STREET FURNITURE AGREEMENT
FOR ADVERTISING MEDIA SERVICES
Table of Contents
ARTICLE 1 ................................................................................................................................. 2
INTERPRETATION ................................................................................................................... 2
1.1
1.2
1.3
Definitions ........................................................................................................................ 2
Interpretation .................................................................................................................... 9
Schedules........................................................................................................................ 10
ARTICLE 2 ............................................................................................................................... 10
EFFECTIVE DATE AND TERM............................................................................................... 10
2.1
2.2
Effective Date ................................................................................................................. 10
Term ............................................................................................................................... 10
ARTICLE 3 ............................................................................................................................... 10
OBJECTIVES AND REQUIREMENTS ..................................................................................... 10
3.1
3.2
Objectives ....................................................................................................................... 10
Requirements .................................................................................................................. 11
ARTICLE 4 ............................................................................................................................... 11
DESIGN FABRICATION AND OWNERSHIP ........................................................................... 11
4.1
4.2
4.3
4.4
4.5
4.6
Design of Street Furniture .............................................................................................. 11
Compliance..................................................................................................................... 11
Approval of Construction Drawings .............................................................................. 11
Post Production Changes to Street Furniture Elements ................................................. 12
Design Responsibility .................................................................................................... 12
Ownership ...................................................................................................................... 12
ARTICLE 5 ............................................................................................................................... 13
PROVISION, DELIVERY AND INSTALLATION ..................................................................... 13
5.1
5.2
5.3
5.4
Street Furniture Schedule ............................................................................................... 13
Replacement ................................................................................................................... 14
Installation Requirements and Criteria ........................................................................... 14
Site Preparation, Utilities and Electrical Services .......................................................... 15
ARTICLE 6 ............................................................................................................................... 16
MAINTENANCE AND OPERATION........................................................................................ 16
6.1 General ........................................................................................................................... 16
6.2 Removal and Relocation ................................................................................................ 19
6.3 Restoration ..................................................................................................................... 19
Optional If A 20 Year Term...................................................................................................... 20
6.4 Mid Term Design Review .............................................................................................. 20
Page i
ARTICLE 7 ............................................................................................................................... 20
ADVERTISING......................................................................................................................... 20
7.1
General ........................................................................................................................... 20
ARTICLE 8 ............................................................................................................................... 20
FINANCIAL ARRANGEMENT AND REVENUE SHARING .................................................... 20
8.1
8.2
City Annual Revenue Share ........................................................................................... 20
Additional Payments ...................................................................................................... 21
ARTICLE 9 ............................................................................................................................... 21
REPRESENTATIONS AND WARRANTIES ............................................................................. 21
9.1
Representations and Warranties ..................................................................................... 21
ARTICLE 10 ............................................................................................................................. 23
LETTER OF CREDIT AND INSURANCE ................................................................................ 23
10.1
10.2
10.3
10.4
Letter of Credit ............................................................................................................... 23
Calling Upon the Letter of Credit .................................................................................. 24
Application of Funds ...................................................................................................... 25
Insurance ........................................................................................................................ 25
ARTICLE 11 ............................................................................................................................. 25
WORKERS' COMPENSATION ................................................................................................ 25
11.1 WorkSafeBC .................................................................................................................. 25
11.2 Prime Contractor ............................................................................................................ 26
ARTICLE 12 ............................................................................................................................. 26
OCCUPATIONAL HEALTH AND SAFETY ............................................................................. 26
12.
Occupational Health and Safety ..................................................................................... 26
ARTICLE 13 ............................................................................................................................. 27
RELEASE AND INDEMNITY................................................................................................... 27
13.1 Indemnity ....................................................................................................................... 27
13.2 Release ........................................................................................................................... 27
13.3 Conduct of Proceedings ................................................................................................. 27
ARTICLE 14 ............................................................................................................................. 28
GENERAL ................................................................................................................................ 28
14.1
14.2
14.3
14.4
14.5
14.6
Compliance with Laws ................................................................................................... 28
No Partnership or Agency .............................................................................................. 28
Subcontractors ................................................................................................................ 29
Confidentiality................................................................................................................ 29
Assignment ..................................................................................................................... 30
Builders Liens and Holdbacks........................................................................................ 31
Page ii
14.7
14.8
14.9
14.10
14.11
14.12
14.13
14.14
14.15
14.16
14.17
14.18
14.19
14.20
14.21
14.22
Default and Termination ................................................................................................ 31
Termination of Agreement ............................................................................................. 32
Traffic Control................................................................................................................ 33
Non-Resident Withholding Tax ..................................................................................... 33
Permits and Approvals ................................................................................................... 34
Non-Waiver of Rights .................................................................................................... 34
Notice ............................................................................................................................. 34
Arbitration ...................................................................................................................... 35
Costs ............................................................................................................................... 36
Severability..................................................................................................................... 36
Time of the Essence ....................................................................................................... 36
Entire Agreement ........................................................................................................... 36
Governing Law and Attornment .................................................................................... 36
Further Acts .................................................................................................................... 36
Counterparts ................................................................................................................... 37
Enurement ...................................................................................................................... 37
Schedule "A" – Exclusions ……………………………………………………………………38
Schedule "B" – Technical Standards and Specifications
……………………………………39
Schedule "C" – Guaranteed Minimum Annual Revenue
……………………………………51
Schedule "D" – Street Furniture Rollout Schedule ……………………………………………52
Schedule "E" – Street Furniture Designs Drawings ……………………………………………53
Schedule "F" – Capital and Maintenance Costs for Additional Street Furniture
……………54
Schedule "G" – Depreciation of Street Furniture Elements ……………………………………55
Schedule "H" – Insurance
……………………………………………………………………56
Page iii
CITY OF SURREY
STREET FURNITURE AGREEMENT
THIS AGREEMENT dated for reference the _____ day of _______________, 2009.
BETWEEN:
(hereinafter called the "Contractor")
OF THE FIRST PART
AND:
CITY OF SURREY
14245 – 56th Street
Surrey, BC V3X 3A2
(hereinafter called the "City")
OF THE SECOND PART
WHEREAS:
A.
Terms used in these Recitals and defined in this Agreement will have the meanings
respectively given thereto in Section 1.1;
B.
Pursuant to the RFP, the City invited qualified proponents to submit proposals to respond
to the City's request for a contract to, inter alia, provide Street Furniture in the City of
Surrey and to provide a plan to generate and share revenues with the City from display
advertising on or within the Street Furniture;
C.
The Contractor submitted a proposal in response to the RFP; and
D.
The City selected the Contractor's proposal subject to the execution and delivery of this
Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the amount
of Ten Dollars ($10.00), the covenants and agreements herein contained and other good and
valuable consideration (the receipt and sufficiency of which is hereby acknowledged and agreed
to by the Parties) the Parties hereto hereby covenant and agree as follows:
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ARTICLE 1
INTERPRETATION
1.1
Definitions
Unless the context otherwise specifies or requires, for the purposes of this Agreement, the terms
defined in this Section 1.1 will have the following meaning:
(a)
"Advertising Caisson" means an enclosed and illuminated casing, which serves to house
a printed advertising media on Street Furniture;
(b)
"Advertising Panels" means printed advertising media displayed on Street Furniture;
(c)
"Affiliate" means, with respect to the Contractor:
(i)
any corporation which is directly or indirectly controlled by the Contractor;
(ii)
if the Contractor is a corporate, "Affiliate" also means:
(iii)
(A)
any corporation which directly or indirectly controls the Contractor; and
(B)
any corporation which is directly or indirectly controlled by a corporation
which controls the Contractor;
if the Contractor is a partnership or a limited partnership, "Affiliate" also means:
(A)
any partner of the partnership or any corporation which directly or
indirectly controls that partner; and
(B)
any corporation which is directly or indirectly controlled by a corporation
which controls the partner.
For the purpose of the foregoing definition, a corporate is controlled by another
Person if:
(iv)
shares of the corporation carrying more than fifty percent (50%) of the
votes for the election of directors are held, other than by way of security
only, by or for the benefit of that Person; and
(v)
the votes carried by the shares mentioned in Section 1.1(c)(iii)(iv) above
are sufficient, if exercised, to elect a majority of the directors of the
corporation;
(d)
"Agreement" means this Agreement, together with the Schedules and attachments hereto,
all as may be amended in writing from time to time;
(e)
"Applicable Laws" means in respect of any Person, all provisions of constitutions,
statues, rules, regulations, ordinances, by-laws, requirements, orders, published policies
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and interpretations of any Authority applicable to such Person including without
limitation environmental and land use requirements and all orders and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question is a party
or by which such person is bound;
(f)
"Authority" means any federal, provincial or municipal government, judicial, public or
statutory authority, body, board, commissions regulatory agency, council, tribunal,
department or other division thereof having jurisdiction over the Services or this
Agreement;
(g)
"Authorization" means with respect to any Person, any authorization, order, permit,
approval, grant, consent, waiver, license, right, franchise, privilege, certificate, judgment,
writ, injunction, award, determination, direction, decree, by-law, rule or regulation of any
Authority having jurisdiction over such Person, whether or not having the force of Law;
(h)
"Bank Act" means the Bank Act, 1991, c. 46, as amended, or any successor or parallel
legislation;
(i)
"Builders Lien Act" means the Builders Lien Act, S.B.C. 1997, c. 45, as amended, or any
successor or parallel legislation;
(j)
"Business Day" means any day which is not Saturday or a Sunday, or a day observed as a
holiday under any of the Laws of the Province of British Columbia or the Laws of
Canada applicable to the Province of British Columbia;
(k)
"City Annual Revenue Share" means, in any given Fiscal Year, the greater of the
Percentage of Gross Revenues and the Guaranteed Minimum Annual Revenue;
(l)
"City Centre" means the area of the City bounded by the 132 Street Diversion, 112
Avenue and Hansen Road to the north, 140 Street to the east, 96 Avenue to the south and
132 Street to the west;
(m)
"City Council" means the council of elected councillors of the City of Surrey and the
Mayor of the City;
(n)
"City Designated Representatives" means the City's employees or representatives who are
authorized by the General Manager, Engineering to deal with the Contractor on behalf of
the City in connection with this Agreement, the Services and to otherwise make decisions
in connection with this Agreement;
(o)
"City Designees" means any not-for-profit community organization or entity which the
General Manager, Engineering designates in writing to the Contractor, from time to time,
as the designated recipient of the Public Use Panels;
(p)
"City Included Parties" means:
(i)
any past, present or future elected official, employee, agent, representative,
contractor, officer and licencee of the City;
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(ii)
the City Council;
(iii)
any other party for whom the City is responsible at Law; and
(iv)
any legal, technical and accounting advisors that have been, are currently or may
in the future be, engaged by the City, from time to time, to advise in respect of the
undertakings described herein, or any aspect thereof;
(q)
"City Solicitor" means the officer position from time to time of the Legal Services
Division of the City and his/her successors in function and their respective nominees;
(r)
"Claim" means any action, causes of action, right, suit, debt, due, accounting, bond,
covenant, obligation, liability, contract, claim, interest, dues, proceeding, grievances,
execution, judgment, obligation and demand whatsoever, or any of them, whether now
known or not, now suspected or not, contingent or vested, whether under Law or in
contract, at common law, in equity or otherwise and "Claims" has a corresponding
meaning;
(s)
"Commencement Date" means the ____ day of ___________, 2009;
(t)
"Commercial Arbitration Act" means the Commercial Arbitration Act, R.S.B.C. 1996,
c. 55, as amended, or any successor or parallel legislation;
(u)
"Communications" has the meaning ascribed to it in Section 14.5;
(v)
"Companies' Creditors Arrangement Act" means the Companies' Creditors Arrangement
Act, R.S. 1985, c. c-36, as amended, or any successor or parallel legislation;
(w)
"Confidential Information" means, with respect to each Party, as disclosing Party, any
oral or written data and information, now or hereafter existing during the currency of this
Agreement, relating to the business and management of the disclosing Party, including
without limitation:
(i)
any proprietary or trade-secret technology, knowledge, know-how, copyright,
trade-mark or trade name owned or licensed by that Party or its Affiliate,
including, where the Contractor is the disclosing Party;
(A)
inventions, devices, discoveries, concepts, ideas, formulae, know-how,
processes, techniques, systems and methods of the disclosing Party or its
Affiliates and any and all improvements, enhancements and modifications
thereto, whether patented or not;
(B)
enhancements, modifications, additions or other improvements to the
intellectual property or assets owned, licensed, sold, marketed or used by
the disclosing Party or its Affiliates;
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(C)
(ii)
trade-marks, trade names, business names, logos, design marks and other
proprietary marks owned, licensed, sold, marketed or used by the
disclosing Party or its Affiliates; and
any record or report, document, policy, practice, agreement, account, ledger or
other data or information relating to the business operations of the disclosing
Party or its Affiliates;
to which access is granted or obtained by the other Party as receiving Party, but excluding
any data or information which:
(iii)
was possessed by receiving Party prior to its receipt from disclosing Party, other
than through prior disclosure by the disclosing Party;
(iv)
is published or available to the general public otherwise than through a breach of
this Agreement;
(v)
is obtained by receiving Party from a third party with a valid right to disclose it,
provided that the third party is not under a confidentiality obligation to disclosing
Party; or
(vi)
disclosure of which is required by Law;
(x)
"Costs" means all costs, expenses, damages, Claims, penalties, fines, charges, obligations
and outlays;
(y)
"Effective Date" means ___________, 2009;
(z)
"Excise Tax Act" means the Excise Tax Act, R.S. 1985, c. E-15, as amended, or any
successor or parallel legislation;
(aa)
"Exclusions" means the exceptions from the exclusive right to advertise in the Public
Realm which are described in Schedule "A";
(bb)
"Fiscal Year" means a period of 12 consecutive calendar months starting on January 1st
and ending on December 31st during the Term except that:
(cc)
(i)
the first Fiscal Year begins on the first day of the Term and ends on December
31st of the year in which the first day of the Term occurs, and may be a period less
than 12 consecutive calendar months, and
(ii)
the last Fiscal Year begins on January 1st or the year during which the last day of
the Term occurs and ends on the last day of the Term, and may be a period less
than 12 consecutive calendar months;
"Force Majeure" means any circumstance or act beyond the reasonable control of a party
to this Agreement claiming Force Majeure, including, an intervening act of God or public
enemy, an act or acts of terrorism, war, blockade, civil commotions, forest fire, epidemic,
Page 5 of 57
quarantine, restriction, a stop work order or injunction issued by a court or Authority
having jurisdiction, governmental embargo, all or any of which delays the performance of
any obligation under this Agreement, provided such circumstances or act is not otherwise
expressly dealt with under this Agreement or does not arise by reason of:
(i)
the negligence or wilful misconduct of the party claiming Force Majeure or those
for whom it is responsible at Law;
(ii)
any act or omission by the party (or those whom it is responsible at Law) claiming
Force Majeure in breach of the provisions of this Agreement; and
(iii)
an inability by the Contractor to satisfy its financial obligations under this
Agreement, except to the extent that such inability results from an event of Force
Majeure which prevents the Contractor from installing permitted Advertising
Banners or Advertising Panels;
(dd)
"Freedom of Information and Protection of Privacy Act", means the Freedom of
Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, as amended, or any
successor or parallel legislation;
(ee)
"General Manager, Engineering" means the officer position from time to time of the
Engineering Department of the City and his/her successors in function and their
respective nominees;
(ff)
"Gross Revenues" means the sum of all amounts billed by the Contractor and/or due to
the Contractor, or paid to the Contractor, in cash, credit or property of any kind or nature
arising from or attributable to, directly or indirectly, or in any way derived from the sale
of any advertising including without limitation advertising on the Advertising Panels
whether or not such amounts are actually collected. This includes any revenues that
would otherwise be credited to the City that are reasonably allocable to the City. Where
the Contractor does not bill a particular customer (including itself or an Affiliate, partner
or joint-venturer of the Contractor for advertising services provided by the Contractor,
then imputed as billings included within the Gross Revenue will be an amount equal to
the billings that would have been billed by the Contractor to a like customer for the
provision of Services being provided to the customer not being billed, but not including
advertising space provided to the City or City Designees without charge as part of this
Agreement. Gross Revenue is to be calculated prior to deducting any fees, commissions,
licensing expenses, operating expenses payable by the Contractor;
(gg)
"GST" means goods and services tax as provided for in the Excise Tax Act, as amended,
or any successor or parallel legislation that imposes a tax on the recipient of goods and
services supplied under this Agreement and any taxes or fees that may be imposed in
replacement or substitution for, or in addition to, such taxes;
(hh)
"Guaranteed Minimum Annual Revenue" means, in any given Fiscal Year the minimum
guaranteed amount which is payable and will be paid by the Contractor to the City
without deduction or set-off as specified in Schedule"C";
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(ii)
"Income Tax Act" means the Income Tax Act, 1985, c. 1 (5th Supp.), as amended, or any
successor or parallel legislation;
(jj)
"Installation Permits" means the Authorizations required to be issued by the General
Manager, Engineering for the installation of the Street Furniture Elements during the
Term;
(kk)
"Law" means any and all present and future laws, statutes, by-laws, regulations, treaties,
judgments and decrees and, whether or not having the force of law, any and all official
directives, rules, consents, approvals, authorizations, guidelines, orders and policies of
any domestic government, including any federal, provincial, regional or municipal
government, and any government agency, tribunal, commission or other Authority
exercising executive, legislative, judicial, regulatory or administrative functions in
respect of, relating to or in any way pertaining to this Agreement and the undertakings
described herein and "Laws" has a corresponding meaning;
(ll)
"Letter of Credit" has the meaning ascribed to it in Section 10.1;
(mm) "Loss" means, in respect of any matter, all Costs, Claims, direct, indirect, consequential
and incidental losses (including loss of revenue), damages, charges, liabilities,
deficiencies, costs and expenses, including all legal and other professional fees and
disbursements on a full indemnity basis, interest, penalties and amounts paid in
settlement of any nature and kind whatsoever and howsoever arising, whether under Law
or contract, at common law, in equity or otherwise;
(nn)
"Manager of Risk Management" means the manager from time to time of the Risk
Management Division of the City and his/her successors in function and their respective
nominees;
(oo)
"Party" means any one of the City or the Contractor and "Parties" means both of the City
and the Contractor, both as the context may require;
(pp)
"Percentage of Gross Revenues" means in any given Fiscal Year ________% of Gross
Revenues which is payable and will be paid by the Contractor to the City without
deduction or set-off;
(qq)
"Person" means an individual, corporation, partnership, joint venture, association, trust,
pension fund, union, governmental agency, board, tribunal, ministry, commission or
department and the heirs, beneficiaries, executors, legal representatives or administrators
of an individual;
(rr)
"PST" means the tax as provided for in the Social Service Tax Act;
(ss)
"Public Realm" means the sidewalks and public places in the City of Surrey that are
contiguous to public streets, save and except for the Exclusions;
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(tt)
"Public Use Panels" means at any given time during the Term the Advertising Panels
made available by the Contractor to the City for use by the City or the City Designees in
accordance with this Agreement;
(uu)
"RFP" means the Request for Proposals issued by the City as "No. 1220-30-04-09,
including all addenda";
(vv)
"Services" means and includes anything and everything required to be done for the
fulfillment and completion of this Agreement including supplying all labour, supervision
management, overhead, supplies, freight, handling, customs, insurance, and
transportation;
(ww) "Site Plans" means scaled plans showing each Street Furniture Element to be installed by
the Contractor;
(xx)
"Social Service Tax Act" means the Social Service Tax Act, R.S.B.C. 1996, c. 431, as
amended, or any successor or parallel legislation;
(yy)
"Street Furniture" items include but are not limited to: Transit Shelters, benches, litter
bins, multi-publication units, public washrooms, information and way-faring structures,
bicycle lockers, parking racks and all Street Furniture Elements;
(zz)
"Street Furniture Design Drawings" means a line drawing and/or rendering with
dimensions of each Street Furniture Element and documented in Schedule "E";
(aaa)
"Street Furniture Elements" means the individual Street Furniture items provided by the
Contractor set out in the definition of Street Furniture;
(bbb) "Street Furniture Rollout Schedule" means the schedule during the Term in respect of the
rollout and installation of the Street Furniture Elements, all as specified in Schedule "D"
attached hereto;
(ccc)
"Streetscape" means the physical components of the Public Realm, including sidewalk
pavement, crosswalks, street trees and landscaping, lighting, Street Furniture, utilities,
public art and signage;
(ddd) "Surrey Designs" means and includes all design of the Street Furniture including without
limitation Technical Standards and Specifications;
(eee)
"Technical Standards and Specifications" means any and all design and/or construction
requirements, specifications, standards, directives, protocols, guidelines, policies and
statements and procedures issued, utilized or adopted from time to time by any Authority
applicable to the Services or any part thereof, including those requirements,
specifications and standards expressly set out or referred to in Schedule "B", as such
requirements, specifications and standards may be amended, supplemented or replaced
from time to time by any Authority;
(fff)
"Term" has the meaning ascribed in Section 2.2;
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(ggg) "Termination Date" means the date of termination of this Agreement as determined in
Sections 14.7 and 14.8;
(hhh) "Transit Shelter" means the transit shelters, with or without Advertising Panels, designed
and submitted as part of the Street Furniture Design Drawings as approved by the
General Manager, Engineering;
(iii)
"WorkSafeBC" means the Workers' Compensation Board of British Columbia; and
(jjj)
"Workers Compensation Act" means the Workers Compensation Act, R.S.B.C. 1996,
c. 492, as amended, or any successor or parallel legislation.
1.2
Interpretation
In this Agreement, except as otherwise expressly provided or as the context otherwise requires:
(a)
headings are solely for convenience of reference and are not intended to be complete or
accurate descriptions of content or to be guides to interpretation of this Agreement or any
part of it;
(b)
the words "including" or "includes", when following a general statement or term, mean
"including (or includes) without limitation" and are not to be construed as limiting the
general statement or term to any specific item or matter set forth or to similar items or
matters, but rather as permitting the general statement or term to refer to all other items
or matters that could reasonably fall within its broadest possible scope;
(c)
the phrase "the aggregate of", "the total of", "the sum of", or a phrase of similar meaning
means "the aggregate (or total or sum), without depreciation, of;
(d)
in the computation of periods of time from a specified date to a later specified date,
unless otherwise expressly stated, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding";
(e)
an accounting term not otherwise defined herein will be interpreted in accordance with
accounting principles generally accepted in Canada as defined in the Canadian Institute
of Chartered Accountants, Section 1000, applied on a consistent basis, which principles
may be herein referred to as "GAAP" as it applies to the outdoor advertising industry in
Canada;
(f)
a reference in this Agreement or any agreement contemplated herein to currency means
Canadian currency;
(g)
a reference to a statute includes all regulations made thereunder, all amendments to the
statute or regulations in force from time to time, and every statute or regulation that
supplements or supersedes such statute or regulations;
(h)
a reference to an entity includes any successor to that entity;
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(i)
a word importing the masculine gender includes the feminine and neuter, a word in the
singular includes the plural, a word importing a corporate entity includes an individual,
and vice versa; and
(j)
persons will be considered as dealing with each other at arm's length if they would be so
considered for the purposes of the Income Tax Act in effect on the date hereof.
1.3
Schedules
The following are the Schedules attached to and forming part of this Agreement:
Schedule "A" – Exclusions
Schedule "B" – Technical Standards and Specifications
Schedule "C" – Guaranteed Minimum Annual Revenue
Schedule "D" – Street Furniture Rollout Schedule
Schedule "E" – Street Furniture Designs Drawings
Schedule "F" – Capital and Maintenance Costs for Additional Street Furniture
Schedule "G" – Depreciation of Street Furniture Elements
Schedule "H" – Insurance
ARTICLE 2
EFFECTIVE DATE AND TERM
2.1
Effective Date
The rights and obligations of the City and the Contractor under this Agreement will come into
existence and be enforceable on the Effective Date.
2.2
Term
The Term of this Agreement shall be for _______ years and will commence upon the
Commencement Date, subject only to the earlier termination in accordance with the terms of this
Agreement.
ARTICLE 3
OBJECTIVES AND REQUIREMENTS
3.1
Objectives
Each of the Contractor and the City acknowledge an intention to enter into this Agreement in
furtherance of, inter alia, the following objectives, namely:
(a)
the design, manufacture, supply, installation, ongoing maintenance, cleaning, repair,
relocation and ultimate removal of a coordinated suite of Street Furniture to the standards
specified under this Agreement that will elevate the quality of the Public Realm and the
provision in a timely manner of the Services; and
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(b)
to generate a revenue stream for the City.
3.2
Requirements
In furtherance of the broadly stated objectives in this Article 3, and without limiting the
application of the provisions contained in this Agreement, the Contractor will at all times during
the Term:
(a)
perform the Services including the installation of the Street Furniture Elements at the
dates and times specified in the Street Furniture Rollout Schedule; and
(b)
maintain a first standard of care, skill and diligence in performing the Services and
warrant that the Services will be performed and maintained to the high standards as
provided herein.
Subject to this Agreement and the Exclusions, the City will, at all times during the Term, confer
upon the Contractor the exclusive right to advertise on the Street Furniture.
ARTICLE 4
DESIGN FABRICATION AND OWNERSHIP
4.1
Design of Street Furniture
The Contractor will, at its cost, undertake and complete, or cause to be undertaken and
completed, the construction drawings of the Street Furniture in accordance with the Street
Furniture Design Drawings in accordance with the Street Furniture.
4.2
Compliance
The design of the Street Furniture will comply with Applicable Laws, including for certainty all
relevant City by-laws and the British Columbia Building Code, particularly in respect to
accessibility and safety issues pertaining to people with disabilities and special needs.
4.3
Approval of Construction Drawings
Notwithstanding the issuance of the Installation Permits, the construction drawings and
specifications for each Street Furniture Element must be submitted to the General Manager,
Engineering for approval. Upon receipt of such drawings and specifications, the General
Manager, Engineering will, within fifteen (15) days, review and provide comments to the
Contractor or grant his or her approval in respect thereof. If the General Manager, Engineering
provides comments to the Contractor, the Contractor will make such changes and amendments to
the said plans and specifications as are stated by the General Manager, Engineering, providing
such changes and amendments are reasonable and do not substantially alter the Street Furniture
Design Drawings, and the Contractor will thereafter re-submit said plans and specifications
within fifteen (15) days to the General Manager, Engineering for review. This process will
continue until the General Manager, Engineering gives his or her final approval to such drawings
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and specifications. The City will be responsible for the costs incurred by the General Manager,
Engineering in reviewing the construction drawings and specifications for the Street Furniture.
4.4
Post Production Changes to Street Furniture Elements
Following the production and/or installation of any Street Furniture Element, the Contractor will
and the City may, from time to time, review the functionality of such Street Furniture Element.
In the event that the Contractor or the City, as the case may be, identify changes that would
improve the functionality of any Street Furniture Element, then provided the City and the
Contractor agree on such changes, the Contractor will forthwith make such changes at its sole
cost.
4.5
Design Responsibility
Notwithstanding that the General Manager, Engineering may:
(a)
require the Contractor to make reasonable changes to the plans, drawings and
specifications concerning the Street Furniture pursuant to Section 4.3;
(b)
inspect the Street Furniture;
(c)
approve or accept the plans, drawings and specifications concerning the Street Furniture
pursuant to Section 4.3,
all design and construction responsibility and supervisory responsibility will remain exclusively
with the Contractor and no such responsibility will rest with the General Manager, Engineering
or other City officials, officers, employees, servants or agents and neither the City, nor its
officials, officers, employees, servants or agents will be liable to the Contractor for the safety,
adequacy or soundness of the Street Furniture by reason of any inspections made, changes
required or approvals given with respect to the Street Furniture. Any approval given by and any
inspection carried out by the General Manager, Engineering, the City or its officials, officers,
employees, servants or agents pursuant to this Agreement or concerning the Street Furniture will
be for the purposes only of ensuring compliance with this Agreement from the point of view of
the City as contracting party, and no inspection or approval given by the General Manager,
Engineering, the City or its officials, officers, employees, servants or agents will relieve the
Contractor from its obligation to comply with the terms of this Agreement nor will the giving of
any approval constitute a waiver or release by the General Manager, Engineering, the City of any
duty or liability owed to the City or of any indemnity given by the Contractor to the City, its
officials, officers, employees, servants or agents.
4.6
Ownership
Ownership of the Surrey Designs is provided as follows:
(a)
The Contractor agrees that the ownership of the Street Furniture and Surrey Designs are
vested in the name of the Contractor who will transfer the Street Furniture and the rights to
the Surrey Designs to the City as required under the terms of this Agreement. The
Contractor hereby transfers, conveys and assigns to the City all right, title and interest in
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the Street Furniture and any and all copyrights, trade-marks, trade names, patents, trade
secrets and other proprietary rights therein (on a non- exclusive, perpetual, irrevocable,
paid-up, royalty free basis) in the Surrey Designs, without the payment of any additional
compensation whatsoever, so as to permit the City, or a third party authorized by the City,
to continue to use and construct the Street Furniture according to such designs after the
date of expiry or termination of this Agreement;
(b)
The Surrey Designs will be exclusive to the City and will not be used elsewhere except
with the permission of the City and that the City, at the end of the term of this Agreement,
will own both the Street Furniture and have sufficient rights to use the Surrey Designs so as
to allow the program to continue as required by the City;
(c)
During or after the Term of this Agreement, the Contractor or any other person holding
rights to the Surrey Designs will obtain the prior written consent of the City, which may be
unreasonably or arbitrarily withheld, prior to fabricating or supplying Street Furniture
using the Surrey Designs for any other reason or purposes other than for the installation of
Street Furniture in the City for the City under the terms of this Agreement;
(d)
The City or a third party authorized in writing by the City will have a no cost license to use
the Surrey Designs and may manufacture the same or a similar design of Street Furniture
for installations on properties (e.g. parks property) and on City streets at anytime provided
that the Street Furniture does not contain any third party advertising;
(e)
In the event that the Surrey Designs are provided by a person other than the Contractor, the
Contractor will cause all such persons, including for greater certainty all participants in a
partnership, consortium, a subcontractor or joint venture, who are employed, engaged or
retained in the performance of this Agreement, to execute such documents as may be
required to satisfy the requirements of this section; and
(f)
The Contractor will provide any required waivers of any or all moral rights of the
Contractor or any person arising under the Copyright Act regarding the Surrey Designs
against the City and anyone claiming rights of any such nature from or through the City.
ARTICLE 5
PROVISION, DELIVERY AND INSTALLATION
5.1
Street Furniture Schedule
The Contractor will, subject to the provisions herein contained, provide, deliver and install:
(a)
the quantities and types of Street Furniture at the dates specified and in any event on or
before June 30th in any Fiscal Year, all in accordance with the Street Furniture Rollout
Schedule,
(b)
new Transit Shelters will replace existing shelters within one (1) month of removal, and
(c)
the Contractor will coordinate the removal and disposal of existing transit shelters with
the City.
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The City may require that additional Street Furniture other than that specified in the Street
Furniture Rollout Schedule to be installed or that there may be exchanges between Street
Furniture Elements at any time during the Term of this Agreement. The price for additional
Street Furniture, above the agreed upon number of Street Furniture Elements included in the
Street Furniture Rollout Schedule, will be determined in accordance with the attached
Schedule "F".
5.2
Replacement
The Contractor will replace worn and tired Transit Shelters over and above those specified in the
Street Furniture Rollout Schedule (as determined by the City) throughout the Term of this
Agreement. The transit load factor criteria will require the addition of new larger Transit
Shelters in accordance with the furniture roll-out on a first in first out system. Therefore, newer
larger Transit Shelters will replace existing standard units. The existing transit shelters will then
be allocated to other transit stops, where a new shelter is programmed. Thereby, all new larger
units displacing standard or worn larger units to less transit load level locations with a provision
to change out furniture at the end of the unit lifespan, if it is less than twenty (20) years.
5.3
Installation Requirements and Criteria
The Contractor will provide, deliver and install the Street Furniture at its sole cost and expense
as required under the Street Furniture Rollout Schedule, all to the satisfaction of the General
Manager, Engineering and in accordance with the following requirements and criteria:
(a)
in addition to the construction drawing approval requirements under Section 4.3, the
Contractor will provide the General Manager, Engineering with drawings showing the
proposed location in the Public Realm for all the Street Furniture Elements, Site Plans,
and profiles and cross-sectional images of the Street Furniture Elements in relation to the
existing Streetscape and underground utilities. The General Manager, Engineering may
also request the Contractor to provide additional images and other pertinent information
for approval prior to the placement or installation of any the Street Furniture Elements in
the Public Realm. The Site Plans and such drawings, images and other pertinent
information will be submitted to the City within __________ calendar days of the date
upon which the placement or installation is anticipated or scheduled to occur, or as
otherwise agreed to by the General Manager, Engineering and the Contractor;
(b)
the Street Furniture is to be installed only at locations in the Public Realm as approved in
writing by the General Manager, Engineering and the Contractor and the City will agree
on the location of a Transit Shelter site;
(c)
the Contractor will liaise in a timely manner with all third party providers identified by
the General Manager, Engineering to ensure a coordinated installation program and to
minimize the periods of time, if any, where services are expected or required but not
available; and
(d)
the Contractor will be responsible for keeping the General Manager, Engineering
properly and adequately advised of the progress of construction, delivery and installation
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of the Street Furniture, and for providing the General Manager, Engineering periodically,
as he/she may require, with schedules and progress reports, and for ensuring the overall
condition of the construction, delivery and installation of the Street Furniture.
The City will provide the Contractor with lists of sites, including complete descriptions,
underground locations for the City utilities and any other pertinent information related to the
required Street Furniture Rollout Schedule, and all required City approvals and permits, in
accordance with the following requirements and criteria:
(e)
no later than __________days following the Effective Date, the Parties will determine a
preliminary list of potential Street Furniture sites by Street Furniture type, to be installed
under the Street Furniture Rollout Schedule. The City agrees that within sixty (60) days
of delivery of the preliminary list, a City Designated Representative will meet at each site
with the Contractor in order to finalize all Site Plans required pursuant to Section 5.3(a);
(f)
no later than __________ days prior to the beginning of each Fiscal Year, the Parties will
determine a preliminary list of all potential Street Furniture sites by Street Furniture type,
to be installed during that Fiscal Year. The City agrees that within sixty (60) days of
delivery of the preliminary list, a City Designated Representative will meet at each site
with the Contractor in order to finalize all Site Plans required pursuant to Section 5.3(a);
and
(g)
within __________ days following the receipt of each Site Plan, the General Manager,
Engineering will either provide the respective Installation Permit or, acting reasonably,
provide the Contractor with a marked-up Site Plan for the Contractor's consideration.
Provided the Contractor receives the respective Installation Permit, and both Parties have
mutually agreed to any revised Site Plans within __________ days of the receipt of said
Site Plan, the Street Furniture Rollout Schedule will govern the installation obligations of
the Contractor. If Installation Permits are not received as required herein, and both
Parties have acted diligently and in good faith, the Parties will mutually agree to revise
the Street Furniture Rollout Schedule.
The City makes no representation or warranty as to the condition of any of the proposed
locations or sites upon which the Street Furniture Elements, are or are proposed to be, installed.
5.4
Site Preparation, Utilities and Electrical Services
(a)
The Contractor will provide:
(i)
the necessary power and electrical connections to the Street Furniture Elements
from the City's street lighting circuits or a power supply provided by BC Hydro
after obtaining all necessary approvals from the City. The Contractor will notify
BC Hydro regarding equipment attached to any circuits owned or operated by BC
Hydro. The Contractor will reimburse the City for any power consumption off
the City's street lighting circuits based on a schedule of rates supplied by BC
Hydro;
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(b)
(c)
(ii)
the Contractor will provide all utility connections and support or base pads on
which all the Street Furniture Elements will be anchored. If modifications to
Street Furniture support or base pads are required due to design changes or other
requirements, such modifications will be undertaken by the Contractor at its cost;
(iii)
specifications for all support or base pads will be prepared by the Contractor and
certified by a professional engineer and submitted to the General Manager,
Engineering prior to construction for City approval in respect of design and
siting. Subsequent maintenance of these support or base pads will be the
responsibility of the Contractor, for the duration of the Term. The support or base
pads will become the property of the City on the Termination Date; and
(iv)
all utility connections must be installed underground. No overhead connections
will be permitted.
The Contractor will ensure that all electrical work is conducted in compliance with the
relevant sections and latest editions of the following:
(i)
Canadian Standard Association Standard C22.1: Canadian Electrical Code;
(ii)
Electrical Safety Branch – BC Amendments to Canadian Electrical Code,
Regulations and Bulletins; and
(iii)
National Building Code.
The Contractor will ensure that any electrical material and equipment used for the
installation and maintenance of the Street Furniture, as the case may be, will have
evidence of the Canadian Standard Association's approval or be specially certified by the
Canadian Standard Association.
ARTICLE 6
MAINTENANCE AND OPERATION
6.1
General
The Contractor will repair and maintain the Street Furniture Elements in accordance with this
Section 6.1 and without limitation commencing on the date of installation of such Street
Furniture Elements, or otherwise as set out herein:
(a)
the Contractor will keep the Street Furniture in first class conditions and good working
order for the duration of the Term. For greater certainty, the Street Furniture will be kept
structurally sound, free of noticeable sagging, distortion or displacement and weather
tight. Internal and external surfaces are to be damage free and there is to be no
discolouration or corrosion of the surfaces. All surfaces of the Street Furniture will be
kept clean and free of graffiti. All functional components and equipment of the Street
Furniture including mechanical, electrical and lighting, are to be kept in good working
order;
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(b)
the Contractor will be responsible for the payment of energy and other service costs
incurred in respect to the operation of the Street Furniture Elements that utilize these
services. The Contractor will pay all service costs directly to the respective service
providers;
(c)
the Contractor should have a repair facility located in the greater Surrey area and will
maintain the Street Furniture, at its sole expense, to the satisfaction of the City, whether
modified or retained unmodified by the Contractor and irrespective of the date of
installation. Under the provisions of this Agreement, the Contractor is required to:
(i)
clean and wash each Street Furniture Element and promptly remove all scratches,
graffiti, stickers, posters, garbage, litter, weeds and grasses inside, outside and on
top of each element and the immediate area, at least once a week, or more
frequently if required by the City, to keep each of the Street Furniture Elements
free of any noticeable accumulation of dirt, dust, marks, stickers, posters, litter,
weeds, snow or ice,
(ii)
clean any accumulation of snow within the immediate area within twenty-four
(24) hours after a snowstorm with consideration for road clearance access safety
(accumulation of ice or snow of 5 cm or more),
(iii)
undertake cleaning or maintenance at specific locations when notified by the City
in response to site specific concerns, in which case the Contractor will carry out
such cleaning within twenty four (24) hours,
(iv)
inspect each Street Furniture Element at least once a week for any damaged or
broken components or burned-out lighting fixtures, and to repair or replace any
damaged or broken parts within twenty-four (24) hours of the Contractor
becoming aware of the occurrence of the damage, breakage or burn-out,
(v)
undertake emergency maintenance if notified by the City that the condition of a
Street Furniture Element is such that it is a serious danger to the public. The
Contractor will, as soon as reasonably possible, and in any event no later than
twenty-four (24) hours after the giving of such notice, repair, maintain or make
safe the Street Furniture Element, at its sole expense and to the satisfaction of the
City,
(vi)
post a readily visible notice on each Street Furniture Element or cluster of Street
Furniture Elements indicating that the Contractor is responsible for the
maintenance and cleaning of the Street Furniture Element and provide a current
and operative 24-hour telephone number to be used by the public to report a Street
Furniture Element which requires cleaning or maintenance, and the Contractor
will respond to such complaints within twenty four (24) hours,
(vii)
at its own expense, be responsible for the repair of damage to any Street Furniture
Element when such damage is caused by an act of vandalism or any other cause
of damage to the Street Furniture,
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(viii)
have readily available replacement parts to facilitate ease of maintenance,
(ix)
ensure the City, or persons authorized by the City, to have the right, at all
reasonable times, to inspect or otherwise review the Services performed or being
performed by the Contractor or its agents or vendors, and
(x)
submit a periodic maintenance schedule every three (3) months for anticipated
Services that would take place. Report bi-monthly online all repair and
maintenance by unit number and location, including routine and special requests
for maintenance, repair or replacement;
(d)
prior to placing any of the Street Furniture, the Contractor may be directed by the
General Manager, Engineering to restore the sites to their original condition or to provide
a new Street Furniture Element pursuant to the Street Furniture Rollout Schedule and
provide a new support or base pad, if required;
(e)
if at any time during the Term, any deficiency, failure, breakdown or deterioration in
workmanship or material should be discovered in the Services furnished by the
Contractor, or if the Services do not conform to the terms and conditions of the
Agreement, the City may at its option:
(f)
(i)
require the Contractor to commence correcting the defective or non-conforming
Services at no expense to the City within seven (7) days of receipt of written
notification from the City, or such other time as mutually agreed to by the Parties;
(ii)
replace or correct the defective Services and charge the Contractor with all
expenses incurred by the City plus the City's normal overhead charges, which will
not exceed twenty percent (20%) of such costs and expenses; and
the Contractor will perform the Services in a proper and workmanlike manner and in
accordance with the requirements of this Agreement and maintain the Street Furniture
against any defects arising from faulty installation, material or workmanship during the
Term and make good in a permanent manner satisfactory to the General Manager,
Engineering any defects arising from any of these causes. Should the Contractor fail to
commence correcting the defects with five (5) days after being notified by the General
Manager, Engineering, the General Manager, Engineering at his or her option may do so
and the total costs, charges and expenses so incurred may be deducted or collected by the
City. If the City determines, in its discretion, the defects to be dangerous and that an
emergency situation exists, upon notice to the Contractor of such damage or emergency
situation, the Contractor will either:
(i)
temporarily remove such Street Furniture Element; or
(ii)
secure such Street Furniture Element in order to protect any uses for the public,
and if the Contractor does not perform such remediation within four (4) hours from written
notice, the City, at the City's discretion will effect repairs immediately and the whole costs,
charges and expenses so incurred may be deducted or collected by the City as provided in
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Section 10.3. The decision of the General Manager, Engineering will be final as to the necessity
of repairs or of any work done or required to be done under the provisions of this Agreement and
for the amounts expended thereunder.
6.2
Removal and Relocation
From time to time during the Term, the General Manager, Engineering may direct the Contractor
to temporarily or permanently remove, replace or relocate the Street Furniture for the reasons set
forth below.
(a)
to accommodate public concerns or changing needs;
(b)
to enable construction, maintenance or repairs to public utilities or public works; or
(c)
to address security or safety concerns that may exist in the opinion of the General
Manager, Engineering.
If the Contractor is required to remove Street Furniture during the Term of this Agreement, the
surface of the site of that Street Furniture to be restored by:
(a)
complying with instructions from the General Manager, Engineering;
(b)
removing any footings, foundations or other support as directed; and
(c)
making good the surface of the location to the same condition and using the same
materials as the adjoining surface.
All costs of restoring the site following removal of the Street Furniture to be borne by the
Contractor.
The Contractor will be responsible for all costs associated with the removal and disposal of
existing street furniture and the City will have first right of refusal for all Street Furniture, prior
to disposal.
No compensation will be paid by the City to the Contractor, for any loss or damage of any kind
including loss of advertising revenue foregone as a result of any removal or relocation of the
Street Furniture.
6.3
Restoration
If the Contractor is required to remove any Street Furniture pursuant to Section 6.1, Section 6.2
or upon termination of this Agreement, the support or base surface of the site of that Street
Furniture will be restored by making good the surface of the location to substantially the same
condition and using substantially the same materials as the adjoining surface, at the time of
installation. If the materials on the surface, adjoining the location have been replaced with
different materials, the Contractor will use materials of that type. If the materials are not
available, the Contractor will use such materials as are approved by the City.
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Unless the City requires otherwise, other services such as electricity, water and drainage will be
removed by the Contractor when Street Furniture is removed at a location where no new Street
Furniture will be installed. All costs of restoring the site following removal of the Street
Furniture will be borne by the Contractor.
Optional If A 20 Year Term
6.4
Mid Term Design Review
At any time within one hundred and twenty (120) days prior to December 31, ______, the
General Manager, Engineering will request that the Contractor provide a new set of Street
Furniture designs for future Street Furniture installations for years 11 – 20 of this Agreement.
Within ninety (90) days following receipt of such request, the Contractor will submit, at its sole
cost, a proposal to introduce the latest design in Street Furniture, together with a detailed written
analysis of the economic proposal required to implement such new Street Furniture proposal.
ARTICLE 7
ADVERTISING
7.1
General
(a)
The Contractor agrees that advertising will only be permitted on the Transit Shelters in
accordance with the Advertising Standards of Canada;
(b)
The City may request that the Contractor remove certain advertising materials if in the
City's reasonable judgment such advertising violates the standards and policies of
Advertising Standards Canada or the City;
(c)
All costs and expenses (including overhead and other general, administrative and third
party expenses) incurred by the Contractor in connection with the advertising program
will be borne exclusively by and paid by the Contractor; and
(d)
The Contractor agrees to provide the City or the City Designees with one hundred (100)
Advertising Panels that are operational during the Term at no cost to the City as Public
Use Panels.
ARTICLE 8
FINANCIAL ARRANGEMENT AND REVENUE SHARING
8.1
City Annual Revenue Share
During the Term, the Contractor will pay to the City the City Annual Revenue Share, on the
following terms:
(a)
the Contractor will pay to the City the Guaranteed Minimum Annual Revenue for each
Fiscal Year during the Term of this Agreement in equal monthly instalments, save and
except for 2009, which amount will be paid in one (1) installment on ____________ in
the amount of _______ Dollars ($________);
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(b)
if the Percentage of Gross Revenues exceeds the Guaranteed Minimum Annual Revenue
for any Fiscal Year, then the Contractor will pay to the City the difference between the
Guaranteed Minimum Annual Revenue and the Percentage of Gross Revenue, for each
Fiscal Year during the Term of this Agreement by January 31st of each Fiscal Year;
(c)
GST will apply to this Agreement as required by the Excise Tax Act;
(d)
if requested by the City, the Contractor will assist the City to obtain an advantageous
treatment of PST; and
(e)
the City reserves the right to conduct an independent audit and review at its own expense
of the Contractor's books and records following the payment of the Percentage of Gross
Revenues in respect of any Fiscal Year during the Term to confirm and verify the amount
of Percentage of Gross Revenues payable to the City for any given Fiscal Year. At the
sole discretion of the City, the Contractor will provide to the City, an annual audited
statement by a chartered accountant or a certified general accountant, verifying the Gross
Revenues for any given Fiscal Year. In this regard and to facilitate such audit and review
by the City, the Contractor will keep proper books, accounts and records of all
advertising commissions paid, all revenues received, owed and/or refunded in connection
with this Agreement and in connection with the determination of Gross Revenues in
particular, and all invoices, receipts and vouchers relating thereto. The City may exercise
its audit right only once per Fiscal Year. Such right may be exercised by the City within
ninety (90) days of Contractor's delivery of the City's Annual Revenue Share and upon
reasonable notice to the Contractor. Notwithstanding the foregoing, if the City's audit in
respect of any Fiscal Year confirms that the Contractor is legally obligated to pay, in
respect of such period, an amount which is equal to or exceeds three percent (3%) of the
amount actually paid in respect of such period, then all costs of that audit will be paid by
the Contractor upon the written notice of the City.
8.2
Additional Payments
On the Effective Date the Contractor will pay to the City all third party consulting costs incurred
by the City with respect to the Street Furniture program in the amount of $______________ and
a signing payment of $_____________.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
9.1
Representations and Warranties
The Contractor hereby represents and warrants to the City as follows, and confirms that the City
is relying upon the accuracy of each of such representations and warranties in connection with
this Agreement and the completion of the transactions hereunder:
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(a)
(b)
Corporation:
(i)
The Contractor is a corporation duly incorporated and validly subsisting in all
respects under the Law of its jurisdiction of incorporation. The Contractor has
good right, full corporate power and absolute authority to enter into this
Agreement and to perform all of the Contractor's obligations under this
Agreement. The Contractor and its board of directors have taken all necessary or
desirable actions, steps and corporate and other proceedings to approve or
authorize, validly and effectively, the entering into of, and the execution, delivery
and performance of, this Agreement. This Agreement is a legal, valid and
binding obligation of the Contractor
(ii)
the Contractor is no under any obligation, contractual or otherwise to request or
obtain the consent of any Person, and no permits, licenses, certifications,
authorizations or approvals of, or notifications to, any Authority is required to be
obtained by the Contractor in connection with the execution, delivery or
performance by the Contractor of this Agreement or the completion of any of the
transactions contemplated herein;
(iii)
the execution, delivery and performance of this Agreement and each of the other
agreements contemplated or referred to herein by the Contractor, and the
completion of the transactions contemplated hereby, will not constitute or result
in a violation or breach of or default under:
(A)
any term or provision of any of the limited partnership agreement in
respect of the Contractor;
(B)
the terms of any indenture, agreement (written or oral), instrument,
understanding, other obligation or restriction to which the Contractor is a
party or by which it is bound; or
(C)
any term or provision of any licenses, registrations or qualifications of the
Contractor, any order of any Authority or any Applicable Laws.
Services:
(i)
The Contractor warrants and represents that the Services by the Contractor to the
City in connection with this Agreement will be:
(A)
free from defects in materials or workmanship and will conform to the
Street Furniture Design Drawings as approved by the City;
(B)
fit and sufficient for their intended purpose, will be of merchantable
quality and will be manufactured from new and unused materials;
(C)
in compliance with the standards set forth by any Authority;
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(c)
(D)
capable of operating as necessary with reasonable continuity throughout
the expected life of the equipment and the Term without breakdown,
excessive wear of parts or other evidence of faulty design or manufacture;
(E)
free and clear of all charges, liens, claims or encumbrances; and
(F)
if designated as hazardous or controlled materials, handled and shipped in
accordance with any Applicable Laws, including any environmental
protection Laws and regulations;
General:
(i)
The Contractor further warrants and represents that:
(A)
it is not a party to or bound by any indenture, agreement (written or oral),
instrument, license, permit or understanding or other obligation or
restriction under the terms of which the execution, delivery nor
performance of this Agreement does or will constitute or result in a
violation or breach or default;
(B)
the Contractor will comply, and make all reasonable efforts to ensure that
all of its employees and subcontractors comply, with all Applicable Laws
in carrying out its obligations hereunder;
(C)
if any Applicable Laws mentioned in the Subsection immediately above
require the City to act at variance with the terms of this Agreement and
the City so acts, then the same will not constitute a breach of this
Agreement (the City is not aware of any Law that requires the City to act
at variance with the terms of this Agreement); and
(D)
the Contractor's employees have the qualifications, experience,
knowledge, skills and abilities necessary to carry out the Services and that
the Services will be performed in a competent, efficient and professional
manner.
ARTICLE 10
LETTER OF CREDIT AND INSURANCE
10.1
Letter of Credit
(a)
The Contractor agrees that Letter of Credit No. ____________ in the amount of Five
Hundred Thousand Dollars ($500,000.00) provided with this proposal is valid security
for this Agreement (the "Letter of Credit").
(b)
The Letter of Credit must be clean, unconditional, irrevocable, payable at sight and
permit partial drawings issued in favour of the City by a Bank Act Schedule I bank,
including:
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(i)
Bank of Montreal;
(ii)
The Bank of Nova Scotia;
(iii)
Canadian Imperial Bank of Commerce;
(iv)
National Bank of Canada;
(v)
Royal Bank of Canada; and
(vi)
The Toronto-Dominion Bank.
(c)
The Letter of Credit must be on terms satisfactory to the City Solicitor with an automatic
extension from year to year without an amendment unless 30 days written notice.
(d)
The Letter of Credit will provide that the City may draw it to reimburse the City for any
losses or damages suffered by the City as a result of any breach of the Agreement,
including breaches of representation and warranties. The cost associated with the
provision of the Letter of Credit will be borne by the Contractor.
10.2
Calling Upon the Letter of Credit
The City may cash the Letter of Credit in part or in whole in any of the following events:
(a)
if, at any time until it is returnable to the Contractor under this Agreement, the balance of
the term remaining on the Letter of Credit is less than thirty (30) days and a replacement
Letter of Credit has not been issued;
(b)
if the Contractor makes a general assignment for the benefit of creditors, or if the
Contractor institutes proceedings to have itself adjudicated as bankrupt or insolvent,
including, without limitation, any application or order under the Companies' Creditors
Arrangement Act (or any legislation in pari material therewith) or, it if the Contractor
becomes the subject of bankruptcy or insolvency proceedings, or if a judgment, decree or
order be entered by a court of competent jurisdiction judging the Contractor bankrupt or
insolvent, or if the Contractor or its directors will pass any resolution authorizing the
dissolution or winding up of the Contractor, or if a receiver, interim receiver, manager,
receiver-manager, trustee or liquidator of all or any part of the Contractor's property will
be appointed or applied for by the Contractor or by one or more of the Contractor's
creditors; or
(c)
if, at any time after notice and an opportunity to cure, as defined herein, the Contractor
continues to breach any provision of this Agreement or defaults in carrying out any of its
obligations under the terms of this Agreement to any extent the General Manager,
Engineering considers material.
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10.3
Application of Funds
If the City cashes the Letter of Credit pursuant to Section 10.2, then the City may apply the
proceeds so far as possible, towards:
(a)
completion of the Services of the Contractor, or any combination thereof; and
(b)
if there remains an unused balance of proceeds, such balance may be held pending the
completion of any other obligations of the Contractor to the City in respect of which the
Contractor is in default, as determined by the General Manager, Engineering.
The City may, but will not be obligated to carry out any of the Services, at such times and to
such standard as the General Manager, Engineering, in his or her sole discretion, deems
appropriate. If the proceeds from any Letter of Credit are not sufficient to pay all costs and
expenses, plus the City's normal overhead charges, which will not exceed twenty percent (20%)
of such costs and expenses, incurred by the City in completing the Services, or any portion
thereof, the Contractor will pay to the City the difference upon receipt from the City of invoices
for the same.
10.4
Insurance
(a)
The Contractor will provide, maintain and pay for the insurance as set out in accordance
with the requirements set forth in Schedule "I" attached hereto.
(b)
The Contractor will provide the City with certified copies of all certificates of insurance
to be provided by the Contractor prior to the Effective Date. The Contractor will also
provide certified copies of all such policies of insurance on the written request of the
City. Approval of any policies of insurance by the City will in no way relieve the
Contractor of its obligations hereunder.
(c)
If the Contractor fails to provide, maintain or pay for the insurance required by this
section, then the City will have the right, but not the obligation to provide, maintain and
pay for such insurance, in which case the cost thereof will, at the City's option, be
payable by the Contractor on demand or the City may deduct such costs from monies
which are then or thereafter become due and payable to the Contractor under this
Agreement or otherwise.
ARTICLE 11
WORKERS' COMPENSATION
11.1
WorkSafeBC
The Contractor will:
(a)
at its own expense, procure and carry or cause to be procured and carried and paid for,
full WorkSafeBC coverage for itself and all workers, employees, servants and others
engaged by the Contractor in or upon any work or service which is the subject of this
Agreement;
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(b)
provide the City with the Contractor's WorkSafeBC registration number and letter from
WorkSafeBC confirming that the Contractor is registered in good standing with
WorkSafeBC and that all assessments have been paid to the date thereof prior to the City
having any obligation to pay monies under this Agreement; and
(c)
comply with all WorkSafeBC rules.
11.2
Prime Contractor
The Contractor agrees that it is the prime contractor for the purposes of WorkSafeBC's
Occupational Health and Safety Regulations for the Province of British Columbia. The
Contractor will have a safety program that meets the requirements of WorkSafeBC, will provide
first aid services, and will ensure that all WorkSafeBC safety rules and regulations are observed
during performance of this Agreement, not only by the Contractor but by all subcontractors,
workers, material men and others engaged by the Contractor in the performance of this
Agreement. Prior to commencement of construction, the Contractor will complete and file a
"Construction Notice of Project" with WorkSafeBC and will provide a copy of the same to the
General Manager, Engineering confirming that the Contractor will be the prime contractor
responsible for co-ordination of safety and health under:
(a)
Workers' Compensation Act, Occupational Health and Safety Regulation, Section 20.2 –
Notice of project;
(b)
Workers' Compensation Act, Occupational Health and Safety Regulation, Section 20.3 –
Coordination of multiple employer workplaces; and
(c)
Workers' Compensation Act, Section 118 – Coordination at multiple employer
workplaces.
ARTICLE 12
OCCUPATIONAL HEALTH AND SAFETY
12.
Occupational Health and Safety
The Contractor and the Contractor's subcontractors will conform to all health and safety Law,
by-laws, or regulations of the Province of British Columbia including any regulations requiring
installation or adoption of safety devices or appliances. The City may, on twenty-four (24) hours
written notice to the Contractor, suspend the Services hereunder as a result of failure to install
such devices or because the conditions of immediate danger exist that would be likely to result in
injury to any person. Such suspension will continue until the default or failure is corrected. The
Contractor will not be entitled to any additional time or monetary compensation for completion
of any portion of this Agreement for reasons of the Agreement being suspended as provided in
this section notwithstanding any other provisions herein.
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ARTICLE 13
RELEASE AND INDEMNITY
13.1
Indemnity
Without limiting the generality of any other indemnities granted by the Contractor herein, the
Contractor hereby indemnifies and saves harmless the City and the City Included Parties
(including the City Designated Representatives) from all Costs, expenses (including counsel fees
and other expenses of suits, whether groundless or not), damages, Loss, Claims and judgments
on account of any damage to the property or injury or to property (including death) to any person
(including damage or injury to the City or any agent or employee thereof) which may be caused
or be alleged to have been caused as a direct or indirect result of any act or omission of the
Contractor, its agents or those for whom it is responsible at Law, or as a result of the breach of
any covenant, representation or warranty, or which may occur or be alleged to have occurred by
reason of any defects, deficiencies or malfunctioning of the Street Furniture, but excluding the
willful or negligent act or omission of the City of the City Included Parties. The Contractor
hereby assumes all risk of damage or injury to the Contractor's own property, agents and those
for whom it is responsible at Law from whatever cause.
13.2
Release
The Contractor hereby accepts the lands upon which the Street Furniture is to be installed on an
"as is" basis and hereby unconditionally, absolutely and irrevocably releases and forever
discharges the City and the City Included Parties from any and all liability for, and any Loss,
Claim or Costs relating to:
(a)
the condition or quality of the lands upon which the Street Furniture is installed;
(b)
the use or occupation of the lands by the Contractor, its agents or those for whom it is
responsible at Law, upon which the Street Furniture is, or is intended to be, installed; and
(c)
any cessation, interruption, or delay in the installation, maintenance or removal of the
Street Furniture, as the case may be, regardless of how such cessation, interruption or
delay arises.
13.3
Conduct of Proceedings
(a)
If a Claim is made against the City or a City Included Party which, pursuant to the terms
of the Agreement, obligated or may obligate the Contractor to indemnify any or all of the
City, a City Included Party or the City Designated Representatives, then the City will
give note of such Claim to the Contractor and, subject to Section 13.3(b), the Contractor
will have the right, upon written notice to the City, to conduct the proceedings in defence
of the Claim;
(b)
Section 13.3(a) will not apply and the City will have the unilateral and paramount right to
conduct the defence of any Claim described in Section 13.3(a) in the following
circumstances:
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(i)
where the City Solicitor determines in his/her sole discretion that the property
administration of the municipal government requires that decisions with respect
to the Claim and the proper defence thereof be made by the City and not the
Contractor;
(ii)
where the City Solicitor determines that the public interest requires that the matter
be resolved in an open and public way; or
(iii)
where, in the opinion of the City Solicitor, the Claim is of a nature where
decisions with respect to settling or defending it would create a precedent with
respect to other existing or potential Claims affecting or involving the City.
Provided however that if the City wishes to settle any Claim, the City will not do so without the
prior consent of the Contractor, which consent will not be unreasonably withheld. In conducting
any defence or making any settlement, the City will act in a manner reasonably consistent with
the manner in which the City would act in connection with the defence or settlement of Claims,
suits, demands, actions or proceeding which would not be indemnified against under the
provisions of this Section 13.3(b), and furthermore, the City will not oppose the Contractor if it
seeks to intervene in any lawsuit in which its rights or interests may be affected; and
(c)
Regardless of whether the Claim is being defended under Section 13.3(a) or Section
13.3(b), the party having conduct of the proceedings will, upon written request of the
other party, provide all information in its possession relating to the proceedings which
may be properly disclosed at Law. If the party not having conduct of the proceedings so
requests in writing in a timely fashion, the party having conduct of the proceedings will
join the other party as a third party to the proceedings.
ARTICLE 14
GENERAL
14.1
Compliance with Laws
In carrying out its obligations, the Contractor will familiarize itself and comply with all:
(a)
Applicable Laws, and will obtain all necessary licences, permits and registrations as may
be required by Applicable Laws; and
(b)
the Contractor will pay and discharge all wages, fees, salaries, charges, Costs and
expenses due and accruing to any of its employees, agents, suppliers and subcontractors
and will make and remit to each property Authority all deductions as required by
Applicable Laws.
14.2
No Partnership or Agency
It is understood and agreed that:
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(a)
nothing contained in this Agreement will constitute or be deemed to create a partnership,
joint venture or principal and agent relationship between or among the City and the
Contractor, and the officers, directors, shareholders, partners, personnel, Affiliates and
agents of the Contractor; and
(b)
the Contractor will not purport to enter into any agreement on behalf of the City, or
otherwise act on its behalf; and the Contractor hereby acknowledges that the City will not
be required on its behalf to make remittances, filings or payments required by statute of
employers, and that the Contractor will not be entitled to the fringe benefits provided by
the City to its employees.
14.3
Subcontractors
Except where otherwise set out, the Contractor will furnish all personnel required to:
(a)
perform its obligations hereunder, and all such personnel will be competent and qualified
to perform and satisfy such obligations;
(b)
the Contractor will provide the City with a list of its subcontractors;
(c)
the Contractor will administer, coordinate, and manage all work of subcontractors, and
will assume full responsibility to the City for all work performed by the subcontractors;
and
(d)
the Contractor will be solely responsible for paying the fees and expenses of all
subcontractors engaged by it in connection with the Agreement and the City will have no
liability whatsoever in connection therewith.
14.4
Confidentiality
(a)
The Contractor acknowledges that in performing the Services, the Contractor and its
representatives will acquire Confidential Information of the City and such Confidential
Information is and will remain the exclusive property of the City and the Contractor will
at all times hold such Confidential Information in trust for the City. The Contractor will,
and will cause its representatives to treat as confidential all such Confidential
Information received by reason of its position as Contractor, and agrees not to disclose
such Confidential Information to any third party either during performance of the
Services or after the Services have been rendered under the Agreement.
Without limiting the generality of the foregoing, the Contractor will exercise a degree of care in
protecting the confidentiality of such Confidential Information that is at least equivalent to that
which the Contractor uses to protect its own Confidential Information of like sensitivity and
importance. The Contractor agrees that this obligation of confidentiality will survive the
termination of the Agreement;
(b)
The City acknowledges that in performing its obligations under this Agreement, the City
and City Designated Representatives will acquire Confidential Information of the
Contractor, and such Confidential Information is and will remain the exclusive property
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of the Contractor and the City will at all times hold such Confidential Information in trust
for the Contractor. The City will, and will cause City Designated Representatives to treat
as confidential all such Confidential Information received by reason of its position as the
City, and agrees not to disclose such Confidential Information to any third party during
performance of its obligations under this Agreement;
(c)
Without limiting the generality of the foregoing, the City will exercise a degree of care in
protecting the confidentiality of such Confidential Information that is at least equivalent
to that which the City uses to protect its own Confidential Information of like sensitivity
and importance. The City agrees that this obligation of confidentiality will survive the
termination of this Agreement;
(d)
Each Party will promptly advise the other Party in writing if any unauthorized use or
disclosure or any anticipated use or disclosure of all or any portion of the other Party's
Confidential Information and will take all reasonable steps to stop such unauthorized or
anticipated use or disclosure; and
(e)
The City is subject to the Freedom of Information and Protection of Privacy Act. Subject
to the terms of this Agreement and the Freedom of Information and Protection of Privacy
Act and regulations made in respect thereof, all physical copies of documents submitted
to the City in connection with this Agreement become the property of the City, will be
received and held in accordance with this Agreement and the information will not be
disclosed except to the extent required or permitted under this Agreement. The
Contractor declares that financial information is confidential information of the
Contractor, explicitly supplied to the City in confidence and the disclosure of such
confidential information could reasonably be expected to harm significantly the
competitive position or interfere significantly with the negotiating position of the
Contractor and could reasonably be expected to result in undue financial loss to the
Contractor.
14.5
Assignment
The Contractor will not assign this Agreement or subcontract to any Person any right, duty or
obligation hereunder without the prior written consent of the City, which consent may be
unreasonably or arbitrarily withheld. Any assignment or subcontract without such consent will
be null and void and of no effect.
Notwithstanding the foregoing, the City approval will not be required for:
(a)
a transfer of this Agreement to an Affiliate of the Contractor; and
(b)
a change in form of the entity of the Contractor (e.g. from a partnership to a limited
liability company or to a corporation), provided that there will be no adverse effect on the
recourse of remedies that the City might have under this Agreement with respect to the
new entity as it relates to its predecessor, whether at Law or in equity,
provided that in either case, management of the Contractor remains substantially the same as
management existed prior to such a proposed assignment and there is no material adverse change
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in the financial strength of the Contractor, having regard to the financial strength of the
Contractor prior to the proposed assignment. If an event under Section 14.6(a) or 14.6(b) is
contemplated by the Contractor, then the Contractor will provide advance written notice and
sufficient information to the City to allow the City to satisfy itself as to the continuity of
management and financial viability of the new entity as set out above.
14.6
Builders Liens and Holdbacks
(a)
The Contractor will not at any time suffer or permit any liens to be registered against or
to exist on any City property, the Street Furniture or any other asset or matter supplied
under this Agreement. The Contractor agrees to forthwith cause all such liens to be fully
paid, satisfied and released;
(b)
If the City Solicitor or any City Designated Representative so requires, before any
payments to the Contractor under this Agreement are made, the Contractor will furnish
evidence satisfactory to the City Solicitor that all government liabilities have been paid in
full to date;
(c)
The Contractor hereby agrees to make payment and take all other steps which may be
necessary to ensure that all monies payable under this Agreement, the City property and
the Street Furniture, and every part thereof, will be and remain at all times free from and
not liable to any lien or charge at Law or in equity, or to any Claim of liability under the
Builders Lien Act, or to any attachment for debt, garnishee process or otherwise, and the
Contractor and his sureties, as well as its respective successors and permitted assigns,
will fully indemnify and save harmless the City and all its officers, servants and
employees from any and all such liability, and will, on demand, immediately cause any
such lien, charge, Claim or attachment to be removed or released from the records of any
Land Title Office or Court in which the same may appear; and
(d)
Notwithstanding anything to the contrary contained in this Agreement, the City will not
be under any circumstances obliged to pay any monies to the Contractor if and for so
long as any liens exist against the City property or the Street Furniture.
14.7
Default and Termination
The Contractor will be considered to be in default of this Agreement if the Contractor:
(a)
refuses or fails to perform the Services after written notice and a reasonable opportunity
to cure, as required by the City or as otherwise stated in this Agreement;
(b)
is adjudged as bankrupt;
(c)
makes a general assignment for the benefit of creditors;
(d)
has a receiver appointed on account of its insolvency;
(e)
persistently disregards Laws, policies, procedures or instructions of the City;
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(f)
fails to observe or is in breach after written notice and an opportunity to cure, as defined
herein, of any of the provisions of this Agreement; or
(g)
fails to observe the mid term design review and provision of new Street Furniture in
accordance with same.
In the event of default, the City may, without prejudice to any other right or remedy, serve
written notification upon the Contractor of the City's intention to terminate this Agreement.
Such notification will contain the reasons for such intention to terminate. If, within five (5) days
after service of such notice, no meaningful and effective arrangements by the Contractor for the
correction thereof are made by the Contractor to the satisfaction of the City, this Agreement will
upon the expiration of the five (5) days, cease and terminate. In the event of termination under
this Section, the City will be at liberty to secure the performance of the Services from another
contractor. If the cost to the City exceeds the cost pursuant to this Agreement and provided the
City has made reasonable efforts to mitigate its damages, the excess cost will, at the City's sole
discretion, be charged to and collected from the Contractor or against the Letter of Credit, as the
case may be. The foregoing provisions are in addition to and not in limitation of any other rights
or remedies available to the City, whether at Law or in equity.
14.8
(a)
Termination of Agreement
Termination Initiated by the Contractor
In the event that the Contractor commits an un-remedied default under the terms of this
Agreement so as to cause the City to terminate this Agreement, all newly placed Street Furniture
Elements, hardware and appurtenances placed on City Streets, and their respective designs, will
thereupon become the property of the City, including the right to place advertising.
Without prejudice to any other remedies it may have, the City may choose to draw on the Letter
of Credit to apply towards satisfying the requirements of this Agreement for the remainder of the
Term and/or at its option, restore the street allowance to the condition it was in immediately prior
to the implementation of Street Furniture Elements installed under the scope of this Agreement.
(b)
Termination Initiated by the City
Should the City wish to terminate this Agreement prior to its expiration as set out in the Term,
for any reason or reasons other than a default under this Agreement by the Contractor, the City
may then buy out the Contractor's Street Furniture solely at book value calculated by reducing
the unit value of all Street Furniture Elements by the percentages per year specified for each
Street Furniture Element set out in the attached Schedule "G" per year starting at the date of
installation.
The purchase price for Street Furniture Elements is to be equal to the Cost of the elements,
appurtenances and hardware and the labour and material incurred by the Contractor necessary to
the manufacture and installation of the said elements and the corresponding signs. This
calculation to be based on the book value as of the date that this provision is invoked, including a
prorated depreciation of assets for the portion of the fiscal year up to the date of termination.
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(c)
Expiry of Agreement
Upon the expiry of this Agreement, ownership of the Street Furniture Elements, regardless of the
date of installation, will transfer to the City without the need for further agreement or payment of
compensation.
14.9
Traffic Control
(a)
The Contractor will ensure that the proposed methods of traffic control are in compliance
with all Applicable Laws, including provincial standards in effect from time to time;
(b)
The Contractor will provide, install and maintain in accordance with all Applicable Laws
and to the satisfaction of the General Manager, Engineering, all necessary barricades,
cones, signs, flashing and other lights, and such other devices as are necessary for the
safe and efficient control of vehicular and pedestrian traffic on all streets and sidewalks
affected by the construction both within and outside the site limits;
(c)
The Contractor will, from the Effective Date, assume responsibility for the barricading
and signing of hazards resulting from any Services associated with the placement,
maintenance or removal of any Street Furniture Element, as the case may be;
(d)
Unless ordered otherwise by the General Manager, Engineering, the Contractor will
inspect the barricades and warning signs of unattended placement or construction areas at
least once per day; and
(e)
As part of its implementation plan, the Contractor will adhere to all relevant noise control
requirements as stated in the Surrey Noise Control By-law, 1982, No. 7044.
14.10 Non-Resident Withholding Tax
If the Contractor is, at any time, a non-resident of Canada within the meaning of the Income Tax
Act, then, and the Contractor hereby so agrees, the City may deduct from all monies payable
under the Agreement and remit to the Receiver General for Canada, the Government of Canada
or Canada Revenue Agency, taxation amounts not greater than the greater of:
(a)
twenty-five percent (15%) of all monies payable under the Agreement; and
(b)
amounts required to be withheld and remitted by the Income Tax Act.
The City will receive a further credit under the Agreement for monies withheld as of and from
the date of the withholding (regardless of when or whether remitted) and no interest will be
payable by the City on amounts withheld, not remitted as aforesaid and later paid directly to the
Contractor.
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14.11 Permits and Approvals
For work related to the installation and maintenance of the Street Furniture and the maintenance
and removal, as the case may be, of the Street Furniture, the Contractor will apply for, obtain and
pay for all permits and approvals required by any Authority and/or the City, to enable the
Contractor to do the Services and all other things necessary to fully perform its obligations under
this Agreement. The City will, upon the request of the Contractor, expedite the provision of
permits and licences within its control.
14.12 Non-Waiver of Rights
Any failure by the City to enforce or require the strict keeping and performance of any of the
terms and conditions contained in the Agreement will not constitute a waiver of such terms and
conditions and will not affect or impair such terms and conditions in any way or the City's right
at any time to avail itself of such remedies as the City may have for any breach or breaches of
such terms and conditions.
14.13 Notice
All notices which are required or permitted to be given or made pursuant to the Agreement will
be given or made in writing and will be delivered personally or by courier with a copy sent by
telecopier to:
(a)
in the case of the City, at:
Address:
14245 – 56 Avenue
Surrey, BC V3X 3A2
Attention:
Fax Number:
General Manager, Engineering
(604) 591-8693
with a copy to:
Address:
14245 – 56 Avenue
Surrey, BC V3X 3A2
Attention:
City Solicitor
Fax Number: (604) 599-1613
(b)
in the case of the Contractor, at
Address:
Attention:
Fax Number:
with a copy to:
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Address:
Attention:
Fax Number:
14.14 Arbitration
In the event of any dispute, Claim, question or difference arising out of or relating to this
Agreement or any breach thereof, the Parties will use their best endeavors to settle such dispute,
Claim, question or difference. To this effect, they will consult and negotiate with each other, in
good faith and understanding of their mutual interests, to reach a just and equitable solution
satisfactory to the Parties.
Except as is expressly provided in this Agreement, if the Parties do not reach a solution then
upon written notice by a Party to the other, the dispute, Claim, question or difference will be
finally settled by arbitration in accordance with the provisions of the Commercial Arbitration Act
and any amendments thereto, based upon the following:
(a)
the arbitration tribunal will consist of one arbitrator by mutual agreement of the Parties,
or in the event of failure to agree, within ten (10) Business Days after the date of delivery
of the written notice, the Parties will each appoint a nominee who together will appoint a
single arbitrator, failing which any Party may apply to a judge of the Supreme Court of
British Columbia to appoint an arbitrator. The arbitrator will be qualified by education
and training to pass upon the particular matter to be decided, including, without
limitation, knowledge of the real estate industry;
(b)
the arbitrator will be instructed that time is of the essence in proceeding with the
determination of any dispute, Claim, question or difference and, in any event, the
arbitration award must be rendered within thirty (30) days of the submission of such
dispute to arbitration;
(c)
in the arbitration award, the arbitrator may award any remedy for any breach of this
Agreement that might have been awarded by the Supreme Court of British Columbia,
except where the remedy for such breach has been expressly limited by this Agreement;
(d)
the arbitration will take place in the City of Surrey, British Columbia;
(e)
the arbitration award will be given in writing and will be final and binding on the Parties,
not subject to any appeal, and will deal with the question of Costs of arbitration and all
matters related thereto; and
(f)
judgment upon the award rendered may be entered in any court having jurisdiction, or,
application may be made to such court for a judicial recognition of the award or an order
or enforcement thereof, as the case may be.
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14.15 Costs
Except as otherwise provided in this Agreement, each of the City and the Contractor will be
responsible for its own fees, expenses and other Costs incurred in connection with carrying out
its obligations under this Agreement.
14.16 Severability
The invalidity of any portion of this Agreement will not affect the validity of the remainder of
this Agreement provided that the spirit and intent of the Agreement is not violated.
14.17 Time of the Essence
Time will be of the essence of this Agreement, subject only to Force Majeure and provided that
the City will give the Contractor a written notice of a failure to satisfy its obligations and a three
(3) Business Day opportunity to cure such failure.
14.18 Entire Agreement
The provisions herein contained and the documents referred to and incorporated herein by
reference constitute the entire Agreement between the Parties and supersede all previous
communications, representations and agreements whether verbal or written between the Parties
with respect to the subject matter hereof. The Contractor hereby acknowledges that it is not
relying on any representations of the City as to the performance of the Services, except as stated
expressly herein.
14.19 Governing Law and Attornment
This Agreement will be governed by and construed in accordance with the Laws of the Province
of British Columbia, which will be deemed to be the proper Law hereof. The courts of British
Columbia will have jurisdiction (but not exclusive jurisdiction) to entertain and determine all
disputes and Claims, whether for specific performance, injunction, declaration or otherwise
arising out of or in any way connected with the constructions, branch, or alleged, threatened or
anticipated breach of this Agreement and will have jurisdiction to hear and determine all
questions as to the validity, existence or enforceability hereof. For the purposes of any legal
actions or proceedings brought by the City in respect of this Agreement, the Contractor hereby
irrevocably submits and attorns to the jurisdiction of the courts of British Columbia and
acknowledges their competence and the convenience and proprietary of the venue and agrees to
be bound by any judgment thereof and not to seek, and hereby waives, any review of its merits
by the Courts of any jurisdiction.
14.20 Further Acts
The Parties will do or cause to be done all such further acts and things as may be reasonably
necessary or desirable to give full effect to this Agreement. Without limiting the foregoing, the
Contractor will, at any time and from time to time, execute and deliver or cause to be executed
and delivered such further instruments and take such further actions as may be reasonably
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requested by the City in order to cure any defect in the execution and/or delivery of this
Agreement.
14.21 Counterparts
This Agreement may be executed in any number of counterparts. Any Party hereto may send the
copy of its executed counterpart to the other Party hereto by facsimile transmission instead of
delivering a signed original copy of such counterpart. Each executed counterpart (including each
copy sent by facsimile transmission) will be deemed to be an original and all such executed
counterparts taken together will constitute one and the same agreement, and notwithstanding the
date of execution will be deemed to bear the same date as written above on this Agreement.
14.22 Enurement
This Agreement will enure to the benefit of and be binding upon the Parties and their respective
successors and permitted assigns.
IN WITNESS WHEREOF the Parties hereto have executed and delivered this Contract as of
the date and year first above written.
______________________
by its authorized signatories:
____________________________________
____________________________________
CITY OF SURREY
by its authorized signatories:
______________________________________
Dianne Watts
Mayor
______________________________________
Jane Sowik
City Clerk
u:\legalsrv\legal\agreements\bus shelter advertising\transit shelter rfp\documents\street furniture agreement.doc
MLG 7/17/16 9:46 PM
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SCHEDULE "A"
EXCLUSIONS
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SCHEDULE "B"
STREET FURNITURE SPECIFICATIONS
TRANSIT SHELTERS
The City expects the Contractor to provide at least three (3) different Transit Shelter variations to
accommodate varying sidewalk widths across the City. These will include larger capacity
double unit and a standard size, both for standard sidewalk width. As well, narrow shelters in
both sizes are required for narrow sidewalk/boulevard widths. Furthermore, again in both sizes,
a canopy style shelter for very narrow sidewalk/boulevard will be required.
Basic and narrow shelters should be functional to provide users with protection from the
elements. They should be fully enclosed on all four sides from the roof to within no more than
40 m of the ground, except for one doorway approximately 1.20 m wide located at the front or
back of the shelter and a second exit if viable. Canopy shelters should consist of a main wall and
may or may not incorporate two contiguous sidewalls. All shelters to have a roof of no less than
2.15 m above sidewalk grade.
The basic and narrow shelters should be equipped with seating along the side of the shelter
opposite the doorway opening. Seating should be configured and designed to prevent persons
from lying down, while accommodating persons of all sizes and should meet the requirements of
TransLink's Universally Accessible Bus Stop Design Guidelines. The City may from time to
time request the removal of seating at specific locations.
All shelters should be capable of including a litter/recycling bin that meets the specifications
outlined in section 2.9.2. of the RFP.
No shelter, with the exception of larger double type shelters, will be equipped with more than
one Advertising Caisson to be placed on the far side of the shelter, opposite to the approach of
the transit vehicle, and to contain no more than two Advertising Panels. Advertising Caissons
may be permitted on the rear walls of canopy type shelters. Doubles may be considered for two
caissons and four (4) advertising panels. Design and placement will be approved by the City.
The Contractor will be required to incorporate concrete pads as necessary.
Vandalism
In high vandalism locations, the City and the Contractor will mutually determine an interim
solution including temporary removal.
Visibility
Obstructions to visibility on the front and transit-vehicle-approach sides, other than structural
members will not be permitted on any transit shelter.
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Lighting
Lighting levels in shelters to meet TransLink recommended illumination at 50 lux. All shelters
that do not contain a lit Advertising Caisson are to be lit at night by means of fluorescent lighting
fixtures or equivalent energy efficient lighting. Total equivalent lighting level of lighting
fixtures installed in each shelter should not be less than 240 watts. All lighting should be turned
off during the day.
Transit Stop Name
Each shelter should be equipped with two signs giving the stop name in letters no less than
80 mm high, affixed to each of the front and near sides of the roof of the shelter. Consideration
for the integration of the logo or a relevant design element unique to the City should be
considered e.g. topography, wood, granite etc.
Drainage
Each shelter will be constructed and installed to ensure that water will not pond inside the shelter
or on the adjacent sidewalk or paved boulevard. The City may require installation in a special
manner.
Safety
The City has the right, at the time of installation of a shelter, to require the installation of
Advertising Caissons in a manner other than specified or to require Advertising Caissons to be
placed on a certain side of a shelter or to be positioned in a certain way on a particular side, to
provide for the safety of pedestrians and the safe movement of vehicles.
Advertising- Back-Lit Faces
All advertising faces in transit shelters will be installed in Advertising Caissons and back-lit by
means of fluorescent lighting fixtures or equivalent lighting fixtures.
Proponents are encouraged to propose innovative lighting solutions which do not produce
excessive glare and innovative communication solutions (e.g. audio, video, scrolling text) to
promote interactivity and enhance the user experience.
Materials Used
The Contractor is requested to use the following components and materials in shelters as
specified below the equivalent or better. Green materials are encouraged. The Contractor will
provide plans showing all appropriate dimensions, gauges, thicknesses and engineering details:

windows or transparent panels below the roof line will be tempered glass or equivalent, at
least 0.001m thick;

exposed steel surfaces and all exposed decorative aluminum panels will have a baked
enamel finish; anti-corrosion materials as well as graffiti resistant coatings are preferred;
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
exterior grade wood grain laminate is considered a desirable material for roof details.
Concrete Pads
If there is no existing concrete pad, each shelter and bench should have a new concrete pad
deploying the latest in specialty concrete designs for a distinctive look and added safety through
increased visibility.
Safety Strip
All glass panels that extend from the roof line to within 0.5 m or less of ground level should be
fitted with a permanent safety strip approximately 0.02 m wide and approximately 1.2 m above
ground level to ward off pedestrians and deter them from walking into the glass. This could be a
design element distinctive to the City.
Filler Material
If no advertising copy or any City-supplied public service message is available for posting on a
given advertising face, the Contractor will post on the advertising face some other public service
message of general interest, an item of art or interest that has been previously approved as filler
material by the City. Except as required during the installation or maintenance of Advertising
Caissons or the posting of copy, no advertising face will be left empty.
LITTER/RECYCLING RECEPTACLES
Receptacle Sizes
Two sizes of containers are required - a larger version for high litter areas and a smaller unit for
less busy areas or for use in areas with sidewalk space constraints. The containers should have a
multi- compartment component so that material can be separated into recyclables and litter. The
large size receptacle should contain 36 gallon bin liners and the smaller sized receptacle should
contain 13 gallon bin liners.
Special consideration will be made for receptacles that contain a multi-compartment component
so that material can be separated into recyclables and litter. Accordingly, the large size
receptacle in this regard should contain 3 x 36 gallon bin liners, two for recyclables and one for
waste. The smaller size receptacle should contain 2 bin liners; 2 x 13 gallon for recyclables and
waste.
Container Design for either Litter Only Receptacles or Combined Waste/Recyclable
Receptacles
The height of all openings for waste and recyclables to not exceed 1065 mm.
•
The contents of the ashtray compartment to be stored separately from the recyclables
and/or waste and should be designed in a manner that prevents scavenging and fires.

Litter openings should be on the pedestrian side of the container.
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
All openings should be designed to facilitate ease of use and to inhibit the illegal
dumping of commercial waste and prevent placement of bagged waste.

Containers should be manufactured of durable material that can withstand the rigors of
usage and maintenance including the removal of graffiti, power washing, etc.

Containers should be weather resistant, preventing rain from entering and freezing in the
container or adding to the weight of the load.

The container is to be fire proof.

Containers should be versatile and modular in design so they can function as a stand
alone contained or attached to a transit shelter or other Street Furniture element.
Compartments should be interchangeable i.e. ashtray.

Each stand alone container should have two access doors such that both the recyclables
and waste can be collected from each side. For ease of collection, waste only and/or
waste/recyclables combination bins should be accessed by opening a single door on the
curb side of the container. To allow an alternate means of access when snow banks or
other materials block the curb side door, a second door should be provided on the
sidewalk side.

The container doors should be equipped with a slam lock and universal, anti-rust key lock
mechanism to keep containers securely closed and to prevent vandalism. The keys
should be of a universal T-type design that can be easily clasped with winter work gloves.
The lock should be located at an easily accessible height.

The container should be designed so that failure of a locking mechanism will not result in
the container becoming a hazard to the public, i.e. from a door swinging open into the
pedestrian or vehicular pathway.

The container should be designed in a manner that allows workers to collect the materials
in a safe work posture and that facilitates fast and efficient collection.

The container should be designed to prevent material from overflowing above the liners
and to allow the inside of the unit to be safely and easily cleaned out.

The container should have drain holes in the floor.

The container should be designed/ mounted in such a manner that material cannot
accumulate underneath the unit.

The container should prevent vermin from entering.

Container design consideration should minimize the visual impact that affects drivers and
pedestrians sight lines.
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Special Considerations for Multi-Compartment (Waste/Recyclables) Receptacles

All containers should contain two-stream compartments so that material can be separated
into accessible recyclables and waste, plus a separate ashtray compartment.
•
Containers should contain a divider between the recyclable liners and the litter to
eliminate cross contamination.
•
The containers should contain two openings, one for litter and one for recyclables.
Openings should be centred over each compartment. The opening for the recycling
stream should be of a key hole design with a length of approximately 0.36 m x 0.10 m
with the centre opening approximately 0.15 m in diameter. The opening for the waste
should be an oval shape design with dimensions of approximately 0.18 m x 0.15 m.
•
Containers should be easily recognizable and the operation of equipment should be
obvious to users and should match expectations for tourists or other first-time users. The
openings should be clearly marked with graphic representation as well as wording.
Container Liners
•
The container liner height should be no higher than 0.95 m.
•
The container liners should be designed to facilitate manual lifting; the empty container
weight should be no greater than 4kg with a reinforced lip design to prevent breaking
when dumping.
•
The container liners should be easily grasped for transfer to the truck and should have
two grasping areas one at the bottom of the bin and the other near the top to allow manual
tipping and dumping. Any handles or grasping surfaces to be easily usable while wearing
winter work gloves. Handles should allow the worker the choice of lifting the container
liner with one hand or both hands and should not require contact with the contents of the
container.
•
The design of the container liner should allow workers to maintain a comfortable body
posture when manually dumping materials into the hopper of any rear or side-loaded
waste collection.
•
The City may decide at some point during this Agreement to collect the material using
mechanical lifters. Therefore, the liners should be able to be retrofitted with wheels,
dumping lip and a retention bar or new roll-cart liners to be provided to the City at the
sole expense of the Contractor.
•
The interior of the container liners should be tapered, free of crevices and recesses where
the materials may become trapped.
Labels
•
The City will provide detailed labeling directions such as size, color, graphics and content.
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•
The Contractor will provide and apply labels.
•
Labels should be made of durable material able to withstand all weather conditions.
•
Labels should be affixed to the container, method to be determined by the City.
INFORMATION/WAY-FINDING STRUCTURES
Information/way-finding structures may be stand alone or an integrated component with other
Street Furniture Elements. A range of designs should show how signage can be located in a
variety of urban contexts, such as corner and mid-block locations along sidewalks.
The information/way-finding structures are to be pedestrian-oriented (e.g. way-finding maps)
and should:
•
be readily identifiable as a location where one can find way-finding information; and
The Contractor is encouraged to propose innovative lighting solutions which do not produce
excessive glare and innovative communication solutions (e.g. audio, video, scrolling text) to
promote interactivity and enhance the user experience.
The information/way-finding structures should be capable of displaying translucent maps and
panels. The information/way-finding structures are to be secure, such that the translucent maps
cannot be removed except by the Contractor's service personnel.
Maps/Directional Information
It is a requirement of this Agreement that the Contractor provides, installs and maintains all
translucent maps and/or directional information signs for display. These items to be provided by
the Contractor at its sole expense and the City will approve and retain ownership of all content
and design.
The Contractor will be required to replace faded maps and update map information every two (2)
years or as required by the City.
The Contractor is encouraged to provide any necessary power to the information/way-finding
signage from renewable sources, after obtaining all necessary approvals from the City.
Broadcast technologies could be considered.
MULTI-PUBLICATION STRUCTURE "A"
Should be designed to:
•
provide for the setting, displaying and storing of paid and non-paid papers or publications
within the multiple publication boxes;
•
allow the individual publishers to have access to empty the coin operated mechanism for
their paper or publication; and
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•
allow for the street or intersection name to be incorporated into the multi-publication
boxes.
Three (3) modular sizes are required for the multi-publication boxes:
•
one that would house up to four (4) publications or have up to four (4) compartments;

one that would house up to eight (8) publications or have up to eight (8) compartments;
and,
•
one to house up to twelve (12) publications or have up to twelve (12) compartments.
Third party advertising is not permitted on the multi-publication structures, but the name(s) of
the newspapers or publications may be shown on the outside of the multi-publication structure
"A" as determined by the City. The individual publishers will be responsible for supplying the
newspapers and stocking the boxes.
The majority of multi-publication boxes will be placed on sites that are currently occupied by
existing groups of newspaper boxes. Sidewalk conditions on many of these sites will prevent the
replacement multi-publication structures from occupying a larger footprint than the existing
news box structures.
The multi-publication structures should occupy a minimum footprint, be as unobtrusive as
possible, be consistent with their function and facilitate cleaning of the sidewalk around the unit.
In the event that the Contractor propose another Street Furniture Element be integrated with a
multi-publication structure, it should be designed such that the Street Furniture Element does not
obstruct or interfere with the front display area of the multi-publication boxes.
POSTERING/NEIGHBOURHOOD INFORMATION KIOSK/STRUCTURE "A"
A single three-dimensional stand-alone element, which should:
•
be able to accommodate multiple posters that do not exceed 0.22 m by 0.28 m in size and
consist of lightweight cardboard or paper;
•
allow for posters to be attached by means of staples or removable tape;
•
be able to accommodate a poster no higher than two (2) metres above ground; and
•
be constructed in a manner that provides for posters to face towards the property fronting
on the street and away from the portion of the street ordinarily used by vehicles.
PUBLIC WASHROOMS
Each public washroom should contain:
•
a commode;
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•
a hand-washing station inclusive of mirror;
•
toilet paper;
•
a paper hand towel dispenser or air dryer;

baby change table;

hygiene disposal units;

ventilation or air conditioning; and

lighting system, including emergency lighting.
Design
Public washrooms may include designs that are integrated with other Street Furniture Elements.
The public washrooms should:

be designed with the ability to automatically self-clean and disinfect the seat and bowl after
every use;

fully clean and disinfect the floor after a designated number of uses;

contain a self-activating warning system that communicates contemporaneously all
significant maintenance and operational problems to the Contractor's operations centre;

provide external indicators informing potential users of whether or not the unit is available
or in use;

provide an emergency alarm system that allows for activation by the user and transmission
to the Contractor's operation centre;

provide a smoke and fire alarm system with an automatic door opening device;

provide an emergency access portal, in addition to the user door, to allow emergency
access by police or other emergency services;

be equipped with a timing device that will cause the door to open after a fixed period of
time, to be generally set at ten (10) minutes, with an audible and visual warning signal to
alter the user two (2) minutes prior to the door's opening;

be capable of accepting a nominal fee for use which may be paid by means of cash, debit,
credit card, smart card or tokens;

have the fee mechanism positioned to facilitate use by children and persons with
disabilities and special needs; and
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
be fully accessible to persons with disabilities.
Maintenance and operation requirements are that:

the public washrooms are to be open to the public 24 hours less the time required for
service and maintenance activities;

the public washrooms are to have a comfortable interior temperature, proper ventilation and
adequate illumination at all times when the washrooms are in operation; and

the Contractor will carry out additional maintenance requirements, including at a minimum,
daily inspections and cleaning of each unit to ensure that all systems are functioning
properly, that the units are clean and that dispensers are fully stocked. The Contractor to
respond immediately to the automated public toilet self-activating maintenance and
operation warning system.
BENCHES
Benches, over and above passenger seating in transit shelters, are required. The benches will
replace existing advertising and non-advertising benches and existing City benches within the
streets. Other bench designs without advertising may be placed by the City in parks and other
non transit locations.
The design of the bench should:
•
deter people from sleeping on them, but accommodate people of all sizes;

be functional and meet TransLink's Universally Accessible Bus Stop Design; and
•
prevent skate boarders using the edges of the benches.
BICYCLE PARKING UNITS
The bicycle parking unit will provide a secure parking station and/or storage facility for bicycles
depending on the location of installation. The design of the parking unit should be modifiable
for different urban and suburban areas of the City. It may be appropriate to incorporate this
bicycle parking unit as a component of the transit shelter design.
The bicycle parking unit should:
•
be resistant to cutting and breaking;
•
support at least two bicycles;
•
allow the frame and at least one wheel of any normal sized bicycle to be securely locked to
the fixture using a standard "U-lock"; and
•
occupy a small amount of space when empty (no bicycles attached).
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INTELLIGENT TRANSPORTATION SYSTEMS
The Contractor may be required to cooperate with TransLink or other agencies to make transit
shelters available for the installation of wiring and equipment and other ongoing maintenance of
automated vehicle location systems as such systems are developed for the City or TransLink.
The Contractor will not be responsible for the acquisition, installation, or maintenance of such
equipment or for associated costs. However, the Contractor, as owner and maintainer of the
transit shelters, will be required to cooperate in its design, installation, and maintenance. This
cooperation will include providing access to the transit shelters to permit automated vehicle
location system installation and maintenance, and ensuring that routine maintenance does not
interfere with the operation of the equipment.
FLEXIBILITY AND SUSTAINABILITY
Street Furniture provided under this program should have the capability to incorporate future
technological and design advancements. The Contractor may be required to undertake programs
allowing for the exploration of new opportunities at fair market value to the City. Should the
Contractor be unable to provide the new items, the City reserves the right to offer such
opportunities to third parties.
The use of sustainable technology such as solar power, reusable or recyclable components is
expected. New innovations such as green roofs and water collection or products or services
which might contribute to an improved Streetscape, environment or access to services are
encouraged and should be explored throughout the duration of this Agreement, as technologies
improve.
For large scale initiatives, such as the 2010 Vancouver Olympics, the Contractor will be
expected to work with the City towards implementing modifications to the Rollout Schedule, and
install specific Street Furniture Elements for key high profile locations.
SUPPLY OF ADDITIONAL STREET FURNITURE THROUGH TERM OF
AGREEMENT
The City may require that additional Street Furniture be installed at any time during the term of
this Agreement. The price for additional Street Furniture, above the agreed upon number of
elements, will be pre-determined in accordance with the information submitted in the Cash Flow
Analysis Form found in Schedule C-5 Proponent's Financial Proposal in the RFP.
ADVERTISING
The design of new Street Furniture, first and foremost, will demonstrate suitability for its
intended uses. The design will be driven by the needs of its users and the public should be able
to instantly recognize the functionality of elements. The size and scale should not be unduly
modified or enlarged simply to accommodate larger Advertising Panels. Advertising should be
tastefully integrated into the design of Street Furniture, not vice versa. The RFP provides clear
parameters for the use and role of advertising in the Street Furniture program.
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There are two basic advertising formats commonly used by advertisers. Primary advertising
format, which provides a larger advertising face preferred by "national" clients and agencies
seeking maximum exposure, wider coverage and generally for a shorter time frame. Secondary
advertising format, which provides a smaller advertising face commonly preferred by "local"
businesses to display their message on an extremely limited and focused basis for a longer time
frame. The City would prefer the use of one (1) standard advertising format – 4 x 6 on all
elements permitting advertising. The Contractor will be permitted to utilize both of these
formats, as follows:
1.
Primary Advertising Format
Consists of an illuminated Advertising Caisson housing national size advertising, which is not
permitted to exceed the standard 1.22 m by 1.83 m (4 feet x 6 feet) dimension. This type of
advertising is permitted on larger scale Street Furniture such as transit shelters, public
washrooms and postering/neighbourhood information kiosk/structures. Advertising Caissons
will not be installed on every Street Furniture Element identified above, based on safety,
visibility and other considerations. The Contractor will work collaboratively with the City to
determine viable locations, but the City will retain final approval.
2.
Secondary Advertising Format
Based on the smaller poster style arrangement, the Contractor will be permitted to install this
type of advertising on other elements not identified above, where appropriately designed. The
exact configuration will depend largely on the design attributes and modularity of the products.
Advertising will not be permitted on benches or on stand-alone elements (i.e. a single element
that is located mid-block), but again, depending on the design, elements may be incorporated in a
cluster of Street Furniture. No more than one advertising element is permitted at any one given
location or "cluster" of Street Furniture. For example, if there is a transit shelter or a public
washroom with an Advertising Caisson, no other advertising would be permitted at that location.
The City has directed that no future pilots involving advertising outside of this program will be
entertained, except where the Contractor is unable, upon the request of the City, to undertake
new Street Furniture opportunities at fair market value to the City. In those circumstances, the
City is to be permitted under the terms of this Agreement to undertake such programs with a
third party other than the Contractor.
The Contractor will provide advertising space for City use, such as event promotion or public
service announcements, equal to 100 total Advertising Panels installed in accordance with the
Agreement. In addition, Street Furniture Elements containing advertising is to be deployed
within business improvement areas and each business improvement area will receive one ad face
for promotion purposes, free of charge, included in the above total.
The display of advertising is to comply with the standards set out by the Advertising Standards
of Canada. Advertising content is to comply with federal and provincial policies and guidelines.
The Contractor is not permitted to advertise tobacco and tobacco related products in any
advertising face installed on Street Furniture Elements located within the City. Further, the
Contractor will not post or permit to be posted any advertising which is, in the opinion of the
City, acting reasonably, not of good character and appearance, free from vulgarity or indecent
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suggestion of any kind or nature. The Contractor is to comply with all such policies.
The City reserves the right to approve or request removal of advertising and the decision of the
City in this regard to be final and binding. The City is entitled to require the Contractor to
remove any advertising that does not comply with the provisions outlined above, and the
Contractor to, at its sole expense, remove the advertising to the satisfaction of the City, acting
reasonably, within a reasonable time frame specified by the City, and the City is not liable to the
Contractor, or anyone claiming through or against the Contractor for any damages, loss, costs or
expenses by reason thereof.
The Contractor will be responsible, at its sole cost, for carrying out all functions associated with
advertising and sponsorship including but not limited to:
a.
using its best efforts to maximize Gross Revenues within the parameters of the program
through a well managed sales and marketing program for the available advertising space;
and
b.
using its best efforts to minimize interference to the City's operations while installing or
removing advertisements.
Under the above criteria, combined with the design requirements outlined in the RFP document,
the City envisions a positive qualitative impact on advertising formats in the streets. The
elimination of competing venues will rationalize the current situation by removing dueling ad
panels, advertising not integrated properly into design and the improper orientation of elements.
The ideal total amount of current advertising is forecasted at approximately 42,000 square feet.
Under this Agreement, the City will require the Contractor to maintain total advertising levels at
no more than this amount.
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SCHEDULE "C"
GUARANTEED MINIMUM ANNUAL REVENUE
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SCHEDULE "D"
STREET FURNITURE ROLLOUT SCHEDULE
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SCHEDULE "E"
STREET FURNITURE DESIGNS DRAWINGS
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SCHEDULE "F"
CAPITAL AND MAINTENANCE COSTS FOR
ADDITIONAL STREET FURNITURE
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SCHEDULE "G"
DEPRECIATION OF STREET FURNITURE ELEMENTS
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SCHEDULE "H"
INSURANCE
Insurance Requirements
The Contractor to be required to provide, prior to the execution of this Agreement with the City,
the following insurance from an insurance company and in a form satisfactory to the City
Solicitor and the General Manager, Engineering:
(a)
comprehensive general liability insurance on an occurrence basis against claims for broad
blanket contractual liability, employer's liability, contingent employers liability, broad
form property damage, non-owned automobile liability, Contractor's protective liability,
personal injury, bodily injury including death and property damage suffered by others
arising in connection with the Street Furniture or out of the operations and liabilities of the
Contractor as contemplated by this Agreement, indemnifying and insuring the Contractor
and the City and their respective officers, employees, elected officials, agents or
subcontractors, in such amounts and to such extent as a prudent owner of the Street
Furniture and such operations would, from time to time, carry, provided that this amount to
not initially be less than Five Million ($5,000,000) Dollars for any personal or bodily
injury, death, property damage or other claim in respect of any one accident or occurrence
and, without limiting the foregoing, with provisions for cross-liability and severability of
interests;
(b)
"all risks" property insurance covering the Street Furniture, trade fixtures and equipment of
the Contractor in the streets on a full replacement basis;
(c)
standard Contractor's automobile liability insurance with limits of not less than Three
Million ($3,000,000.00) Dollars in respect of any one accident; and
(d)
business interruption insurance in an amount sufficient to cover the Contractor's financial
obligations to the City under this Agreement.
The insurance policy or policies placed by the Contractor are to be primary and to not call into
contribution any insurance available to the City. The parties agree that the amount of such
insurance may be increased at the discretion and request of the City, at any time during the term
of this Agreement, which discretion not to be unreasonably exercised.
The Contractor to be responsible for deductible amounts (which amounts to be satisfactory to the
City) under the policies of insurance.
Each of the policies of insurance provided are to contain an agreement by the insurer to the effect
that it will not cancel such policy prior to its expiration, whether by reason of non-payment of
premium, non-fulfillment of conditions or otherwise, except after thirty (30) clear days' prior
written notice to the City.
At the expiry date of the policy, the Contractor to provide original signed certificates evidencing
renewals or replacements to the City prior to the expiration date of the original policies, without
notice or request by the City.
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The City has the right to require the Contractor to provide evidence, from time to time,
satisfactory to the General Manager, Engineering that the Contractor's insurance policies are in
conformity with the requirements of the Agreement.
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