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HomeMy WebLinkAboutOES 20-10 City Report To Executive Committee PICKERING Report Number: OES 20-10 Date: September 7, 201 Q 4 O From: Everett Buntsma Director, Operations & Emergency Services Subject: Creative Outdoor Advertising (COA) - Extension of Recycling Bin Agreement - File: A=1440 Recommendation: 1. That Report OES 20-10 of the Director, Operations & Emergency Services concerning Creative Outdoor Advertising be received; 2. That Staff be authorized to exercise an extension of the Agreement with Creative Outdoor Advertising for an additional five years, commencing September 15, 2010 and ending on September 14, 2015; and 3. That appropriate officials be authorized to take action to finalize the terms of the extension Agreement, and that the Mayor and Clerk be authorized to execute the extension agreement. Executive Summary: Creative Outdoor Advertising (COA) provides and maintains garbage and recycling bins on City properties in return for advertising rights on the bins. There are 12 bins currently installed, four are located within City parks and the remaining eight are located on City streets. The five year Agreement (Attachment #1) the City signed with COA ends on September 14, 2010. Within the Agreement there is a Term whereby COA shall have the right to extend the Agreement for an additional five years commencing September 15, 2010 ending on September 14, 2015. Financial Implications: The COA program operates at no cost to the City, the bins are owned, maintained and serviced by COA. The City receives $125 per year for each installed bin. The revenue generated from this program has been budgeted for the full 2010 year. COA has shown an interest in installing additional bins which will increase the revenue generated in future years. Report OES 20-10 September 7, 2010 1 bjei t: Creative Outdoor Advertising (COA) Page 2 Sustainability Implications: The bins located within the City accommodate the deposition of source separated garbage and recycling helping to reduce the amount of litter on City streets, boulevards, waterways and parks. If the contract were to terminate all bins would be removed on September 14, 2010, resulting in a significant disruption in service and subsequent litter concerns, The City of Pickering would have to immediately purchase and maintain waste collection bins in place of the COA bins as residents have become reliant on these bins. Background: At the Council meeting of September 19, 2005 (Resolution #159/05) staff were authorized to take action to initiate the terms of an agreement with Creative Outdoor Advertising for the supply, installation and maintenance of recycling bins. The Agreement was signed for a five year period commencing on September 15, 2005 and concluding on September 14, 2010. Within the. Agreement, COA was given the right to an extension for an additional five years commencing September 15, 2010. COA was to provide the City with notice of its intention on or before April 30, 2009. COA did not do this because they were pursuiig a contract with the Region.of Durham which was not approved. Due to changes in City staff it was not noticed that COA had not provided their intentions in writing until July 2010. City staff and COA have since met to discuss existing as well as potential changes to contract terms if there were an extension on the Agreement. COA is very keen to continue working with the City and has sent a letter of intent (Attachment #2) The new terms have to be negotiated but COA intends to install a minimum of 10 new bins which will increase the total number to 22. COA is very aware of the impact of marketing materials cluttering City streetscapes and does not want to create marketing oversaturation in Pickering. The revenue the City will receive for the bins will stay consistent with the current contract at $125 per bin, per year. COA has recognized that many roadside garbage bins are used for dumping household waste. They have designed a new bin to help reduce this behaviour and will install them in Pickering. City staff are satisfied with the COA program and have found the company to be quick to answer to any.complaints or suggestions. COA has similar programs in other Durham municipalities including, Ajax, Whitby and Clarington as well as programs in other municipalities across Canada and the US. Attachments: 1. Creative Outdoor Advertising Agreement (existing) 2. Letter of Intent to Renew (letter dated August 5, 2010) CORP0227-07/01 revised Report OES 20-10 September 7, 2010 Subject: Creative Outdoor Advertising (COA) Page 3 142 Prepared By: Approved/Endorsed By: Michelle Pongracz Ric and W. Iborn, P. Eng. Coordinator, Environmental D' ision Head Awareness Programs ngineering Servic Marilee Gadzovski E ett Buntsma Stormwater & Environmental Engineer Director Engineering Services Operations & Emergency Services MP:mp Copy: Chief Administrative Officer Recommended for the consideration of Picked i Co Tony Prevedel, P.Eng. Chief Administrative Officer CORP0227-07/01 revised Cc o ATTACH MEW T # TO RE PORT# O ES S -1,6 - 10 Pickering Civic Complex . 1 4 3 One The Esplanade of / Pickering, Ontario Canada L1V 6K7 Direct Access 905.420.4660 PICKERI TG Toll Free 1.866.683.2760 1 j l v cityofpickering.com CORPORATE SERVICES DEPARTMENT Clerk's Division Division 905.420.4611 Facsimile 905.420.9685 clerks@city-pickering.on.ca July 27, 2006 Paul C. Seaman Municipal Affairs Consultant Creative Outdoor Advertising 2402 Stouffville Road Gormley, ON LOH I GO Subject: Creative Outdoor Advertising Agreement - File: L-4100 Please find attached a duly executed signed copy. of, the Agreement between the Corporation of the City of Pickering and Creative Outdoor Advertising for recycling bins and selling advertising space. Should you require. any further assistance, please do not hesitate to contact me at 905.420.4611, ext. 2153. Yours truly Debi A. Bentley,` CMO, :CMM II City Clerk DB:Ib Copy: Director, Operations & Emergency Services ATTACHMENT# ~ TOREPORT# Q~S a0-I (7 . Z Of THIS AGREEMENT made as of the 15th day of June, 2006 BETWEEN: THE CORPORATION OF THE.'CITY OF PICKERING (the "City„) - and - THE BENCH PRESS LTD.' carrying on business under the firm name and style of "CREATIVE OUTDOOR ADVERTISING" ("COA") . WHEREAS COA is engaged in providing StreetscapingTM recycling bins and related appurtenances and selling advertising space thereon for the purpose of advertising goods and services; and AND WHEREAS COA has asked the City for the privilege of placing such recycling bins on untravelled portions of highways within the jurisdiction of the City. NOW THEREFORE the parties agree as follows: DEFINITIONS 1. In this Agreement, (a) "Amenities" means StreetscapingTM' recycling bin modules containing waste receptacles, advertising faces and a mounting pad for each (if required); and (b) "Director" means the City's Director of Operations and Emergency Services or his or her designate. TERM 2. The term of this Agreement shall be five (5) years commencing September 15, 2005 and ending September 14, 2010 (the "Term") unless terminated earlier pursuant to the terms of this Agreement. 3. COA shall have the right to extend this Agreement for an additional five (5) years commencing September 15th, 2010 provided it is then in compliance with all of the terms of this Agreement. COA shall provide the City with notice of its intention to exercise such right on or.before April 30, 2009, failing which the option shall no longer exist. ATTACHMENT#-- L2_ TO REPORT# O 5.20 -1 145 3 f INSTALLATIONS & MAINTENANCE 4. The Director must approve the style and design of the Amenities. Generally, however, the style and design of the Amenities shall as shown in Appendix "A" attached hereto 5. The City shall permit COA to install a minimum of 500 Amenities on untravelled portions of highways within the jurisdiction of the City. COA and the City shall endeavor to obtain permission to install any Amenities on Regional Roads in Pickering. 6. In the selection of each location, consideration shall be given to the convenience of the public. The Amenities shall not to obscure signs, transit stops or interfere with the visibility or effectiveness of advertising on transit shelters. The Director must approve the placement of all Amenities. 7. COA may install Amenities at sites where advertising transit shelters exist provided the Director has approved such sites using the same criteria as are applicable to all other sites. 8. The Director shall not allow the placement of any other advertising products within the immediate vicinity of the Amenities that interferes with the visibility or effectiveness of the Amenities. 9. The Director shall not allow'the placement of any other advertising products or amenities that serve a similar purpose to the Amenities. 10. The City and COA shall work cooperatively in the selection of sites. The Director shall approve or decline any formal request made by COA within 30 days of receiving such request in writing. If the Director has not responded to any such request within 30 days, COA shall have the right to commence installations without penalty provided that the City has not requested an extension. 11. COA shall provide and update as necessary a "Location List" that identifies the location of all Amenities and the date that such Amenities were installed. 12. COA shall install all Amenities on a mounting pad unless a suitable base exists. Where a mounting pad does not exist and is required, COA shall install, at COA's sole expense, a mounting pad. COA shall be responsible for ensuring that all mounting pads provide for the safe movement of pedestrians to, from and around the Amenities. 13. COA shall ensure that the installation of and all maintenance and repair of the Amenities is carried out in a proper and workmanlike manner and so as not to create hazards to utilities or the City and shall ensure the safety of pedestrians and the safe movement of vehicles. 14. During the construction or installation of the Amenities COA shall keep each location in a clean and orderly condition and remove all waste and unusable material from each location upon completion of the construction or installation of each Amenity or as required by the Director. Creative Outdoor Advertising Agreement ATTACHMENT# - TO REPORT# 12 ,26-1 of 1- 3 146 15. COA shall be solely responsible for obtaining all necessary authorizations before any Amenity is installed and for any other work undertaken by COA pursuant to this Agreement. 16. COA shall maintain all Amenities in good repair and shall be solely responsible for ensuring the provision of normal maintenance to those amenities including, (a) keeping the grass trimmed; (b) keeping the Amenities free of debris; (c) emptying, removing and disposing of waste and recycling materials from the Amenities; (d) using "best possible" endeavors to keep the Amenities clear of snow and ice; (e) keeping the Amenities clean and free of graffiti; (f) replacing Amenities at the request of the City at the entire expense of COA; and (g) inspecting the Amenities for damage during regular maintenance and make arrangements for timely repair. 17. COA shall maintain the Amenities on a frequency of not less than every seven days or more frequently if required to keep the area and the Amenities visually clean. 18. The City shall endeavour not to allow snow to be piled on or about any Amenity by municipal works/snow removal employees except where unavoidable or where alternate options are not present. 19. In addition to COA being solely responsible for emptying, removing and disposing of waste from and cleaning waste receptacles in the modules during times of normal maintenance, COA shall remove and dispose of all waste and clean waste receptacles more frequently upon request by the Director when deemed necessary by the Director in his or her sole discretion. 20. COA shall deliver waste materials and/or recycling materials to a site mutually agreed upon by the City and COA however, COA shall be responsible for any tipping fees associated with disposal. 21. COA shall continuously maintain all Amenities and keep them free from damage and to protect the property of the City from injury or loss. 22. The City may provide written notice to COA when any Amenity requires regular maintenance or repair and COA, as soon as is'reasonably possible, and not later than 48 hours after the giving of such notice, shall undertake the maintenance or repair required at COA's sole expense. 23. The City may provide written notice to COA when any Amenity requires emergency maintenance or repair if its condition is such that, in the Director's sole opinion, the condition renders a serious danger to the public. In such an event, COA as soon as possible and not later than 24 hours after the giving of such notice, repair and make safe the Amenity at COA' s sole expense and to the satisfaction of the Director. In Creative Outdoor Advertising Agreement ATTACHMENT# / -TO REPORT# OL_S 20 of 4 147 an emergency situation where a 24 hour wait is in the Director's sole opinion considered unacceptable, the City may without notice arrange for work to be done to eliminate public danger and COA shall be solely responsible for paying all costs incurred by the City for such work. 24. COA shall comply with all requirements of the City with respect to parking and street occupancy during all installations and maintenance of the Amenities. 25. The City. shall have the right to order the removal or relocation of any Amenity installed within the jurisdiction of the City. COA shall remove or relocate any such Amenity within 48 hours of the City giving notice to COA. COA shall restore the site from which the Amenity was removed to the condition the site was in immediately prior to the installation of the Amenity and to the satisfaction of the Director. Such removal, relocation and restoration shall be at no expense to the City and all such costs associated therewith shall be borne and paid by COA. Where COA fails to remove or relocate such Amenity within 48 hours or where COA fails to restore the site as required, the City may arrange for such removal, relocation and restoration and COA shall be solely responsible for paying the City all costs incurred by the City for such work. 26. COA shall pay to the City during the first five years of the Term $125.00 per annum for each installed Amenity. REVENUE, ACCOUNTING & AUDIT 27. If COA exercises its right to extend in accordance with section 3, then COA and the City shall review the rate set out in Section 26 to determine its fairness to both parties. The rate to be paid to the City for each Amenity during the term of the extension shall be the prevailing rate for similar services in the Durham Region In no event shall the rate be less than $125 per Amenity per annum increased by CPI (All Index) for each year of the extended term. If the parties cannot agree to the rate during the term of the extension on or before December 31, 2009, then the matter shall be referred to and resolved by arbitration in accordance with the Arbitration Act, 1991, S.O. 1991, c.17. The arbitration decision shall be final and binding. 28. COA shall pay installments (1/12) to the City for each installed Amenity at the rate set out in Section 26 each and every month commencing on the first month of this Agreement. This payment will be due on the 15`h day of each month. Within 60 days of each anniversary date of this Agreement and within 60 days of the end of the Term, COA shall provide the City with financial statements satisfactory to the Director showing the revenues received or receivable for all Amenities for the previous year. 29. The City or anyone designated by the City in writing shall have the right at all reasonable times to audit and inspect accounts, records, receipts, vouchers and other documents relating to the Amenities and shall have the right to make copies thereof and take extracts therefrom. COA shall make available all facilities reasonably necessary for such audits or inspections. Creative Outdoor Advertising Agreement I 5 ATTACHMENT# I - TOREPORT# OCS .20-/d rof-1-L, EXCLUSIVITY 48 30. COA shall have the exclusive right to supply advertising on the Amenities provided the Agreement is in good standing. REGULATION OFADVERTISING COPY/STANDARDS 31. All advertisements must be aesthetically pleasing to and fit into the environments in which they are placed. All advertising copy and design must not contain any material, language, representation or image which discriminates on any prohibited grounds of discrimination as set out in the Ontario Human Rights Code, and all advertising copy and design must comply with Advertising Standards Canada's Codes and Guidelines including but not limited to the Canadian Code of Advertising Standards and with all laws. Advertisements shall not, (a) contain inaccurate or deceptive claims or statements; (b) present products prohibited from sale to minors in such a way as to appeal particularly to persons under legal age; (c) present demeaning or derogatory portrayals of individuals or groups; (d) take a stand on controversial societal issues; (e) exploit violence or sexuality; (f) promote tobacco products; (g) interfere with the operation of equipment of the provision of programs and services; (h) violate or conflict with any existing City policies or any new policies which may be adopted. 32. COA shall remove any advertising that is deemed by the Director in his or her sole discretion not to comply with the provisions herein or is otherwise objectionable within 48 hours of the City giving COA notice, failing which the City may remove such advertising at the sole expense of COA. PROVISION OF PROMOTION AMENITIES & TERMS 33. COA agrees to make available to the City upon 30 days written notice, 10% of the available advertising faces on the Amenities covered under this Agreement during any month for use by the City (or their agencies) free of charge for.public service messages or advertising for municipal purposes. The City will be responsible for the cost of designing, producing and supplying such public service messages or municipal advertising to COA. COA will be responsible for installation and removal of the advertising at COA's sole expense. OWNERSHIP Creative Outdoor Advertising Agreement ~ 6 ATTACH MENT#-~ 49 ~ Q REPQRT#L~ ~ S o20 af OWNERSHIP 34. The Amenities shall remain the property of COA and on the termination of this Agreement shall be removed by COA or otherwise disposed of, unless otherwise agreed to by the parties in writing, and COA shall restore the sites to the condition they were in immediately prior to the installation of the Amenities, all at COA's sole expense. TERMINATION 35. If COA neglects or fails to carry out or to comply with any of the terms, covenants, undertakings or conditions of this Agreement, the Director may, after having given written notice to COA of such default and which. default has not been corrected to the satisfaction of the Director within 3 days of the notice being given, terminate this Agreement by giving 90 days notice to COA and this Agreement shall be deemed to be terminated on the day specified in the notice. Upon such notice having been given, COA shall forthwith at COA's entire expense remove all Amenities and restore the sites to the condition they were in immediately prior to the installation of the Amenities and to the satisfaction of the Director. 36. Where COA fails to remove any Amenity or to restore any site as required by this Agreement, the City may, in its sole discretion, take ownership and possession of all or any of the Amenities and/or may arrange for the removal of all or any of the Amenities and the related site restoration and COA shall be solely responsible for paying to the City all costs incurred by the City for such work. 37. If COA does not elect to extend this Agreement pursuant to section 3, it shall remove all Amenities at its expense within 30 days of the termination of the agreement and restore the sites to the condition they were in immediately prior to the installation of the amenities and to the satisfaction of the Director. NOTICE 38. All notices, demands and requests required by this Agreement shall be in writing and shall be sent by ordinary prepaid mail or by fax to: City Clerk The Corporation of the City of Pickering One, The Esplanade Pickering, Ontario LIV 6K7 FAX #(905)-420-9685 The Bench Press Ltd. "Creative Outdoor Advertising" 2402 Stouffville Road Gormley, Ontario LOH 1G0 FAX # (905)-887-2221 Creative Outdoor Advertising Agreement 7 ATTACHMENT# l TO REPORT# ~E 2,0-1,0 g -of ___L~_ 150 Service by mail shall be deemed effective the 3rd day after mailing and service by fax shall be deemed upon sending by fax. Each party shall ensure that the other party is notified in writing immediately of any changes in the contact information above. INSOLVENCY 39. Should COA become insolvent, bankrupt, unable to pay its debts or make an authorized assignment or compromise to their creditors and be unable to perform their duties under this Agreement, the City 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 Section 35 shall be waived and.all Amenities will become the property of the City. ASSIGNMENT 40. COA may not assign their rights or obligations under this Agreement, or portions thereof without the written approval of the City. INDEMNITY 41. COA shall be responsible for any and all damages, or claims for damages for injuries or accidents done or caused by it or its employees or contractors, or resulting from the prosecution of the work, or any of its operations, or caused by reason of the existence or location or condition 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 shall hold the City harmless and indemnify it for all such damages and claims for damage. If COA fails, neglects or omits to observe and perform faithfully and strictly, all the provisions of this Agreement, the City may, 30 days after having given notice of such failure, neglect or omission, take such steps, procure such material, items, trucks and workers and so such work or things as they may deem advisable toward carrying out and enforcing the same and may, to the extent of the costs thereof, charge 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 City. 42. COA shall save, defend and keep harmless and fully indemnify the City and their officers, servants or agents, from and against all actions, suits, claims, liens, and demands which may be brought against or made upon the City, 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 City, their officers, servants by reason of, or on account of or in consequence of the execution and performance of the contract work, or the non- execution 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 parts of the untravelled public highways hereby granted Creative Outdoor Advertising Agreement 8 ATTACHMENT#TOREPORT#nLs 24-/ 151 of and COA will pay to the City 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 City 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 City or such officers, servants, or agents may or may be recovered from COA in any Court of competent jurisdiction as monies paid at COA's request and COA hereby authorize and empower and the City or thereafter their solicitors for the time being to settle or compromise the City or their solicitors may deem expedient, any actions, suits, claims, liens, executions or demands which may be brought against or made upon the City, 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 parts of the highways hereby given. 43. 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 City 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 Amenities and to inventions, copyrights, trademarks, patents, industrial designs and rights thereto used in the work done or in the advertising placed on the Amenities, provided that COA shall have no obligation of indemnity hereunder with respect to any advertisement supplied to COA by the City. INSURANCE 44. COA shall procure and maintain for the duration of this Agreement, liability insurance relative to each Amenity installed which, (a) names the City as an additional named insured; (b) has a limit of liability of not less than FIVE MILLION DOLLARS ($5,000,000.00) for any one occurrence and the amount of such liability insurance shall be increased at the request of the City based on reasonable grounds acceptable to COA; (c) is comprehensive liability insurance covering all operations and liability assumed under this Agreement; (d) does 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; (e) is endorsed to provide that the policy will not be altered, cancelled, or allowed to lapse without thirty (30) days prior written notice to the City; and Creative Outdoor Advertising Agreement 9 ATTACH MENT# TO REPORT# OES .20-10 152 (f) contain a cross-liability clause. 45. COA shall file with the City a copy of the certificate of liability insurance evidencing the requirements of section 44 . 46. COA shall be responsible for deductible amounts (which amounts shall be mutually satisfactory to COA and the City) under the policies. AGREEMENT DEFINITION 47. No amendment of this Agreement shall be deemed valid unless effected by a written amendment signed by both parties and no waiver of rights of any kind under this Agreement shall be effective unless in writing by the party for whom they are a benefit. 48. This Agreement shall be subject to, and interpreted in accordance with the Laws of the Province of Ontario. 49. Sections 34 to 37 and 41 to 43 shall survive termination or expiration of this Agreement, and shall continue in full force and effect subsequent to and notwithstanding such termination or expiration until or unless they are satisfied, by their very nature expire, or they are waived in writing by the party for whom they are a benefit. 50. If any provision of this Agreement is held to be unenforceable or invalid, then the remaining provisions of this Agreement will remain in full force and effect. 51. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements and understandings, oral or written. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals. Dated at Pickering, Ontario this- day of 92006. THE CO r110 TION OF THE CITY OF PICKERING vi ya 'axgr QL Debi A. Bentley, City Clerk Dated at Gormley, Ontario this -/3 day of uti .2006. THE BENC DRESS LTD. David Gray, President Creative Outdoor Advertising Agreement ATTACHMENT# L_ TOREPORT# 2 S O-10 1 10 Of 153 Appendix "A" Amenity Photographs The "Concourse" clean, functional and innovative. The "Concourse" provides a full service recycling system, instituting a modular concept that offers a "multi-functional station" which incorporates waste and recycling collection. We believe that the appearance, materials, and quality of the Concourse will aid the City of Pickering in creating and maintaining a modern, urban streetscape. r I lam' ~;itvS Street ScapingjF ra x A Superior Program i i ' i Creative Outdoor Advertising Agreement ATTACHMENT4 - TO REPORT# 6E S 2-0-10 l of ( 154 Creative. Outdoor Advextising Ivfiche U 1s'4(lEl':1t2 Coordinator. Environmental 1twarcne+ s Pro~rtitits v C?j?Ui iticn}~ Falergency S rviccs Delyzartmei,t City nt PiAcr=irtsv 11'tttrs€ira; .Au us€ 5, 20.1 7 St`BM'T: Decl.arra lon o hilent to R, ,,n %v 5 41 y Crota'xc C?taic:tc;o;' Advertising is lslcasr:d t=:s ar1vi.L tr}ai (if r7i. It)t:[;tit itr c.tsoti c, rr a~,'•ccs~?~ist twitl3 ilKi t":its of Pickerin'l, l is our rretst priviloge'o serve dw Loti31Titlriit~, anti Li`t`. +rDt:td WC11 ul-11c tlir` d pportunivy to •ro-1w a' Our rvIationsliita,xich the City ror' another terni, l vill bic cx-+iriaciitsg ycmu 'it) discuss dcmil . I Jf, "I'ly,t.it'x, Yo j, Karl Rituvo 2402 StouffVille Road, Gormley, ON, L©H IGO Tel 1 .800.661.6088 Fax:: 1.866.426.2237 • www.creativeoutdoor.com