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R94-113RESOLUTION NO. R94-?/,~"' 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 BETWEEN THE CITY OF BOYNTON BEACH AND FLUTIE ENTERPRISES, INC. FOR THE CONSTRUCTION AND MAINTENANCE OF BUS SHELTERS ALONG THE TRANSIT SYSTEM BUS ROUTE WITHIN THE CITY LIMITS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Boynton Beach, Florida deems it to be in the best interests of the citizens and residents of the City to enter into an Agreement between the City of Boynton Beach and Flutie Enterprises, Inc. for the construction and maintenance of bus shelters along the transit system bus route within the City limits, a copy of which Agreement is attached hereto as Exhibit "A". 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 Clerk to execute an Agreement between the City of BoyntOn Beach and Flutie Enterprises, Inc., a copy of which Agreement is attached hereto as Exhibit "A". Section 2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this ~ day of July, 1994. CITY Of BOYNTO_/N BEACH, FLORIDA Mayo_r ~' "" ~';~ Mayor -- 3it~ Clerk (Corporate Seal) flutie.res NON-EXCLUSIVE AGREEMENT THIS AGREEMENT made and entered into this '~ day of ~(,~ ~ ,1994, by and between the City of Boynton Beach, a municipal corporation organ/zed under the laws of the State of Florida, hereinafter referred to as "City", and Flutie Enterprises, Inc., a Florida corporation, hereinafter referred to as "Company". WITNESSETH WHEREAS, Company is a corporation organized under the laws of the State of Florida and'licensed to do business in the State of Florida; and WHEREAS, Company is in the business of erecting and maintaining bus stop shelters for use by the general public for the purpose of selling and placing advertising within certain of said bus stop shelters; and WHEREAS, the City desires to supply residents with shelter from inclement weather at bus stops and proposes to supply said need at no cost to the City. NOW THEREFORE, in consideration of the foregoing it is stipulated and agreed as follows: Section 1: Ownership and Location A. City grants to Company the non-exclusive right to construct, erect, and maintain bus shelters within the City of Boynton Beach at specifically designated locations along the transit system bus route. Company may construct or erect up to fifty (50) bus shelters provided the Company obtains the necessary easements, lease, or license from the property owner of the site. The City, to the extent of its ownership of any site, shall execute such easements, leases, or licenses to effectuate the Company's use of the site. All conveyance documents shall be in a form approved by the City Attorney. B. The City and the Company have agreed that bus shelters may be erected, provided leases and/or easements can be secured if on private property, at those locations depicted or described on Extu~bit "A" attached hereto. Additional sites may be agreed upon by the parties from time to time. Site location shall, in all cases, be limited to City Mass Transit Division bus stops. C. No bus shelter shall be placed on any site without the prior written approval and inspection by the City. All shelters shall be placed and maintained in a manner so as not to obstruct traffic or the vision of any person driving a motor vehicle and shall meet ADA requirements. D.The design criteria for each shelter shall be subject to approval by the City. E. Company may, within each shelter, display advertising, .promotional, or public service material, excluding advertising for any form of tobacco products. In addition, if any advertisement is found to be objectionable to the City it shall be removed upon written request by the City. Section 2; Installation and Maintenance The 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 at no cost to the City. The bus shelters shall be built to reflect the predominant design of the area, as set forth by the Planning Director: General maintenance shall be performed weekly ~nd damage to the shelter shall be repaired within forty-eight (48) hours of the time said damage is reported to the Company. Company will also maintain the grass area around the shelter. The Company agrees to comply with all the terms and conditions of the City Sign Ordinance. The Company will also erect, install, light, maintain, repair or replace a-shelter at the City of Boynton Beach Municipal Tennis Center, the location to be determined by the Parks and Recreation Directon Section 3: Indemnification The Company agrees to indemnify and hold harmless the City of Boynton Beach, its officers, agents, 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 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, maintenance, use, location and/or operation of the bus stop shelters. Company acknowledges and represents that the execution of this Agreement by the City constitutes sufficient consideration to support this indenmification by Company. This indemnification shall survive cancellation or termination of this Agreement. Nothing in this Agreement shall affect the immunity of the City pursuant to Section 768.28, Florida Statutes. Section 4: Insurance Requirements Throughout the terms of this contract, the Company shall maintain in force at his own expense, insurance as follows: Workers' Compensation Workers' Compensation insurance, with statutory limits, including coverage for Employers; Liability, with limits not less than one hundred thousand dollars ($100,000.00) each accident, one hundred thousand dollars ($100,000.00) each disease, and five hundred thousand dollars ($500,000.00) aggregate disease. In the case of any work sublet, the Company shall require the subcontractor similarly to provide statutory Workers' Compensation and Employers' Liability insurance with the same limits as those required abOve of the Company. General Liability Commemial General Liability insurance with limits not less than one million dollars ($1,000,000.00) each occurrence combined single limit for Bodily Injury and Property Damage including coverage for premises and/or operations, independent contractors, contractual liability, personal injury, broad form property damage, products and completed operations. These coverages are required by the Company and any subcontractor or anyone directly or indirectly employed by either of them. Automobile Liability Comprehensive or Business Automobile Liability insurance with limits not less than one million dollars ($1,000,000.00) each occurrence combined single limit for Bodily Injury and Property Damage including coverages for owned, 'hired, and non-owned vehicles, as applicable. The Company and/or his subcontractors shall take out and maintain these coverages as shall protect him against claims for damages resulting fi-om 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 him in any capacity in connection with the carrying out of this contract. General Should any of the required insurance be provided under a claims-made form, the Company shall maintain such coverage continuously through out the ~erms of this contract and, without lapse, for a period of five (5) years beyond the contract expiration, to the effect that, should occurrences during the contract terms give rise to claims made after expiration of the contract, such claims shall be covered by such claims-made policies. Should any of the required insurance be provided under a form of coverage that incudes a general annual aggregate limit and provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general annual aggregate shall be double the occurrence limits specified above. Liability policies shall be endorsed to provide the following: 1. Name as additional insured the City of Boynton Beach, and its Officers, Agents, Employees, and Commissioners. 2. That such insurance is primary to any other insurance available to the additional insured's with respect to claims covered under the policy and that insurance applies separately to each insured against whom claims is made or suit is brought, but the inclusion of more than one insured shall not operate to increase the insurer's limit of Iiability. All policies shall be endorsed to provide thirty (30) days prior written notice of 'cancellation, non-renewal, or reduction in coverage or limits to: City Manager City of Boynton Beach 100 East Boynton Beach Boulevard Post Office Box 310 Boynton Beach, Florida 33425-0310 Before commencement of the terms of this contract, certificates of insurance, in form and with insurers acceptable to City evidencing all required insurance, shall be furnished to the City of Boynton Beach with completed copies of policies to the City of Boynton Beach promptly upon request. Said insurance is a condition precedent to the erection or placement of any bus stop shelter. If the insurance protection mentioned herein lapses, this Agreement shall immediately be void and have no further force and effect except for the continuing duty of the Company to comply with the provisions of paragraph 3 regarding indemnification. Company shall also, in the event the insurance protection lapses, immediately remove all shelters from the public right-of-way without notice from the City, or at any cost to the City. Subcontractor's Insurance The Company shall require each of his Subcontractors to take out and maintain during the life of this subcontract the same insurance coverages required of the Company. Each Subcontractor shall furnish to the Company two (2) copies of the Certificate of Insurance, and Company shall furnish one (1) copy of the Certificate to the City of Boynton Beach. Insurance Company and Agent All insurance policies herein required of the Contractor shall be written by a Company with a Best's rating ofB + V or better and duly authorized and licensed to do business in the State of Florida and be executed by same agents, thereof, duly licensed as agents in said state. Safety The Company shall be solely and completely responsible for conditions of the job site, including safety of all persons (including employees) and property during performance of the 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 himself with the aforementioned safety provisions shall not reheve him from compliance with the obligations and penalties set forth therein. Section 5: Coordination of Shelters The Company shall coordinate and integrate the bus stop shelters with the Palm Beach County Mass Transit Division, the City of Boynton Beach Engineering Department, the City of Boynton Beach Building Department and the Florida Department of Transportation. Section 6: Payment to City The Company shall pay to the City the sum of five hundred dollars ($500.00) per year per shelter for every complete year and prorated for partial years for the first five (5) years of this Agreement. Annual payments shall be made on October 1, of each year. Commencing in the sixth (6) year, the Company shall pay six hundred dollars ($600.00) for each year per shelter per year every year thereafter. Additionally, should the Company increase the fee it pays for bus shelters to any other governmental agency, beyond the fee currently received by the City from the Company, the City shall also receive an increase in the fee it receives from the Company. Section 7: Number of Shelters The number of shelters may be increased by written Agreement of the parties. Section 8: Len~h of Contract The terms of this contract shall be for ten (10) years from the date the City signs the contract. The Agreement can be extended for an additional five (5) years if agreed to by both parties, Section 9: Public Service Announcement Upon' a space available basis, the Company shall allow city-approved public service announcements to be advertised within the shelters. Section 10: Notice Notice must be in writing directed to the City Manager.with a duplicate copy to the City Attorney. Notice is to be made by mail to the City at: City of Boynton Beach 100 East Boynton Beach Boulevard Post Office Box 310 Boynton Beach, Florida 33425-0310 and to the Company at: Flutie Enterprises. Inc. Post Office Box 292037 Davie, Florida 33329 Section 11: Waiver A waiver of any breach of any provision of this Agreement shall not constitute or operate as a waiver of any other breach of such provision or of any other provisions, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision. Section 12; Drafting This Agreement has been negotiated and drafted by all parties hereto and shall not be more strictly construed against any party because of such parties' preparation of this Agreement. Section 13: Representation by Counsel All parties to this Agreement have been represented by their respective counsel. The patties hereto acknowledge having read this Agreement and discussed the terms of this Agreement with their respective counsel and elected officials (as to the City of Boynton Beach) and that the approval and execution of this Agreement has been made freely and voluntarily with full knowledge of its legal effect. Section 14; Successors This Agreement is not Assignable without the express written consent of the City. Section 15: Survivability All of the terms, conditions, provisions, and representations contained in this Agreement shall survive and transcend the execution and termination of this Agreement. Section 16: Severability If any portion of this Agreement is determined to be unenforceable, all other terms and conditions of this Agreement may be readdressed. Section 17; Autho~hip 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 will be construed as being jointly prepared and drafted by all parties hereto. Section 18; Entirety This Agreement contains the entire Agreement 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 19: Enforcement In the event that either party has recourse to Court action in order to enforce this Agreement, the prevailing party shall recover court costs on the trial or appellant level. Section 20: Failm-e Should the Company fail to perform its obligations under this contract, the City may order the Company to remove its shelters from the right-of-way at no cost to the City, and the City may immediately terminate this Agreement. Section 21; Assi_~a~bili~ This Agreement may only be assigned by the Company with prior written consent of the City. Section 22: Termination This Agreement may be terminated prior to the end of the term of the Agreement by either party upon thirty (30) days wr/tten notice to the other party. Should the City terminate the Agreement, the shelters shall be removed forthwith at no cost to the City. Section 23: Titles of Section.~ Section headings inserted herein are for convenience only, and are not intended to be used as aids to interpretation and are not binding on the parties. Section 24; Amendment This Agreement may be modified or amended only by a written Agreement duly executed by both parties hereto. l~ WITNESS WHEREOF, the parties hereto have caused these presents to be executed the date and year indicated below each of its name. Witnesses: Date: Witnesses: Date: THE CITY OF BOYNTO~ BEACH clward Harm6ning, M~t~or ~ -- Attest: nae r rt .se, City Cler--f il! ?' · App~:~Legal Form and Sufficiency: ame hkeror, FLU~RISES, INC. 4. /1E3o 434e PROPOSED SCHEDULED (MAJOR) BUS STOPS WITH AND WITHOUT BUS SHELTERS Green Route Magenta Route (north route) (south route) Boynton Lakes Plaza * Boynton Beach Mall Meadows square Oakwocd Square * Shoppes of Boynton Boynton Plaza * Catalina Centre * Leisureville Plaza * Boynton Beach Mall * Palm Beach Leisureville Oakwood Square * Bethesda Hospital * City Library Sunshine Square * City Hall * Causeway Square * Boynton Bay * City Library * Village Royale on the Green * City Hall Tri -Rail Station * Beach • * Proposed location of a major (has a scheduled bus stop time) bus stop with bus shelter; a total of 14 shelters. The other major bus stop locations above are proposed without a bus shelter. tjh Planning and Zoning Dept. - 7/5/94 A:BusShelt Flutie Enterprises of Florida 6081 S.W. 30th Court XI. UNFINISHED BUSINESS A Ft. Lauderdale, FL 33314 cc: Planning (305) 587 -9957 October 27, 199.4 Ms. Carrie Parker City Manager City of Bcynton Beach 100 East Boynton Beach Boulevard Boynton Beach, FL 33425 Dear. Ms. Parker On June 3C, 1994 Patrick Media agreed to purchase the bus shelter advertising assets of Flutie Bus Shelters and it's affiliates. Patrick media currently owns the company that operates the bus shelter program for all of Dade County. Flutie Bus Shelters has worked in tandem with the Miami group for several years. Specifically, our sales teams have worked together in selling the entire South Florida market to national advertising clients. Patrick Media ie a wholly owned subsidiary of General Electric Corp. which is engaged in the outdoor advertising business. Patrick operates a substantial advertising company including over 1300 bus shelters, and had revenues in 1993 in axceas of $200,000,000.00. As such Patrick Media brings tremendous resources to the operation, making it possible to enhance the entire bus shelter program in South Florida. With regard to the city of Boynton Beach, Flutie Bus Shelters intends to utilise the management, operational and marketing skills of Patrick Media, combined with the skills of our existing staff to offer the city and community of Boynton Beach the most successful bus shelter program possible. This management agreement with Patrick Media would not include a transfer of assets or affect the responsibilities of the parties to perform as directed by the contract. In many of our municipalities in Broward and Palm ;teach Counties we have utilized the services of sub- contractors, many of then minorities, for construction, poster production and other aspects of our operation. The hiring of sub contractors and management groups is typical in this and many other i duetries. Any management agreement between Flutie and Patrick media would be no different than these professional relationships. 1 #517 "lutWe _s 7ery aware t;.at any .ra sfer of assets ar ass i;, nmer_r. pf tnis req �',e approval of the Con rolssiorers of the 2.1 cf Boynton Bea. =_".. We certainly would not v' olate ar y cond�- _cns of this contract. if anti =ransfer 9h..u_:a be considered in the future, we are aware chat :e contact provides for, a process of approval wni N'::u =d be followed. we wtil oe present November isc at the commission ;teetino to answer any questions that may arise. Sincerely, Alison u. Oliver Vice President AJO /tat cc: Hugo Unruh ... T ^a: p 4 i Tie City of Boynton Beach DY N i' 100 E. Boynton Beach Boulevard / �,y City P.O.Boa310 14 � ' - Boynton Brack, TThTi4a 33425 -0310 O " " Mall. 40 37 / _ , a nJ ( 7I s -6000 / W ��� j`` . ". N .', FAX: (407) 375 -6090 ,/ January 25, 1995 g 2tztN Mr. Glen Flutie Flutie Enterprises, Inc. Post Office Box 292037 Davie, Florida 33329 Dear Mr. Flutie: I appreciate the two shelters being installed prior to implementation of the bus routes January 2, 1995, however, two concerns are still outstanding. Per the City's agreement and discussions with the City Commission, the roofs on the bus shelters were supposed to reflect the community design guidelines, meaning the shelters downtown on Ocean Avenue should have the tin roof design and the shelters on Congress Avenue should have Barrel Tile on the roof. Please provide me with the time table as to when the roofs will be installed on these shelters and also a time table as to when the remaining shelters will be installed. Thank you. Sincerely, CITY OF BOYNTON BEACH Carrie Parker City Manager CP:jc America's Gateway to the Guffstream