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HomeMy WebLinkAboutBy-law 5406/98THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 5406/98 Being a by-law to amend the current contract for transit shelter installations, advertising and maintenance with Mediacom Inc. for an extended five (5) year exclusive term commencing on January 1, 2004 and expiring on December 31, 2008. WHEREAS Picketing Council has previously approved Resolution #322/96 to provide Mediacom Inc. with exclusive rights to supply and install transit shelters with advertising for a term' of seven (7) years ending on December 31, 2003; and - WHEREAS Mediacom Inc. has met all contractual obligations concerning the supply of thirty- two (32) transit standard shelters and (5) custom shelters during the term of the current agreement; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF PICKERING HEREBY ENACTS AS FOLLOWS: To amend the existing contract for an extended five (5) year term commencing on January 1, 2004 and expiring on December 31, 2008. BY-LAW read a first, second and third time and finally passed this 2nd day of November, 1998. Wayne Arthurs, Mayor Bruce Taylor, Clerk THIS AGREEMENT made in triplicate as of the ,st day of June, 1996. B ETW E E N: co. o.^ ,ON (hereinafter referred to as the "Town") OF THE FIRST PART - and - MEDIACOM IN(:, (hereinafter referred to as "Mediacom") OF THE SECOND PART WHEREAS the Town desires to provide transit passenger shelters with advertising within the geographic boundaries of the Town of Pickering; AND WHEREAS Mediacom is able and willing to supply and transit passenger shelters with advertising caissons, and to maintain transit passenger shelters for the Town; AND WHEREAS the Town is willing to permit Mediacom to install transit passenger shelters with advertising caissons on property under its jurisdiction and on properties within its geographic boundaries. NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the covenants hereinafter contained and the sum of TWO DOLLARS ($2.00) of the lawful money of Canada, now paid by each of the parties hereto to each of the other parties hereto (the receipt whereof is hereby acknowledged), the parties hereto hereby covenant, promise and agree with each other as follows: 1. DEFINITIONS 1.1 The words "shelter" or "transit passenger shelter" means a structure erected at a Pickering bus/transit stop, within the Town of Pickering's geographic limits for the convenience of transit passengers. 1.2 The words "advertising caisson" or "caisson" means a box containing two advertising faces, lighting fixtures and electrical appurtenances. 1.3 The words "advertising face" means a location wherein one sheet of advertising copy may be displayed. TERM OF THIS AGREEMENT The parties agree that the term of this agreement shall be for a period commencing on the date of execution of this agreement and ending on December 31, 2001 subject to the right of Mediacom (upon written notice to the Town prior to October 1, 2001), to extend the term of this agreement for a further period of 2 years on the same terms and conditions as contained herein, save and except for any further right of renewal thereafter. SCOPE OF WORK Mediacom agrees to design, manufacture, supply, install and maintain transit passenger shelters with advertising within the Town's geographic boundaries as set out in this Agreement (the "contract work"), to the satisfaction of the Town's ,g o 2 Executive Director of Operations, and subject to the terms, conditions and guarantees as contained herein. NEW SHELTERS Thirty-two (32) shelters will be installed by Mediacom in the first year as hereinafter set out, and thereafter, seven (7) shelters will be installed by Mediacom during the balance of the term of the contract, and upon the written request of the Town, such that a total of thirty nine (39) shelters will have been installed by Mediacom on or before December 31, 2002. The parties agree that twenty two (22) of the shelters will be installed prior to June 1, 1997 and ten (10) additional shelters will be installed prior to September, 1997. ~NEW SHELTER DESIGN 4.1 Any Shelter to be constructed by Mediacom under this agreement shall be a "Daytech Type" shelter or equivalent. 4.2 Unless otherwise approved in writing by both the Town and Mediacom, the new shelters to be provided by Mediacom will be constructed as follows: - approximately 4½' wide, 10½' long and 7¼' high; 10 mm tempered glass panels on three sides with an allowance for a doorway approximately 4½' wide; - an advertising caisson on the far side of the shelter; two illuminated advertising faces measuring approximately 47" x 68"; domed roof; transit map display cases where applicable (as determined in writing by the Town's Executive Director of Operations). SITE SELECTION 6.1 The actual site selection of shelter positioning for the transit passenger shelters to be installed will be determined by and must be approved of by the Town's Executive Director of Operations (in consultation with the Chairman of the Town's Transit Committee) and Mediacom. Prior to undertaking any installations of transit passenger shelters, the Town will supply Mediacom with a list of proposed locations of transit passenger shelters for the first calendar year of this agreement and subsequently for each calendar year thereafter throughout the term of this agreement and any renewal thereof. 6.2 The Town agrees to allow shelters with advertising to be placed at those locations which have an existing transit passenger shelter, all as more particularly set out in Schedule 'A' attached hereto and forming part of this agreement. Mediacom agrees to assume the cost and responsibility for moving the existing shelter set out in Schedule A to another location provided any such relocation is approved by both the Town and Mediacom. 6.3 The Town agrees that notwithstanding Clause 4, ~MediaCom reserves the~ right to refuse to install advertising caisson in seven of the shelters referred to i in Clause 4, if in its opinion, the advertising faces will not be of any value to ~' Mediacom. 3 7. CONCRETE PADS 7.1 Concrete pads may not always be required for the installation of shelters, however, where the installation of concrete pads is jointly deemed ito be necessary by Mediacom and the Town, for the purposes of keeping the shelter. level and secured to the ground, Mediacom agrees to be responSiBle for supplying the concrete pad at no cost to the Town. Notwithstanding the foregoing, the Town agrees to pay the cost of installing the concrete pads at the existing 17 locations as set out on Schedule A to this agreement. 7.2 The parties agrees that should the Town wilfully cause any undue delays in construction after construction of a shelter pad has commenced, with the prior consent of the Town; and should the Town deliver written instructions to Mediacom not to proceed with the installation of a shelter on a concrete pad prepared by Mediacom, the Town shall assume full responsibility for the shelter pad and Mediacom shall be released from its responsibility to indemnify and save the Town harmless with respect to such location. 8. ELECTRICAL POWEI~ Mediacom will be responsible to work with the Hydro authorities to supply and connect underground electrical power to all transit passenger shelters constructed by Mediacom and to pay all Hydro charges for such connections. Mediacom agrees to be responsible for the cost of power consumed in illuminating the advertising faces throughout the term of this agreement and any renewal thereof. 9. MAINTENANCE 9.1 Mediacom agrees to be responsible for maintaining the Mediacom-owned together with all Town-owned shelters, in good repair and appearance to the satisfaction of the Town's Executive Director of Operations. This will include the complete washing of all glass and metal frames at least twice monthly or more frequ.ently if required by the Town, repainting as required plus the replacement of burned out lights, removal of graffiti, stickers, posters and the like and repair and replacement of damaged or broken parts and the supply of replacement parts as may be deemed necessary by the Town. Litter and snow removal will be performed by Mediacom at time of normal maintenance at no cost to the Town. In carrying out its maintenance or cleaning duties as aforesaid, Mediacom will not permit, create, or leave any shelter in a dangerous or hazardous condition, including icy conditions that may be caused by cleaning operations in winter months. Further, during any such maintenance operations, all employees, contractors, or agents of Mediacom will conduct themselves so as not to create any traffic hazards and will take all appropriate safety precautions, including the safe parking of vehicles. The Town agrees to remove snow from inside the transit passenger shelters covered under this Agreement when the Town is engaged in snow removal from its bus stops if the work has not already been completed by Mediacom. 9.2 The Town may provide written notification to Mediacom that any shelter requires regular maintenance and Mediacom shall, as soon as is reasonably possible and no later than 48 hours after the receipt of such notice, undertake the maintenance required at no cost to the Town. 4 10. 11. 9.3 The Town may provide written notification to Mediacom that a shelter in the Town requires emergency maintenance if its condition is such that it renders it a serious danger to the public as determined solely by the Town's Executive Director of Operations. In such an event, Mediacom shall, as soon as it is reasonably possible, and within no later than 24 hours after the giving of notice, repair, maintain or make safe the shelter at Mediacom's own expense and to the satisfaction of the Town. VANDALISM 10.1 In the event that a shelter at any specific location has been subjected to repeated damage due to vandalism, Mediacom may, at its own expense, remove or relocate the shelter to an alternative, location approved by both the Town and Mediacom. Upon relocating any shelter, Mediacom shall restore the previous site to its original condition including removal of any concrete pad at its sole expense and at no cost to the Town. 10.2 For the purpose of this section, repeated damage due to vandalism shall mean four (4) or more instances of damage within a twenty four (24) month period wherein the total cost of repairs exceeds TWO THOUSAND DOLLARS .($2,000.00) on each occurrence respectively. 10.3 If the shelter has been subjected to repeated damage due to vandalism and the Town does not agree to its relocation by Mediacom the Town agrees to be responsible to pay the costs of repair arising from the 5th act of vandalism and all subsequent damages due to vandal ism arising thereafter at that location. 11.1 As a member of the Outdoor Advertising Association of Canada, Mediacom shall abide by the Canadian Code of Advertising Standards as amended from time to time. As well the parties agree that no advertisement placed on any shelter shall advertise, promote or mention in any way: cigarettes, cigars or any tobacco product liquor, wine, beer or any other alcoholic beverage political candidate(s)during a local Municipal Election offensive references or racial matters religious advertising which promotes a specific ideology, ethnic point of view, policy or action which in the opinion of the Town might be deemed prejudicial to other religious groups or offensive to users of the transit system. 11.2 The Town reserves the right to require, by resolution ,of Council, the~ immediate removal of any particular advertisement, or of a; ;given advertisement at a specific location within the Town's geographic limits, if in its opinion the advertisement or the installation at a certain place is offensive to the public or creates a safety hazard. Mediacom shall forthwith carry out the removal of the advertisement within 48 hours of receipt of written notification of the Town Council's resolution requesting same. 11.3 The Town and Mediacom agree that despite any of the terms and conditions of this agreement, Mediacom shall be permitted to install advertising enhancing product designs on transit passenger shelters located within the Town's geographic limits, subject to the prior written approval of the Town's Executive Director of Operations. 5 12. 13. 11.4 For the purposes of this Agreement, the term "advertising enhancing product designs" shall include, but is not limited to: (a) (b) (c) interactive talking advertising features; three dimensional advertising displays; and advertising space extensions. 11.5 The Town has the right to require that the installation of advertising enhancing product designs be in a manner other than as proposed by Mediacom, including the direction that they be placed or positioned on the transit passenger shelter to provide for the safety of pedestrians and the safe movement of vehicles. 11.6 The Town has the right to prohibit the installation of or to require the immediate removal of any advertisement used in association with an advertisement enhancing product design or the removal or adjustment of any particular type of advertising enhancing product design at specified locations if, in the opinion of the Town, the advertisement or the installation of the advertising enhancing product design is inappropriate. 11.7 The Town agrees that it will not authorize the placement or erection of benches for use by the general public at a shelter which unreasonably obstructs or interferes with the visibility or effectiveness of the advertising on such shelter as determined solely by the Town's Executive Director of Operations, acting reasonably. 11.8 Mediacom agrees that any advertisements regarding candidates for local Municipal elections must be in compliance with the applicable legislation. PUBLIC SERVICE ADVERTISING 12.1 Mediacom will make available to the Town any advertising faces on the shelters covered under this agreement which are available and unsold during any month, .for free advertising use by the Town. 12.2 All public service messages shall be subject to approval by Mediacom's Creative Review Board and will only be posted on advertising faces available pursuant to the terms herein. The Town will be responsible for the cost of designing, producing and supplying to Mediacom their own public service message posters. Mediacom will be responsible for installing and removing the posters from the caissons. INDEMNIFICATION AND INSURANCF 13.1 Mediacom 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 resulting from the prosecution of the contract work, or any of its operations, or caused by reason of the existence or location or condition of the contract work, or of any materials, plant or machinery used thereon or therein, or which may happen by reason thereof, or arising from any failure, neglect or omission on its part, or on the part of any of its employees, 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 and Mediacom covenants and agrees to hold the Town harmless and indemnified for all such damages and claims for damage; and in case of Mediacom's failure, neglect or omission to observe and perform faithfully and strictly, all the provisions of this agreement, the Town may, ten (10) days after having given notice in writing of such failure, neglect or omission, take such steps, procure such material, teams, trucks and workmen, and do such work or things as he may deem advisable toward carrying out 6 and enforcing the same and the Town may, to the extent of the costs thereof, recover such costs in and Court of competent jurisdiction as a debt due and owing by Mediacom to the Town. 13.2 Mediacom covenants and agrees to from time to time and at all times hereafter to save, defend and keep harmless and fully indemnify the Town and each of its officers, servants or agents, from and against all actions, suits, claims, liens and demands which may be brought against or made upon the Town, its officers, servants, or agents, and of, from and against all losses, costs, charges, damages and expenses which may be paid, sustained or incurred by the Town, its 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 contract work, or otherwise, by reason of or arising out of the occupancy of parts of public highways hereby granted and Mediacom will pay to the Town or any of its officers, servants or agents, on demand, as the case may be, all amounts and damages which may be paid, sustained or incurred by the Town or such officers, servants or agents in consequence of any such actions, 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, charges, damages and expenses and all monies so paid or payable by the Town or such officers, servants, or agents may be recovered from Mediacom in any court of competent jurisdiction as monies paid at Mediacom's request and Mediacom hereby authorizes and empowers the Town or thereafter its solicitors for the time being to settle or compromise as the Town or its 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 this agreement and 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 including a~ny claims for damages arising from or caused by any alleged libellous or obscene advertisement or notice or any alleged copyrighted matter in any advertisement or notice placed in any of the Town's transit shelters by Mediacom. 13.3 Mediacom shall procure and maintain for the term of this agreement Liability Insurance relative to each shelter installed and will identify the Town as a named insured, equal to or in excess of the following minimum requirements and shall file with the Town a Certificate of Liability Insurance evidencing such requirements. The Liability Insurance shall: (i) have a limit of liability of not less than ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence and the amount of such liability insurance shall be increased at the request of the Town based on reasonable grounds acceptable to Mediacom; (ii) be Comprehensive Liability Insurance covering all operations and liability assumed under this agreement; not contain any exclusive or limitations in respect of shoring, under-pinning, razing or demolition of any building or structure, collapse of any structure or subsidence of any property structure or land from any cause. 7 15. 16. 17. 14. EXCLUSIVE RIGHTS 14.1 ~a~o~i. s, ha IL h' ave; ·:t h e'eXcl- U sive;' ri ghts ' ~ t°. ?diSDlayiadVerti~ Sin ~,'~'~'.., ~"~..,, ~.-:'~- ."~ ~'~ L, '~' ' '" · .'% . ~%,~ ~,~. ,-~,~ ~'~:~,~,~..~;.-~,~.,~;,~%,;~.- ~~our, adve~smg aunn~ the, term, of the :co~ 14.2 Notwithstanding Clause 14.1 herein, Mediacom agrees to allow the Toronto Area Transit Operating Authority ('TATOA') to maintain its corporate logo, in the form of a stylized green "GO", on each shelter located within the geographic limits of the Town. In the event that TATOA ceases to use any of the shelters to board passengers, TATOA shall be entitled to remove its corporate logo from such shelter(s) no longer used by it to board passengers. The Town agrees to give Mediacom reasonable support and assistance in order to complete the installation of new shelters as mutually agreed upon. Such assistance will include, but it is not limited to, assisting in preventing obstacles such as garbage cans, newspaper boxes and benches, interfering between the line of vision of pedestrians and motorists to the advertising faces. ENCUMBRANCE OF TITLE TO SHELTERS Should Mediacom be unable to perform its duties under this Agreement or become insolvent, bankrupt or make an authorized assignment or compromise to its creditors, or encumber or allow to be encumbered its title to the shelters erected under this agreement by way of security, lien, execution or otherwise, such action or occurrence shall be deemed to be a breach and a contravention of this agreement by Mediacom, and the Town shall have the right to immediately terminate this agreement. FINANCIAL GUARANTEE 17.1 Mediacom will pay the Town a minimum annual payment in accordance with the following schedule: (I) For the period commencing on January 1, 1997 and ending on December 31, 1997 the sum of Forty Thousand Dollars ($40,000) payable on January 1, 1997. ("Payment Period Year I'); (ii) And thereafter, for the period commencing on the 1st day of January, 1998 and ending on December 31, 1998, the sum of Forty Two Thousand Five Hundred ($42,500) payable on January 1, 1998. ("Payment Period Year I1'); And thereafter for the period commencing on the 1st day of January 1999 and ending on December 31, 1999, the sum of Forty Five Thousand ($45,000) payable on January 1, 1999. ("Payment Period Year II1'); (iv) And thereafter for the period commencing on the 1st day of January 2000 and ending on December 31, 2000, the sum of Forty Seven Thousand Five Hundred Dollars ($47,500) payable on January 1, 2000. ("Payment Period Year IV"); 8 17.2 17.3 17.4 (v) And thereafter for the period commending on the 1st day of January, 2001 and ending on December 31, 2001, the sum of Fifty Thousand Dollars ($50,000) payable on January 1, 2001. ("Payment Period Year V"); (vi) And thereafter, provided the term of this agreement has been renewed in accordance with the provisions of Clause 2 herein, for the period commencing on the 1st day of January, 2,002 and ending on December 31, 2002, the sum of Fifty Thousand Dollars ($50,000) payable on January 1, 2002. ("Payment Period Renewal Year I"); (vii)And thereafter provided the term of this agreement has been renewed in accordance with the provisions of Clause 2 herein, for the period commencing on the 1st day of January 2003, and ending on December 31, 2003, the sum of Fifty Thousand Dollars ($50,000) payable on January 1, 2003. ("Payment Period Renewal Year I1"). In addition to the amounts set out in Clause 17.1 above, at the end of each payment period as defined in Clause 17.1 hereof ("Payment Periods") Mediacom will calculate its net revenue from advertising from the transit passenger shelters during each respective Payment Period Year. Net revenue is defined as gross revenue less agency commissions and discounts (which discounts will not exceed 25% of gross revenues). If 20% of net revenues for the payment period is greater than the minimum payment for the applicable payment period year as set out in Clause 17.1 herein, Mediacom will pay to the Town the amount by which 20% of net revenues exceed the minimum payment ("Excess Revenue") in addition to the minimum annual payment for such payment period. Excess Revenues owing for each payment period year as determined'in accordance with the above-noted formula, will be paid within the first ninety (90) days of the commencement of the next calendar year immediately following each respective payment period year as follows: ~Pa' ~ment Period Pa'~ment Period Pa'~ment Period Pa'~ment Period Pa'~ment Period Pa'~ment Period Payment Period Year I Year II Year III Year IV Year V Renewal Year I Renewal Year II - payment due - payment due - payment due - payment due - payment due - payment due - payment due on or before March 31, 1998 on or before March 31, 1999 on or before March 31, 2000 on or before March 31, 2001 on or before March 31, 2002 on or before March 31, 2003 on or before March 31, 2004 Mediacom agrees upon request by the Town, to provide the Town with complete access to its books, records and accounts pertaining to the shelters, at the end of each payment period, in order to allow the Town to confirm Mediacom's calculation of net revenue and Excess Revenue for each payment period year. 9 18. RENT 18.1 18.2 The Town agrees to neither charge nor claim from Mediacom, whether directly or indirectly, any occupation fees, rents, royalties, permit or licence fees, in conjunction with the shelters and the advertising occurring within the shelters, throughout the term of this agreement or any renewal term. Mediacom agrees to pay all applicable Goods and Services Taxes to the Town in addition to the amounts set out in Clauses 17.1 and 17.2 above. 19. 20. TITLE TO SHELTERS Mediacom acknowledges that the Town is purchasing the shelters from the Toronto Area Transit Operating Authority, as set out in Schedule A to this agreement. REMEDY FOR BREACH 21. In the event of this Agreement being contravened by (i) Mediacom, the Town may; or (ii) by Town, then Mediacom may; at its or their option, as the case may be, terminate the Agreement by giving the offending party written notice of the violation/breach and if the offending party fails to remedy the violation/breach within ninety (90) days of the date of the notice, this agreement may, at the option of the party giving the notice be terminated. Notwithstanding the termination of the agreement by any party for any reason whatsoever, the payment of all outstanding amounts owing to the Town to the date of such termination (pro-rated to the date of such termination), shall become due and payable forthwith to the Town. MANNER OF NOTICE Any notice or other communications to be given by any party hereunder to the other shall be in writing, and shall be given or made by delivering same by hand or fax transmission (in which event it will be deemed received on the date of delivery) or facsimile' transmission as the case may be or by mailing same in a sealed envelope by prepaid registered mail, (in which case it shall be deemed received two (2) days after mailing) addressed to the party to whom notice is directed at the address set out below or to such alternative address as may from time to time be designated by notice, in writing, given in the same manner provided for in this section; TO THE TOWN : The Town of the Town of Pickering Pickering Civic Centre One The Esplanade PICKERING, Ontario L1V 6K7 Attention: Town Clerk, (Fax # 905-420-0515) TO MEDIACOM : Mediacom Inc. 377 Horner Avenue ETOBICOKE, Ontario M8W 1Z6 Attn:: Blair Murdoch Sr., V.P. Asset Development (Fax #416-255-2063) 10 22. DELAY IN PERFORMANCF 23. Mediacom shall not be liable for any delay in performance of its duties under this agreement due to causes beyond its control, including, but not limited to, fires, floods, strikes, shortage of materials, delays in carriers, acts of God or the government or the failure to obtain delivery of equipment or parts thereof. 24. Mediacom or any successor thereto shall not assign this Agreement without first obtaining written consent of the Town, consent shall not be unreasonably withheld. ENTIRE AGREEMENT 25. This Agreement constitutes the entire agreement between the parties to this Agreement and supersedes any prior agreements and understandings, oral or written, between such parties with respect to the subject matter hereof. This Agreement may be simultaneously executed in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute, but one and the same instrument. 26. INTERPRETATION In constituting this Agreement, words in the singular shall include the plural and vice versa and words importing the masculine shall include the feminine, and the neuter and vice versa, and words importing persons shall include Towns and vice versa. IN WITNESS WHEREOF the said Parties hereto have hereunto affixed their respective Town Seals attested by the hands of their respective proper officers in that behalf duly authorized. THE CORPORATION OF THE TOWN OF PICKERING ayor Clerk /,/ MEDIACOM INC. V9610 SHELTERS LAKESHORE EAST REGION Updated. 6 OCTOBER 1995 PICKERING Northside of Kingston Road at Rougemount Drive - Pickering Southside of Kingston Road at Rosebank Road Pickering Northside of Kingston Road at Rosebank Road Pickering Southside of Kingston Road at Whites Road - Pickering Northside of Kingston Road at Whites Road - Pickering Southside of Kingston Road at Dunbarton School Pickering Southsi'de of Kingston Road at Fairport Road - Pickering Northside of Kingston Road at Fairport Road - Pickering Northside of Kingston Road at Dixie Road West - Pickering Southside of Kingston Road at Walnut Lane West - Pickering Northside of Kingston Road at Walnut Lane West - Pickering Southside of Kingston Roadat Glendale Road West - Pickering Northside of Kingston Road at Glendale Road West Pickering Southside of Kingqton Road at Glennana Road West Pickering Northside of Kingston Road at Glennana Road West - Pickering Southside of Kingston Road at Denmar Road - Pickering Northside of Kingston Road at Guild Road West Pickering ASSET 91-12 88-20 85-13 89-01 91-11 91-02' 83-01 91-06 87-01 89-08 89-07 91-08 89-06 91-07 82-75 79-02 87-04