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R97-129 RESOLUTION NO. R97-/~,~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BTWEEN THE CITY OF BOYNTON BEACH AND PAUL W. SMITH ENTERPRISES, INC., DBA BOYNTON TRANSIT ADVERTISING COMPANY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Paul W. Smith Enterprises, Inc. DBA Boynton Transit Advertising Company is interested in installing bus shelters, bus benches, and other forms of street furniture for advertising purposes in the City of Boynton Beach; and WHEREAS, the City Commission has determined a need within the City for bus shelEers and benches to provide shelter and accommodation for residents at bus stops and throughout the city; and WHEREAS, the City of Boynton Beach will incur no foreseeable costs in providing this accommodation to residents; and WHEREAS, the City of Boynton Beach will recover a percentage of the gross monthly sales revenue earned by the company through advertising sales; and WHEREA~, the City Commission deems it in the best interests of the citizens and residents of the City of Boynton Beach to enter into an agreement with Paul W. Smith Enterprises, Inc., DBA Boynton Transit Advertising. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida hereby authorizes and directs the Mayor and City Clerk to execute an Agreement with Paul W. Smith Enterprises, Inc., DBA Boynnon Transit Advertising permitting the installation and maintenance of bus shelters, benches, and other forms of street furniture for advertising purposes in exchange for a percentage of monthly gross sales revenue earned by the Company, said Agreement being attached hereto as Exhibit "A". Section 2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this day of August, 1997. c-- mml s s loner ATTEST: AGREEMENT Between THE CITY OF BOYNTON BEACH And Paul W. Smith Enterprises, Inc. DBA Boynton Transit Advertising Company For Transit Advertising Program/Bus Shelters, Bus Benches, Bus Panels THIS AGREEMENT made and entered into this __ day of , 1997, by and between thc CITY OF BOYNTON BEACH (hereinafter "CITY"), a mumcipal corporation organized under the laws of the State of Florida. and PAUL W. SMITH ENTERPRISES, INC., DBA BOYNTON TRANSIT ADVERTISING COMPANY (hereinafter "COMPANY"'), a corporation organized and existing under the laws of the State of Florida. WITNESSETH: WHEREAS, COMPANY is a corporation organized under the laws of the State of Florida and licensed to do business in thc State of Florida; and WHEREAS. COMPANY is in the business of erecting bus stop shelters and installing bus benches for use by the general public for the purpose of selling and placing advertising within bus stop shelters and on benches: and WHEREAS. CITY desires to supply residents with shelter from inclement weather and/or convenience and accommodation at bus stops and proposes to supply said need at no cost to CITY; and WHEREAS. thc operators of the Palm Beach county transit system support and recommend acceptance of this proposal in order that the benefits thereof may inure to the convenience of its patrons. NOW THEREFORE. in consideration of the mutual cOVenants contained herein, it is stipulated and agreed as follows: Section 1. Exclusivity. This Agreement constitutes an exclusive agreement between CITY AND COMPANY with respect to the matters set forth herein. However, this Agreement has no adverse effect on the prior agreement between the CITY and Flutie Enterprises, Inc., its successors and assigns, dated August 3, 1994. CITY shall not enter into any other agreement for transit advertising while this Agreement is in effect: Section 1.5 Ownership and Location. CITY grants to COMPANY the right to construct, erect, and maintain bus shelters and benches within the City of Boynton Beach at specifically designated locations within the City of Boynton Beach along the transit systems' bus mutes or places of public convenience. COMPANY may erect up to twenty-five (25) bus shelters and fifty (50) benches upon the road rights-of-way or on private 1 7124197 property, provided that COMPANY obtains any required easements, lease or license agreements with the property owner of the site. CITY. to the extent of its ownership of the site, shall reasonably execute such easements, leases, or license agreements to effectuate COMPANY's use of the site. All conveyance documents shall be in a form approved by the City Attorney for CITY. CITY and COMPANY agree that bus shelters and benches maY be erecte& provided the required leases, licenses and/or easements can be secured, and provided said structures comply with the City of Boynton Beach . from time to time, and any and County above are not exceeded. C. In the event COMPANY decides to Boynton BeaCh. it shall deliver I CITY shall have twenty (20) days objections it has to the prescribed time period shall result in D. The criteria Composite Exhibit "C". ~ that the threshold limits of Paragraph (A) nches at other locations in the City of of such desired locations. The notice to notify COMPANY of any ~bject to a proposed location within the The design and E. COMPANY may, within each shelter, or On each bench, display advertising, promotional or public service material, excluding adveffising advertising material request by CITY shall result in 1 Bus Advertising: COMPANY may, in accordance with this Agreemen[ No advertising affixed on a bench shall (but not :both) of the bench and shall not height. or of an i Any t0) days of a written advertising ~ITY,owned and operated bus place advertising front or rear surface of the backrest than six (6)feet in length and two (2) feet in H. No bench, unless authorized by CITY shall be placed so that the angle of its long diversion in relation to the curb line is greater than thirty (30) degrees. No bench, unless authorized by CITY shall be placed so tha! it is closer than thirty. -six (36) inches to the face of the curb. I Should any bench fail to conform to the criteria herein or should a residential property owner object to the presence of a bench.abutting his property, then the CITY may order removal of the bench by written notice, to COMPANY~ If cO~A~ has not removed the bench within twenty (20) days of the date of written notice, the CITY may remove the same at the sole cost and expense of COMPANY. COMPANY shall pay CITY (20) days of .any written request for reimbursement, and failure to :do so of this Agreement. J. The CITY reserves the right areas or areas of historical significance from the placement of benches and bus shelters. CITY reserves the right to, upon notice to COMPANY, order the removal of a exercising good faith, finds not be be located in the best interest of the removed the bench within fifteen (15) days of the date of written notice,, the same at the sole cost and expense of COMPANY. COMPANY ~ written request for reimbursement, and failure to do:~, of this Agreement. Section 2. Installation and Maintenance. COMPANY shall erect, install, light, clean, maintain, repair or replace in compliance with all applicable City, County, State. Federal, or other regulatory codes, these shelters and benches at no cost whatsoever to CITY. Bus shelters shall be designed and built to reflect the predominant design of the area. as described in Exhibit "B". General maintenance shall be performed on a weekly basis and damage to any-shelter or bench shall be repaired immediately, but under no circumstances later than five 7/24/97 (5) days of COMPANY receiving written notification from ~ITY. COMPANY agrees to comply with the terms and conditions of the Ci.ty of Boynton Beach sign ordinance. CITY shall not modify the sign ordinance to weaken, damage or invalidate this Agreement. Section 3. Indemnification. COMPANY agrees to indemnify and hold harmless the CITY. its officers, agents, and employees against any and all claims, losses, liabilities, or expenditures of any kind, including but not limited to courl costs, expenses, attorney fees. and sales tax. if any, accruing or resulting from any and all suits, claims, demands, or damages of any character resulting from injuries or damages sustained by any person or persons, or corporations or property, by virtue of the design, construction~ maintenance, use, location and/or operation of the bus shelters or benches. COMPANY acknowledges and represents that the execution of this Agreement by the CITY constitutes sufficient consideration to support the indemnification by COMPANY. This indemnification shall survive cancellation or termination of this Agreement. Nothing contained herein shall constitute a waiver of immunity as provided in Section 768.28. Florida Statutes. Section 4. Insurance Requirements. Throughout the term of this Agreement, COMPANY shall maintain in force at his own expense, insurance as:follows: Workers' Compensation. Thc Company consists of the owner (1) with no employees and the City hereby waives the requirement for Workers Compensation. In the even the Company hires any employees, then the Company shall immediately provide Workers' Compensation Insurance. with statutory limits, including coverage for Employers' Liability Insurance. with limits not less than One Hundred Thousand ($100,000) Dollars each accident, One Hundred Thousand ($100,000) Dollars each disease, and Five Hundred Thousand ($500,000) Dollars aggregate disease. In the case of any subcontracted work, COMPANY shall require the subcontractor to provide statutory Workers' Compensation and Employers' Liability Insurance with the same limits as imposed by this subsection. General Liability. Commercial General Liability Insurance with limits not less than One Million ($1.000.000) Dollars per occurrence combined single limit for bodily injury and property damage including coverage for premises and/or operations, independent contractors, contractual liability, personal liability, personal injury, broad form property damage, products, and completed operations. These coverages are required of COMPANY and any subcontractor or anyone directly or indirectly employed by either of them. Automobile Liability. In the event the Company owns automobiles or vehicles, it shall provide Comprehensive and Business Automobile Liability Insurance for all Company owned vehicles, with limits not less than One Million ($1,000,000) Dollars per occurrence combined single limit for Bodily Injury and Property Damage including coverages for owned, hired, and non-owned vehicles, as applicable. COMPANY and its subcontractors shall take out and maintain these coverages as shall protect it against claims for damages resulting from bodily injury, including wrongful death, and property damage which may arise from the operations of any owned, hired, or non-owned automobiles and/or equipment used by it in any capacity in connection with the performance of this Agreement. 3 7/24/97 D. General. 1. Should any or the reqmred insurance be provided under a claims-made form, COMPANY shall maintain such coverage continuously throughout the term of this Agreement and. without lapse, for a period of five (5) years beyond the contract expiration should occurrences during the term of the Agreement give rise to claims- made policies. 2. Should any of the required insurance :be provided under a form of coverage that includes a general annual aggregate limit and provides that claims investigation or legal defense costs be included, m such general aggregate limit,~ such general annual aggregate ~ccurrence limits specified above. 3. s shall be endorsed to provide the following,: a; Name as an additional insured the' CITY, its officers; agents, employees, and commissioners. b. That such. insurance is pri:ma~ to available to the additional insured's with respect to claims licy and that insurance applies separately made or suit is brought, but the inclusion of more than one insured not operate to increase the insurer's limit of liability. 4. All policies shall be endorsed to provide for thirty (30) days Prior written notice of cancellation, non-renewal, or reduction in coverage limits to: Section 5. City Manager City of Boynton Beach 100 East Boynton Beach Boulevard P.O: BOX 310 Boynton Beach, Florida 33425-0310 Before commencement of the terms of this contract, certificates of insurance, in a form acceptable to the CITY Risk Management Department evidencing all required insurance, shall be furnished to the CITY with completed copies of policies to CITY promptly upon request. COMPANY shall be solely and! fully responsible for conditions of the job site in which a shelter or bench is being constructed or installed, including the safety of all persons (including employees) and property during the performance of work. This requirement shall apply continuously and not be limited to normal working hours. Safety provisions shall conform to U.S. Department of Labor (OSHA), Florida Department of Labor (DOL), and all other applicable Federal, State, County and local laws. ordinances, codes and regulations. Where any of these are in conflict. the more stringent requirements shall be followed. The Company's failure to thoroughly familiarize itself with the aforementioned safety provisions shall not relieve him from compliance with the obligations and penalties set forth therein. Subcontractor's Insurance. COMPANY shall require each subcontractor to take out and maintain during the life of the subcontract the same insurance coverages required of COMPANY pursuant to this Agreement. Each subcontractor shall furnish to COMPANY two (2) certificates of insurance, and COMPANY shall provide one (1) copy of the certificate of insurance to CITY. Coordination of Shelters. 4 7124/97 COMPANY shall obtain the required permits from the agency having jurisdiction over bus stop shelters and benches, and the lands on which they are located, including but not limited to the Palm Beach Court .ty, the City of Boynton Beach, and the Florida Department of Transportation, C1TY hereby waives all permitting fees in connection with the installation of bus shelters. Any permit fees required by entities other than the CITY are the responsibility of COMPANY. Section 5.5 Street Furniture. COMPANY may install street furniture within the City of Boynton Beach. Street furniture shall consist of bicycle racks, directories, and waste receptacles. COMPANY shall submit a visual rendition and specifications for the street furniture together with an accurate description of the site for approval by CITY prior to the installation of any street furniture. City shall have twenty (20) days to approve or deny COMPANY's request. CITY may request that COMPANY install street furniture at specified locations. COMPANY shall not unreasonably deny CITY's request. Notwithstanding the above, street furniture shall be subject to the terms and conditions of this Agreement. COMPANY may install up to twenty (20) bicycle racks, fifteen (15) directories, and thirty (30) trash receptacles with advertising. Section 5.7 Trash Removal. Should a trash receptacle be installed pursuant to Section 5.5, the CITY shall remove the trash from the receptacle at least once per week without cost to COMPANY. COMPANY shall be responsible for maintaining a clean environment in the areas where COMPANY's street furniture, bus shelters and benches are located. Section 6. Payment to CITY. COMPANY shall pay to CITY a percentage of the gross sales each month calculated pursuant to the following schedule and remitted quarterly: Monthlv Gross Sales Revenue Percentage Paid to CITY $0 - $5,000 5% $5.001 - $15,000 10% over $15,000 15% Section 7. Number of Shelters/Benches. The number of shelters and benches provided for under this Agreement may be increased by written agreement of the parties. Section 8. Contract Term. The term of this Agreement shall be ten (10) years from the date CITY executes the Agreement. Thc Agreement shall be automatically extended for two terms of five (5) years, unless either party notifies the other of its intention not to renew the Agreement within one hundred eighty (180) days of the termination date. Section 9. Public Service Announcement. On a space available basis. COMPANY shall allow for CITY-approved public service announcements to be advertised within the shelters, at no charge to CITY. Section 10. Notice. 5 7/24/97 All notices pertaining to this Agreement shall be in writing. Notice shall be made by hand- delivery, or certified mail. return receipt requested! as follows: As to CITY: City Manager City Hall 100 East Boynton Beach Boulevard P.O. Box 310 Boynton Beach. Florida 33425-0310 As to COMPANY: Boynton Transit Advertising Company P.O. Box 740094 Boynton Beach, Florida 33474 Section 11. Waiver. A waiver of any breach or default of any provision of this Agreement shall not constitute or operate as a waiver of any other breach or default of such provision or of any other provisions, nor shall any failure to enforce any provisions hereof operate as a waiver of such provision or any other provision. Section 12. DefaulC This Agreement may be terminated upon the default of any condition of this Agreement by giving notice in writing and thirty. (30) days to correct such default. Should any party fail to correct said default within the thirty (30) day period, the contract shall be automatically terminated, unless additional time to correct the default is granted in writing by the non-defaulting party. In the event COMPANY defaults and fails to correct. COMPANY shall remove its shelters, benches, and street furniture, and restore the site to its original condition at no cost or liability to CITY within sixty (60) days of contract termination. Should COMPANY fail to remove its shelters, benches, and other equipment within the prescribed period. CITY may remove said shelters, benches, and street furniture at COMPANY's expense. CITY may dispose of the shelters, benches, and street furniture in any manner it sees fit, at no cost or liability, whatsoever, to CITY. Section 13. Successors. This agreement may not be assigned or transferred without the express written consent of the City Manager. Section 14, Survivability, All the terms, conditions, provisions, and representations contained herein shall survive and transcend the execution of this Agreement. Section 15, Authorship, In the event it becomes necessary for any reason to construe this Agreement as permitted by the Rules of Evidence of the State of Florida, this Agreement shall be construed as being jointly prepared and drafted by the parties hereto, and shall be interpreted under the laws of the State of Florida. Section 16. Entirety. ~2~97 This Contract contains the entire Agreement and understanding between the parties as to the matters contained herein. Any oral representation or modifications concerning this Agreemem shall be of no force and effect. Section 17. Enforcement. Company shall not be held in default of this Agreement if it is prevented from performing hereunder by conditions entirely beyond its control such as acts of God. strikes, wars and other emergencies making performance impossible or illegal provided the Company makes a good faith effort to cure same and notify City of any condition which the Company believes makes performance impossible or illegal. In the event that either party has recourse to a court of competent jurisdiction in order to enforce this Agreement. venue shall be Palm Beach County, Florida. Section 18~ Titles of Sections. Section headings inserted herein are for convenience only, are not intended to be used as aids to interpretatiOn, and are not binding on the parties. Section 19. Amendment. This Agreement may be modified or amended only by written Addendum to Agreement duly executed by both parties hereto. Section 20. Accounting and Records. Beginning fiscal year 1998. COMPANY shall submit to the City Manager of CITY an accounting compilation prepared by a Florida certified public accountant at the end of each year to verify compliance with the financial conditions and terms of this Agreement. Section 21. Non-advertising Benches. COMPANY shall provide five (5) non-advertising benches, or one (1) non-advertising bench for every, five (5) advertising benches, whichever is greater, to be installed by COMPANY at locations designated by CITY. COMPANY shall maintain the non-advertising benches in accordance with this Agreement. Section 22. Exemptions. Shelters and benches placed at private facilities not on public road eight-of-ways and requiring payments to the property owner shall be exempt from this Agreement. ff there are no requirements for payment to a property owner at a public facility, then the revenue earned from advertising, ff any, shall be included in the total amount calculated for the purpose of making payment to the City as provided for in this agreement. Section 23. SeverabiliW. If any provision of this Agreement or application thereof to any person or situation shall to any extent, be held invalid or unenforceable, the remainder of this Agreement, and the application of such provisions to persons or situations other than those as to which it shall have been held invalid or unenforceable shall not be affected thereby, and shall continue in full force and effect, and be enforced to the fullest extent permitted by law. Section 24. Non-waiver. 7 7/24/97 Waiver by the Cily of any provision of this agreement or any time limitation provided for in this agreement shall not constitute a waiver of any other provision IN WITNESS WHEREOF. the panics hereto have caused these presents to be executed on the date and year indicated below: Witnesses: CITY OF BOYNTON BEACH Approved as to form:. . / / ?""!-~ 7zf Ci.ty Attorney Witnesses: BOYNTON TRANSIT,J~VERTIS1NG, INC snii~ wp\agmts\bosmton tra~qit agreement 7/24t97 Exhibit A Bus Stop Locations Installation of bus shelters and benches are permitted at bus stops of both City and Palmtran bus service routes within the city limits of Boynton Beach in accordance with section 1.5 of this agreement. The following initial sites and/or number of benches are approved subject to Company obtaining the building permits for shelters and providing written notice to the City manager of the intended bench locations as provided for in this agreement. Shelter Locations Bench Locations Oakwood Square Catalina Center Shoppes of Boynton / Congress Shoppes of Boynton / Gateway Motorola / Gateway MeadoWs Plaza Congress and Plaza Lane / northbound ¢romenade at Bdynton Beach ~unshine Square Boynton Plaza Boynton Beach Public Library Gateway Road (2) Boynton Beach Blvd (2) Seacrest (3) Lawrence Road (1) Old Boynton Road (1) Federal Highway (3) Congress Ave (2) Ocean Ave (1) Total: 11 15 Non ad benches: City shall provide in writing to the Company the locations where the non-ad benches are to be placed. \\ jfSL © _J EXHIBIT C BUS BENCH CRITERIA ,Size: Construction: Hardware: Advertisng Panels: Iolor: anufacturer: Six feet long Benches shall be made of recycled plastic lumber with a density of .930 to .980 g/cc (ASTM D 792) and a compressive stength of 3000 to 4700 #/inch. Tensile strength shall be 1500 psi. All fasteners shall be stainless steel. The bench backs will be advertising panels constructed of aluminum framing 2' x 6' with clear lexan or plexiglas diplay panels affixed to 1/2" crezone treated plywood and attached to plastic lumber support braces. Gray Amedcan Earth Friendly, Delray Beach Florida, or equal. American 'Earth Friendly, Inc. BUS STOP BENCH 100% Post Consumer Recycled Plastic Lumber 4ft. Legs / 30" x 2I" x 48" I10 lbs x 21" x 60" 135 lbs. 6ff. ~ 72" 165 lbs. 8 f. / x 21" x 96" 220 lbs. 2" x 4" / 2" x 6" Board construction (seating / back) Black Legs: "h" profile are 100% recycled Stainless Steel hardware available Colors: Gray / Brown / Tan Custom colors: available 25 YEAR LIMITED WARRANTY 100% Maintenance free / Non-absorbent / Will never dryrot Waterproof/Skid resistant / Splinter-proof Not effected by Termites or Ants Will not Split, Crack, or Chip Never needs Painting or Sealing Maintains its clean appearance year after year "ENVIRONMENTALLY FRIENDLY" 1450 S.W. 10th Street, #2 · Delray Beach, FL 33444 oph: (407) 276-4152 · Fax (407) 276-3965 "Your plastic debris, will save a tree." Printed on recycled paper AGREEMENT Between THE CITY OF BOYNTON BEACH And Paul W. Smith Enterprises, Inc. DBA Boynton Transit Advertising Company For Transit Advertising Program/Bus Shelters, Bus Benches, Bus Panels THIS AGREEMENT made and entered into this ,.4" day of /¢7~ag~'-, 1997, by and between the CITY OF BOYNTON BEACH (hereinafter "CITY"), a municipal corporation organized under the laws of the State of Florida, and PAUL W. SMITH ENTERPRISES, INC., DBA BOYNTON TRANSIT ADVERTISING COMPANY (hereinafter "COMPANY"), a corporation organized and existing under the laws of the State of Florida. WITNESSETH: WHEREAS, COMPANY is a coq~oration organized under the laws of the State of Florida and t licensed to do business inthe State of Florida; and WHEREAS. COMPANY is in the business of erecting bus stop shelters and installing bus benches for use by the general public for the purpose of selling and placing advertising within bus stop shelters and on benches; and WHEREAS. CITY desires to supply residents with shelter from inclement weather and/or convenience and accommodation at bus stops and proposes to supply said need at no cost to CITY; and WHEREAS, the operators of the Palm Beach County transit system support and recommend acceptance of this proposal in order that the benefits thereof may inure to the convenience of its patrons. NOW THEREFORE. in consideration of the mutual covenants contained herein, it is stipulated and agreed as follows: Section 1. Exclusivity. . This Agreement constitutes an exclusive agreement between CITY AND COMPANY with respect to' the matters set forth herein. However, this Agreement has no adverse effect on the prior ag~/eement between the CITY and Flutie Enterprises, Inc., its successors and assigns, dated August 3, i 994. CITY shall not enter into any other agreement for transit advertising while this Agreement is in effect. Section 1.5 Ownership and Location. CITY grants to COMPANY the right to constroct, erect, and maintain bus shelters and benches within the City of Boynton Beach at specifically designated locations within the City of Boyntun Beach along the transit systems' bus routes or places of public convenience. COMPANY may erect up to twenty-five (25) bus shelters and fifty (50) benches upon the road rights-of-way or on private 1 ~2~97 property, provided that COMPANY obtains any required easements, lease or license agreements with the property owner of the site. CITY, to the eXt~nt of its ownership of the ,site, s~all reasonably execute such easements, leases, or license agreements to effectuate COMPANY s use of the site. All conveyance documents shall be ~ for CITY. CITY and COMPANY agree provided the required the City of and ~and ~,(A) agreed above are not exceeded. CITY shall I D. The other locations in the City of notice of such desired lOCations. The notify any within the E. COMPANY may, - service material. Bus Advertising: N height. No bench, unless to the curb'line placed so that it Should an, CITY shall be the date of written notice, the COMPANY. COMPANY reimbursement, and The CITY reserves the placement of benches and the removal ora particular the best interest of t the date 'of written COMPANY: rcimbursemenL and: the days ~f this Agreement° public aature. Any written_., ~- feet in t in relation CITY shall be owner object bench by of request for ,~ from the 2OMPANY, order not be be located in days of expense of ~tten request for Section 2. Installation and Maintenance. COMPANY: shall erect, install, light, clean, maintain, repair or replace in compliance with all applicable City, County, State. Federal, or other regqlatory codes, these shelters and benches at no cost whatsoever to CITY. Bus shelters shall be designed and built to reflect the predominant design of the area. as described in Exhibit "B'. General maintenance shall be performed on a. weekly basis and damage to any shelter or bench shall be repaired immediately, but under no circumstances later than five 7/24/97 (5) days of COMPANY receiving written notification from CITY. COMPANY agrees to comply with the terms and conditions of the Ci.ty of Boynton Beach sign ordinance. CITY shall not modify the sign ordinance to weaken, damage or invalidate this Agreement. Section 3. Indemnification. COMPANY agrees to indemnify and hold harmless the CITY, its officers, agents, and employees against any and all claims, losses, liabilities, or expenditures of any kind, including but not limited to court costs, expenses; attorney fees, and sales tax. if any, accruing or resulting from any and ail suits, claims, demands, or: damages of any character resulting from injuries or damages sustained by any person or persons, or corporations or property, by virtue of the design, construction, maintenance, use, location and/or operation o[ the bus shelters or-benches. COMPANY acknowledges and represents that the execution of this Agreement by the CITY c°nstitutes sufficient consideration to support the indemnification by COMPANY. This indemnification shall survive cancellation or termination of this Agreement. Nothing contained herein shall constitute a waiver of r immunity as provided 'in Section 768 28. Florida StatUtes. Section 4. Insurance Requirement~ Throughout the term of this Agreement. COMPANY shall maintain in force at his own expense, insurance as follows: Workers' Compensation. The Company consists of the owner (1) with no employees and the City hereby waives the requirement for Workers Compensation. In the even the Company hires any employees, then the Company shah immediately provide Workers' Compensation Insurance: with statutory limits, including coverage for Employers' Liability Insurance, with limits not less than One Hundred Thousand ($100,000) Dollars each accident, One Hundred Thousand ($100,000) Dollars each disease, and Five Hundred Thousand ($500,000) Dollars aggregate disease. In the case of any subcontracted work, COMPANY shall require the subcontractor to provide statutor3, Workers' Compensation and Employers' Liability Insurance with the same limits as imposed by this subsection. General Liability. Commercial General Liability Insurance with limits not less ~an One Million ($1'.000.000) Dollars per occurrence combined single limit for bodily injury and property damage including coverage for premises and/or operations, independent contractors, contractuai liability, perSOnai liability, personal injury, broad form property damage, products, and completed operations. These coverages are required of COMPANY and any subcontractor or anyone directly or indirectly employed by either of them. Automobile Liability. In the event the Company owns automobiles or vehicles, it shail provide Comprehensive and Business Automobile Liability Insurance for ail Company owned vehicles, with limits not less than One Million ($1,000,000) Dollars per occurrence combined single limit for Bodily Injury and Property Damage including coverages for owned, hired, and non-owned vehicles, .as applicable. COMPANY and its subcontractors shall take out and maintain these coverages as_ shall protect it against claims for damages resulting from bodily injury, including wrongful death, and property damage which, may arise from the operations of any owned, hired, or non-owned automobiles and/or equipment used by it in any capacity in connection with the performance of this Agreement. 3 ~24~7 General: 1. Should any or the required inSurance be provided under a claims-made form, COMPANY shall maintain such cOVerage continuously throughout the term of this Agreement and, without lapse, for a period of five (5) years beyond the contract expiration should occurrences during the term of the Agreement give rise to claims- made policies. legal Section 5. ao ;.prim~ to:any othe~ ~he and that ~made or to 4. All policies ' thirty (30) dayS prior written notice of cancellation to · City Manager :' ~, City of Boynton Beach 100 East ] ~ Boulevard Boynton Beach, Florida 33425-0310 5. 'Before commencement of the terms of this contract, certificates of insurance, in a form acceptable tothe CITY Risk Management Department evidencing all required insurance, shall be furnished to the CITY with completed copies of policies to CITY promptly upon request. 6. COMPANY shall be Solely and fully responsible for conditions of the job site in which a shelter or bench is being conStructed or installed, including the safety of all persons (including employees) t~nd property during the performance of work. This requirement shall apply continuously and not be limited to normal working hours. Safety provisiOns shall conform to U.S. Department of Labor (OSHA), Florida Department of Labor (DOL), and all other applicable Federal, State, County and local laws, ordinanCes~ codes and regulations. Where any.of these are in conflict, the more stringent requirements sl~ll be followed. The companY's` failure to thoroughly fan~liarize itself with the aforementioned safety provisions shall not relieve him from comPliance with the obligations and penalties set forth therein. Subcontractor's Insurance. COMPANY shall require each subcontractor to take out and maintain during the life of the subcontract the same insurance coverages required of COMPANY pursuant to this Agreement. Each subcontractor shall furnish to COMPANY two (2) certificates of insurance, and COMPANY shall provide one (1) copy of the certificate' of insurance to CITY. Coordination of Shelters. 7/24/9'/ COMPANY shall obtain the required permits from the agency having jurisdiction over bus stop shelters and benches, and the lands on which they are located, including but not limited to the Palm Beach County, the City of BoyntOn Beach, and the Florida Department of Transportation. CITY hereby waives all permitting fees in connection with the installation of bus shelters. Any permit fees required by entities other than the CITY are the responsibility of COMPANY. Section 5.5 Street Furniture. COMPANY may install street furniture within the City of Boynton Beach. Street furniture shall consist of bicycle racks, directories, and waste receptacles. COMPANY shall submit a visual rendition and specifications for the street furniture together with an accurate description of the site for approval by CITY prior to the installation of any street furniture. City shall have twenty (20) days to approve or deny COMPANY's request. CITY may request that COMPANY install street furniture at specified locations. COMPANY shall not unreasonably deny CITY's request. Notwithstanding the above, street furniture shall be subject to the terms and conditions of this Agreement. COMPANY may install up to twenty (20) bicycle racks, fifteen (15) directories, and thirty (30) trash receptacles with advertising. Section 5.7 Trash Removal. Should a trash receptacle be installed pursuant to Section 5.5, the CITY shall remove the trash from the receptacle at least once per week without cost to COMPANY. COMPANY shall be responsible for maintaining a clean environment in the areas where COMPANY's street furniture, bus shelters and:, benches are located. Section 6. Payment to CITY. COMPANY shall pay to the following schedule and remitted Monthly Gross Sales Reve me $0 - $5.000 $5,001 - $15,000 over $15.000 Section 7. Number of Shell The number of shelters m written agreement of the parties. Section 8. Contract Term. ITY a percentage of the gross sales each month calculated pursuant to quarterly: Percentage Paid to CITY 5% 10% 15% rs/Benches. ri benches provided for under this Agreement may be increased by The term of this Agreeme~ t shall be ten (!0) years from the date CITY executes the Agreement. The Agreement shall be automatic~ y extended for two terms of five (5) years, unless either party notifies the other of its intention not to renew the Agreement within one hundred eighty (180) days of the termination date. Section 9. Public Service Announcement. On a space available basis} COMPANY shall allow for CITY-approved public service announcements to be advertised within the shelters, at'no charge to CITY. Section 10. Notice. 7/24/97 All notices pertaining to this Agreement shall be in writing. Notice shall be made by hand- delivery or certified mail, return receipt requested, as follows: As to CITY: City Manager City Hall 100 East Boynton Beach Boulevard P.O. Box 310 Boynton Beach. Florida 33425-0310 As to COMPANY: Boynton Transit Advertising Company P.O. Box 740094 Boynton Beach, Florida 33474 Section 11. Waiver. A waiver of any breach or default of any provision of this Agreement shall not constitute or operate as a waiver of any other breach or default of such provision or of any other provisions, nor shall any failure to enforce any provisions hereof operate as a waiver of such provision or any other provision. Section 12. Default. This Agreement may be terminated upon the default of any condition of this Agreement by giving notice in writing and thirty (30) days to correct such default. Should any party fail to correct said default within the thirty (30) day period, the contract shall be automatically terminated, unlessadditional time to correct the default is granted in writing by the non-defaulting party. In the event COMPANY defaults and fails to correct. COMPANY shall remove its shelters, benches, and street furniture, and restore the site to its original condition at no cost or liability to CITY within sixty (60) days of contract termination. Should COMPANY fail to remove its shelters, benches, and other equipment within the prescribed period. CITY may remove saidsbelters, benches, and street furniture at COMPANY's expense. CITY may dispose of the shelters, benches, and street furniture in any manner it sees fit, at no cost or liability, whatsoever, to CITY. Section 13. Successors. This agreement may not be assigned or transferred without the express written consent of the City Manager. Section 14. Survivability. All the terms, conditions, provisions, and representations contained herein shall survive and transcend the execution of this Agreement. Section 15. Authorship, In the event it becomes necessary for any reason to construe this 'Agreement as permitted by the Rules of Evidence of the State of Florida, this Agreement shall be construed as being jointly prepared and drafted by the parties hereto, and shall be interpreted ~under the laws of the State of Florida. Section 16. Entirety. 7/24t97 This Contract contains the entire Agreement and understanding between the parties as to the matters contained herein. Any oral representation or modifications concerning this Agreement shall be of no force and effect. Section 17.~ Enforcement. Company shall not be held in default of this Agreement if it is prevented from performing hereunder by conditions: entirely beyond its control such as acts of God, strikes, wars and other emergencies making performance impossible or illegal provided the Company makes a good faith effort to cure same and notify City of any condition which the Company believes makes performance impossible or illegal. In the event that either party has recourse to a court.of competent jurisdiction in order to enforce this Agreement. venue shall be Palm Beach County, Florida. Section 18~ Titles of Sections. Section headings inserted herein are for convenience only, are not intended to be used as aids to interpretation.' and are not binding on the parties. Section 19. Amendment~ ~ This Agreement ma,v be modified-or amended only by written Addendum to Agreement duly executed by both parties hereto. Section 20. Accounting and Record~ Beginning fiscal year 1.998, COMPANY shall submit to the City Manager of CITY an accounting compilation prepared by a Florida certified public accountant at the end of each year to verify compliance with the financial conditions and terms of this Agreement. Section 21. Non-advertising Benches. COMPANY shall provide five (5) non-advertising benches, or one (I) non-advertising bench for every, five (5) advertising benches, whichever is greater, to be installed by COMPANY at locations designated by CITY. COMPANY shall maintain the non-advertising benches in accordance with this Agreement. Section 22, Exemptions. Shelters and benches placed at private facilities not on public road eight-of-ways and requiring payments to the property owner shall be exempt from this Agreement. If there are no requirements for payment to a property owner at a public facility, then the revenue earned frOm advertising, if any, shall be included in the total amount calculated for the purpose of making payment to the City as provided for in this agreement. Section 23. Severability. If any provision of this Agreement or application thereof to any person or situation shall to any extent, be held invalid or unenforceable, the remainder of this Agreement, and the application of such provisions to persons or situations other than those as to which it shall have been held invalid or unenforceable shall not be affected thereby, and shall continue in full force and effect, and be enforced to the fullest extent permitted by law. Section 24. Non-waiver. 7/24/97 -7 agreement shall IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the date and year indicated below: Witnesses: Date: Witnesses Attest: BOYNTON TRANSIT~ INC. wp~agmts~boy~ton transit a~eemem 7~24/97 Exhibit A Bus Stop Locations Installation of bus shelters and benches are pemfitted at bus stops of both City and Palmtran bus service routes within the city limits of Boynton Beach in accordance. with section 1.5 of this agreement. The-following initial sites and/or number of b~enches are approved subject to Compan.v obtaining the btfilding permits for shelters and providing written notice to the City manager of the intended bench ldcations as provided for in this agreement. Shelter Locations Bench Locations 0 C SI SI IV. C S~ B T akwood Square atalina Center ~oppes of Boynton / Congress mppes ofBoynton / Gateway 2otorola / Gateway ieadows Plaza angress and Plaza Lane / northbound · omenade at Boynton Beach mshine Square >ynton Plaza >ynton Beach Public Library Gateway Road (2) Boynton Beach Blvd (2) Seacrest (3) Lawrence Road (1) Old Boynton Road (1) Federal Highway (3) Congress Ave (2) Ocean Ave (1) ~ >tal: 11 15 Npnad benches: City shall provide in writing to the Company the locations where the non-ad benches are to be placed. ~oo'zi oJ. J J EXHIBIT C BUS BENCH CRITERIA Six feet long Benches shall be made of recycled plastic lumber with a density of .930 to .980 g/cc (ASTM D 792) and a compressive stength of 3000 to 4700 # / inch. Tensile strength shall be 1500 psi. H C ardware: All fastenersshall be stainless steel. :lvertisng Panels: The bench backs will be advertising panels constructed of aluminum framing 2' x 6' with clear lexan or plexiglas diplay panels affixed to 1/2" Crezone treated plywood and attached to plastic lumber suppOrt braces. ~lor: Gray Manufacturer; American Earth Friendly, Delray Beach Florida, or equal. American Earth Friendly, Inc, BUS STOP BENCH 100% Post COnsumer Recycled Plastic Lumber 4fl. / Two=Legs ~ / 30' x 21" x 48'' 110 lbs 5 1~. 135 lbs. 6 x 72" 165 lbs. 8 t~. c 96" 220 lbs. 2" x. 4" / 2'~' x 6" Board Construction (seating / back) Black Legs: "h" profile are 100% recycled Stainless steel hardware available Colors: Gray/Brown / Tan Custom colors: available 25 YEAR LIMITED WARRANT .~ 100% Maintenance free/Non-absorbem / Will never dryrot Waterproof/Skid resistant/Splinter-~roof Not effected by Termites or Ants Will not Split, Crack, or Chip Never needs Painting or Sealing Maimains its clean appearance year after year "ENVIRONMENTALLY FRIENDLY" 1450 S.W. 10th Street, #2 · Delray Beach, FL 33444 · Ph: (407) 276-4152 · Fax (407) 276-3965 "You~ plastic debris, will save a tree." Printed on recycled paper Exhibit A Bus Stop Locations nstallation of bus shelters and benches are permitted at bus stops of both City and ~almtran bus service routes within the city limits of Boynton Beach in accordance vith section 1.5 of this agreement. The following imtial sites and/or number of ~enches are approved' subject to Company obtaining the building permits for helters and providing written notice to the City manager of the intended bench ~cations as provided for in this agreement. ;helter Location~q )akwood Square '~atalina Center ,hoppes ofBoynton / Congress ,hoppes of Boynton / Gateway /lotorola / Gateway l~/Ieadows Plaza (~ongress and Plaza Lane / northbound ~ ~:omenade at Boynton Beach ~ unshine Square l~oynton Plea [~oynton Beach Public Library Bench Locations Gateway Road (2) Boynton Beach Blvd (2) Seacrest ( 3 ) Lawrence Road (1) Old Boynton Road (1) Federal Highway (3) Congress Ave (2) Ocean Ave (1) 'otal: 11 15 [on ad benches: City shall provide in writing to the Company the locations where te non-ad benches are to be '>laced. .! ' i LJ © EXHIBIT C BUS BENCH CRITERIA ;ize: 3onstruction: tardware: dvertisng Panels: ;oior: /lanufacturer: Six feet long Benches shall be made of recycled plastic lumber with a density of .930 to .980 g/cc (ASTM D 792) and a compressive stength of 3000 to 4700 Cf-/inch. Tensile strength shall be 1500 psi. All fasteners shall be stainless steel. The bench backs will be advertising panels, constructed of aluminum framing 2' x 6' with clear lexan or plexiglas diplay panels affixed to 1/2. crezone treated plywood and attached to plastic lumber support braces. Gray .~.~,- Americ_~n Earth Friendly, Delray Beach Florida, or equal, American Earth Friendly, Inc. BUS STOP BENCH 100% Post Consumer Recycled Plastic Lumber 4~ 21" x 72" 165 lbs. x 21" x 96" 220 lbs. 2" x 4" /2" x 6" Board construction (seating / back) profile are 100% recycled Steel hardware available Gray / Brown / Tan Custom colors: available 25 YEAR LIMITED WARRANT~ 100% Maintenance free / Non,absorbent / Will never dryrot WaterprOof/Skid resistant / Splinter-proof Not effected by Termites or Ants Will not Split, Crack, or Chip Never needs Painting or Sealing Ma]mains its clean appearance year after year "ENVIRONMENTALLY FRIENDLY" . 1450 S.W. 10th Street, #2 · Delray Beach, FL 33~,~a. · Ph: (407) 276-4152 · Fax (407) 276-3965 "Your plastic debris, will save a tree." Printed on recycled p~tper