Res 071-2009 5/19/2009 RESOLUTION NO. �I�'�OOQ
Resolution Authorizing The City Manager To Execute A Bus
Advertising Contract With Transit Advertising, Inc. For The Purpose
Of Selling Advertisement On City Buses
WHEREAS, transit advertising is a source of revenue for the City of Wichita Falls
Transit System; and,
WHEREAS, the City of Wichita Falls desires to sell advertising on the interior and
exterior of its bus fleet in accordance to Federal Transit Administration regulations; and
WHEREAS, the City of Wichita Falls desires to enter into an advertising services
agreement to generate this revenue; and
WHEREAS, Transit Advertising is proposing to perform this work for the City of
Wichita Falls,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The City Manager is authorized to execute the attached Bus Advertising
Contract with Transit Advertising, Inc., with changes thereto in a form approved by the
City Attorney.
PASSED AND APPROVED this the 19th day of May, 2009.
MAYOR
ATTEST:
ty Clerk
BUS ADVERTISING CONTRACT
Between
Transit Advertising, Inc.
And
Wichita Falls, Texas
PARTIES AND SUBJECT MATTER
This Contract is made as of the , 2009, by and between the City of
Wichita Falls (hereinafter referred to as Wichita Falls), whose address is Director, City of Wichita Falls Department
of Transportation, 2100 Seymour Highway, Wichita Falls, Texas 76301, and Transit Advertising, Inc, a corporation
(hereinafter referred to as "CONTRACTOR") whose address is PO BOX 14081, Tulsa, Oklahoma 74159. Wichita
Falls has solicited and requested bus advertising services. Contractor responded to that request and made a specific
proposal to perform such services for Wichita Falls. Contractor has been selected to perform such services. This is
the resulting Contract between the Parties.
In consideration of the mutual promises and covenants contained herein, the Parties agree as follows:
AGREEMENT
1. TERM.
This Contract shall be far an initial period of three years, commencing , and
ending , and, upon such ending date it shall automatically renew for one year
and successive annual periods unless terminated by either party. It may be terminated prior to the end of
any term by either party under the circumstances and in accordance with the provisions appearing
elsewhere in this Contract. In addition, after the end of the first term, it may be terminated without cause
by Wichita Falls upon at least 120 days written notice to Contractor.
2. GRANT OF CONCESSION/SCOPE OF SERVICES
2.01. Wichita Falls hereby gives and grants to Transit Advertising, Inc. for the term of this Contract and
in accordance with all of the terms, conditions, and provisions of this Contract, the sole, exclusive
and complete advertising right, power and privilege in and upon all of the buses and vehicles, now
or hereinafter owned, operated or controlled by Wichita Falls. Contractor shall have the right to sell,
place, display, maintain, change and remove advertisements on all spaces of the buses.
2.02 Contractor covenants and promises to perform its services related to the sale, production,
installation, display, inspection, replacing, changing and of all such advertising and displays in a
professional manner and strictly in accordance with the Contract documents, including this writing
and the Proposal submitted to Wichita Falls from Contractor.
2.03 Contractor agrees to perform its duties and exercise its rights and privileges hereunder in strict
compliance with all applicable laws or statues of the United States and of the State of Texas.
3. COMPENSATION
3.01 In consideration for the rights and privileges granted herein, CONTRACTOR agrees to pay
Wichita Falls a sum equal to 60% of all net sales for space costs, from the sale of advertising
under this Contract; beginning , and ending
3.02 This Agreement and compensation hereunder is based upon a bus and vehicle fleet of 14 vehicles.
3.03 In the event of a cessation or substantially limited operation of all or a significant part of Wichita
Fall's vehicles during the term hereof for any reason whatsoever (including, but not limited to
strike, riot, insurrection, Act of God or other similar or dissimilar cause), this percentage of 60%
net revenues may be reduced proportionately.
3.04 Within forty-five (45) days after the end of each Contract Year, CONTRACTOR shall provide
Wichita Falls with a statement of its net space sales pursuant to this Contract during the preceding
Contract Year. Each such statement will be prepared by Transit Advertising, Inc.'s certified
accountant. A Contract Year is hereby defined as a twelve (12) month period commencing
and ending , of the
following year. If requested by Wichita Falls, CONTRACTOR will makes its books available for
a period of up to three years following the provision of each such statement for audit by
employees or agents of Wichita Falls.
3.05 For the purposes of this Contract, the term "net sales" is defined to mean gross billings by
CONTRACTOR for the sale of advertising and all other services related to this Contract, less:
(i) any sales or use tax applicable;
(ii) advertising agency commissions actually paid to an authorized agency independent of
CONTRACTOR (the amount of such commissions eligible for deduction shall not,
however, exceed the standard advertising agency commission for similar transit
advertising (generally 15% commission).
(iii) Bad debts for actual advertiser accounts that are uncollectible by CONTRACTOR;
provided, however, that the deduction for bad debts shall not exceed ten percent (10%) of
the gross billings in any Contract Year; and provided further that should any such account
(iv) to be collected in whole or in part after it is deducted hereunder and prior to the end of
one (1) year after the end of the last Contract Year during the term of this Contract, then
CONTRACTOR shall report such collection to Wichita Falls and pay the applicable
percentage of such collection to Wichita Falls.
CONTRACTOR shall use its best efforts to collect all monies due before making any bad debt
deduction under this subsection.
3.06 CONTRACTOR shall not trade bus advertising space for media time or space, except that in
addition to the compensation outlined in 3.01. CONTRACTOR may use the Wichita Falls vehicle
space available for advertising space to barter for television and radio time (no more than $25,000
annually) that Wichita Falls can use for self-promotion. Wichita Falls would be responsible for all
production costs and advertising agency fees associated with the use of this media.
3.07 CONTRACTOR will initiate or continue an accurate, consistent and complete recording and
reporting system which is acceptable to Wichita Falls to substantiate billings, sales, commissions,
and payments due and made to Wichita Falls. CONTRACTOR will furnish monthly statements to
Wichita Falls containing such information related to the sales, revenues and expenses under this
contract as Wichita Falls may request.
3.08 All payments will be received by Wichita Falls within 30-days of the previous months activity.
3.09 Upon Expiration of this Contract, CONTRACTOR will cooperate with Wichita Falls and the
succeeding contractor to provide a seamless transition. Contractor agrees to assign to Wichita Falls
all of the rights, titles, and interests in and to any and/or all contracts for advertising on Wichita
Falls buses in affect at the date of Contract expiration. CONTRACTOR and Wichita Falls will
negotiate a final closing price to be paid to CONTRACTOR for all bus advertising, posted or
contracted by CONTRACTOR to be in effect on or after the start date of the succeeding
contractor. These negotiations well be all inclusive of any outstanding or unamortized production
cost on advertising accounts of the Wichita Falls bus advertising campaign covered under the
above situation. Wichita Falls may avoid any payment obligation by giving CONTRACTOR at
least 90 days prior notice of termination of this contract.
4. PERFORMANCE.
4.01. CONTRACTOR agrees to fulfill all of its obligations under this Contract in a responsive,
professional and diligent manner.
4.02. CONTRACTOR will provide professional advertising personnel necessary to sell, service and
maintain advertising on the Wichita Falls buses. CONTRACTOR will provide a well-trained,
experienced and competent local sales and service staff.
4.03. CONTRACTOR will provide for the production of all advertising signs and displays. These shall
be of temporary vinyl and produced by a process meeting the approval of Wichita Falls.
4.04. CONTRACTOR will install, maintain, change, and replace all advertising signs and copy. Wichita
Falls will provide information regarding damaged advertising to CONTRACTOR for repairs.
4.05. CONTRACTOR agrees to furnish a qualified, diligent, expert and efficient executive (the
"Manager") to perform managerial and supervisory functions involved in properly fulfilling
CONTRACTOR's obligation under this Contract. This Manager shall be the primary contact
person between Wichita Falls and CONTRACTOR as to all matters relating to the performance of
this Contract. This person will be Michael R. Lemery.
4.06. The selection and appointment of the Manager, and any successors shall be the sole decision of
CONTRACTOR.
4.07. CONTRACTOR shall have the exclusive right to place advertising signs on the exterior and
interior of all buses owned, controlled or operated by Wichita Falls, in buses along the sides, front
and rear as specified in Proposal.
4.08 CONTRACTOR, with prior written approval from the Director of the Division of Aviation,
Traffic & Transportation of Wichita Falls, shall have the exclusive right to sell "full wrap"
advertising and other large format advertising utilizing buses owned, controlled or operated by
Wichita Falls. CONTRACTOR will ensure that the Wichita Falls logo is always visible on the
bus.
5. ADVERTISING CONTENT
5.01 Advertising and displays which may be eachibited in or upon said buses shall be commercial in
nature and be of a character that will not make riders uncomfortable or potentially dissuade riders
from utilizing the Wichita Falls transit system. In particular, CONTRACTOR shall not place the
following advertisements on or in Wichita Falls' buses:
a. advertisements that demean or disparage a person or group likely to travel on a Wichita
Falls transit bus,
b. advertisements that contain profanity,
c. advertisements that contain "an image or description of graphic violence" or injured or
dismembered human anatomy,
d. advertisements that promote or encourage, or appear to promote or encourage, the use
or possession of unlawful goods or services,
e. advertisements that promote or encourage, or appear to promote or encourage alcoholic
beverages or illegal drug use,
f. advertisements that contain obscenity or nudity, including a depiction of a human anus,
genital, or female areola,
g. advertisements that appeal to the prurient interest of minors or adults in sex,
h. advertisements that contain political campaign speech,
i. advertisements that imply or explicitly state an endorsement by the City of Wichita
Falls or deparnnent of Wichita Falls City government without prior authorization,
j. advertisements that contain false, misleading, or deceptive commercial speech,
k. advertisements that are libelous or infringe a copyright, and
1. advertisements that promote or appear to promote sexually oriented businesses, goods
or services.
5.02 On any unsold or empty space, CONTRACTOR will post signs or display messages provided by
Wichita Falls that promote public service, the services of Wichita Falls, the use of public
transportation, and companies who provide commercial air service to Wichita Falls Municipal
Airport. Wichita Falls will be responsible for the production costs for these signs or posters.
6. INDEMNIFICATION
6.01 CONTRACTOR a�rees to and does herebv acknowled�e full liabilitv and responsibili for anv
claims for dama eg s or injuries to persons or propertv of anv nature whatsoever, whether real or
imagined which mav be asserted a�ainst Wichita Falls or anv of Wichita Falls officers, a ent�s or
emplovees (INDEMNIFIED PERSONS , arising out of or incident to this Contract or
CONTRACTOR's activities hereunder or the exercise of anv ri t or privile��ranted herein,
other than those claims arising solely out of the ne�gence of anv of the INDEMNIFIED
PERSONS and CONTRACTOR does fully and completely RELEASE and DISCHARGE the
INDEMNIFIED PERSONS and each of them from and against anv such claims which mav arise
on the part of the CONTRACTOR re�ardless of any allegation of negli en� ce bv an
INDEMNIFIED PERSON ar an�condition of propertv owned or controlled bv Wichita Falls.
6.02 Wichita Falls will promptly notify CONTRACTOR of any such claims and will cooperate
with CONTRACTOR in defending against any such claim. In the event any suit or legal
proceedings of any kind are brought against any of the INDEMNIFIED PERSONS, on account of
loss or damage covered by the foregoing indemnity ageement, CONTRACTOR agrees to
assume the defense thereof and to pay all expenses relating thereto and in connection therewith
and all judgments and levies that may be obtained against any of the INDEMNIFIED.
6.03 CONTRACTOR also agrees to pay to the INDEMNIFIED PERSONS, promptly upon receipt of
all statements therefore, any attorney's fees reasonably incurred by them directly or indirectly on
account of any claims for damages or injuries covered by the foregoing indemnity.
7. INSURANCE
In accordance with the indemnification set forth in Section 7, above, CONTRACTOR expressly
covenant and agrees that before this Contract shall take effect and continuing throughout the entire
term of this Contract and any renewals or extensions, it wili provide public liability insurance for
personal injury/death, or any other claim or cause of action which might arise out of the exercise
of the rights or privileges as granted hereunder, in the minimum sum of ONE HUNDRED
THOUSAND DOLLARS ($100,000) per person, and THREE HUNDRED THOUSAND
DOLLARAS ($300,000) for two (2) or more persons in connection with any single occurrence,
and CONTRACTOR shall provide properiy damage liability insurance in the minimum sum of
ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000); and Workers
Compensation Insurance for all employees working in connection with this Contract.
8. RECORDS
8.01 CONTRACTOR shall maintain and keep full, complete and accurate records of its business
conducted pursuant to this Contract.
8.02 CONTRACTOR shall furnish Wichita Falis with a verified monthly statement of its sales,
showing name of the advertiser, invoice date, billing period, contract period, gross billing, net
sales, and amount collected. Each such statement shall be furnished on or before 30-days of the
succeeding month.
9. TERMINATION
9.01 Either party shall have the right to terminate this Contract in whole or in part in the event that the
other party fails, refuses, or defaults with respect to any of its obligations hereunder. Prior
to termination, however, the party desiring termination of the agreement shall provide the other
party with written notice of intent to terminate, providing specifically for a period of thirty (30)
days from the date on which said notice is received for the recipient of the notice of intent to
terminate to cure or correct the alleged failure, refusal, or default with respect to its performance
under the Agreement. If the alleged failure, refusal, or default is not corrected within the
prescribed thirty-day (30-day) period, this Agreement shall be deemed terminated. Upon such
termination, CONTRACTOR shall immediately discontinue service. CONTRACTOR shall then
be paid by Wichita Falls the actual costs incurred during the performance hereunder. In addition,
this contract shall be considered terminated if:
(a) CONTRACTOR shall be declared bankrupt, either voluntary or involuntary, or any
petition or proceedings in bankruptcy or insolvency shall be instituted against
CONTRACTOR;or
(b) CONTRACTOR shall be placed in receivership or apply for or receive composition with
its creditors or make an assignment of its assets for the benefit of its creditors; or
(c) payment of funds to Wichita Falls is impaired by any creditor activity against
CONTRACTOR.
10. EQUAL EMPLOYMENT OPPORTUNITY / BASIC REQUIREMENTS
In connection with the performance of this Contract, CONTRACTOR shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex, age,
or national origin. CONTRACTOR shall take affirmative action to insure that applicants are
employed, and that employees are treated during employment without regard to their race,
religion, color, sex, age or national origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation.
11. DISADVANTAGED BUSINESS ENTERPRISES:
11.01 CONTRACTOR agrees to use good faith efforts to ensure that Disadvantaged Business
Enterprises (hereinafter referred to as "DBEs"), have the maximum opportunity to participate in
the performance of this Contract.
12. CONFLICT OF INTEREST
No employee, officer, or agent of Wichita Falls shall participate in selection, or in the awarded of
administration of a contract if a conflict of interest, real or apparent, would be involved. Such a
conflict would arise when:
(i) The employee, officer or agent;
(ii) Any member of his immediate family;
(iii) His or her partner; or
(iv) An organization that employs, or is about to employ any such person;
has a fmancial or other interest in the firm selected for award.
13. ASSIGNMENT
CONTRACTOR agrees and covenants that it shall not assign this Contract or any portion
ereof, or any right or privilege granted herein, without first obtaining the written consent
of Wichita Falls, and any such attempted assignment without first obtaining such prior consent by
Wichita Falls shall be void. This Contract shall be binding upon the respective assigns and
successors of either party.
14. INDEPENDENT CONTRACTOR
Nothing in this Contract is intended to create, and nothing herein shall be construed as creating
any partnership, in venture or agency relationship between Wichita Falls and CONTRACTOR.
CONTRACTOR is and shall remain an independent contractor under the terms and conditions of
this Contract.
15. NO THIRD PARTY BENEFICIARIES
Except to the extent expressly set out in the Contract Documents, no third party shall have any
benefit of or any right under any provision hereof, it being the intention of the parties that this
agreement ensure only to the benefit of a signatories hereof. However this Contract shall be
binding on the heirs, successors and assigns of the parties.
16. CONTRACT DOCUMENTS
The Contract Documents comprising this Contract are defined as this writing, all exhibits and
attachments thereto, if any, and CONTRACTOR's proposal in response to a request for proposal
by Wichita Falls. In case of any apparent ambiguity or conflict among any of the terms or
provisions of the Contract Documents, they shall be construed as nearly as possible so as to
effectuate each and all of such terms or provisions, keeping in mind that the overriding purpose of
this Contract is the public purpose of assisting so that Wichita Falls is reasonably able to fulfill its
public purposes and with regard for the prudent use of public monies. In case of irreconcilable
conflict, the provisions of this writing (including the Specifications set out in the proposal and
specifically herein incorporated by reference) shall control over all other documents other than this
writing.
17. ENTIRE AGREEMENT
This writing represents the full, final and complete agreement of the parties related to the subject
matter of this Contract, and may not be added to, contradicted or otherwise modified by evidence
of prior or contemporaneous agreements or subsequent oral agreements or statements of any of the
parties, nor by any writing not signed by both parties after this date of this Contract. No
representations, inducements, promises or agreements, oral or otherwise, not embodied or
incorporated herein, or in writing not signed by both parties after this date of this Contract. No
representations, inducements, promises or agreements, oral or otherwise, not embodied ar
incorporated herein, or in writing signed by both parties subsequent to the date of this agreement
shall be of any force or effect. In case of any apparent ambiguity or conflict among any of the
terms of provisions in the Contract, they shall be construed as nearly as possible so as to effectuate
each and all of such terms and provisions, keeping in mind that the overriding purpose of this
Contract is the public purpose of proving professional bus advertising sales, display and
maintenance services to assist Wichita Falls in carrying out its governmental purposes in the most
efficient, highest quality and professional manner, and with regard to the prudent use of public
monies.
SIGNED this _day of , and effective as of
Transit Advertising, Inc. City of Wichita Falls
B B
Michael R. Lemery Darron J. Leiker
General Manager City Manager
Transit Advertising, Inc. Wichita Falls, Texas