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HomeMy WebLinkAboutBy-law 5213/98THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 5 2'13/'9 8 Being a by-law to authorize the execution of the Agreement between the Corporation of the Town of Picketing and Street Level Media Inc. respecting the right to sell advertising both on and in Picketing Transit buses. WHEREAS Street Level Media Inc. has supplied an Agreement that meets with the approval of the Department of Transportation; NOW THEREFORE, the Council of the Corporation of the Town of Picketing HEREBY ENACTS AS FOLLOWS: The Mayor and Clerk are hereby authorized to execute the Agreement between the Corporation of the Town of Picketing and Street Level Media Inc. regarding the right to sell advertising on Picketing's buses, which Agreement shall be substantially in accordance with the form attached hereto as schedule "A". By-law read a first, second and third time and finally passed this 2nd day of March, 1998. Wayne Arthurs, Mayor Bruce Taylor, Town Clerk Schedule A THIS TRANSIT ADVERTISING AGREEMENT made this BETWEEN: __ day of February, 1998 STREET LEVEL MEDIA INC. (hereinafter referred to as the "Company") -and- OF THE FIRST PART THE CORPORATION OF THE TOWN OF PICKERING (hereinafter referred to as the "Town") OF THE SECOND PART WHEREAS pursuant to the provisions of the Municipal Act, R.S.O. 1990, chapter M.45, paragraph 210.104, the Town is the operator of a public transportation system known as "Pickering Transit" and wishes to grant the Company the exclusive right of advertising in and on the system's buses from June 1, 1997 to May 30, 2000, subject to certain terms and conditions contained herein, all of which are satisfactory to the Company; NOW THEREFORE THIS AGREEMENT WITNESSETH THAT, in consideration of the sum of $2.00 now paid by each party to the other, the sufficiency and receipt of which is hereby acknowledged, the parties hereto agree as follows: In this Agreement: (a) The word "Town" PICKERING. shall mean The CORPORATION OF THE TOWN OF (b) The word "Company" shall mean Street Level Media Inc. (c) Whenever the words "directed", "required", "considered", "necessary", or words of like import are used, it shall be understood that the direction, requirements, etc. of the Town is intended and similarly the words "approval", "satisfactory" or words of like "import" shall mean "approved by", "acceptable" or "satisfactory" to the Town. (d) The word "Carder" means the employee or independent sub-contractor of the Company who is responsible for the installation and removal of advertising signs from Pickering Transit buses. (e) The term "Active Buses" means those buses on active duty each day during the business week (Monday to Friday) and shall exclude those buses which are~ out of service for repairs for a period of more than 48 hours, or not used on a regular basis, or are used for non-scheduled transit service, or do not have advertising frames or space available for advertising. The Town hereby grants to the Company the exclusive right and privilege to sell and place advertisements both in and on the Pickering Transit buses, including 2 l"x 70" and 30"x 139" transit advertising cards or vinyl stickers, and vinyl rear window ads and vinyl tail wrap ads. The term of this Agreement shall be for a period of 3 years commencing on June 1, 1997 and ending on May 30, 2000, with an option to renew for an additional two (2) year period, subject to the prior written approval of both parties and subject to such terms and conditions as may be mutually agreed upon between both parties, provided that notice of intention to renew shall be given in writing by the Company to the Town, no later than 90 days prior to the conclusion of the third year of this Agreement. The Company shall supply, at no cost to the Town, all labour, materials, tools, equipment, appliances, travel and freight to perform the service herein described to implement its right to sell and place advertisements in and on Pickering Transit buses. For each contract year during the term of this Agreement, the Company shall pay the Town the greater of; (a) 50% of total Gross Billings (as defined below) made by the Company during the contract year with respect to advertising space on the Pickering buses, or, (b) the following schedule of Guaranteed Payments; Contract S/Bus # Active Sub Guaranteed Total Year Per Yr. Buses Total Rear Window Guaranteed Revenue Payments Year 1 6/1/97-5/30/98 $2,350 23 $54,050 $1,125 $55,175 Year 2 6/1/98-5/30/99 $2,450 23 $56,350 $3,000 $59,350 Year 3 6/1/98-5/30/0 $2,550 23 $58,650 $3,000 $61,650 During the term of this Agreement, the Company will pay the Town the following payments in addition to the Guaranteed Payments for special types of signs. The revenue from such special signs shall be excluded from the calculation of Gross Revenue, as defined below. Payment for such additional special types of signs will be made by the COmpany to the Town, monthly in arrears as follows: (a) Rear Window Ads: The Company shall pay the Town the greater of the Guaranteed Rear Window Revenue amounts as defined in Clause 5 of this Agreement, or $50/month ($600 per year) for each rear window sign generating revenue to the Company. The Company will remove any sign not renewed within 90 days of the end of each advertising contract between the Company and a third party regarding such sign. (b) "Tail Wrap" Ads: The Company shall pay the Town, $75/month ($900 per year) for each Tail Wrap sign generating revenue to the Company. The Company will remove any Tail Wrap sign not renewed within 90 days of the end of each advertising contract between the Company and a third party regarding such sign. (c) "Full Wrap" Bus Ads: The Town hereby grants the right to the Company to sell and install one "Full Wrap" bus ad for a period of 12 months beginning in February 1998 as a pilot project. For this right, the Company will pay the Town the sum of $3,650 per year ($305.17 per month) in addition to the portion of the guaranteed annual payment as set out in clause 5(b) herein, (being the sum of $2,350 per bus per year in year 1, and thereafter the sum of $2,450 per bus per year in year 2, and thereafter being the sum of $2,550 per bus per year in year 3. Such that the total payment to the Town by the Company will be $6,000 per year for each of the "Full Wrap" bus ads in year 1; the sum of $6,100 per year for each of the Full Wrap bus ads in year 2 and $6,200 per year for each of the Full Wrap Bus Ads in year 3, respectively. Having assessed this pilot project, the Town may grant the Company the right to sell up to four (4) "Full Wrap" bus ads. The Town shall approve in advance, the pictorial design and messages to be placed on all "Full Wrap" or "Half Wrap" Bus Ads. A decision on the suitability of each design for "Full and Half Wrap" Bus Ads shall be provided by the Town to the Company in writing within 30 days of a complete submission of a design by the Company. Pickering Transit identification will be integrated into the design of each "Full Wrap" bus ads. o (d) "Half Wrap" Bus Ads: Having assessed the Full Wrap pilot project, the Town may grant the Company the right to sell four (4) Half Wrap Bus Ads. For this right the Company will pay the Town the sum of $1,800 per year ($150 per month) per bus in addition to the guaranteed per bus payment as set out in clause 5(b) herein such that the total payment to the Town by the company will be the sum of $4,150 per year per bus in year 1; the sum of $4,250 per year per bus in year 2; and the sum of $4,350 per bus per year in year 3, respectively. (e) Installation and Removal: The Town will take the buses out of service while these special signs are applied and removed. The Company shall be responsible for all of the costs associated with the production, installation and removal of the Rear Window and "Tail Wrap", "Half Wrap" and "Full Wrap" material from each such bus. The Company agrees that the buses shall only be required to be out of service for a period up to 3 days. In the event that a bus is required to be out of service while the special signs are applied and removed for a period exceeding three (3) days, then the Company agrees to compensate the Town for any costs or expenses incurred by the Town as a result of any bus being out of service in excess of three (3) days. The Annual Guaranteed Revenue, as set out in clause 5(B) herein under the column entitled "Total Guaranteed", will be paid in monthly installments, in advance, on the 1 st day of each month during the term of this Agreement. The Company will provide an Additional Revenue Report in a form acceptable to the Town on the 1st day of each month throughout the term or this Agreement. The Additional Revenue Report will itemize the amounts owing by the Company to the Town for the previous month pursuant to clauses 6(a), (b), (c), and (d) of this Agreement. The form will provide an area for the Town to indicate the total credits to the Company for buses that were not Active Buses, as defined, for the previous month. The Town shall provide to the Company by the 10th of each month, the completed Additional Revenue Report showing a total amount owing by the Company for the previous month, the said credit has been applied for buses that were not Active Buses, as defined. The Company shall pay the total amount indicated on the completed Additional Revenue Report provided by the Town on the 1 st day of each month throughout the term of this Agreement, and any renewal term, one month in arrears. The term Gross Billings shall mean the gross billings made by the Company to its clients for advertising placed in or on Pickering transit buses, less: (a) commissions deducted by, or paid to, or payable to advertising agencies or independent sales agents with respect to advertising placed through such agencies, excluding commissions in respect of advertising obtained directly from advertisers by Company employees, or by a person or corporation in which the company is in any way financially interested; (b) prompt payment discounts not to exceed two (2) percent to clients for payments made within ten days after date of invoice, or five (5) percent for long term contracts paid in full upon posting; (c) bad debts deducted in accordance with and subject to the following provisions, namely: The Company shall have the right to write-off and deduct, as bad debts from its Gross Billings, any billings made to clients, payment whereof is then three (3) months or more in arrears; a statement of all such billings written off shall be furnished to the Town at the time and together with payment of the installment in respect of the annual Gross Billings, giving the respective names and addresses of the clients and the respective amounts written off; if collection of any or all such unpaid billings shall be made by the Company at any subsequent date, the Company shall forthwith pay to the Town an amount equal to the applicable percentage of such amounts collected under paragraph 5(a) subject to the application of the provisions of clause 5(b) herein. 3 10. 11. 12. 13. 14. 15. 16. 17. (d) that portion of Gross Billings represented by the value of the production of the advertisement, if such production is included in the Gross Billings. If a default of any section of this Agreement, or any payment provided for in this Agreement shall continue for a period of thirty (30) days after written demand for payment shall have been duly made upon the Company by the Town (by mailing a registered letter to the Company at its last known place of business), the Town may elect to terminate this Agreement and remove all advertising material from the buses without further notice to the Company. The cost of the removal of such advertising material shall be completed at the sole expense of the Company. The Town shall have the right at all reasonable times to examine the books of account of the Company as they pertain to this Agreement through any representative named by it and shall be given all facilities reasonably available to verify the correctness of statements of Gross Billings. Within sixty (60) days after the end of each contract year, the Company shall have prepared a yearly statement for that contract year of the Gross Billings made by it to which this Agreement refers. Such statement shall be certified as to its accuracy by a firm of Chartered Accountants, at the expense of the Company. The Company shall provide a copy of the Certified Statement to the Town within sixty one (61) days of the end of each calendar year. Any adjustment in the amount of the consideration payable by the Company under paragraph 5(a) for that contract year shall be made on or before the last day of the second month of the next contract year. The Company agrees to submit such further financial information, statements and details upon reasonable request by the Town. (a) Advertising devices used on the buses shall be supplied by the Company and shall remain the property of the Company, despite the fact that they may be affixed to Picketing buses, and the Company shall be responsible for the installation and maintenance of same, all of which shall be done at no cost to the Town. (b) Notwithstanding the foregoing, in the event that this Agreement is terminated for any reason, the Company agrees that if the advertising devices are not removed by the Company within 30 days of the receipt of a written request by the Town to remove same, then the Company agrees that the advertising devices shall be removed by the Town and those advertising devices shall be considered to be abandoned and the Town shall not be responsible to the Company regarding such advertising devices. The placing and changing of advertisements in and on the buses by the Company shall be effected during periods of light traffic as designated by the Town, at the cost of the Company. The Town will provide reasonable access to the buses for this activity and will provide the Company, at no cost, suitable secure storage space for its advertising materials. The Town agrees to receive and store advertising material shipped to Pickering Transit and to receive posting instructions, sent by the Company, to Pickering Transit and will allow the Company's Carder to return posting reports to the Company via the fax facility of Picketing Transit, provided that such matters shall be at the sole cost to the Company. No advertising material of any kind may be placed on the exterior advertising panels or interior headrail advertising panels of Pickering Transit buses without the prior written consent of the Company which consent shall not be unreasonably withheld. The Town will not be prohibited from placing materials relating to Town matters in other locations with Town buses. The Town may, however, provide transit advertisements or such non-commercial publicity as the Town from time to time desires, relative to its undertakings or other matters of public interest, to the Company and the Company agrees to post this material as "Filler Copy" in unsold space. It is the responsibility of the Town to supply reasonable notice of its anticipated requirement for the use of such unsold space. The Company shall post such material at its cost, but may remove such "Filler Copy" if the space is subsequently sold. 18. The Company shall submit a statement at the conclusion of each contract year detailing the estimated value of unpaid Town advertising. 19. No advertisement placed on any bus pursuant to this Agreement shall advertise, promote or mention in any way: (a) cigarettes, cigars or any other tobacco products; (b) liquor, wine, beer or any other alcoholic beverage. 20. Any advertisements placed on the buses shall be of moral and reputable character and the Company shall forthwith remove from any bus any advertisement that the Town, in the reasonable exercise of its discretion, desires removed. 21. The Town will not accept advertising of questionable taste or which is irritating in its content or method of presentation as determined by the Town. 22. Advertising must be free from offensive references or racial matters. 23. Advertising calling for the advocacy of, or opposition to, a political point of view, policy or action is prohibited. 24. Advertising advocating the name of a political party for a Federal or Provincial election is prohibited. 25. Advertising advocating the candidacy of an individual seeking Federal or Provincial or Municipal office is prohibited. 26. Advertising advocating the name of a political candidate(s) for a Municipal election is prohibited. 27. Advertising which tends to disparage a candidate or a political party or cause is prohibited. 28. Advertising informing the public of the specifics relating to a meeting, gathering or event will be permitted if the information is confined to subject, name of speaker, location, date and time of the event, provided that it is not related to any of the matters otherwise prohibited in this Agreement. 29. Religious advertising which promotes a specific ideology, ethic, point of view, policy or action, which in the opinion of the Town is prejudicial to other religious groups or offensive to users of the transit system, is not permitted. Religious advertising will be permitted if the information is designed to promote a specific meeting, gathering or event, provided that the information is confined to subject, name of speaker, location, date and time of event. 30. Although the Town is guided by the Canadian Code of Advertising Standards, the Town is the sole and final arbiter in all matters relating to the acceptance of advertising to be placed in or on Picketing Transit buses. The Town may refuse or order the removal of any message, at any time, at its discretion. 31. The Company shall indemnify and save the Town harmless against any and all claims for damages and from all liability, loss and expenses arising from, or caused by an alleged libelous or obscene advertisement or notice or any alleged copyrighted matter in any advertisement or notice. 32. The Company agrees that in the performance of this Agreement it will abide by the terms hereof from which no change, alterations, or modification shall be made without the prior written authority of the Town. 33. The Company agrees to indemnify and save harmless the Town for all actions, suits, claims, demands and costs arising by reason of injury or death to any person resulting from the matters herein described. 34. 35. 36. 37. 38. 39. 40. 41. 42. The Company will render the Town free from any liability and will indemnify the Town for any liability arising from any breach of the municipal, provincial or federal regulations, ordinances, by-laws and laws and from any debts or obligations contracted by the Company or its employees or agents in conjunction with the performance of this Agreement. The Company agrees to maintain during the term of this Agreement the following insurance with insurance companies and terms and conditions satisfactory to the Town: (a) Comprehensive liability insurance which shall include contractual liability coverage for liability including claims that might be brought against the Town by any employee of the Company or any sub-contractor and Company's protective coverage for all sub- contracted operations; and (b) Advertiser's liability insurance which shall include contractual liability coverage for liability including claims arising out of libel, slander, unauthorized use of ideas or other material, invasion of privacy. Each insurance policy shall provide a combined single limit of at least two million dollars ($2,000,000) for any one occurrence or accident for all claims arising out of personal injuries (including death) and damage to the property of others and shall include as an additional named insured "THE CORPORATION OF THE TOWN OF PICKERING". The Company shall furnish the Town Clerk with an original certified copy or certificate of each policy with an undertaking from the insurance company that such insurance will not be cancelled or reduced in coverage without thirty days (30) prior written notice by registered mail to the Town Clerk. Should the Town be of the opinion that the insurance taken by the Company is inadequate in any respect for any reason whatsoever, it shall forthwith advise the Company of such an opinion and the reasons therefor. The Company shall forthwith take out insurance of a character satisfactory to the Town. The taking out of the insurance as aforesaid shall not relieve the Company of any of its obligations under this Agreement. In the event that such satisfactory insurance is not in place, the Town shall have the right to immediately terminate this Agreement. A Letter of Good Standing from the Worker's Compensation Board shall be provided to the Town immediately upon execution. Any notice, document or other communication required or permitted to be given hereunder shall be in writing and shall be sufficiently given if sent by prepaid mail or delivered, (a)in the case of the Company, to: The President Street Level Media Inc. 20 Steelcase Road West, Unit 1B Markham, Ontario, L3R lB2 (b) in the case of the Town, to: The Town Clerk The Corporation of the Town of Pickering Pickering Civic Complex One The Esplanade Pickering, Ontario, L 1V 6K7 Each party may re-designate the person or the address, or both, to whom or at which such notice, document or other communication shall be given by giving written notice to the other in accordance with Section 39 of this Agreement. Any notice, document or other communication given in accordance with section 39(a) and 39(b) shall be deemed to have been given on the third business day following the day of the mailing or the day of the delivery, as the case may be. Should a dispute arise from the terms and conditions of this Agreement regarding meaning, intent or ambiguity, the decision of the Town will be final. 43. Upon the expiry of the term of this Agreement, or any renewal thereof, the Company agrees to remove all the advertisements placed by it at its sole expense, within 30 days of the expiry of this Agreement or any renewal thereof. If such advertisements are not so removed, the Town may do so, and the Company shall pay the Town all reasonable expenses incurred by the Town in running such advertisements. 44. This Agreement is not assignable, in whole or in part, without the prior written consent of both parties. 45. This Agreement and everything herein contained shall extend to, bind and enure to the benefit of the parties hereto and their successors and assigns. IN WITNESS WHEREOF, the parties hereto have hereunto affixed their respective corporate seals, duly attested to by their proper authorized officers. SIGNED, SEALED AND DELIVERED STREET LEVEL MEDIA INC. John W. Hethrington, President Andrew Hethrington, Vice President THE CORPORATION OF THE TOWN OF PICKERING Mayor Clerk L9201