HomeMy WebLinkAboutItem VII(B) Disscussion re: Bus Shelter Agreement with Jaycees Agenda 09-21-04
Item VII.B.
FOLEY
FOLEY& LARDNER LLP
ATTORNEYS AT LAW
MEMORANDUM
CITY OF OCOEE
AGENDA ITEM COVER SHEET
Date: September 13, 2004 Meeting Date: September 21, 2004
Subject: Bus Shelter Agreement
Issue:
Should the City enter into an agreement with West Orange Jaycees, MADD of Central Florida
and the Boys and Girls Club of Central Florida to build and maintain bus shelters in the City of
Ocoee?
Recommendation:
Staff requests that the City Commission provide direction on how to proceed with respect to the
provision of bus shelters in the City.
Background Summary:
The City Commission on November 4, 2003 approved a Bus Shelter Agreement with Culver
Amherst. The West Orange Jaycees, MADD of Central Florida and Boys and Girls Club of
Central Florida exercised a right of first refusal to provide shelters. At that time, the shelters
were to be provided by Metropolitan Systems on their behalf (which company was already
providing bus benches). Subsequent thereto, Culver Amherst reached an agreement with MADD
and Boys and Girls Club to provide shelter on their behalf. Presumably, the Jaycees have an
agreement with Metropolitan Systems to provide shelters on their behalf
Fiscal Impacts:
Deminimus. If the City does not enter into a bus shelter agreement, the revenue to be generated
therefrom will not be received. However,the anticipated revenue is deminimus.
006.347205.1 FOLEY&LARDNER LLP
FOLEY
Commission Action:
Reviewed by City Manager /10/hf---
Reviewed by City Attorney Paul E. Rosenthal
Reviewed by Finance 6\ N/A
4.1
Reviewed by Community Development
2 FOLEY&LARDNER LLP
ATTORNEYS AT LAW
006.347205.1
FOLEY
FOLEY&LARDNER LLP
ATTORNEYS AT LAW
MEMORANDUM
CLIENT-MATTER NUMBER
020377-0657
TO: The Honorable Mayor and City Commissioners of the City of Ocoee
FROM: Paul E. Rosenthal, Esq., City Attorney
DATE: September 13, 2004
RE: Bus Shelter Agreement with West Orange Jaycees,MADD of Central Florida
and the Boys and Girls Club of Central Florida
ISSUE
Should the City enter into an agreement with West Orange Jaycees, MADD of Central Florida
and the Boys and Girls Club of Central Florida to build and maintain bus shelters in the City of Ocoee?
BACKGROUND/DISCUSSION
At the November 4, 2003 meeting, the City Commission approved a Bus Shelter Installation,
Advertising and Maintenance Agreement with Culver Out of Media, LLC d/b/a Culver Amherst (the
"Culver Amherst Bus Shelter Agreement"). Attached hereto is a copy of the City Manager's Staff
Report dated November 3, 2003 in support of this item. The 2003 Staff Report includes as attachments
(i) copies of previous correspondence to West Orange Jaycees, MADD of Central Florida and Boys
and Girls Club of Central Florida, (ii) the existing Bus Bench Agreement with these organizations, and
(iii) the proposed Culver Amherst Bus Shelter Agreement. The Bus Bench Agreement provided in
Paragraph 13 thereof that the Jaycees, MADD and Boys and Girls Club would have a right of first
refusal for the installation and operation of transit shelters within the City. Accordingly, following
approval by the City Commission of the Culver Amherst Bus Shelter Agreement, the City Manager
sent notices on November 10, 2003 to the Jaycees, MADD and Boys and Girls Club advising them of
the City Commission action and providing them with 21 days within which to exercise their right of
first refusal.
On or about November 24, 2003 the City received a written notice from the Jaycees and the
Boys and Girls Club advising that they were exercising their right of first refusal. The City Manager
also received a verbal notification from MADD indicating that they were also exercising their right of
first refusal. Following receipt of these notices, the City advised Culver Amherst that the right of first
refusal had been exercised. This resulted in various meetings and conversations between City staff,
Culver Amherst and Metropolitan Systems as representative of the Jaycees, MADD and Boys and
Girls Club. Metropolitan Systems is the entity that provides the bus benches for these organizations
and they indicated to the City that they would also be providing the bus shelters for these
006.347202.1
FOLEY&LARDNER LLP
•
FOLEY
organizations.
At the time the Culver Amherst Bus Shelter Agreement was brought to the City Commission, it
was anticipated that the right of first refusal would not be exercised based on previous
communications. The expectation was that the bus shelters would be constructed by Culver Amherst
and that the City was comfortable with their ability to perform under the terms of the Agreement. We
were engaged in various internal discussions with the City Manager regarding how to proceed at the
time he was suspended earlier this year. Since that time, no agreement has been entered into by the
City regarding the provision of bus shelters.
On July 26, 2004 the City received a communication from Culver Amherst indicating that they
had entered into an agreement with MADD and the Boys and Girls Club to build shelters on their
behalf within the City (see attached correspondence). This could result in a situation under which
some of the bus shelters were constructed by Culver Amherst and some by Metropolitan Systems. The
City does not know whether the three not-for-profit organizations have any internal agreements among
themselves on how to handle disputes regarding performance with the City.
Upon Mr. Frank's arrival,this item was placed on an agenda to provide him with a briefing and
request direction. Mr. Frank has directed that this matter be brought back to the City Commission for
further review and direction to staff.
The options available to the City Commission include:
(1) Enter into a bus shelter agreement with the Jaycees, MADD and Boys and Girls Club on
the same terms and conditions as the proposed Culver Amherst Bus Shelter Agreement. This would
require clarification from the three non-profits as to how they intend to perform in light of their
agreements with Culver Amherst.
(2) Proceed to negotiate a separate agreement with the Jaycees, MADD and Boys and Girls
Club to provide bus shelters in the City.
(3) Elect not to proceed with any agreement to provide bus shelters within the City.
(4) Attempt to negotiate an agreement with the Jaycees, MADD and Boys and Girls Club to
relinquish their right of first refusal or to allow the City to directly contract with Culver Amherst with a
provision for Culver Amherst to provide compensation directly to the three not-for-profits similar to
the agreement already negotiated by Culver Amherst.
Since the right of first refusal has been exercised, the City cannot enter into a direct agreement with
Culver Amherst unless agreed to by the three not-for-profits.
RECOMMENDATION
Staff requests that the City Commission provide direction on how to proceed with respect to the
provision of bus shelters in the City.
PER/j lh
Enclosures
2 FOLEY&LARDNER LLP
006.347202.1 ATTORNEYS AT LAW
Jul 26 04 12:51p Culver Amherst 4078567039 p. 1
i
C U LVER AMHERST
July 26, 2004
Mr. Paul Rosenthal
Foley& Lardner
VIA FACSIMILE: 407-6484743
Dear Paul:
To follow, please find agreements that Culver Amherst has entered into with Boys and
Girls Clubs of Central Florida and IVIADD of Central Florida.
These agreements specify that Culver Amherst is authorized to build shelters on behalf
of these two civic organizations within the city limits of Ocoee, FL. Our company would
like to meet with Mr. Frank and yourself at your earliest convenience to discuss
proceeding with providing these amenities to the city.
Thank you for your continuing consideration.
Respectfully, .7/
Rick Newcomer
Regional Manager
6503 PINE CASTLE 80/0. SLICTE C • 0*LANDC., FL 32809 • IEL 407.856i079 • FAX 407.856 7039
veveur.cuiveramherst.com
— —
Jul 26 04 12:51p Culver Amherst 4078567039 p. 2
.i ..-23-20194 0E146 FROP^: TO 407657039 P.M,
f s{ c',44 b4'
MpirvisFi "
• Afford- re•:t, ? /
AGJEEMENT d
THIS AGREEMENT is rrtade by end between "CENTRAL Fl-91!9A.(hereinaftef
referred to as the"CLUB")whose address is 659 Maitland Avenue,Suite B,Aitamente Springs,FL
32701,and CULVER OUT OF VS/1 1EDIA,LLC dlbla Culver Amherst,a limited liability company
{hereinafter referred to as"COMPANY"),with its principal office at Sat 5t"`Avenue,New York,NY
10010,
The parties hereto agree as follows:
1. CLUB shall sponsor the placement of transit shelters with advertising displays on
surfaces of such shelters(hereinafter referred to as"SHELTERS")et transit stops andlor other
points of pedestrian convenience or necessity within the city limits of OCOEE,FLORIDA(hereinafter
referred to as"CITY").
2. COMPANY Shall enter into a separate agreement with CITY to install and maintain
SHELTERS.
3. In exchange for being the exclusive bus shelter provider to the CLUB in the CITY,
COMPANY shall pay to CLUB a fee equal to the greater of$150 per year per shelter vs.five percent
(5%)of net advertising receipts generated from the SHELTERS within CITY. Net advertising receipts
to be defined as all receipts less any payment to the CITY. Payment of fees will be made quarterly.
COMPANY agrees to provide an accounting of its advertising receipts along with its payment.
4. COMPANY agrees to pay a one time fee of$1,000 to CLUB upon execution of this
agreement. Payment to be made within ten(10)days payable tothe CLUB.
5. COMPANY shall provide CLUB with advertising space during the team of this
agreement when space is available. COMPANY will provide a minimum of one advertising display
face to CLUB for each SHELTER built under this agreement. COMPANY will be responsible for
supplying one set of printed posting materials at no cost to CLUB.
6, Any and all advertising Shelters are,and shall remain,the sole and exclusive property
of the COMPANY.
7, For the present,the parties designate the following as the respective places for giving
written notice:
L.---
Jul 26 04 12:Slp Culver Amherst 4078567039 p.3
,:tom-i3 +1204 Oa:46 FRai: TO:40701567f33'9 P.OW
Yolanda Larson,Director
HADD of Central Florida
060 Maitland Avenue.Suite B
Altamonte Springs,FL 32701
lgtone:4407)831-5233 rf'
oMppNY.
cede Culver,President ty y� i
Culver Amherst t'ttf �+ ts�
141 5*Avenue yS r
New York,NY 14010 ice.
Phone;(212),473-5600
Dos Agreement contains the entire understanding of the parties hereto in respect to the
trap::ri#talus contemplated hereby and supersedes all prior agreements and understandings between
the liar on:.with respect to such subject matter.
IN WITNESS HEREOF,the parties hereto have caused this Agreement to be duly executed on
trus, outran,in manner and form sufficient to bind them as of the effective date thereof.
viologrimmiertirmlift CULVER OUT OF HOME MEDIA,LLC
drteta CULVER AMHERST
i ►tom" l✓t/l� By:
8y- Chris Culver,President
25-O
Date:Det :, --
VIM Seal:
Attest
ti
i S
Jul 26 04 12: 52p Culver Amherst 40'78567039 p.4
AGREEMENT
THIS AGREEMENT is made by and between the BOYS&GIRLS CLIMBS OF CENTRAL
FLORIDA,(hereinafter referred to as the"CLUB")whose address is 801 N. Magnolia Avenue,Suite
30$,Orlando,FL 32803,and CULVER OUT OF HOME MEDIA, LIC dibla Culver Amherst,a limited
liability company(hereinafter referred to as"COMPANY"),with its principal office at 141 5th Avenue,
New York,NY 10010.
The parties hereto agree as follows:
1. CLUB is desirous of sponsoring or co-sponsoring the placement of transit shelters
with advertising displays on surfaces of such shelters(hereinafter referred to as"SHELTERS")at
transit stops andior other points of pedestrian convenience or necessity within the city limits of
OCOEE,FLORIDA(hereinafter referred to as"CITY").
2. COMPANY shall enter into a separate agreement with CITY to install and maintain
SHELTERS.
3. COMPANY shall pay to CLUB a fee equal to the greater of$150 per year per shelter vs.
five percent(5%)of net advertising receipts generated from the SHELTERS within CITY. Net
advertising receipts to be defined as all receipts less any payment to the CITY. Payment of fees will
be made quarterly. COMPANY agrees to provide an accounting of its advertising receipts along with
its payment.
4. COMPANY agrees to pay a e time fee of$1,000 to CLUB upon execution of this
agreement. Payment to be made within tenon(10)days payable to the CLUB.
5. COMPANY shall provide CLUB with advertising spaceduring the term of this
agreement when space is available. COMPANY will provide a minimum of one advertising display
face to CLUB for each SHELTER built under this agreement. COMPANY will be responsible for
supplying one set of printed posting materials at no cost to CLUB.
6. Any and all advertising shelters are,and shall remain,the sole and exclusive property
of the COMPANY.
7. For the present,the parties designate the following as the respective places for giving
written notice:
Jul 26 04 l2:52p Culver Amherst 4076567039 p. S
CLUB:
Gary W.Cain, President/COO
Boys&Girls Clubs of Central Florida
801 N. Magnolia,Suite 305
Orlando,FL 32803
Phone:(407)841-6855
COMPANY:
Chris Culver, President
Culver Amherst
141 5 'Avenue
New York,NY 1 001 0
Phone:(212)473-5600
This Agreement contains the entire understanding of the parties hereto in respect to the
transactions contemplated hereby and supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
IN WITNESS HEREOF,the parties hereto have caused this Agreement to be duly executed on
their behalf,in manner and form sufficient to bind them as of the effective date thereof.
BOYS&GIRLS CLUB CULVER OUT OF HOME MEDIA,LLC
OF CENTRAL FLORIDA dlbla CULVER AMHERST
By:
Gary Cal), - sident Chris Culver,President
Date: LP
1. 2. 4/ {} Li Date:
Seal: Seal:
Attest: f l2rat,' g Attest:
J‘kivtir coal Ot GO:ti ti
oil Vandergrift v,...`,.441**Noo4,„:, l'hittity tiow441 District I
, lb le -,it, Scott Ander4m Distri
ty ct 2
I'iNitiontcr Rie,,ty 41ilin-un Ditnci
,
rim Gleason , — ,rn I si
Natiil 4 Parker District 4
STAFF REPORT ( 11171163 '40
TO: The Honorable Mayor and City Commissioners
FROM: Jim Gleason, City Manager
I '
DATE: 11-3-2003
RE: Bus Shelter Agreement Culver Amherst
ISSUE
Should the Ocoee City Commission enter into a contract with Culver Amherst,a contract vendor
for Lynx to build and maintain bus shelters in the City of Ocoee and mutually agreeable Lynx
bust stops throughout the City of Ocoee.
BACKGROUND/DISCUSSION
Culver Amherst has a contract with Lynx (governmental public transit authority) to build and
maintain bus shelters at appropriate bus stops throughout out unincorporated Orange County.
Lynx has final authority over shelter locations. Culver Amherst pays Lynx the largest of
$300.00 per shelter and or 10% of the advertising proceeds. Lynx has control over the
advertising content in regards to alcohol,tobacco and any sexually adult oriented ads.
Culver Amherst as offered the same contract terms to the City of Ocoee.
City staff sent a letters to all parties who signed the West Orange Jaycees Bus Bench Agreement
April 16, 1996, giving them"First Right of Approval"to provide bus shelters per item#13 of the
contract The city did not receive any response from the contacted parties.
West Orange Jaycees, MADD of Central Florida and the Boys and Girls Club of Central Florida
RECOMMENDATION
City staff recommends approval of the agreement with Culvert Amherst to build and maintain
bust shelters and city approved locations. The city will receive the greatest of either$300.00 per
shelter per year or 10% of the advertising revenue per year. The agreement has conditions
allowing the city to prohibit certain forms of advertising. The shelters will meet all city and
Florida Building codes. Staff recommend proceeds from the agreement go to fund MVP Grants
and Community Grants. City asks the Mayor and City Commission to approve the attached
agreement.
.centet Of Good Lit,
Mavor Commissjoners
S. Scott Vandergrift Danny Howell, District 1
Scott Anderson,District 2
City Manazer
• . Rusty Johnson, District 4
°
Nancy 3. Parker,District 4
Jim Clemma
April 9, 2003
Madd of Central Florida
1720 Orange Avenue
Orlando, Fl 32801
To Whom It May Concern:
Per the'Proposal-Agreement"approved with the City of Ocoee on April 16, 1996 Page
3, Item#13 "Right of First Refusal".
The City of Ocoee is advising your organization of our desire to have "Transit Shelters.'
installed at designated transit stops within the corporate city limits.
Please contact my office to arrange a meeting to discuss locations, logistics and timing
for the installation of the transit shelters.
•
`1,incerely,
1
m Gleason
wee City M. ager
:tr
ttachment
Cc: Paul Rosenthal, Ocoee City Attorney
Isabel Mead, General Manager, Culver Amherst
Dick J. Batchelor, President, DBMG
City of Ocoee• 150 N Lakeshore Drive Ocoee,Florida 34761
Phone:(407)905-3100•fax:(407)656-8504•www.ci.ocoee.flus
center of Good
1 0 4"" ' ,
S.Scott Vandergrift Danny Howell,District 1
- *
Scott Anderson. District 2
CILY1-11-1MeT Rusty Johnson,District 3
Jirn Gleason .......,. ..,,,,
iPt. .,-- --- Th 4.! A Nancy J Parker, District 4
....t.„_....!."--::5)
April 9, 2003
Boy &Girls of Central Florida, Inc.
801 North Magnolia Avenue
Orlando, Fl 32801
To Whom It May Concern: -
Per the "Proposal-Agreement" approved with the City of Ocoee on April 18, 1996 Page
3, Item #13 "Right of First Refusal".
The City of Ocoee is advising your organization of our desire to have "Transit Shelters"
installed at designated transit stops within the corporate city limits.
Please contact my office to arrange a meeting to discuss locations, logistics and timing
for the installatia''' of the transit shelters.
•incerely,
t\----- Na
Ji i Gleaso
0,oee City Ma ger
J c:tr
ttachment
Cc: Paul Rosenthal, Ocoee City Attorney
Isabel Mead, General Manager, Culver Amherst
Dick J. Batchelor, President, DBMS
City of Ocoee• 150 N Lakeshore Drive•Ocoee,Florida 34761
Phone:(407)905-3100•fax:(407)656-8504•www.ci.ocoeell.us
ceoter of Good Lit,
Ninvor fulunioner$
S.Scott VandergriftDanny Howell, District 1
Scott Anderson, District 2
City Manager t...- -' '... ER , Rusty Johnson, DiJ. strict 3
Jim Gleason -,_= .,-...- ,-,......„,z,.: ,liti:27,
Nancy Parker.Distract 4
L.,,:.',,-.-- ,.........,„......
April 9, 2003
West Orange Jaycess
PO Box 770619
Winter Garden, Fl 34777
To Whom It May Concern:
Per the "Proposal-Agreement° approved with the City of Ocoee on April 16, 1996 Page
3, Item#13 "Right of First Refusal",
The City of Ocoee is advising your organization of our desire to have"Transit Shelters"
installed at designated transit stops within the corporate city limits.
Please contact my a "ce to arrange a meeting to discuss locations, logistics and timing
for the installation o- he transit shelters.
0/
he
..__
,t
1 Ji Gleason
Ociee City Mana,er
J tr
ttachment
Cc: Paul Rosenthal, Ocoee City Attorney
Isabel Mead, General Manager, Culver Amherst
Dick J. Batchelor, President, DBMG
City of Ocoee. 150 N Lakeshore Drive'Ocoee,Florida 34761
Phone;(407)905.3100'fax:(407)6564504.www.c kocoec.fLus
85NT BY; CITY OF OCOEE; 4076566885 ; MAR-i8-0a 12:48PM; PAGE 57/57
AGZNDA 4-16-i,5
"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE- Etez III D
Ocoee ,...W I 4 -14.1•41o4 a444,A..,,r,
N .4,
40 ..r. •
. awmbwmve
f 4,1744 i 4?,
ZS. 0^i. ... CITY OF OCOEE RUSTY IOHNSON
1 4 0. scow ANornsorq
,,..0 to
0 . 150 N.LAKESHORE WIVE
OCOEE.FLORIDA 34761-22.58 SCOTT'A.CLAS
JIM GLeASON
e \,..,..... 4 t
l 4 (Am)6ur=
CITY MANActx
0/10006 ElL68HAMmD
STAFr WORT
TO: THE HONORABLE MAYOR AND BOARD OF CITY COMMIBSANERS
FROM: D.W. FLIPPER, BUILDING AND ZONING OFFICIALtp.V
DATE: APRIL 10, 1996
SUBJECT: PROPOSAL-AGREEMENT BETWEEN THE CITY OF OCOEE
AND THE WEST ORANGE JAYCEES, MADD OF CENTRAL -
FLORIDA AND THE BOYS AND GIRLS CLUB OF
CENTRAL FLOR/DA
IUMK
. Should the Honorable Mayor and Board of City Commissioners enter
into an agreement with a private company to install benches at
public transportation locations and place advertisements on the
backrest of the benches?
BACKCROUNDMISCUSSION
The Board of City Commissioners gave directions to the Building and
Zoning Official at the Commission meeting of February 20, 1996. The
directions were to proceed with the approval of an agreement with
the West Orange Jaycees that would provide benches at public
transportation locations at no cost to the City and permit the West
Orange Jaycees to sell advertising spaces on the backrest of the
benches.
For your information and review, a copy of the proposed agreement
is attached. Our City Attorney, Mr. Paul Rosenthal, has reviewed
the proposal-agreement.
IIECOMMENDATIow
The Protective Inspections staff recommends that the Honorable
Mayor and Board of City Commissioners approve this proposal-
agreement with the West Orange Jaycees for the installation of park
benches at public transportation locations with the right to sell
advertising space on the backrest of the benches.
•
Dwr/sas/826
SENT BV CITY OF OCOEE; 4O7658885 ; MAR-18 Al 12:4 8Pti;
PAGE 5V5/
MPR ltem#5
PROPOSAL- AGRUMENT
WHEREAS,it is everywhere=cognized that physical restholessa2j1 to human well being as
/) v
%tell as nekomed by all people,the CITY OF (3.. .CQ5.6
fractoafterreterred to as the"City,"has determined
that the installation aud presence of a public seating service within the corporate limits of the City would
fulfill a collateral public transportation need and be of continuing benefit to the general traveling public,
and to others,and
WHEREAS,the City is charged with the public interest and accordingly,as a proprimary
function is desirous of having placed within its corporate limits,at transit stops and/or at other points of
pedesnian convenience ce necessity,benches designed for riondintable seating in order that such benches
may blurt to the convenience and enjoyment of those who use public transportation,and of others;and
&A-VAL
WHEREAS,the OR.PAGE Mc:4ES id A iboF -
t
rt-C4-tbni '
•
hereinafter collectively referred teas the'Clubs"or,where individually indicated.the"Club,"are
desirous of sponsoring or cospoosoring as a community project for the benefit and accomnxxlabon of the
general traveling public,and of others,the placement of benches at transit stops and/or at other points of
pedestrian convenience or necessity within the corporate limits of the City.
NOW,THEREFORE, in consideration of the premises,the Clubs join in ranking the following
proposal to the City,'whereby,upon the acceptance of such proposal by the City,the said desires of the
City and of the Clubs can be realized:
I. The Clubs,their successors Sad assigns,shall install and at all times hereunder shall continue to
furnish benches,as hereinafter provided,upon public space within the corporate limits of the City(as
now constituted or hereafter enlarged)In a quantity suMelent,in the judgment of the City reasonably
exercised,to establish a public seating service within the City for the benefit of the general traveling
public as well as for the benefit of others The public seating semi=shall be is ithout cost to the City,
how r,in order to fund such service,the Clubs,their successors and assigns,shalt have the right to
lease display space on said benches,as hereinafter provided,far both public service and commercial
messages.
2. Benches placed within the corporate limits of the City,as herein provided,shall be governed by and
subject to the following general criteria:
a. No bench shall be more than forty4hree(43)inches high tor mote than seventy.four(74)
inches long nor more than twenty-tight(28)inches wide.
b. Commit:don shall be of concrete and wood or of equivalent materials.
c. Benches shall be placed at transit stops and/or at other points of pedestrian convenience or
necessity and suchplacement shall be subject to review by the City so that no bench shall be
permitted to cause a public sidewalk lobe dosed to pedestrian passage or to create a haoud
or ta otherwise be detrimental to the public safety.
•
SENT BY; CITY OF t t E, 40765568885 ; MAR•i8-43 12;4SPel; PAGE 5b/5/
d No beach,unless othereise authomod,may be placed so that the angle of its long divasioo
is relation to thecurb tine shall be greater than forty-five(45)degrees,and r*bench,
unless otherwise autherized may be placed so that itis closer than eighteen(18)lathes-le the
face of the curb.
e.. Not more than one(t):bench displaying a commercial message or intended for the display of
a commercial message shall be permitted at a particular location.
•
f. Display space shall be restricted to eit bat rest arra of the bench and shalt not be greater
than sur(6)feet in le ,th and two(2)fed in height. No comrttercial message diselaYed
thereon shall appear other than on the front or rear surface clutch backrest arra. Should
any message be donned objectionable is the judgment of she City reasonably exercised,then.
upon natio:to the Claes such message shall forthwith be removed by the Clubs.
Should any Watch fad to=fonts to the above genal criteria or should a property owner abject
to the presence of a tic chanting his property duct the City may order the Clubs to tnmove such trench
and,that failing,may remove same at the expense of the Clubs.
3. The City shalt reserve the right to,upon notice to the Clubs„order the ceche+ l of any particular
bench which the City,in its judgment reasonably exercised,believes not to be located to the public
benefit. Should the Clubs Entree remove such bench titan the City may remove:same at the expense of
the Clubs.
4. At tat times hereunder the benches which are the soh i l of this proposed Shall retrain the property of
the Clubs or of their service clay and the Clubs shalt maintain said benches in a good and
enbetaotiat state of repair. further,the land Ott which the trendies art placed Strait not he in the
legal possession or control of the Clubs brit strati be subject only to the necessary installation and
maintenance of the benches.
5. me Clubs shall at all times hereunder maintain public liability Munencc and shall provide the City
with a Certificate of insurance as evidence of sante; the insurance shalt be in the tainitttura amount
of One Million Dollars($1,0t/0,000.00)for individual injnry and enOnete Million Dollars
000.00)for more than one injury resulting from our accident anHundred Thousand
{S 1,400'
Dollars(S 00,000,00)for propctiY
damage and if and when welt mirsitat un amounts beixen;deficient
1
in the judgment of the City reasonably exacies 1,then such amounts shall be appropriately increased
upon the written request of the City. portlier,within the above stated insumnce limits,the Clubs shall
indemnify and save harmless the City Emelt and against all claims,kisses and expenses,inetediag
Court rare and reasonable attorney's let's,arising out of or resulting from any wrongful oe agent
•act on the part of the Clubs,their agents,rcpreseotathes and employees in the instalhetiosr and
ma ntcnanCe of benches timer.
for the pla lent and continued maintenance of benches established
6. It is intended that s2ie pi grout in
by the acceptance of this proposal by the Citi!be -oemsner+ctat nature,accordingly,such
referred to as the
Program ishan be Veneered or ensportsered by the Clubs and the benches shalt
be"Clubs=benches,"s," Should a Club at any time alai for any raison be compelled to withdraw as a
sponsor of the*lie seating service established by eke acceptance of this progra by the City then
tete milting Club Or Clubs shall within a reasonable time thereafter join with another civic,service
or charitable organization dr organizations as sponsors of such service and the City shall be required
to recognize such organic f(s)as a substitute sponsor(s).
` 7. Should the Clubs be found lobe in default of any a[the conditions herein,am shall be given notice
In the ave�tt that the
in writing and a reasensblehint,not to exceed thirty'00)clays, sink of notice same the
Clubs should fait to correct sick default within a reasonabte time
SENT BY: CITY OF OCOEE; 4076588885 MAR.18 ft3 12:47P1.1; PAGE 56/ ,
City may,it its option,terminate the rights and obligations created by the acceptance°Ilk's proposal
upon the 'giving of ninety(90)days notice in%tiling to the Chin. Should such termination duly
*emir,or should the rights and obligations to provide public seating as set forth herein cease for any
other reason,then the Clubs shall be allowed an additional six(6)mouth period to remove their
benetves.
8. Where notice to the Clubs is required or otherwise given pursuant to the agreement created by the
acceptance of this proposal by the City it shall be in writing,sent by registered or=titled mail,to the
relevant principal office(s)with return receipt(s)requested.
9. It is expressly understood and agreed that the rights and obligations created by the acceptance of this
proposal by the City shall remain.in MI force and effect for a period of twelve(12)yam from and
10. Should any one or mote of the provisions hereof be found invalid or unenforceable by a court of
competent jurisdiction then such provision or provisions shall be null and void and shall be deemed
severed from the whole and such finding shall be without effect upon the remaining provisions which
remaining provisions shall continue.in full force and effect provided that the rights and obligations of
the patties contained herein are not materially prejudiced and that the intentions of the panics
continue to be effective.
LI. The agreement crated by the acceptance of this proposal by the City supersedes all prior
negotiatioos.understanding,representations or agreements between the parties hereto,whether
written or oral,with respect to the subject manes contained herein and with respect to the area
intended hereunder.
11 The effective date of the agreement created by the acceptance of this proposal by the City stall be one
hundrcd and twenty(120)days from and after the date of suety acceptance presided,however,that in
the event that such agreement has the effect of contimung or replacing an existing public seating
service within the City then such agreement shall take effect upon the acceptance of this proposal
the City. Time shall be of the essence of such agreement and the rights and privileges created under
the agreement shall be exclusive to the Clubs.
13. Should the City desire to have transit shelters,installed at designated transit stops withinits corporate
limits which shelters are to be fended by die display of commercial messages,the Clubs shall have the
right of first refusal for the installation and operation of such shelters together with the display space
thereon.
It. It is understood and agreed that the Clubs will contract with a seating service company to implement
and to assume responsibility for performance of the agreement created by the acceptance of this
proposal by the City thereby limiting the Clubs'responsibility to that of sponsorship of the seating
service and that such service company shall become the guarantor and third party benefidary of the
agreement.
IS. And the further conditions:
xv*
SENT V: CITY OF OCOEE; 4070568885 MAR-18.0,4 12:48PM; PA8 bfiii
IN WITNESS WHEREOF,the panics hereto have caused this instnunent to be executed in their
tespoctive corixuate or other proper names by the persons duly authorb:ed to sign in their behalf.
SIGNED,SEALED AND DELIVERED IN THE PRESENCE OF;
1j
c1471. 6-4145 ele‘c2-
, r
CIV2,-4417_Z *
ATTEST:111111,44_,A 4; President
Sect
/4,40. 41.4-6/704-Pit,W4eiktie
ub
I A
ATTEST:441,4,1 A.,AL President ase
Secretary
&ea. 114 4
ATTEST / / President-
Secretory 4
Club
ATTEST: President
Secretary
CITY OF OCOtE ,Ft,DA _
ATTES
101km
Mayor S. Scott Yandetgrifti
'it Clerk
Date of Acceptance try aty of 0.1_4tO
Apploved as to!on and legal sofficieuq.
ve.„4.1 pp
Aroved by Ocoee City Coft
mmissio
OftJG . 1996 under
City Attorney Agenda Item
áJ< /4.4.JJ ii q//(/(;
WEST ORANGE JAYCEES BOYS&GIRLS CLUBS OF CENTRAL FLORIDA, INC.
P. O. BOX 770619 801 NORTH MAGNOLIA AVENUE
WINTER GARDEN.FLORIDA 34777 ORLANDO.FLORIDA 32801 •
MADD OF CENTRAL FLORIDA. INC. CITY OF mom
1720 ORANGE AVENUE (50.NORTH LAKESHORE DRIVE
ORLANDO, FLORIDA 32801 OCOEE, FLORIDA 34761
kk.)
q 1 73
BUS SHELTER INSTALLATION, ADVERTISING,AND
MAINTENANCE AGREEMENT
THIS AGREEMENT,made and entered into this day of , 2003
by and between THE CITY OF OCOEE,with its principal office at 150 North Lakeshore
Drive. Ocoee. Florida.34761(hereinafter referred to as"CITY")and CULVER OUT OF
HOME MEDIA, LLC dibia CULVER AMHERST, a limited liability company with its
principal office at 141 5th Avenue,New York, NY 10010,(hereinafter referred to as
"COMPANY").
WITNESETH:
WHEREAS,the CITY currently has bus stops located throughout its bus service
area; AND •
WHEREAS, there exists in the service area a need for new public transit shelters;
AND
WHEREAS,the CITY is desirous of providing new shelters for the citizens of
the service area and improving the maintenance and repair of existing shelters; AND
WHEREAS, COMPANY is desirous of obtaining from CITY the approval to
erect new shelters with advertising displays on surfaces of such shelters(collectively
referred to as"Advertising Shelters");AND
WHEREAS,COMPANY is willing to assume all maintenance and repair
obligations for the Advertising Shelters; AND
WHEREAS, the CITY will permit the same, subject to the covenants and
agreements hereinafter set forth.
NOW,THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereto agree as follows:
1. GRANT OF RIGHTS, CITY hereby grants to COMPANY the exclusive
right to erect,install and retrofit public transit shelters at bus stops and other locations to
be agreed upon as provided herein,together with the right to display advertising material
thereon(the"Advertising Shelters"), in accordance with,and subject to,the terms and
conditions of this Agreement. It is agreed that CITY and COMPANY shall work
together in an effort to replace or retrofit some or all of the existing shelters.
2. REGULATIONS. This Agreement shall serve as specific written and public
notice that public transit shelters,with the display of advertising,shall be considered a
public transportation amenity and as such will be subject to the Land Development Code,
as it may from time to time be amended.
3. PAYMENT TERMS. COMPANY shall pay to CITY a fee equal to the
greater of S300 per year per shelter vs. 10 percent of the net advertising receipts
generated from the Advertising Shelters.Payment of fees will be made quarterly.
COMPANY agrees to provide an accounting of its advertising receipts along with its
payient. The accounting of advertising revenues shall be provided to the city annually
from the effective date of this agreement. CITY shall have the right to review
COMPANY books and records with reasonable advance notice.
4. DESIGN OF SHELTERS. The design of the Advertising Shelters shall be
approved by CITY prior to commencement of construction. All shelters shall be
accessible to disabled persons and must comply with the architectural standards as
established by the Americans with Disabilities Act of 1990. Shelters installed under this
contract must meet the minimum roadside clear zone as established by the Florida
Department of Transportation Manual of Uniform Minimum Standards for Design,
Construction and Maintenance for Shelters and Highways. Additionally,each Shelter
which is constructed will comply with the Florida Building Code and any applicable local
amendments thereto,and will need to obtain a building permit from the CITY and be
subject to appropriate inspections by CITY personnel. The CITY shall pay for or waive
all applicable building permit fees for the construction of a shelter.
Shelter advertising shall not contain any sign or advertising copy greater in size
than six feet(6')by four feet(4')equal size,opposing facing sides, provided that the sign
or advertising copy may by double sided. No sign shall be permitted on the roof or above
the roofline of a bus shelter. No more than one advertising sign shall be permitted on any
transit shelter,however, the advertising sign may be double faced provided that the faces
are equal in size and continued within a common perimeter and that each face be visible
from the opposite direction.
5. LOCATION OF NEW SITELTERS. Within sixty(60)days from the
effective date,COMPANY will submit to the CITY a list of proposed Transit Shelter
sites which will be subject to the review and approval of the CITY. Such list will be
periodically updated, subject to the review and approval of the CITY.
6. ADVERTISING ON SHELTERS. Advertisements displayed under the
terms of this Agreement shall be of reputable character,shall conform to recognized
business standards,and shall not conflict with the laws of the United States,or the State
of Florida or the CITY. The CITY may reject any displayed copy that is found to be: is
offensive to the moral standards of the community;or is false, misleading.or deceptive;
or induces a violation of existing laws; or has a tendency to induce what may result in the
creation of new laws;or in any.w.ay reflects on the character, integrity,or standing of any
individual, firm or corporation. The City's determination of acceptable or unacceptable
advertisements shall not be arbitrary or unreasonable. No tobacco or alcohol
advertisements will be permitted.
In the event that the CITY determines that a posted advertisement is unacceptable,
COMPANY shall have 24 hours from receipt of written notice to remove said posters.
7, INSTALLATION REOUBLEMENTS, COMPANY shall be required to
install at a minimum twenty(20)shelters over the term of the Contract. With a minimum
of six(6)shelters during the initial year of this contract and an additional four(4) shelters
per subsequent year thereafter until the minimum proposed is met or as mutually agreed
upon. This agreement is based on need and potential revenue. Failure to construct the
minimum number of shelters shall be a default by COMPANY and entitle the CITY to
terminate Agreement.
8. DISTURBANCE. If the location of any shelter becomes a safety hazard or a
chronic problem to the CITY, the CITY shall notify COMPANY in writing of the
problem and COMPANY shall have ten (10)days to correct the problem. If the problem
cannot be rectified, then COMPANY shall remove shelter from said location,provided
the CITY approves a replacement location that is satisfactory to COMPANY. In that
event,any fees associated with the old or replacement location shall be prorated.
COMPANY shall remove any advertising shelter which interferes in any way with the
construction,maintenance or repairs of public utilities,public works,or public
improvements,or which because of its location, in the opinion of CITY shall be deemed
to interfere in any way with the normal and orderly flow of vehicular traffic prior to the
installation of such shelter.
9. MAINTENANCE. COMPANY shall maintain all advertising shelters in
good repair and shall be solely responsible for the cleaning,repair,and replacement of
any part thereof, including advertising materials. In the event CITY or COMPANY is
notified of any Advertising Shelter that is unclean or is the victim of offensive,obscene
or political graffiti,or other types of defacement, it shall be the obligation of COMPANY
to remedy such defacement and repair or clean the shelter. If COMPANY fails to repair,
remedy or clean the shelter within ten(10)working days after notification,CITY may
remedy, repair or clean the shelter and assess the cost against COMPANY.
10. CHRONIC VANDALISM. In the event that any advertising shelter is
vandalized to the extent that the cumulative expenses of all repairs exceeds one-half of
the cost of the original construction thereof,COMPANY shall have the right to remove
said advertising shelter and replace it at another approved location upon notice in writing
to CITY.
11. INSURANCE. COMPANY shall indemnify and hold harmless CITY from
and against all claims, damages, losses and expenses,arising out of or resulting from any
conduct or activity contemplated within this Agreement attributable to COMPANY.
including construction,maintenance,advertisement and subsequent use,provided that
any such claim,damage, loss or expense which results in bodily injury sickness,disease
or death or to injury or to destruction of tangible or intangible property, including the loss
of the use resulting therefrom which is caused in whole or in part by any negligent act of
commission or omission by COMPANY or its contractor,subcontractor or any directly
or indirectly employed by any of them,or anyone whose acts,any of them might be
liable,shall render COMPANY responsible.COMPANY shall procure,carry and pay
for a general liability insurance policy in an amount acceptable to CITY.
COMPANY shall maintain statutory workers' compensation coverage and
unemployment insurance if required by the State of Florida. All insurance policies shall
name CITY as additional insured and COMPANY shall furnish CITY as additional
insurance providing no less than thirty(30)days advance written notice of cancellation or
non-renewal of the Policies and a copy of additional insured endorsements should
accompany this certificate.
12. EXPIRATION OR TERMINATION. This contract shall expire or
terminate only as set forth below.
(a) This Agreement shall expire ten(10)years from the effective date of
this agreement.
(b) Either party may terminate this Agreement because of the default of
the other provided that the party electing to terminate shall have notified the defaulting
party of the alleged violation and said violation shall not have been rectified within thirty
(30)days thereafter. In the event that COMPANY shall be in default, which default is
not rectified under the terms of this paragraph,COMPANY,after notice by CITY,shall
have a period of three(3) months from the date of said notice by CITY to obtain an
executed agreement to sell or assign its interest under this Agreement subject to the
assignment provisions of Paragraph 17 hereof. Any such assignee shall be bound by: the
provisions of this Agreement and shall be required to cure such default with 30 days of
any such assignment. Thereafter, settlement on the sale or assignment shall occur within
thirty(30)days from the date of the agreement by COMPANY to sell or assign its
interest. If such default is not cured by the Company or its assignee as aforesaid, then
the City may terminate this Agreement and ownership of the Shelters will be transferred
to the City.
(c) This Agreement may be terminated by mutual agreement.
(d) Upon expiration of this Agreement, as set forth in Paragraph 12(a)
above, the following shall occur:
(i) CITY shall have the right to terminate the program involving
the display of advertising on surfaces of the public transit shelters. In the
event that the program is terminated in Year 10,COMPANY shall transfer
ownership of shelters to CITY and neither CITY nor COMPANY shall
have any further rights or obligations under this Agreement.
(ii) In the event that CITY decides to continue the program
involving the display of advertising on surfaces of the public transit
shelters, it shall commence good faith negotiations with COMPANY to
renew this agreement on mutually acceptable terms. lino renewal
agreement is reached within three(3)months after the expiration of this
Agreement, then in such event COMPANY shall have the right to remove
all of its shelters,and neither CITY nor COMPANY shall have any further
rights or obligations under this Agreement.
13. EXCUSABLE DEFAULT. COMPANY shall not be held in default of this
Agreement, if it is prevented from performing hereunder by inability to acquire necessary
materials, acts of God or inability to reach agreement with utility companies.
14. ARBITRATION. Any controversy or claim arising out of or relating to this
contract,or the breach thereat shall be settled by arbitration in accordance with the rules
of the American Arbitration Association, and judgment upon the award rendered by
arbitrator(s)may be entered in any court having jurisdiction thereof.
15. MISCELLANEOUS PROVISIONS. COMPANY warrants that all shelters
shall meet rigid standards of design and construction so that the shelters are attractive,
utilitarian and safe at all times, as well as in accordance with the Uniform Construction
Code and subject to all appropriate municipal inspections.
16. MAILING OF NOTICES. COMPANY designates the address specified on
Page 1 of this Agreement as the place where all notices provided for under this
Agreement shall be sent.
17. ASSIGNMENT. Any assignment by COMPANY of its rights under this
Agreement shall be subject to written approval of CITY, which approval shall not be
unreasonably withheld. crry further agrees to consent to any sale or assignment of
COMPANY's interests under this Agreement provided it is demonstrated that the
successor or assignee of COMPANY's interests under this Agreement shall have the
ability to perform all of COMPANY's obligations under the terms of this Agreement.
18. ENTIRE AGREEMENT. COMPANY,in the performance of this
Agreement,agrees to comply with all applicable state and federal laws and local
ordinances. This Agreement contains all the terms and conditions agreed upon by the
parties hereto and no other agreement,oral or otherwise,regarding the subject matter
shall be deemed to exist or bind either of the parties hereto. Moreover,this Agreement
may not be modified except in writing by both parties and if required by law.
19. LAW CONTROLLING. It is the understanding of the panics that this
Agreement shall be controlled by the laws of the State of Florida.
20. PROHIBITED INTERESTS. No member,officer,or employee of CITY
during their tenure or for one year thereafter shall have any interest,direct or indirect, in
this Agreement or the proceeds thereof.
21. EQUAL EMPLOYMENT OPPORTUNITY. During the performance of
this contract,COMPANY shall not discriminate against any employee or applicant for
employment because of race,religion,color, age,sex or national origin. COMPANY
will take affirmative action to ensure that applicants are employed,and that employees
are treated during employment,without regard to their race,religion, color, sex or
natiOnal
22. RIGHT-OF-FIRST REFUSAL. This agreement is subject to the right-of-
first-refusal of the West Orange Jaycees,MAOD of Central Florida and Boys and Girls
Club of Central Florida under that certain Bus Bench Agreement dated April 16, 19)6.
Following the full execution of this Agreement the City will give notice thereof along
with a copy of this Agreement to the Clubs and provide the Clubs with 21 days within
which to exercise their right-of-first-refusal and elect to enter into a comparable
agreement with the City. If the Clubs do not exercise their right-of-first-refusal,this
contract shall commence and be in effect through the expiration date.
IN WITNESS WHEREOF,and intending to be legally bound hereby,the parties
hereto set forth their hands and seal the date set forth above.
ATTEST: CITY OF OCOEE, FLORIDA
By:
Jean Grafton,City Clerk S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE,FLORIDA; COMMISSION AT A MEETING
APPROVED AS TO FORNI AND HELD ON ,2003
LEGALITY this day of UNDER AGENDA ITEM NO.
2003.
FOLEY & LARDNER
By:
City Attorney
ATTEST: CULVER OUT OF HOME MEDIA,LLC
d/b/a CULVER AMHERST
By:
Chris Culver, President
BUS SHELTER INSTALLATION,ADVERTISING, AND
MAINTENANCE AGREEMENT
THIS AGREEMENT,made and entered into this day of , 2003
by and between THE CITY OF OCOEE,with its principal office at 150 North Lakeshore
Drive,Ocoee,Florida,34761 (hereinafter referred to as"CITY-)and CULVER OUT OF
HOME MEDIA, LLC dib/a CULVER AMHERST,a limited liability company with its
principal office at 141 56 Avenue,New York,NY 10010„(hereinafter referred to as
"COMPANY").
WITNESETH:
WHEREAS, the CITY currently has bus stops located throughout its bus service
area; AND
WHEREAS.there exists in the service area a need for new public transit shelters:
AND
WHEREAS,the CITY is desirous of providing new shelters for the citizens of
the service area and improving the maintenance and repair of existing shelters: AND
WHEREAS,COMPANY is desirous of obtaining from CITY the approval to
erect new shelters with advertising displays on surfaces of such shelters(collectively
referred to as"Advertising Shelters"); AND
WHEREAS,COMPANY is willing to assume all maintenance and repair
obligations for the Advertising Shelters; AND
WHEREAS,the CITY will permit the same,subject to the covenants and
agreements hereinafter set forth.
NOW,THEREFORE,in consideration of the mutual promises and agreements
contained herein,the parties hereto agree as follows:
I. GRANT OF RIGHTS. CITY hereby grants to COMPANY the exclusive
right to erect, install and retrofit public transit shelters at bus stops and other locations to
be agreed upon as provided herein,together with the right to display advertising material
thereon(the"Advertising Shelters"),in accordance with,and subject to,the terms and
conditions of this Agreement. It is agreed that CITY and COMPANY shall work
together in an effort to replace or retrofit some or all of the existing shelters.
2. REGULATIONS. This Agreement shall serve as specific written and public
notice that public transit shelters,with the display of advertising,shall be considered a
public transportation amenity and as such will be subject to the Land Development Code,
as it may from time to time be amended.
3. PAYMENT TERMS. COMPANY shall pay to CITY a fee equal to the
greater of S300 per year per shelter vs. 10 percent of the net advertising receipts
generated from the Advertising Shelters. Payment of fees will be made quarterly.
COMPANY agrees to provide an accounting of its advertising receipts along with lb
payment The accounting of advertising revenues shall be provided to the city annually
from the effective date of this agreement. CITY shall have the right to review
COMPANY books and records with reasonable advance notice.
4. DESIGN OF SHELTERS. The design of the Advertising Shelters shall be
approved by CITY prior to commencement of construction. All shelters shall be
accessible to disabled persons and must comply with the architectural standards as
established by the Americans with Disabilities Act of 1990. Shelters installed under this
contract must meet the minimum roadside clear zone as established by the Florida
Department of Transportation Manual of Uniform Minimum Standards far Design.
Construction and Maintenance for Shelters and Highways. Additionally, each Shelter
which is constructed will comply with the Florida Building Code and any applicable local
amendments thereto,and will need to obtain a building permit from the CITY and be
subject to appropriate inspections by CITY personnel. The CITY shall pay for or waive
all applicable building permit fees for the construction of a shelter.
Shelter advertising shall not contain any si s or advertising copy greater in size
than stx feet (6')by four feet(4')equal size,opposing facing sides,provided that the sign
or advertising copy may by double sided. No sign shall be permitted on the roof or above
the roofline of a bus shelter. No more than one advertising sign shall be permitted on any
transit shelter, however,the advertising sign may be double faced provided that the faces
are equal in size and continued within a common perimeter and that each face be visible
from the opposite direction.
5. LOCATION OF NEW SHELTERS. Within sixty(60)days from the
effective date, COMPANY will submit to the CITY a list of proposed Transit Shelter
sites which will be subject to the review and approval of the CITY. Such list will be
periodically updated,subject to the review and approval of the CITY.
6. ADVERTISING ON SHELTERS. Advertisements displayed under the
terms of this Agreement shall be of reputable character,shall conform to recognized
business standards,and shall not conflict with the laws of the United States,or the State
of Florida or the CITY. The CITY may reject any displayed copy that is found to be:is
offensive to the moral standards of the community;or is false, misleading,or deceptive;
or induces a violation of existing laws;or has a tendency to induce what may result in the
creation of new laws; or in any way reflects on the character, integrity,or standing of any
individual, firm or corporation, The City's determination of acceptable or unacceptable
advertisements shall not be arbitrary or unreasonable. No tobacco or alcohol
advertisements will be permitted.
In the event that the CITY determines that a posted advertisement is unacceptable,
COMPANY shall have 24 hours from receipt of written notice to remove said posters.
7, INSTALLATION REQUIREMENTS. COMPANY shall be required to
install at a minimum twenty(20)shelters over the term of the Contract. With a minimum
of six (6)shelters during the initial year of this contract and an additional four(4)shelters
per subsequent year thereafter until the minimum proposed is met or as mutually agreed
upon. This agreement is based on need and potential revenue. Failure to construct the
minimum number of shelters shall be a default by COMPANY and entitle the CITY to
terminate Agreement.
8. DISTURBANCE. lithe location of any shelter becomes a safety hazard or a
chronic problem to the CITY,the CITY shall notify COMPANY in writing of the
problem and COMPANY shall have ten(10)days to correct the problem. if the problem
cannot be rectified, then COMPANY shall remove shelter from said location,provided
the CITY approves a replacement location that is satisfactory to COMPANY. hi that
event, any fees associated with the old or replacement location shall be prorated.
COMPANY shall remove any advertising shelter which interferes in any way with the
construction,maintenance or repairs of public utilities,public works, or public
improvements,or which because of its location, in the opinion of CITY shall be deemed
to interfere in any way with the normaland orderly flow of vehicular traffic prior to the
installation of such shelter.
9. MAINTENANCE. COMPANY shall maintain all advertising shelters in
good repair and shall be solely responsible for the cleaning,repair,and replacement of
any part thereof, including advertising materials. In the event CITY or COMPANY is
notified of any Advertising Shelter that is unclean or is the victim of offensive,obscene
or political graffiti,or other types of defacement, it shall be the obligation of COMPANY
to remedy such defacement and repair or clean the shelter. If COMPANY fails to repair,
remedy or clean the shelter within ten(10)working days after notification, CITY may
remedy,repair or clean the shelter and assess the cost against COMPANY.
10. CHRONIC VANDALISM. In the event that any advertising shelter is
vandalized to the extent that the cumulative expenses of all repairs exceeds one-half of
the cost of the original construction thereof,COMPANY shall have the right to remove
said advertising shelter and replace it at another approved location upon notice in writing
to CITY.
ii, INSURANCE. COMPANY shall indemnify and hold harmless CITY from
and against all claims,damages, losses and expenses,arising out of or resulting from any
conduct or activity contemplated within this Agreement attributable to COMPANY,
including construction,maintenance,advertisement and subsequent use,provided that
any such claim,damage, loss or expense which results in bodily injury sickness,disease
or death or to injury or to destruction of tangible or intangible property, including the loss
of the use resulting therefrom which is caused in whole or in part by,any negligent act of
commission or omission by COMPANY or its contractor,subcontractor or any directly
or indirectly employed by any of them, or anyone whose acts,any of them might be
liable,shall render COMPANY responsible. COMPANY shall procure,carry and pay
for a general liability insurance policy in an amount acceptable to CITY.
COMPANY shall maintain statutory workers' compensation coverage and
unemployment insurance if required by the State of Florida. All insurance policies shall
name CITY as additional insured and COMPANY shall furnish CITY as additional
insurance providing no less than thirty(30)days advance written notice of cancellation or
non-renewal of the Policies and a copy of additional insured endorsements should
accompany this certificate.
12. EXPIRATION OR TERMINATION. This contract shall expire or
terminate only as set forth below.
(a) This Agreement shall expire ten(10)years from the effective date of
this agreement.
(b) Either party may terminate this Agreement because of the default of
the other provided that the party electing to terminate shall have notified the defaulting
party of the alleged violation and said violation shall not have been rectified within thirty
(30)days thereafter. In the event that COMPANY shall be in default,which default is
not rectified under the terms of this paragraph,COMPANY, after notice by CITY,shall
have a period of three(3)months from the date of said notice by CITY to obtain an
executed agreement to sell or assign its interest under this Agreement subject to the
assignment provisions of Paragraph 17 hereof. Any such assignee shall be bound by the
provisions of this Agreement and shall be required to cure such default with 30 days of
any such assignment. Thereafter,settlement on the sale or assignment shall occur within
thirty(30)days from the date of the agreement by COMPANY to sell or assign its
interest. If such default is not cured by the Company or its assignee as aforesaid,then
the City may terminate this Agreement and ownership of the Shelters will be transferred
to the City.
(c) This Agreement may be terminated by mutual agreement.
(d) Upon expiration of this Agreement, as set forth in Paragraph 12(a)
above,the following shall occur:
(i) CITY shall have the right to terminate the program involving
the display of advertising on surfaces of the public transit shelters. In the
event that the program is terminated in Year 10,COMPANY shall transfer
ownership of shelters to CITY and neither CITY nor COMPANY shall
have any further rights or obligations under this Agreement.
(ii) In the event that CITY decides to continue the program
involving the display of advertising on surfaces of the public transit
, -
,...
shelters, it shall commence good faith negotiations with COMPANY to
renew this agreement on mutually acceptable terms. If no renewal
agreement is reached within three(3)months after the expiration of this
Agreement,then in such event COMPANY shall have the right to remove
all of its shelters,and neither CITY nor COMPANY shall have any further
rights or obligations under this Agreement.
13, EXCUSABLE DEFAULT. COMPANY shall not be held in default of this
Agreement,if it is prevented from performing hereunder by inability to acquire necessary
materials,acts of God or inability to reach agreement with utility companies.
14. ARBITRATION. Any controversy or claim arising out of or relating to this
contract,or the breach thereof,shall be settled by arbitration in accordance with the rules
of the American Arbitration Association,and judgment upon the award rendered by
arbitrator(s)may be entered in any court having jurisdiction thereof.
15. MISCELLANEOUS PROVISIONS. COMPANY warrants that all shelters
shall meet rigid standards of design and construction so that the shelters are attractive,
utilitarian and safe at all times,as well as in accordance with the Uniform Construction
Code and subject to all appropriate municipal inspections.
16. MAILING OF NOTICES. COMPANY designates the address specified on
Page I of this Agreement as the place where all notices provided for under this
Agreement shall be sent.
17. ASSIGNMENT. Any assignment by COlvIPANY of its rights under this
Agreement shall be subject to written approval of CITY, which approval shall not be
unreasonably withheld. CITY further agrees to consent to any sale or assignment of
COMPANY's interests under this Agreement provided it is demonstrated that the
successor or assignee of COMPANY's interests under this Agreement shall have the
ability to perfonn all of COMPANY's obligations under the terms of this Agreement.
18. ENTIRE AGREEMENT. COMPANY,in the performance of this
Agreement,agrees to comply with all applicable state and federal laws and local
ordinances. This Agreement contains all the terms and conditions agreed upon by the
parties hereto and no other agreement,oral or otherwise,regarding the subject matter
shall be deemed to exist or bind either of the parties hereto. Moreover,this Agreement
may not be modified except in writing by both parties and if required by law.
19. LAW CONTROLLING. It is the understanding of the parties that this
Agreement shall be controlled by the laws of the State of Florida.
20, PROHIBITED INTERESTS. No member,officer,or employee of CITY
during their tenure or for one year thereafter shall have any interest, direct or indirect, in
this Agreement or the proceeds thereof.
21. EQUAL EMPLQYMENT OPPORTUNITY. During the performance of
this contract,COMPANY shall not discriminate against any employee or applicant for
employment because of race,religion,color,age,sex or national origin. COMPANY
will take affirmative action to ensure that applicants are employed,and that employees
are treated during employment,without regard to their race,religion,color,sex or
national origin.
22. RIGHT-OF-FIRST REFUSAL, This agreement is subject to the right-of-
first-refusal of the West Orange Jaycees,MADD of Central Florida and Boys and Girls
Club of Central Florida under that certain Bus Bench Agreement dated April 16, 1996.
Following the full execution of this Agreement the City will give notice thereof along
with a copy of this Agreement to the Clubs and provide the Clubs with 21 days within
which to exercise their right-of-first-refusal and elect to enter into a comparable
agreement with the City. If the Clubs do not exercise their right-of-first-refusal,this
contract shall commence and be in effect through the expiration date.
IN WITNESS WHEREOF,and intending to be legally bound hereby, the parties
hereto set forth their hands and seal the date set forth above.
ATTEST: CITY OF OCOEE, FLORIDA
By:
Jean Grafton,City Clerk S. Scott Vandergri ft, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE,FLORIDA; COMMISSION AT A MEETING
APPROVED AS TO FORM AND HELD ON ,2003
LEGALITY this day of UNDER AGENDA ITEM NO.
,2003.
FOLEY&LARDNER
By:
City Attorney
ATTEST: CULVER OUT OF HOME MEDIA,.LLC
dibia CULVER AMHERST
By:
Chris Cul.er,President