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.
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(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.
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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