Loading...
HomeMy WebLinkAbout12344 RESOLUTION NO. 12344 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND TAP MEDIA, LLC RELATING TO TRANSIT PASSENGER SHELTERS AND BENCHES WITH ADVERTISING BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement dated April 1, 2012 between Pueblo, a Municipal Corporation and TAP Media, LLC relating to transit passenger shelters and benches with advertising, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: March 26, 2012 BY: Leroy Garcia COUNCIL PERSON Background Paper for Proposed RESOLUTION AGENDA ITEM # M-11 DATE: March 26, 2012 DEPARTMENT: PUEBLO TRANSIT BRENDA BROYLES DIRECTOR OF TRANSIT TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND TAP MEDIA, LLC RELATING TO TRANSIT PASSENGER SHELTERS AND BENCHES WITH ADVERTISING ISSUE Should the City Council approve the Advertising Agreement between the City of Pueblo and TAP Media, LLC? RECOMMENDATION Approval of Resolution. BACKGROUND The City of Pueblo published a Request for Proposal (RFP) for Transit Passenger Shelters with Advertising, and mailed the pertinent documentation to several Transit Advertising agencies in addition to placing it on the City’s purchasing department web-site. Only one agency, TAP Media, LLC, responded. TAP Media, LLC meets all the project requirements. The proposed Agreement will commence April 1, 2012 and continue for ten (10) years through April 1, 2022 unless terminated earlier pursuant to the terms of the Agreement. FINANCIAL IMPACT Pueblo Transit will receive 15% of gross advertising revenue from shelters and benches advertising. AGREEMENT FOR ADVERTISING SERVICES ON SHELTERS AND BENCHES AGREEMENT BETWEEN THE CITY OF PUEBLO AND TAP MEDIA, LLC This Agreement made and entered into by and between the City of Pueblo, a municipal corporation of the State of Colorado (hereinafter called "City"), and TAP Media, LLC (hereinafter called "Contractor "). WITNESSETH: WHEREAS, the City by and through Pueblo Transit operates and conducts a public transit system; WHEREAS, public transit plays an important role in transporting large numbers of people to and from work places, social service organizations, public events and activity centers in an energy conscious manner; and WHEREAS, the City desires to generate revenue to support public transit and provide for the comfort and convenience of its passengers; and WHEREAS, the Contractor desires to furnish the required equipment, plant and personnel to provide bus passenger shelters and benches with advertising at designated transit stops; and NOW, THEREFORE, in consideration of the foregoing mutual covenants and considerations hereinafter contained, it is agreed by and between the City and the Contractor as follows: SECTION I — SCOPE OF SERVICE A. BASIC SERVICES The Contractor, to the satisfaction of the Director of Transit or his/her designee, shall provide services, equipment, personnel and management to provide safe, clean, attractive bus passenger shelters and benches with advertising and generate revenue for the City. The Contractor hereby agrees to perform all services in accordance with current, applicable statutes, ordinances and regulations including City zoning requirements and designations. All shelter designs must be approved by the Director of Transit before placement in the public right -of -way. All requirements indicated in the Request for Proposal for Project No. 11 -093 shall, by reference, be included as part of the basic services. B. SHELTER LOCATIONS 1. Within 30 days of the execution of this Agreement, Contractor shall conduct a survey of all bus stops within the transit service area and submit a report to the City on the status of the current bench and shelter inventory and provide a list of proposed locations for new bench and shelter placements. 2. Contractor shall pay the City $11,500 in guaranteed funds upon execution of this Agreement for the purchase of 23 shelters from the City, which are accepted by Contractor "AS IS" and Page 1 of 9 "WITH ALL FAULTS ". City expressly disclaims any warranty, express or implied, including, without limitation, title, safety or fitness for any use. Upon clearance of the payment by the bank, the 23 shelters shall become the sole property of Contractor. 3. Within 24 months of the execution of this Agreement, Contractor shall purchase and place, at its sole expense, at least 37 additional shelters at locations designated or agreed upon by the City. Contractor shall, at its sole expense, make sure each and every shelter is ADA compliant. 4. Within 36 months of the execution of this Agreement, Contractor shall replace the 23 shelters purchased from the City, as set forth in paragraph 2 above, with new shelters. 5. Contractor shall purchase and place, at its sole expense, such additional shelters at locations designated or agreed upon by the City, each subsequent year of this Agreement so that upon expiration of the ten year term, there shall be no less than 60 shelters at designated and agreed upon locations within the City. 6. Contractor shall purchase and place, at its sole expense, benches at locations designated or agreed upon by the City so that upon expiration of the ten year term, there shall be no less than 200 benches at designated and agreed upon locations within the City. Contractor shall, at its sole expense, make sure each and every bench is ADA compliant. Benches shall not be placed on uneven or unsafe areas of dirt, grass or rocks. 7. If the Contractor reports and validates with evidence that there is an excessive amount of graffiti and vandalism to shelters or benches within the transit service area, Contractor shall have the right to negotiate a change in the location of the shelters and benches which are affected by the graffiti and vandalism. Once an agreement to relocate the shelters and benchses is reached between Contractor and the City, Contractor shall relocate the shelter or bench and make it ADA compliant to include installing concrete pathways, at its sole expense. 8. Each and every month, Contractor shall provide the Director of Transit or his/her designee with a list of all shelter and bench locations and designate which have advertising. Shelters and benches may only be moved with the permission of the Director of Transit or his/her designee. 9. Contractor shall locate shelters and benches at designated locations within City-owned right - of -ways pursuant to a revocable permit for each location issued by the Public Works Department of the City of Pueblo. Locations on privately owned property require written authorization of the owner and a copy of the same shall be provided to, and approved by the City before a shelter or bench is placed on privately owned land. 10. Contractor shall obtain approval of all shelter and bench locations from the Director of Transit prior to placement of the shelters and benches to ensure locations that are suitable and reasonably safe for bus patrons. At no time may a shelter or bench impede pedestrian, wheelchair or vehicle travel. 11. Whether or not an advertising shelter or bench design or location is suitable or safe shall be determined by the Director of Transit or his/her designee in his/her sole and absolute discretion. The Contractor shall relocate or remove any shelter as directed by the Director of Transit and/or Pueblo City Council. Page 2 of 9 C. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT Contractor acknowledges that all shelter and bench locations must comply with all federal, state and local laws and regulations relating to accessibility of public accommodations and services. To the extent that the law changes during the term of this Agreement and imposes new prospective requirements on shelter and bench placement and accessibility, including the installation of concrete pathways, Contractor shall be responsible for all costs incurred to comply with the new prospective accessibility requirements. Should the law or regulation be retrospective in nature, the Parties shall meet and confer in good faith to develop a plan to meet and fund compliance with the retroactive law or regulation. In the event the Parties are unable to agree on the manner of, and responsibility for the cost of compliance with any retroactive requirements, either Party may terminate this Agreement upon sixty (60) days written notice to the other Party. D. ADVERTISING Contractor shall maintain a trained professional sales staff to promote advertising. Together with its monthly payment to the City, Contractor shall provide monthly reports to the City giving an accounting of the month's sales activities. The City reserves the right to approve all advertising prior to placement on shelters or benches. Advertisements deemed objectionable, in the sole and absolute discretion of the Director of Transit or his/her designee, shall not be used and shall be immediately removed by Contractor, at Contractor's sole expense, upon receipt of written notice to remove: The following standards for advertising have been adopted: 1. Advertising copy may not be displayed which: a. Is false, misleading or deceptive. b. Relates to an illegal activity. c. Is explicit sexual material, obscene material, or material harmful to minors. d. Advertises or tobacco products. e. Supports or opposes a candidate, issue or cause, or which advocates or opposes a religion, denomination, religious creed, tenet or belief. f. Depicts violence and/or anti- social behavior. g. Holds up individuals or groups of people to public ridicule, derision or embarrassment. h. Includes language that is obscene, vulgar, profane or scatological. 2. Advertisements of a public service, educational or charitable nature shall be subject to the same advertising rates as commercial advertisers. 3. At its discretion, the City shall have the right to utilize any unsold advertising space for its own purposes without cost, except that all such space shall be subject to preemption by paying advertisers. Should the City choose to use unsold advertising space, it shall provide the Contractor all advertising displays ready for installation. Contractor shall install the displays at no cost to the City. 4. All dated advertising copy shall be removed promptly after the date cited in the advertisement has passed. Contractor shall inspect or review all advertising copy on a monthly basis to be certain dated material is removed promptly. Old advertising must be completely removed before new material is applied. Page 3 of 9 E. ADVERTISING RATES AND CONTRACTS 1. Contractor shall establish and publish all advertising rates and keep an updated copy on file with the City at all times. 2. Contractor may trade or barter for advertisement; however, Contractor shall report and provide the City with copies of all trade/barter contracts which the Contractor may obtain or have during the term of this Agreement and compensate the City for such trade/barter contracts in the same manner compensation for cash contracts is made, by paying the City monies equal to the percentage that the City would receive from such contracts if they were cash contracts. 3. Contractor's contracts with advertisers shall not contain any provision that prohibits or in any way restricts the assignment of such contracts to the City at the end of the term of this Agreement, or any earlier termination thereof. 4. Each month, Contractor shall provide the City with a copy of all advertising contracts entered into for advertising that month. F. MAINTENANCE REQUIREMENTS 1. Contractor shall properly maintain the shelters, benches, and the immediate areas in good condition and repair. At a minimum, Contractor shall provide cleaning and maintenance services twice each month for each shelter and bench location. A proposed maintenance schedule listing specific cleaning and maintenance tasks shall be submitted to the City for approval upon execution of the Agreement. Contractor shall clean and maintain shelters, benches and the immediate areas within twenty -four (24) hours when requested by Director of Transit or his/her designee in response to citizen complaints or field observation. 2. Damaged shelters or benches shall be removed or satisfactorily repaired within seventy-two (72) hours of notification by the Director of Transit or his/her designee. It is the Contractor's responsibility to keep shelters and benches in safe, clean, and orderly condition at all times. 3. Contractor shall maintain adequate trained personnel for maintenance work. G. ACCOUNTING RECORDS 1. Contractor shall maintain all books and accounts in a method and form acceptable to the City; said books and accounts to be open to inspection and audit during working hours, by the Director of Transit or his/her designee. 2. A CPA certified audit shall be performed, at Contractor's expense, for 2012 and 2013. Audit reports shall be submitted within 45 days following the execution of the Agreement and receipt of a Notice to Proceed with the work. 3. Contractor shall furnish the City with a statement of gross receipts for its operations each month. 4. Contractor shall submit annual, audited financial reports to include a balance sheet, profit and loss statement and such other information as the City may reasonably require. Page 4 of 9 H. SATISFACTORY PERFORMANCE PROVISIONS 1. Contractor shall furnish all necessary labor, tools, equipment and supplies to perform the required service. The Director of Transit or his/her designee shall decide all questions and acceptability of any work performed under the Contract. If, in the opinion of the Director of Transit or his designee, performance or Contract compliance becomes unsatisfactory, the Contractor shall be notified in writing via U.S. Mail. 2. Contractor shall have fifteen (15) calendar days from the date of any notice of unsatisfactory performance to correct any specific instances of unsatisfactory performance. In the event the unsatisfactory performance is not corrected within the time specified above, the City shall have the immediate right to complete the work to its satisfaction and submit an invoice for the cost to Contractor. Said invoice shall be payable by Contractor within thirty (30) calendar days of its issuance. Repeated occurrences of unsatisfactory performance will result in cancellation of the Contract for default. All corrective work performed by the City will be invoiced as follows: a. A standard hourly rate, plus the cost of materials, plus a handling charge equal to ten percent (10 %) of the cost of materials. b. The standard hourly rate of $85.00 per hour is an average service rate subject to review annually. 3. Contractor shall comply with all performance standards set forth in this Agreement. The City and the Contractor will meet from time to time to evaluate the Contractor's performance. 4. Contractor shall maintain all mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan. 5. Contractor shall meet and comply with the Title VI Assurances set forth in Attachment B of this Agreement. 6. Contractor agrees to make, execute and deliver, on or before the 1st day of each contract year, a good and sufficient surety bond, payable to the City of Pueblo, conditioned upon the faithful performance of the terms and conditions hereunder. The sum of such bond shall be an amount of one year's average annual revenue share, payable to the City, for the privileges granted hereunder. The surety on said bond shall be a surety company duly authorized to do business in the State of Colorado and acceptable to the City of Pueblo. Such surety bond shall contain a stipulation that the surety agrees to give the City thirty (30) calendar days' written notice prior to any modification or cancellation of bond by the surety company. INSURANCE AND INDEMNIFICATION 1. Contractor agrees to carry all insurance which may be required by Federal and State Laws, and City ordinances, regulations and codes. Contractor agrees to indemnify and save harmless the City of Pueblo, its officers, agents and employees, from all suits, actions, loss, damage and expenses of any character or any nature including attorney fees and cost of litigation arising out of or resulting, directly or indirectly from the negligent acts or omissions of Contractor, its officers, employees or agent, or the work done in fulfillment of the terms of this Agreement, or on account of any act, claim or amount arising or recovered under Worker's Compensation Law, or arising out of the Page 5 of 9 failure of Contractor or those acting under Contractor to conform to any statutes, ordinances, regulations, law or court decree. It is the intent of the parties to this Agreement that the City shall, in all instances, except for loss or damage to persons or property resulting from the sole negligence of the City, be indemnified against all liability, loss, costs, expenses, including reasonable attorney fees, or damage of any nature whatever for or on account of any injuries or death of person or damages to or destruction of property belonging to any person arising out of or in any way connected with the performance of this Agreement, regardless of whether or not the liability, loss or damage is caused by, or alleged to be caused in part by the negligence, gross negligence or fault of the City. It is agreed that Contractor will be responsible for primary loss investigation, defense and judgment costs where this contract of indemnity applies. 2. In connection with the above Insurance and Indemnification, Contractor agrees to provide and maintain during the life of the Agreement, the following types of insurance in the amounts listed: Type of Insurance Limits of Liability (Minimum) Workers' Compensation Statutory Employers' Liability $500,000.00 (Each Accident) General Liability $1,000,000.00 Combined Comprehensive Form Single Limit Premises and Operations Independent Contr. (OCP) Products /Completed Operation Broad Form Property Damage Personal Injury With Exclusion "C" Deleted Contractual Liability Explosion, Collapse and Underground Exclusions Deleted (where applicable) Vehicle (Automobile) Liability $1,000,000.00 Combined Owned Single Limit Hired Non -Owned 3. The City shall have no responsibility or liability for such insurance coverage. 4. Provide a Certificate of Insurance on a standard insurance industry Accord form evidencing a total combined single limit liability of at least One Million Dollars ($1,000,000.00) to the City upon execution of this Agreement. The Certificate shall be issued by an insurance company authorized to transact business in the State of Colorado. Insurance coverage shall not expire until all work under this Agreement has been completed. 5. Certificates shall be updated annually. If an insurance policy does expire during the life of the Contract, Contractor shall provide a renewal certificate of the requested insurance coverage to the City not less than thirty (30) calendar days prior to the expiration date. 6. Contractor shall furnish the City with a letter of certification from the Industrial Commission of Colorado, that Contractor is insured by the State Compensation fund or Page 6 of 9 is an authorized self - insurer, or a Certificate of Insurance issued by an insurance company authorized by the Colorado Department of Insurance to provide Workers' Compensation and Occupational Disease and Employers' Liability Insurance in the State of Colorado. 7. The City, its officers, agents and employees, shall be named as additional insurers on all applicable policies, and this shall also be indicated on Certificates of Insurance issued to the City. 8. All Certificates issued in connection with this Agreement shall provide for a thirty (30)- calendar day written Notice of Cancellation. A copy of the cancellation will be sent to the City by certified mail. SECTION II - TIME OF PERFORMANCE The services to be performed under this Agreement shall be for a ten (10) year period commencing April 1, 2012, and continuing through April 1, 2022 (contract dates may change depending on date of award by City Council). This Agreement may be renewed for an additional five (5) year period at the sole and absolute discretion of the Director of Transit provided that Contractor has consistently met its duties under this Agreement and it is not in default of any obligation or term of this Agreement. Any provision of this Agreement or its attachments, or any renewal or extension permitted under same, which imposes or may impose upon City, directly or indirectly, any financial obligation whatsoever to be performed or which may be performed in any fiscal year subsequent to the original year of execution of the Agreement is expressly made contingent upon and subject to funds for such financial obligation being lawfully appropriated, budgeted and otherwise made available. SECTION III - PAYMENTS Payments to the City shall be made as follows by Contractor: 1. Contractor agrees to pay City a fee equal to 15% of the gross revenue received from all advertising sales which will be displayed on bus passenger shelters and benches. 2. All payments to City of its share of the gross revenue as provided herein shall be made on a monthly basis on or before the tenth (10 day of each month throughout each calendar year of the term of this Agreement. The Contractor shall maintain such books, records, documents, and other evidence and accounting procedures and practices as may be necessary to reflect the advertising gross revenue generated by the services performed by it pursuant to this Agreement. All such records shall be available to the City at all reasonable times for inspection, review or audit. 3. "Contract Year" includes the twelve months following execution of the Contract and Notice to Proceed with the work. 4. Within fifteen (15) calendar days after the end of each quarter, Contractor shall provide to the City a revenue statement for the previous calendar quarter and a check for any excess between the cumulative sum of the monthly percentage payments calculated for the previous calendar quarter, and the amount of the annual guarantee paid for said calendar quarter. SECTION IV - THE CITY'S RESPONSIBILITIES The City shall provide the Contractor with all available information pertinent to the project together with guidance and direction to achieve project objectives. Page 7 of 9 SECTION V - GENERAL CONDITIONS A. Claims Against the City. Contractor shall operate as an independent contractor. It is agreed that Contractor is an independent Contractor, and not an officer, agent, servant or employee of the City. Contractor shall be solely responsible for the acts and omissions of its officers, agents, servants and employees. B. Additional Work. Additional work, when authorized by executed Contract Change Order, shall be compensated for by a fee mutually agreed upon between the City and the Contractor. C. Successors and Assigns. This Agreement shall not be assignable except at the written consent of the City; and it shall extend to and be binding upon the heirs, executors, administrators, successors, and assigns of the parties hereto. D. Disputes. For purposes of this Agreement, the contract administrator is the Director of Transit. In any dispute concerning a question of interpretation of fact in connection with the work not disposed of by agreement between the Contractor and the City, the final determination shall be made by the Director of Transit. E. Covenant Against Contingent Fees. The Contractor warrants that no person has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee; and that no member of the City Council, or any employee of the City of Pueblo has any interest, financially or otherwise, in this Agreement. For breach or violation of this warranty, the City shall have the right to annul this Agreement without liability, or in its discretion to deduct from the consideration, the full amount of such min, cnta, brokerage, or contingent fee. F. Terminationcomiss o per If either ege Contractor or City fails, neglects or refuses to make any payment under this Agreement or to perform any of its covenants, terms and conditions when and as required under this Agreement (the "default ") the non - defaulting party shall give written notice to the defaulting party via U.S. Mail. If the default is not cured or corrected within fifteen (15) calendar days after the date of the notice, the non - defaulting party may, in addition to such remedies as are available at law or in equity, terminate this Agreement upon three (3) days written notice to the defaulting party. If the City discontinues or ceases to operate its public transit, City may terminate this Agreement upon thirty (30) days written notice to Contractor. G. Ownership of Documents. All documents including, but not limited to, work schedules, estimates, investigations, reports, and studies which are prepared in the performance of this Agreement are to be and remain the property of the City and are to be delivered to the City. H. Records and Accounting. All records pertaining to this Agreement and records of accounts between the City and the Contractor shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representative for audit during normal business hours. In addition, the records shall be subject to audit by the United States Department of Transportation and the Comptroller General of the United States. All records must be retained for a period of at least three years following the conclusion of all services performed under this Agreement, or the final payment to the City, or following the resulting pending matters, whichever is later. Page 8 of 9 SECTION VI - SPECIAL PROVISIONS A. The Contractor agrees that in connection with performance of this Agreement, the Contractor will cooperate with the City in meeting its commitments and goals with regard to the maximum utilization of minority business enterprises and the Contractor will use its best efforts to insure that minority business enterprises shall have the maximum practicable opportunity to compete for subcontract work under this Agreement. B. The Contractor shall comply with the provisions of this Agreement pertaining to discrimination and accepting of applications or hiring employees. Contractor shall take affirmative action to ensure that applicants are employed and the employees are treated during employment without regard to their race, color, religion, sex, handicap or disability or national origin. Such action shall include: employment, upgrading, demotion, transfer, recruitment, or recruitment advertising; layoff or termination, rates of pay or other forms of compensation; and selection for training. The Contractor agrees to post in conspicuous places available to employees and applicants for employment, notices setting forth the provisions of this Equal Opportunity clause. The Contractor further agrees to insert the foregoing provisions in all subcontracts hereunder, except subcontracts for standard commercial supplies or raw materials. C. The Contractor shall provide all information and reports required by the City or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City to be pertinent to ascertain compliance with Title VI Assurances, orders and instructions. D. This assurance is given by the Contractor and is binding on it, subcontractors, transferees, successors in interest and other participants. This Agreement shall be in full force and effect only when it has been approved by the City Council of the City of Pueblo, Colorado, and when executed by the duly authorized City officials. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 1 s t day of April , 2012. Contractor By: Title: /,GV eV ii.. ' • ! GL— City of Pueblo, Colorado Attest: By: B : /l, . / /IV City Clerk P • sident : City Council Approved as to form: By: City Atto Page 9 of 9