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HomeMy WebLinkAboutBy-law 5528/99THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 5528/99 Being a by-law to execute the Agreement with Creative Outdoor Advertising substantively in the form attached hereto, for a five (5) year term commencing on July 1, 1999 and expiring on June 30, 2004 with a renewal option for an additional three (3) year term commencing July 1, 2004 and terminating on June 30, 2007 providing that Creative Outdoor Advertising has met all of the contractual obligations contained in the Agreement. WHEREAS Pickering Council has previously approved Resolution #31/99 awarding Creative Outdoor Advertising with exclusive rights to supply and install transit benches with advertising; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF PICKERING HEREBY ENACTS AS FOLLOWS: 1. That the Mayor and Clerk of the Town of Picketing be authorized to execute an Agreement for transit bench installations, advertising and maintenance with Creative Outdoor Advertising substantively in the form attached hereto. BY-LAW read a first, second and third time and finally passed this 28th day of June, 1998. Bruce Taylor, Clerk THIS Agreement MADE THIS DAY OF BETWEEN: 1999. THE CORPORATION OF THE TOWN OF PICKERING (hereinafter called "The Town") OF THE FIRST PART THE BENCH PRESS LTD. carrying on business under the firm name and style of "CREATIVE OUTDOOR ADVERTISING" (hereinafter called "COA") OF THE SECOND PART WHEREAS COA is engaged in "out-of-home" advertising on Streetscaping amenities and selling space therein for the purpose of advertising goods and services; AND WHEREAS Section 308, paragraph 3 of the Municipal Act provides that municipal corporations may pass by-laws permitting any person, under such conditions as may be agreed upon, to place, construct, install, maintain and use objects in, on, or over sidewalks and highways under its jurisdiction; NOW, THEREFORE, IN CONSIDERATION OF the sum of $10.00 (Ten Dollars) receipt of which is hereby acknowledged, and in consideration of the mutual covenants hereinafter contained, the parties do hereby agree as follows: 1. (a) The Town agrees to permit COA to place a maximum of eighty-five (85) advertising amenities and a maximum of eighty (85) non-advertising amenities on the untraveled portions of the public highways in the Town of Pickering for a period of five (5) years commencing July 1, 1999 and terminating on June 30, 2004 subject to the terms and conditions hereinafter stated. (b) Providing that COA has met all of the contractual obligations hereinafter contained, the Town will provide to COA a renewal option for an additional three (3) year term commencing July 1, 2004 and terminating on June 30, 2007. (c) The Town of Pickering will provide COA with one (1) year written notice in the event that the Town does not intend to provide a renewal option for an additional three (3) year term commencing July 1, 2004 and terminating on June 30, 2007. (d) COA acknowledges and agrees that for every advertising amenity in place on property under the jurisdiction of the Town, they shall, at the Town's request, place a minimum of one (1) non-advertising amenity on property under the jurisdiction of the Town. Style and Design, Area Definition, Placement Guidelines 2. (a) The parties agree that the style, color and design of the amenities referred to in Clause 1 are to be approved by the Manager of Pickering Transit, or his designate. Generally, however, the style and design of the amenities referred to in Clause 1 are as depicted by COA as "streetscape modular units with trash receptacles". 2 (b) The parties agree that each of the amenities will be erected on property located in the Town of Pickering. The installation of amenities is to be carried out so as not to create hazards to utilities or Pickering Transit or the Town and shall ensure the safety of pedestrians and the safe movement of vehicles. Each location will be approved by the Manager or his designate. (c) It is acknowledged by the parties that the amenities will be placed only in industrial or commercial areas or in residential areas where reverse frontages exist. Reverse frontages are to be defined as those residential properties abutting an arterial road without access to that arterial road. It is also acknowledged by the parties that in selection of each location, consideration will be given to the convenience of the public. It is further acknowledged that the placement of the benches shall be in such a manner so as not to obscure signs, bus stops or interfere with the visibility or effectiveness of advertising on transit shelters. (d) It is acknowledged by the parties that the placement of the amenities shall be at the discretion of the Manager, or his designate and that COA may later be required by the Manager to remove an amenity. 3. The parties agree that forthwith after the execution of this Agreement, COA will diligently and as soon as possible locate and install the amenities referred to in Clause 1. 4. It is understood by the Town that any and all engineering or drawings are confidential and may not be distributed or made available to any party other than the intended recipient and the Town. Base Installation 5. COA agrees whenever requested by the Manager to install, at their own expense, concrete pads as a base for any amenity which is erected under this Agreement. Requests for Removal 6. COA acknowledges and agrees that the Manager shall have the right, upon reasonable notice to all parties, to order the removal or relocation of any amenity, erected upon roads or highways in the Town and the Manager shall have the right, upon reasonable notice to COA, to order the removal or relocation of any amenity erected upon roads or highways within the jurisdiction of the Town. The sidewalk or boulevard shall be restored to the condition it was in immediately prior to the installation of the amenity. Such removal or relocation and restoration shall be at no expense to the Town and all such costs associated therein shall be borne and paid by COA, provided that the Manager in exercising such right, shall do so reasonably. Maintenance, Reaction Requirements 7. (a) COA agrees to maintain all of their amenities under this Agreement in good repair, to keep them clean and free of debris and graffiti and to replace amenities at the request of the Town, at the entire expense of COA. (b) COA agrees to continuously maintain adequate protection for all their work from damage and to protect the property of the Town from injury or loss. (c) COA agrees during the construction or installation of the said amenities to keep the location in a clean and orderly condition and remove all waste and unusable material from the location upon the completion of the construction or installation or as required by the Manager. (d) The Manager may provide written notification to COA that any amenity requires regular maintenance and COA shall, as soon as reasonably possible, and not later than 48 hours after the giving of such notice, undertake the maintenance required. (e) The Manager may provide written notification to COA that any amenity on the road requires emergency maintenance if its condition is such that it renders a serious danger to the public. In such an event, COA as soon as possible and within no later than 24 hours after the giving of the notice, repair and make safe the amenity at COA's own expense and to the satisfaction of the Manager. (f) When installing or maintaining amenities, COA shall abide by all requirements of the Town and the Region of Durham with respect to parking and street occupancy. 8. Snow removal from and around the amenities will be performed by COA at times of normal maintenance, as set out in Clause 7 (a-f) above, as soon as possible after a snow storm or as soon as required by the Town at the direction of the Manager. Waste Receptacles 9. The parties agree that COA is to provide one waste receptacle and retain its ownership per site where an advertising bench is installed. COA is to maintain each receptacle in a proper and workmanlike manner and to be solely responsible for the removal of garbage from these waste receptacles and, to this extent, the provisions regarding maintenance and liability in this Agreement apply. Advertising Rights, Nature and Municipal Availability 10. (a) The Town of Pickering agrees that COA shall have the exclusive right to supply advertising on the units approved by this Agreement for the term of this Agreement. (b) COA covenants and agrees not to permit the advertising of tobacco related or alcohol related products in any advertising face installed in the Town of Pickering. Further, COA covenants and agrees not to post or permit to be posted any advertisement which is not, in the opinion of the Manager, of a reputable character and appearance and which is free from vulgarity or indecent suggestion of any kind or violates the Canadian Code of Advertising Standards, and the laws of Canada and the Province of Ontario. COA covenants and agrees that the decision of the Manager in this regard is final. (c) Advertising advocating the candidacy, or name of a political candidate(s) seeking Federal, Provincial or Municipal office is prohibited. (d) In addition to the matters contained in Clause 10 (b-c), COA agrees to remove any advertising which is deemed to be objectionable within ten (10) days of the receipt of an objection, failing which the Town of Picketing will remove such advertising at the expense of COA. (e) COA agrees to make available to Pickering Transit upon ninety (90) days written notice 10% of the available advertising faces on the amenities covered under this Agreement during any month for use by the Town free of charge for public service message advertising. The Town will be responsible for the cost of designing, producing and supplying to COA their own public service message advertising. COA will be responsible for installation and removal of the advertising. (f) COA shall be responsible for obtaining from the Town of Pickering, prior to installation, all site specific approvals including any site specific approvals required by the Town of Pickering or the Region of Durham. Revenue 11. (a) Upon execution of the Agreement, Creative Outdoor Advertising agrees to pay the Town of Picketing a fixed fee of One Hundred Eighty ($180.00) Dollars per installed advertising unit, per annum. Said payments will be received in advance, quarterly in monthly post-dated cheques. (b) Commencing January 1, 2000, quarterly payments will be based on no less that thirty (30) advertising units, or a minimum of Four Hundred Fifty ($450) Dollars per month, notwithstanding the total number of advertising units installed at any point throughout the remaining term of the Agreement. (c) Should the Town renew the Agreement for an additional period of three (3) years, the Town will receive a fixed fee of Two Hundred ($200.00) Dollars per installed advertising unit, per annum, such that the minimum monthly payment will be Five Hundred ($500) Dollars per month regardless of the total number of advertising units installed at any point throughout the renewal term of the Agreement. (e) In the event that any default in payment of the amounts set forth in paragraph 11 continues for a period of more than thirty (30) days after written demand for payment has been made upon COA at the address noted herein, the Town may elect to terminate this Agreement and remove all advertising cards from the advertising amenities without further notice to COA. Product Ownership 12. It is agreed that any products provided under this Agreement will remain the property of COA and on the termination of this Agreement, may be removed by COA or otherwise disposed of at their expense, provided that COA shall further be responsible for restoring at their expense any portion of the public highway thereby affected to the satisfaction of the Manager. 13. COA will have the right to advertising bench and trash containers exclusivity at all transit stops within the jurisdiction of Pickering Transit. 14. COA may not assign its rights or obligations under this Agreement, or portions thereof, without the prior written consent of the Town of Picketing. Breach and Notice 15. (a) If COA neglects or fails to carry out or to comply with any of the terms, covenants, undertakings or conditions of the Agreement except for those contained in paragraph 11 herein, the Manager may after having given written notice to COA of such default and which default was not corrected to the satisfaction of the Town of Pickering, within three (3) days of the delivery of such written notice, terminate this Agreement by giving ninety (90) days notice in writing by delivering or causing such notice to be delivered to COA or by sending or causing such notice to be sent by ordinary prepaid mail to COA. Upon such notice having been so delivered or sent, COA shall forthwith at their entire expense remove all of their amenities from all public highways in the Town. This Agreement shall be deemed to be terminated on the day specified on the notice. (b) The parties hereto further agree that all notices, demands and requests in writing may be delivered or mailed by ordinary prepaid mail, and service in this matter is effective on the 3rd day after such document is mailed, and shall be addressed as follows: Manager Picketing Transit One The Esplanade Pickering, Ontario L1V 6K7 5 II. Creative Outdoor Advertising 2402 Stouville Road Gormley, Ontario L0H 1G0 Insolvency 16. It is further agreed that should COA become insolvent, bankrupt or make an authorized assignment or compromise to their creditors and be unable to perform their duties under this Agreement, the Town may in addition to and without prejudice to its other lawful rights and remedies, forthwith terminate this Agreement by written notice and the time limit set forth in Clause 15(a) of this Agreement shall be waived. Indemnities 17. (a) COA shall be responsible for any and all damages, or claims for damages for injuries or accidents done or caused by it or its employers or contractors, or resulting from the prosecution of the work, or of any materials, paint or machinery used hereon or herein or which may happen by reason hereof, or arising from any failure, neglect or omission on their part, or on the part of any of their employees or contractors, to do or perform any or all of the several acts or things required to be done by it or them under and by this Agreement. COA covenants and agrees to hold the Town harmless and indenmified for all such damages and claims for damage; and in case COA's failure, neglect or omission to observe and perform faithfully and strictly, all the provisions of this Agreement, the Manager may, thirty (30) days after having given notice in writing of such failure, neglect or omission, take such steps, procure such material, items, trucks and workers and do such work or things as the Manager may deem advisable toward carrying out and enforcing the same and may, to the extent of the costs thereof, change these costs back to be paid by COA and may recover such costs in any court of competent jurisdiction as a debt due and owing by COA to the Town. (b) COA covenants and agrees to from time to time and at all times hereafter well and truly save, defend and keep harmless and fully indemnify the Town and all of their officers, servants or agents, from and against all actions, suits, claims, liens, and demands which may be brought against or made upon the Town, their officers, servants, or agents and of, from and against all loss, costs, charges, damages and expenses which may be paid, sustained or incurred by the Town, their officers, or servants by reason of, or on account of, or in consequence of the execution and performance of the contract work, or the non- exception or imperfect execution of the contract work or the supply or non-supply of the work or otherwise by reason of or arising out of the right to occupy pads of the public highways hereby granted and COA will pay to the Town or any of their officers, servants or agents, on demand, as the case may be, which may be paid, sustained or insured by the suits, claims, liens, executions or demands and all monies paid or payable by the Town or such officers, servants, or agents in settlement or in discharge thereof or on account, thereof and that in default of such payment all loss, costs, changes, damages and expenses and all monies so paid or payable by the Town or such officers, servants, or agents may or may be recovered from CO A in any Court of competent jurisdiction as monies paid at COA's request and COA hereby authorize and empower the Town or thereafter their solicitors for the time being to settle or compromise as the Town or their solicitors may deem expedient, any actions, suits, claims, liens, executions or demands which may be brought against or made upon the Town, their officers, servants, or agents by reason of, or on account of or in performance of the Agreement and the performance of the Agreement or the non-execution or imperfect execution of the contract work and the supply or non-supply of the contract work or otherwise by reason of or arising out of or as a result of this Agreement or the permission to occupy pads of the highways hereby given. (c) In addition to and without limiting any of the other indemnification obligations of COA pursuant to this Agreement, COA covenants to indemnify and save harmless the Town from any and all claims, liabilities, damages, costs, expenses, suits or actions, or other proceedings by whomsoever made, sustained, brought or prosecuted in any manner resulting from any claim relating to the placement or removal of advertisement(s) on any waste receptacle or amenity and to inventions, copyrights, trademarks, patents, industrial designs and rights thereto used in the work done or in the advertising placed on the waste receptacles and amenities provided that COA shall have no obligation of indemnity hereunder with respect to any advertisement supplied to COA by the Town Insurance 18. (a) COA agrees to procure and maintain for the duration of this Agreement, liability insurance relative to each amenity installed and agrees that the insurance shall name the Town of Pickering as named insured equal to or in excess of the following minimum requirements and COA further agrees to file with the Town a copy of the certificate of Liability Insurance evidencing such requirements. The Liability insurance policy shall: I. have a limit of liability of not less than FIVE MILLION DOLLARS ($5,000,000.00) for any one occurrence or accident for all claims arising out of personal injuries (including death) and damage to the property of others and the amount of such liability insurance shall be increased at the request of the Town based on reasonable grounds acceptable to COA; II. be comprehensive Liability Insurance covering all operations and liability assumed under this Agreement; III. not contain any exclusions or limitations in respect of shoring underpinning, razing or demolition of any building or structure, collapse of any structure or subsidence of any property, structure or land from any cause; IV. be endorsed to provide that the policy will not be altered, canceled, or allowed to lapse without thirty (30) days prior notice to the Town of Pickering; V. contain a cross-liability clause 18. (b) COA shall be responsible for deductible amounts (which amounts shall be mutually satisfactory to COA and the Town of Pickering) under the policies. Additional Security 19. As additional security for the performance of this Agreement, COA agrees to provide to the Town, upon execution of this Agreement, an irrevocable Letter of Credit in the amount of Five Thousand ($5,000.00) Dollars of lawful money of Canada, which Letter Of Credit or a replacement thereof shall be maintained in full force and effect until June 30, 2004. Agreement Definition 20. This Agreement constitutes the entire Agreement between the parties to this Agreement and supersedes any prior Agreements and understandings, oral or written, including without limitation, the original agreement, between the parties with respect to the subject matter hereof. 21. This Agreement may be executed in any number of counterparts and all such counterparts shall for all purposes constitute one Agreement. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals. EXECUTED at Pickering, Ontario this day of ,1999 SIGNED, SEALED AND DELIVERED In the presence of: The Corporation of the Town or Pickering Mayor Wayne Arthurs Executed at this Bruce Taylor, Town Clerk day of ,1999 THE BENCH PRESS LTD.