HomeMy WebLinkAboutC06-377 TIGA Advertising AgreementAGREEMENT
THIS AGREEMENT (the "Agreement "), made effective this 1 st day of
November, 2006, is by and between EAGLE COUNTY REGIONALTRANSPORTATION
AUTHORITY ( "ECO "), a Colorado municipal corporation and TIGA ADVERTISING,
INC., ( "Concessionaire "), a Colorado corporation.
For and in consideration of the mutual covenants and agreements herein
contained, and other valuable consideration, the parties hereto agree as follows:
1. Grant ECO hereby grants to Concessionaire the exclusive right and
privilege for the solicitation and sale of commercial advertising and permission to use
advertising space on all ECO buses (the "Concession "). All costs incurred in connection
with this Concession, including but not limited to solicitation, design, preparation,
installation of commercial advertising in the advertising spaces on the buses shall be
paid by Concessionaire.
2. Advertising.
(a) All advertising installed by Concessionaire shall be subject to approval of
ECO with respect to subject, character, size and style. ECO shall have the right to reject
and prohibit the installation of or compel the removal of any advertising material
deemed by it, in its reasonable discretion, to be not suitable for display on ECO buses.
(b) Concessionaire shall have full control of the rates and prices to be charged
for advertising and the terms, conditions and manner of payment by advertisers.
Concessionaire shall take all steps necessary to collect any monies due it, including
attorneys' fees, costs and expenses.
(c) Concessionaire shall have the right to, in the exercise of its reasonable
business judgment, and without compensation and with ECO's approval, display public
welfare and educational advertisements for the public good and for the purposes of
avoiding unfilled advertising spaces. Concessionaire shall hold two spaces per bus for
such advertisements. Concessionaire shall also hold one advertising space per bus
open for ECO for advertising and notices pertaining to its own operations, provided that
(i) such advertisements and notices shall not interfere with or obstruct the view of the
advertising spaces hereby granted to Concessionaire, and (ii) Concessionaire shall
receive no compensation for the display of such advertisements and notices.
All promotional material shall be provided by the advertiser at its cost. ECO shall
notify Concessionaire 60 days prior to the opening day of each ski season and summer
season during the term of this Agreement if it does not intend to use the allotted
advertising space. Upon such notification by ECO, Concessionaire shall have the right
to use such advertising space for that particular ski season.
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3. Initial Term The "Initial Term" of this Agreement shall be a period of five
years, commencing on November 1, 2006, and terminating on October 31, 2011,
unless sooner terminated as provided herein.
4. Compensation. In consideration of Concessionaire rights and privileges
herein granted, Concessionaire agrees to pay to ECO, during the Initial Term, 30% of
its Gross Revenues (as hereinafter defined) received in connection with this Agreement
(the "Concession Fee ").
The term "Gross Revenues" shall mean the gross receipts received by
Concessionaire from advertisers for the display of their advertisements on ECO buses,
less the following deductions:
(a) A commission not exceeding 15% where actually shown to be paid to
a national or regional representative advertising agency;
(b) The amount of any and all sales, use and similar taxes imposed upon
Concessionaire with respect to the Concession;
and (c) All costs of collection, including attorneys' fees, costs and expenses;
(d) The costs of producing materials for uncompensated public welfare
and educational advertisements and notices or any payments to Concessionaire as
reimbursement for the actual cost in connection therewith.
Concessionaire shall furnish ECO a true and accurate operating statement of its
gross revenues, operating costs and expenses for the previous' 12 months of each year
during the Term of this Agreement for the purposes of determining the Concession Fee
due to ECO. Such operating statement shall be certified by an authorized
representative of Concessionaire to be correct. The operating statement shall be
delivered by Concessionaire to ECO on or before April 15 of each year during the Term
of this Agreement, or, in the event of expiration or earlier termination of this Agreement,
such statement shall be delivered to ECO on the 15th day of the next month after the
effective date of expiration or earlier termination.
5. Payment of Compensation Fee Concessionaire shall pay ECO the
Concession Fee in one lump sum on May I of each year during the Term of this
Agreement. Upon expiration or earlier termination of this Agreement, the Concession
Fee shall be paid on or before the 15th day of the following month. All payments due or
becoming due pursuant to this Agreement shall be due and payable without notice at
the offices of ECO, or at such other place as ECO may designate in writing to
Concessionaire. Any check submitted to ECO by Concessionaire shall be subject to
collection and Concessionaire agrees to pay any charge incurred by ECO for such
collection.
Checks received after April 15 shall incur a monthly interest charge of
1.5 %.
6. Accounting.
(a) Concessionaire shall keep and maintain full, complete and detailed
records, books and accounts of all revenue, costs and expenses in connection with the
Concession and hereby allows ECO to inspect and audit at its cost, during business
hours, all of Concessionaire's books, accounts and records pertaining to the
Concession upon 30 days' written notice of such inspection to Concessionaire by ECO.
Concessionaire shall make all such books, records and account available for
inspection and examination at Concessionaire's offices. All such records, books and
accounts shall be available for audit by ECO for a period of two years after expiration of
this Agreement. ECO shall treat all such books and records as confidential information
and shall not disclose such information to third parties without the prior written consent
of Concessionaire, except as required by law.
(b) If ECO shall make or have such audit made for any period during the
Term of this Agreement and the Net Revenues shown by Concessionaire's operating
statement for such period should be found to be understated by more than five percent,
Concessionaire shall pay ECO the cost of such audit. Concessionaire agrees that ECO
may inspect any sales tax return or reports and accompanying schedules and data
concerning the Concession which Concessionaire may file with the State of Colorado,
and Concessionaire waives any claim of confidentiality which it may have in connection
therewith.
7. Advertising Display Hardware Concessionaire shall provide advertising
cards, springs, hooks and other material necessary for proper positioning of advertising
in the Displays. Frames shall be supplied and installed in buses by ECO, at their cost.
8. Maintenance of Advertising Displays. Concessionaire shall be responsible
for cleanliness of all of its advertising displays (the "Displays "), including dusting of
exposed Displays and washing of all glass on enclosed Displays. All Displays will be
maintained by Concessionaire in good condition and in complete repair, at its cost.
9. Use of Advertising by Concessionaire Concessionaire represents that it is
now, or prior to use shall be, the owner of or fully authorized to use any and all words,
designs, service marks, trademarks, names and slogans used by it in its operations
hereunder or in any way connected with this Agreement. Concessionaire agrees to
save and hold ECO, its agents, directors, officers, servants and employees free and
harmless of and from any loss, liability, cost, expense, suit, or claim for damages in
connection with any actual or alleged infringement of any patent, trademark, service
mark or copyright, or claim of unfair competition, or any other claim arising out of the
operations of Concessionaire hereunder or in any way connected with this Agreement.
10. Taxes and Licenses. Concessionaire agrees to promptly pay all taxes,
license fees and permit fees of whatever nature applicable to its operations hereunder,
and to apply for and maintain all licenses, whether federal, state, county, municipal or
business, required for the conduct of its business hereunder, and further agrees not to
permit any of said taxes or license fees to become delinquent.
11. Obligations of Concessionaire. Concessionaire further agrees to pay
promptly when due all bills, debts and obligations incurred by it in connection with its
operation hereunder, and not to permit the same to become delinquent or to suffer any
lien, mortgage, judgment, execution or adjudication in bankruptcy which will in any way
impair the rights of ECO of this Agreement.
12. Compliance with Laws and Regulations Concessionaire agrees to conduct
its operations hereunder in accordance with applicable federal, state, county, municipal
laws, rules and regulations and the regulations of ECO.
13. Assignment and Delegation Concessionaire may not assign or delegate its
duties under this Agreement without the prior written consent of ECO, which consent
shall not be unreasonably withheld.
14. Termination. ECO may terminate this Agreement by giving Concessionaire
180 days prior written notice. Upon such termination, all advertising in the Displays shall
be removed from all ECO buses. Further, Concessionaire shall be responsible for the
refund of any revenues received from affected advertisers in such Displays. Upon
termination of this Agreement, ECO will be paid any amounts due at the date of
termination.
15. Default If either one of the parties to this Agreement (a) fails to perform in
accordance with the terms, covenants and conditions of this Agreement or is otherwise
in default of any of the terms of this Agreement, after giving 20 days' notice to the other
party of the alleged default, and upon said party in default having failed to cure said
breach within said 20 days, or (b) files a voluntary petition in bankruptcy or is declared a
bankrupt or makes a general assignment for the benefit of its creditors, or is placed
under a general receivership, the other party shall have the option to terminate this
Agreement and pursue any remedy available at law or in equity.
16. Insurance. At all times during the Term of this Agreement, Concessionaire
agrees to carry and maintain in full force and effect, at its sole cost and expense, the
following insurance policies with insurance companies satisfactory to ECO. Such
policies shall include a provision requiring a minimum of 30 days' notice to ECO of any
change or cancellation.
(a) Comprehensive general liability insurance in the occurrence format in
an amount of $1,000,000 per occurrence, including the following coverages: personal
injury, broad form property damage and contractual liability.
(b) Comprehensive automobile liability insurance on all vehicles used in
connection with the Agreement in an amount of $500,000 combined single limits for
bodily injury and property damage, per occurrence.
(c) Workers Compensation insurance in accordance with the provisions of
the Workers Compensation Act of the State of Colorado.
Concessionaire shall provide ECO with certificate(s) of insurance evidencing the
policies listed above upon execution of this Agreement. ECO shall be named as
additional named insured as its respective interests may appear for all comprehensive
general liability and comprehensive automobile liability insurance.
17. Indemnity. Concessionaire and ECO agree to indemnify, defend and hold
harmless to the extent allowed by law, each other, their agents, directors, officers,
servants and employees of and from any and all loss, costs, damage, injury, liability,
claims, liens, demands, injuries to person or persons, including death, or damage to
property, actions and causes of action whatsoever, arising out of or relating to either's
misconduct, negligent acts, errors and omissions, or that of their employees, officers,
subcontractors and consultants, whether contractual or otherwise.
18. Waiver. No waiver of default by ECO of any of the terms, covenants and
conditions hereof to be performed, kept and observed by Concessionaire shall be
construed as or operate as a waiver by ECO of any subsequent default of any of the
terms, covenants and conditions herein contained to be performed, kept and observed
by Concessionaire.
19. Relationship of the Parties. Notwithstanding the provision herein contained
for the payment of the Concession Fee by Concessionaire to ECO, it is expressly
understood and agreed that ECO shall not be construed or held to be a partner,
associate or joint venturer of Concessionaire in the conduct of its business.
Concessionaire shall at all times have the status of an independent contractor without
the power, right or authority to impose contractual, tort or liability upon ECO.
20. Successors and Assigns. Subject to the provisions of Paragraph 14 herein,
this Agreement shall be binding on the, successors and assigns of the parties hereto.
21. Notices. Any notice, demand or communication which either party may
desire or be required to give to the other parry shall be in writing and shall be deemed
sufficiently given or rendered if delivered personally or sent by first class United States
mail, postage prepaid, addressed as follows:
Eagle County Regional Transportation Authority
3289 Cooley Mesa Road
P.O. Box 1070
Gypsum, CO 81637
Tiga Advertising, Inc.
P.O. Box 268
Vail, CO 81658
The time of rendition of the giving of such notice, demand or communication shall
be deemed to be the time when it is personally delivered or mailed. Either party shall
have the right to designate in writing, served as provided above, a different address to
which any notice, demand or communication is to be mailed.
22. Attornevs' Fees Should arbitration or litigation occur between the parties
relating to the terms, covenants and conditions of this Agreement, all arbitration or
litigation expenses, collection expenses, witness fees, court costs and attorneys' fees
incurred by the prevailing party shall be paid by the non - prevailing party to the
prevailing party.
23. Entire Agreement This Agreement contains the entire agreement between
the parties hereto and supersedes any and all prior agreements, proposals,
negotiations and representations pertaining to this Agreement.
24. Miscellaneous.
(a) If any clause or provision of this Agreement shall be held to be invalid in
whole or in part, then the remaining clauses and provisions, or portions thereof, shall
nevertheless be and remain in full force and effect.
(b) No amendment, alteration; modification of or addition to this
Agreement shall be valid or binding unless expressed in writing and signed by the
parties to be bound thereby.
(c) The captions of each paragraph are added as a matter of convenience
only and shall be considered of no effect in the construction of any provision of this
Agreement.
(d) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Colorado.
(e) Any and all warranties, provisions, rights and obligations of the parties
herein described and agreed to be performed subsequent to the expiration or
termination of this Agreement shall survive the expiration or termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the respective dates set forth below to become effective as of the 1 st day of
November 2001.
Eagle County Regional Transportation Authority
a Colorado municipal corporation
By : Harry Taylor
Title: Director
or G
Date: August 24, 2006
Tiga Advertising, Inc.
a Colorado orporation
Title: /4.
Date: '5 - ',> ( — �+s
