a concrete mounting pad, an area consisting of a three foot radius around all sides of the concrete mounting pad or 8" x 16" concrete slabs under each foot of the Recycling Container, and any equipment or device used in connection with these parts. (c) "Recycling Containers" means the COA Heritage, Historic Metrobin, or Concourse containers designed to accept and contain recyclable materials. Examples of acceptable Recyclable Containers are shown in Exhibit "A" attached to this Agreement. COA shall not use any other types of Recyclable Containers unless the same are approved in writing by the City. 1 (d) "Site" means every place where a Facility is installed. "Site" includes the ground and any improved surface on which the Facility is situated. (e) "City Manager" means the Pueblo City Manager or his or her designee. (f) "City" means the incorporated entity known as the City of Pueblo. 2. TERM. (a) The Term of this Agreement shall be five (5) years commencing June 1, 2010 and ending May 31, 2015 ( "Term ") unless sooner terminated pursuant to the terms of this Agreement. (b) Providing that COA is not in default of this Agreement and has performed all of its contractual obligations under this Agreement, COA shall have an option to renew this Agreement for a second five (5) year term commencing June 1, 2015 and terminating on May 31, 2020. (c) One year before the expiration of the first five year Term of this Agreement, upon COA's request, the City shall provide to COA a report indicating whether COA is in default of this Agreement and has performed all of its contractual obligations under this Agreement such that COA will probably be entitled to exercise its option to renew this Agreement for a second five (5) year term under this Section if COA continues to perform its obligations for the remainder of the first five year Term. (d) The provisions of this Agreement pertaining to insurance, indemnification, payments to the City, and liability shall survive expiration of the Term of this Agreement and continue in effect for a period of five years following the expiration of the Term of this Agreement and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same. 3. INSTALLATION OF FACILITIES. (a) COA shall register as a foreign corporation authorized to do business within the State of Colorado through the Colorado Secretary of State and provide proof of the same to the City within 10 days after the last party signs this Agreement and before requesting City approval of any Site or Facility. (b) City shall permit COA to install Facilities at Sites on the untraveled portions of public streets and highways, and upon public sidewalks, within the jurisdiction of City at such specific places as the City Manager shall specifically approve in writing in his or her sole and absolute discretion. (c) The City shall have sole and absolute discretion to approve or disapprove all elements and attributes of the Facilities and Sites that COA proposes, including but not limited to their size, dimensions, elevation, layout, surface, slope, drainage, the method used to attach the Recycling Containers to the concrete pad and/or concrete slab, type and strength of the concrete used in the concrete pad, method used to bond or attach the concrete pad to the ground or unimproved surface, color, materials, style, finish, design, and appearance. (d) COA shall not install anywhere within the City any Facility or component part thereof that is not approved by the City Manager. (e) City shall approve or disapprove any proposed Facility and its Site that COA proposes within 30 days after receiving a written request from COA. The City may 2 require COA to include the following as part of the written request to install Facilities at any Site: (1) The exact address and Site of the proposed facility; (2) A scale drawing of the streets, sidewalks, landscaping, signs, markings, and other objects at the proposed Site or within a 30 foot circumference of the center of the proposed Site, with the proposed Facility shown in the drawing in both plan and in elevation views; (3) Photographs of the proposed Site, showing the streets, sidewalks, landscaping, signs, markings, existing surface, and other objects at the Site or within a 30 foot circumference of the center of the proposed Facility; (4) Plans and specifications for the proposed Site and Facility showing their size, dimensions, elevation, layout, surface, slope, drainage, the method used to attach the Recycling Containers to the concrete pad or ground, type and strength of the concrete used in the concrete pad, method used to bond or attach the concrete pad to the ground or unimproved surface, color, materials, style, finish, design, and appearance. (5) If the Site or any part of the Facility is located on or within 15 feet of any sidewalk or other area normally traveled by pedestrians, a diagram showing an area sufficiently wide to permit easy, clear, unobstructed, and safe passage by pedestrians, handicapped pedestrians, and wheelchairs around the Facility. (6) In the event the Site or Facility is located, in part, upon any private property, or upon any easement or license held by any third party, a written permission from each owner, lessee, easement holder, or licensee at the affected private property, for installation of the Facility; and (7) On the first Facility and Site that COA requests under this Agreement, and for the first Facility and Site for which COA requests approval in each new calendar year under this Agreement, a Certificate of Insurance as provided in this Agreement. (f) After the City Manager has approved a proposed Facility and its Site, COA shall order the model and number of approved Facilities and install the proposed Facility within 30 days of delivery in Pueblo. In the event that the proposed Facility is not installed within 30 days, the City's approval of the Facility and Site shall be void. (g) COA agrees to install all Facilities on a mounting pad unless a suitable base exists. Where a mounting pad does not exist and is required, COA agrees to install, at COA's sole expense, a mounting pad for every Facility installed pursuant to this Agreement. COA shall be responsible for ensuring that all mounting pads provide for the safe movement of pedestrians to, from and around the Facility. (h) COA shall install the Facility as shown in the plans and specifications approved by the City. In the event any Facility is installed in a manner that varies in any material way from the plans and specifications for the Facility approved by the City, the City may notify COA to either correct the variance or remove the Facility within 20 days at COA' s sole expense. In the event COA fails, neglects, or refuses to either correct the variance in the manner described in the City's notice or remove the Facility within 20 days, or such greater time as may be specified in the written notice from the City, the City shall have the right, in its sole and absolute discretion, to either: (1) correct the variance itself; or (2) remove the Facility and declare the Facility City property. COA shall be liable for the City's costs in correcting the variance or removing the Facility. The City may, in its sole and absolute discretion, elect one remedy as to some Facilities and 3 ti another remedy as to other Facilities. These remedies shall be in addition to all other remedies provided in this Agreement or by law. (i) COA shall comply with all requirements of the City with respect to parking and street occupancy during all installations and maintenance of Facilities. 4. MAINTENANCE OF FACILITIES. (a) COA shall, at is sole expense: (1) Provide, supply, install, maintain, and repair the Facilities and Site. (2) Keep the Facilities and surrounding 3 ft. radius at all times in a safe, clean, orderly, well - maintained condition, free of trash, debris, sand, gravel, oil, grease, graffiti, weeds, grass longer than 4 inches, snow, ice, and standing water. (3) Ensure that the installation, maintenance, repair, and cleaning of Facilities and Sites is conducted in a safe, reasonable and workmanlike manner that does not create a hazard or unsafe condition for pedestrians, motor vehicle traffic, utilities and others at or near the Site. (4) Clean and empty the Recycling Containers at each Facility of all recyclable materials and any trash, debris, sand, gravel, oil, grease, and liquids on a frequency of not more than or not less than once per week. COA will at all times be watchful for and will take reasonable action to prevent: (a) the presence and attraction of insects and animals at the Facilities and Site; (b) the overflow, spillage, or leakage of solid or liquid materials from the Recyclable Container onto the Site, streets, sidewalks, adjacent landscaping or other areas; and (c) any noxious, unpleasant, or offensive odors emanating from the Facilities or Site. (5) Ensure that the cleaning and emptying of Recyclable Containers at the Facilities and Site is conducted in a safe, reasonable and workmanlike manner that does not create an unsafe condition for pedestrians, motor vehicle traffic, and others, and does not dump, spill, or leak any solids or liquids onto the Site, streets, sidewalks, adjacent landscaping, or other areas. (6) Dispose of the recyclable waste stream collected from the Facilities at a recycling facility of COA's choice. COA shall not dispose of the recyclable waste stream at any landfill. Any tipping fees charged for the disposal of the recyclable materials collected shall be the responsibility of COA and not the City. (7) Provide a report to the City each month, commencing in the second month of this Agreement, showing the total weights collected from all Facilities for the residual and recyclable waste streams for the previous month. (8) Conform to any environmental policies or recycling programs adopted by the federal or state governments or by the City Council prior to the terms of this Agreement. The City will not reimburse COA for any costs associated with conforming to any such policies or programs. The City agrees to advise COA of any such proposed policies and programs prior to their consideration by City Council. (9) Be solely responsible for obtaining all authorizations, permits, and the like before any Facility is installed and for any other work undertaken by COA pursuant to this Agreement. (b) City may provide written notice using COA's Operations Website to COA when any Facility requires regular maintenance or repair and COA, as soon as is i4 i 4 reasonably possible, and not later than 48 hours after the City giving notice to COA, shall undertake the maintenance or repair required at COA' s sole expense. (c) City may provide notice to COA by telephone and using COA's Operations Website when any Facility requires, in the City's sole and absolute discretion, emergency maintenance or repair. In such event, COA shall, as soon as possible and not later than 24 hours after receiving such notice, repair and make safe the Facility at COA's sole expense and to the satisfaction of the City. In an emergency situation where 24 hours is, in the City's sole and absolute discretion, too long to wait for the work to be completed, City may arrange for the work to be done and COA shall be liable to City for the costs of such work. (d) If the City determines that COA has failed to comply with its obligations in this Section, the City shall notify COA in writing. COA shall have 5 days from the time the notice is received to correct its failure to perform at COA's sole expense. In the event COA fails, neglects or refuses to correct its failure to perform within such 5 day period, or such greater time as may be specified in the written notice from the City, the City shall have the right, in its sole and absolute discretion, to either: (1) correct the failure to perform itself; or (2) remove the Facility and declare the Facility City property. COA shall be liable for the City's costs in correcting the variance or removing the Facility. The City may, in its sole and absolute discretion, elect one remedy as to some Facilities and another remedy as to other Facilities. These remedies shall be in addition to all other remedies provided in this Agreement or by law. 5. FACILTIES TO ACCEPT CERTAIN RECYCLABLE MATERIALS. The Facilities shall be designed and clearly marked to accept any one or a combination of the following recyclable materials: plastic, glass, and paper. 6. FEES, ACCOUNTING, AND AUDIT. (a) COA shall pay to City 8% of gross revenues received from each advertisement placed on any Facility under this Agreement. COA shall pay this fee to the City monthly, commencing on the second month of this Agreement. Payment of these fees shall be due on the 10th day of the month for advertising revenue that COA receives in the preceding month. (b) COA shall provide a report to the City every month, commencing in the second month of this Agreement, showing financial statements satisfactory to the City Manager and including each advertisement placed on each Facility during the preceding month. COA shall make available to the City upon request copies of all contracts, agreements, correspondence, invoices, and statements between COA and any person ordering or paying for advertising on the Facilities under this Agreement. (c) City shall have the right at all reasonable times to audit at City's expense and inspect accounts, records, receipts, vouchers and other documents relating to the advertising placed on Facilities and shall have the right to make copies thereof. COA shall make available all of its books, papers, ledgers, accounting files, contracts, and other records, reasonably necessary for such audits or inspections. 7. NON - EXCLUSIVE AGREEMENT. This Agreement does not grant COA any exclusive right to: (a) place or provide Facilities within the City; (b) collect recyclable 5 materials within the City; or (c) place any advertising within the City. The City may enter into agreements with other persons to place different Facilities within the City, to collect recyclable materials in the same or different ways, to conduct curbside or other recycling, or to place advertising within the City, and may conduct such activities on its own. This Agreement does grant COA the exclusive rights to this limited extent only: COA shall have the exclusive right to place advertising on the surfaces of the Facilities that it owns and installs under this Agreement. 8. NO FACILITIES OR ADVERTISING IN, ON OR NEAR ANY TRANSIT BUS SHELTERS OR BUS BENCHES. COA understands that the City has entered into agreements with other persons for advertising on Pueblo Transit bus shelters and bus benches. COA shall not place any Facility, any component part thereof, or any advertising in, on, or within fifteen feet of any Pueblo Transit bus shelter or bus bench. 9. ADVERTISING. (a) Advertisements shall be placed only on the Advertising Faces of the Recycling Containers and shall not intrude upon any other surface at the Site. (b) Advertisements shall be strictly commercial in nature, rather than religious, political, philosophical, economic, or social in nature. (c) Advertisements placed on Facilities shall not: (1) Contain false, inaccurate or deceptive claims or statements; (2) Contain libelous, slanderous, or derogatory statements or remarks concerning any person or group of persons. (3) Take a position on or convey a message regarding religious, political, philosophical, economic, or societal issues; (4) Promote or solicit any illegal product or activity or any product prohibited from sale to minors in such a way as to appeal particularly to persons under legal age; (5) Contain, depict, or exhibit any obscene act or image, real or simulated, as defined in § 18 -1 -701, C.R.S.; (6) Contain, depict, or exhibit any obscene language or gesture, as defined in §18-9-111; or (7) Contain, depict, or exhibit any image of any act, real or simulated, which would constitute public indecency or indecent exposure, as defined in §§ 18 -7 -301 and 18 -7 -302, if performed by a person in a public place. (d) The Facilities shall not be treated or construed as a public forum for speech, discussion, or debate. The Facilities are privately owned, controlled, and operated, and are not open to the public for statements or speech. The Facilities are not dedicated to general debate or the free exchange of ideas. (e) COA shall make available to City, upon 30 days written notice from City, 10% of the available advertising faces on the Facilities installed under this Agreement for use by City free of charge for advertisement of public events such as the Colorado State Fair, provided that: (1) City advertisements must meet the same requirements as other advertising contained in this Section; and (2) City advertisements must be approved by the City's Director of Public Works. 6 (f) City shall design and edit public service messages or municipal advertising, and COA will produce said public service messages or municipal advertising at City's sole expense. Size and dimensions of the public service messages and municipal advertising provided to COA may be as large as the size of the largest Advertising Face provided on any Facility. (g) Upon written notice from the City, COA shall, within 7 days after the notice is received through COA's Operations Website, and at its sole expense, remove any advertising that the City determines in its sole and absolute discretion violates any provision in this Section. In the event COA fails, neglects, or refuses to remove the advertising specified in the notice within 7 days or within such greater time as may be specified in the written notice, the City shall have the right, in its sole and absolute discretion, to remove or cover the advertising specified in the notice. COA shall be liable for the City's costs in removing or covering the advertising specified in the notice. This remedy shall be in addition to all other remedies provided in this Agreement or by law. (h) COA hereby expressly, knowingly, intelligently, and with advice from its legal counsel, waives and surrenders any right that it may have to allege, state, or take any legal position contending that any provision of this Section violates any right that COA, its customers, its advertisers, or the public may have to free speech or press under the constitutions, statutes, and common law of the United States or the State of Colorado. (i) In the event that any court of competent jurisdiction determines that any provision in this Section violates any right that any person may have to free speech or press contained in the constitutions, statutes, and common law of the United States or the State of Colorado, then the Parties shall reform and amend this Section to the minimum extent necessary to comply with the Court's determination and order. The other terms and conditions of this Agreement shall remain in full force and effect unless either Party elects to terminate this Agreement. 10. TERMINATION. (a) Either party may terminate this Agreement, with or without cause, in its sole and absolute discretion, by giving Notice of Termination to the other party. Termination shall become effective 90 days after the Notice of Termination is mailed. (b) The provisions of this Agreement pertaining to insurance, indemnification, payments to the City, and liability shall survive termination of this Agreement and continue in effect for a period of five years following the termination of this Agreement and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same. 11. OWNERSHIP OF FACILITIES; REMOVAL OF FACILITIES UPON EXPIRATION OR TERMINATION OF AGREEMENT. (a) Facilities installed under this Agreement shall remain the property of COA, except as otherwise provided in this Agreement. (b) Upon the expiration of the Term of this Agreement or upon termination of this Agreement, COA shall, at its sole expense, within 30 days, remove the Facilities and restore the Sites to the condition they were in prior to installation of the Facilities. (c) If City elects to remove the Facilities and restore the Sites, rather than declaring the Facilities City property, COA shall be liable to the City for the cost of removing the Facilities and restoring the Sites to the condition they were in before the Facilities were installed. This remedy shall be in addition to all other remedies provided in this Agreement or by law. 12. CERTIFICATE OF INSURANCE. Upon execution of this Agreement, but in no event less than seven (7) days prior to the COA' s first request for approval of its first Facility and Site, and again by no later than January of each new calendar year under this Agreement, COA shall provide City a Certificate of Insurance showing evidence of liability coverage for bodily injury and property damage including contractual coverage with a combined single limit of not less than Five Million Dollars ($5,000,000.00) per occurrence, with a Five Million ($5,000,000.00) annual aggregate, and shall be endorsed to add as additional insureds the City of Pueblo and its officers, employees and agents (collectively, the "Indemnified Parties "). Such policies shall state that the insurance is primary in coverage to any other insurance which may be available to City. Concurrent with the above mentioned Certificate of Insurance evidencing liability coverage, COA shall also provide City a Certificate of Insurance showing evidence of statutory workers' compensation insurance and shall contain an endorsement waiving subrogation against the City of Pueblo. Workers' compensation coverage shall be obtained notwithstanding that COA may have no employees as defined under said Act or that COA might otherwise avail itself of an exemption under the Act from any legal requirement to obtain such coverage. Such insurance shall cover all employees of COA performing work at the Facilities or Site irrespective of whether such employees may be shareholders, managers, partners, or owners of COA or exempt employees under the Act. COA may purchase, for non- statutory employees, a participant accident insurance policy which would include death, disability, dismemberment, and medical benefits. Any independent contractors of COA shall be covered under COA's workers' compensation insurance and/or participant accident insurance policy, or show evidence that said independent contractor is covered under its own workers' compensation insurance policy. COA shall have full and sole responsibility for ensuring compliance with this Section, including without limitation indemnification required under this Agreement. All insurance policies required hereunder shall provide that such policies not be cancelled or reduced without thirty (30) days' advance written notice to the Indemnified Parties. Failure of COA to comply with the provisions of this Section shall constitute a material breach of this Agreement by COA. 13. INDEMNIFICATION. COA agrees to defend, hold harmless, and indemnify, the City and its officers, employees, and agents, from any and all claims and liability, including reasonable attorney's fees and costs, for injuries, death, or damages to any person, arising from or in any way connected with the installation, maintenance, repair, cleaning, use, advertising, emptying, presence, or removal of the Facilities and Site, or any default or breach of any term of this Agreement by COA, excepting only claims based solely on the Indemnified Parties' gross negligence, bad faith, or intentional acts. The Indemnified Parties shall have the right to retain their own counsel, in which case those reasonable attorney and expert fees and costs shall be covered by COA's indemnification obligation in this Section. 8 1 ; 14. NOTICES. Any notice, demand or request provided in this Agreement, except emergency telephone notice as provided in this Agreement, shall be in writing and sent by certified mail, return receipt requested, and (to COA) through COA's Operations Website, to the other Party at the addresses listed below or at such other address as each party may provide the other by notice as provided in this section. Such notice shall be deemed to have been given when deposited in the regular United States mail. Each Party shall ensure that the other party is notified in writing immediately of any changes in the contact information below: If to City: City Manager City of Pueblo One City Hall Place Pueblo, CO 81003 With an additional copy to: City Attorney City of Pueblo 503 N. Main St. Suite 203 Pueblo, CO 81003 If to COA: Creative Outdoor Advertising of America, Inc. 1930 Commerce Lane Suite 1 Jupiter, Florida 33458 COA' s Operations Website: www.CreativeOutdoor.com 15. ADDITIONAL DOCUMENTS OR ACTION. The Parties agree to execute any additional documents or take any additional action that may be necessary to carry out this Agreement. 16. ASSIGNMENT. This Agreement shall not be assigned by COA without the prior written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute discretion. 17. FORCE MAJEURE. Any delays in or failure of performance by any party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations or orders of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are beyond the control of such party. 18. BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, and assigns; 9 provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 19. INSOLVENCY. If COA becomes insolvent, bankrupt, unable to pay its debts, or makes an authorized assignment of its assets, to its creditors and becomes unable to perform its duties under this Agreement, the City may terminate this Agreement forthwith by written notice and the time and notice requirements set forth in Section 10 of this Agreement shall not apply. 20. SECTION CAPTIONS. The captions of the Sections in this Agreement are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 21. INTEGRATION, SEVERABILITY, AMENDMENT, AND COUNTERPARTS. This Agreement represents the entire agreement between the Parties and supersedes all prior discussions and written agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the Parties. If any provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together constitute one and the same agreement. 22. NO THIRD PARTY BENEFICIARIES; NO WAIVER OF IMMUNITIES. Nothing in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24 -10 -101 et seq., C.R.S. 23. WAIVER OF BREACH. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 24. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Colorado. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado. 25. FUND AVAILABILITY. Financial obligations of City, if any, after the current year in which this Agreement is signed by both parties are contingent upon fiends for that purpose being appropriated, budgeted and otherwise made available by Pueblo City Council and City executive departments. Nothing herein shall be deemed to create an ongoing financial obligation of City. 26. SOLE SOURCE CONTRACTS. Article XXVIII of the Colorado Constitution was amended by vote of the people on November 4, 2008 ( "Amendment 54) to provide 10 certain limitations on holders of "sole source' government contracts entered into by government entitles. On August 12, 2009, Denver District Court Judge Catherine Lemon issued an order granting a preliminary injunction against enforcement of Amendment 54, holding that it violated rights of free speech and association guaranteed by the First Amendment. The parties agree that if, at any time during the Term of this Agreement, a court of appropriate jurisdiction determines that (1) Amendment 54 is constitutional or otherwise lawful under applicable law; or (2) Amendment 54, if lawful, applies to agreements such as this Agreement and must be included in such agreements, then City and Company agree to negotiate the inclusion of complying Amendment 54 language in this Agreement. 27. AUTHORITY OF SIGNERS. Each person signing this Agreement on behalf of a party represents and warrants that he or she has the requisite power and authority to enter into, execute, and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 28. RELATIONSHIP: Nothing in this Agreement is intended to, or shall be deemed to constitute, a partnership or joint venture between the Parties, or to create any agency or partner relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture, agent, or representative of the other under this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first written above. CREATIVE OUTDOOR. PUEBLO, A MUNICIPAL AD IS G OF AMERICA, INC. CORPORATION B By: I • /.' Lawrence W. Atencio Printed Name: Printed Name: f'AUN1CLl?A L Wok,r Abel IMAeJ� "` President of the City Council Title: Title: _ - 4 PAN. l 0,01 b MATT ST: City_C k__ APPROVED AS TO FORM: Thomas J. F za City Attorney 11 Exhibit A CRE �IT IVE ; 9uTp00R ; ADUERTISING OUE O ERUIEW '� � , '' - . � :PRD , ., ;_ �_ ,. r, . �:�-- THE METROBIN DESCRIPTION The "MetroBin" three -steam unit is designed to accomodate 3 separate recycling /waste compartments to divert materials such as litter, cans, bottles and paper. The openings are labelled appropriately and units can be customized (ie 1 recycle, 2 waste or 3 recycle, etc). The sloping top allows for water and snow to slide off thus preventing any residue build -up. The unit features a contemporary stainless steel body or a matte black powder coat finish. All units are locked and are vandal resistant. - SPECIFICATIONS MODEL MetroBin MATERIAL -- 18 gauge stainless steel or 18 gauge galvanized steel COLORS Silver or Black FINISH Brushed #4 LINER Capacity: 30 US gallon bin (x3) Dimensions: 17.5" x 17.5" x 23" (H) Material: Polyethylene LOCK Cam style mechanism with key DIMENSIONS 24" (D) x 71" (L) x 47" (131, Weight 300 Ibs; approx. OPENINGS 3" x 14" 'Newspaper' 5.4' Dia 'Cans & Bottles' -- 4" x 15" 'Litter only' INSTALLATION Floor mounting with leveller posts (x4) j BOARD MESSAGING Area per single face: 60"x30" 1930 Commerce Lane ® Suite 1, Jupiter, FL 33458 ®® T: 1.800, 661.6088 F: 1.866.426.2237 Creative Outdoor Advertising WWW.CREATIVEOUTDOOR.COM 12 '' °ATiIVEOUDOO • ADVER'RISItN6' PRODUCT OVER , y THE M �,: A Cf t' ,� y ;•ry ATTRACTIVE, s ,,.I u I E_ ; C T 110 SAL, r ' -';'7,:',...-': 4 CO P O R A Y0 ,,, f, �. ` : D The "MetroBin" will transform and enhance the quality of your environment while providing a responsible waste management solution. We use only materials that withstand the demands of heavy usage and extreme climates'. We provide unique, vandal and graffiti resistant second surface signage. Ip� t w .• i , ,I,c �b 1 F4 .' gy p ♦ y P i z 1 � � a i '. 1+y HH i; { y h t '.: s Sa I� � � +. x 't�7' -3y r�k, m I : }fiih'' Y ' M. i ' 3 '. �1[ . t r w � "` :Yo Just Pr � � t J I � � � 4 � � ) �� ,. save, I t K d eke Agi, :Y t !' I I % i` Wo a J t MOneY ii j } a ,, a '.° v NA t� a ' 'i'r e " F y �t� , i � y • ®:.66. .! ' � 1} t t i pia, 2 10 71:. y t £ � ' i 1 �� 1 6 _( y! .' 1 I S D5I i ®� ::1 4 \ � { S t Pl 1 ux1 } - 3 l'l ry`� { ~ t R t � ttsYU f _. ""�....�, , �....'' � � °" � ,.,.t ,,. ..n A. Sr N # . . �t x3�, w S ....,, .. . ;D ......� 13 C+REAT .> lP. ciUTpO grit It PRODUCT OVERVIE W t ; , " .- s " ,, `t v ,•N' ., zaw' - z".a+ n3 ,.. ti .c vs � s Z 9' ,# e?,_ ✓ ` ' . b If_tr*--' ,- ±I -,.., _ T& l E CONCOURSE a x; �s .� ,✓ „,,,ir.„. RECYCLING STATION , #,a DESCRIPTION The Concourse Recycling Station will allow your City to further promote the importance of recycling, while aligning your curbside recycling program with a highly visble on- street recycling program. The Concourse Recycling Station can be configured as a standalone unit or as part of a larger Concourse unit with multiple modules. This unit has three (3) interchangeable openings (bottles /cans, waste, paper products) that can be customized to suit the traffic flow at a particular location. The Concourse Recycling Station is the leading Public Space recycling container program unmatched in its versatility, durability, modularity and attractiveness. { K P # �t∎— �I X ` !-,� .v +M v 1 - • ' ; i 4 � ; r a. 1 -,,-. , 1 ' i . . V. The C oncourse "Recycling Station” is part of Creative Outdoor Advertising's Concourse "Full Service" amenities program with service modules for all of your city's requirements. 14 a `OUTDOOR ADVERTISING PRODUCTOVERVIEW �w 41 .!, , +„tn J '` �4' a. '' , T 1, E CO p e CO U ! S - RECYCLING STATION • SPECIFICATIONS MODEL Concourse � { MATERIAL Polyethylene & Aluminum r : x COLORS Various FINISH Matte DIMENSIONS Dependent on the chosen configuration Single Fence : Length 84 "' Height 37 ", Width 46" Maximum INSTALLATION Bolted to concrete surface BOARD MESSAGING Area per single face: 71 "x20.5" Y :`fir 4 I' F 'y t - • �C_ 11µ.0 "i.1 t ^ •Jd�..i tt¢ The Concourse "Recycling Station" is part of Creative Outdoor Advertising's Concourse "Full Service" amenities program with service modules for all of your city's streetscape requ irements. 15 RENTIUE QUT�DOaR AD.UER wit PR04;61� - OVRVIEW§ .1 0 i , .Y � � K S „, ,,,'',,„, I E ' ' ..,, ..4' 4 '''' '', 1 I ! l r RECYCLING STATION , ,} ., ,F , , ' DESCRIPTION The Heritage Recycling Station has been thoughtfully developed to appeal to a broad range of customers including municipal and private property contracts. Mating old town charm with modern day convenience, the Heritage will seamlessly blend into its surroundings; whether it is the main street of a smaller town or part of a business improvement area. The Heritage Recycling Station has three individual containers that are customized to handle any of the following: 1. trash 2. bottles and cans 3. paper products i The configuration of these units will depend on your city's requirements. In addition, your city will select the appropriate color for the units to ensure that they blend in with their surroundings. All this is provided free of charge to the city. lI d Ili k rtj � �, s ti ttf 1 1 e . , .-- :cm d ' i i1 1 i i,, t 4 t 7f c , �r da i��: '# 'r iF ' i i C N l '' '' 1 ' 1 `� t ,M t ; x t, g '41 � g tt , ' lI Iii I „. z P 3 ” 3r s k o f � 1 4, t . " ,� 7r " y i , - . S* t ' kr,' NiVA } 5 +P � ' ,' ? µ i% t 4 ' ` Y ,, f - y V �1' a„ y , ' � s , i .- ..k s f § „F`22 k , , . tom „: ; . ;;33 € ,S 4 °' yb, ' f. , ' —• a 5 , .. „ ems 16 OUTDOOR ADVER ISIMGP ODUCT OtCER�IEW d S THE HERHT\GE ,�. RECYCLING STATION ip a 9. I • I SPECIFICATIONS1 M ODEL Heritage Recycling Station 4I • „ MATERIAL Stainless Steel & Aluminum ry r COLORS Determined by Clty *`^ FINISH Gloss DIMENSIONS Dependent on the chosen configuration Single Eenc: Length 93 "' Height 44 ", Width 36" INSTALLATION Bolted to concrete surface BOARD MESSAGING Area per single face; 71"x20.5" �� �� A j� ;( I . F M r , WiLrgrAite The Heritage Recycling Station is constructed from heavy -duty stainless steel and powder coated with an industrial strength paint. This ensures our units will retain their attractiveness for many years to come. The Heritage Recycling Station is part of COA's very successful line of street furnishings. It has been designed to perfectly compliment the traditional metal- strapped benches and trash containers currently in your city. 17