SAMPLE AGREEMENT – SUBJECT TO CHANGE 1 Digital Billboard 202_ Ordinance # __________ Contract #____________ THIS CITY OF HOUSTON DIGITAL BILLBOARD AGREEMENT (the “Agreement”) is made on the date countersigned by the City Controller, by and between the CITY OF HOUSTON, TEXAS (the “City”), a Texas Home Rule City of the State of Texas principally situated in Harris County, and __________________ (the “Concessionaire”), a _________________ doing business in the State of Texas. 1. PREAMBLE 1.1. Addresses of the Parties 1.1.1. The initial addresses of the parties, which one party may change by giving written notice to the other party, are as follows: City Concessionaire Director of ____________ ____________________ (Name, position) or Designee {COMPANY NAME} City of Houston {ADDRESS} P.O. Box {ADDRESS} Houston, Texas The Parties agree as follows: 1.2. Table of Contents 1.2.1. This Agreement consists of the following sections:
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Ordinance # __________ Contract #____________
THIS CITY OF HOUSTON DIGITAL BILLBOARD AGREEMENT (the “Agreement”)
is made on the date countersigned by the City Controller, by and
between the CITY OF HOUSTON, TEXAS (the “City”), a Texas Home Rule
City of the State of Texas principally situated in Harris County,
and __________________ (the “Concessionaire”), a _________________
doing business in the State of Texas.
1. PREAMBLE 1.1. Addresses of the Parties
1.1.1. The initial addresses of the parties, which one party may
change by giving written
notice to the other party, are as follows:
City Concessionaire Director of ____________ ____________________
(Name, position) or Designee {COMPANY NAME} City of Houston
{ADDRESS} P.O. Box {ADDRESS} Houston, Texas
The Parties agree as follows:
1.2. Table of Contents
SAMPLE AGREEMENT – SUBJECT TO CHANGE
2
4.1. Scope of Concession Services
.......................................................................................8
4.2. Concessionaire’s Removal of Existing Signs and Placement and
Installation of
Digital Billboards
................................................................................................................9
4.3. Concessionaire’s Operation of Digital Billboards
.......................................................14 4.4.
Concessionaire’s Maintenance of Digital Billboards
..................................................17 4.5.
Refurbishment and Upgrade of Digital Billboards
......................................................18 4.6.
Personnel of Concessionaire
........................................................................................18
4.7. Rights of Access
..............................................................................................................19
4.8. Taxes
.................................................................................................................................19
4.9. Coordinate Performance
................................................................................................19
4.10.
Reports..............................................................................................................................19
4.11. Prompt Payment of Subcontractors
.............................................................................20
4.12. Ownership of City Information
.......................................................................................20
4.13. Confidentiality of City Information
.................................................................................20
4.14. Security of City Information
...........................................................................................21
4.15. Work Products
.................................................................................................................21
4.16. Compliance with Laws
....................................................................................................22
4.17. Environmental Laws
.......................................................................................................22
4.18. Conflicts of Interest
.........................................................................................................22
6.1. Fees
...................................................................................................................................24
6.2. Due Date and Delinquency
............................................................................................24
6.3. Reconciliation
...................................................................................................................25
SAMPLE AGREEMENT – SUBJECT TO CHANGE
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4
EXHIBIT B – INSTALLMENT SITES
EXHIBIT C – INSTALLATION SCHEDULE
EXHIBIT E – SECURITY ADDENDUM
EXHIBIT J – PERFORMANCE BOND
1.3 Parts Incorporated
1.4 Controlling Parts
1.4.1. If a conflict among the sections and exhibits arises, the
sections control over the exhibits.
SAMPLE AGREEMENT – SUBJECT TO CHANGE
5
1.5. Signatures
1.5.1. The Parties have executed this Agreement in multiple copies,
each of which is an original. Each person signing this Agreement
represents and warrants that he or she is duly authorized and has
legal capacity to execute and deliver this Agreement. Each Party
represents and warrants to the other that the execution and
delivery of this Agreement and the performance of such Party’s
obligations hereunder have been duly authorized and that the
Agreement is a valid and legal agreement binding on such Party and
enforceable in accordance with its terms. The Parties hereby agree
that each Party may sign and deliver this Agreement electronically
or by electronic means and that an electronic transmittal of a
signature, including but not limited to, a scanned signature page,
will be as good, binding, and effective as an original
signature.
ATTEST/SEAL (if a corporation): WITNESS (if not a corporation):
By:___________________________ Name: Title:
CONCESSIONAIRE’S NAME By:_____________________________ Name:
Title:
ATTEST/SEAL: ______________________________ City Secretary
APPROVED: _____________________________ Director,
___________________ Department __________________________________
Chief Procurement Officer
COUNTERSIGNED BY: ________________________________ City
Controller
APPROVED AS TO FORM: ____________________________ Assistant City
Attorney L.D. File No. ______________
DATE COUNTERSIGNED: ________________________________
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Digital Billboard 202_
2. RECITALS 2.1. The City desires to improve the experience for its
residents through the use of digital
billboards that will include information specific to the City, can
provide emergency communications, and will have commercial
advertising and to reduce visual blight with the City’s
jurisdictional boundaries by working with Concessionaire to remove
existing billboards located near highway, roadways, and the City’s
right of ways in exchange for the development of a limited number
of digital billboards, which will generate revenue for the
City.
2.2. Concessionaire is engaged in the design, development,
installation, operation and
maintenance of digital billboards. 2.3. The City owns or controls
certain real property located with the City of Houston limits
as
set forth in Exhibit ____. 2.4. The City has evaluated the digital
billboards and determined that installation of the digital
billboards on real property owned or controlled by the City in
various locations throughout the City will further the interests of
the City.
2.5. Concessionaire warrants that it has the experience, personnel,
equipment, financial
strength, and other resources to provide the concession services as
described in this Agreement, in exchange for the consideration
provided for in this Agreement.
3. DEFINITIONS
3.1. As used in this Agreement, the following terms have the
meanings set out below:
3.1.1. “Advertising Messages” means any and all advertisements
displayed by Concessionaire on the Digital Billboards.
3.1.2. “Agreement” means this contract between the Parties,
including all exhibits and any written amendments authorized by
City Council and Concessionaire.
3.1.3. “Business Day(s)” mean(s) any day that is not a Saturday,
Sunday, or City
Holiday. In the event that any deadline set forth in this Agreement
falls on a Saturday, Sunday, or City Holiday, the deadline shall
automatically be extended to the next day that is not a Saturday,
Sunday, or City Holiday.
3.1.4. “Chief Information Officer” is the Director of Houston
Information Technology
Services, or his or her designee. 3.1.5. “Chief Procurement
Officer” (CPO) is the Chief Procurement Officer for the City
of Houston, as set forth in Chapter 15 of the Houston Code of
Ordinances. 3.1.6. “City” is defined in the Preamble of this
Agreement and includes its
successors and assigns. 3.1.7. “City Messages” means any and all
content provided to Concessionaire by
the City or an organization directed by the City for display on
Digital Billboards, including any content on which City, or its
affiliates’, logos, trademarks or
SAMPLE AGREEMENT – SUBJECT TO CHANGE
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Digital Billboard 202_
other City marks may appear. 3.1.8. “City Public Service Message”
means any emergency notifications from the
City or at the City’s direction, from another governmental
authority, including but not limited to “Amber Alerts," messages
issued by the Federal Emergency Management Agency or the Department
of Homeland Security, severe weather warnings and similar messages
of an urgent nature affecting the public’s immediate health and
safety.
3.1.9. “City Council” means the governing body of the City. 3.1.10.
“City Engineer” means the Director of Houston Public Works, or his
or her
designee. 3.1.11. “City’s Information” or “City Information” means
any and all City information or
data, including but not limited to, City-specific information, user
information, data, materials, processes, documents, citizen
information, and any other information, materials, or data
Concessionaire receives or to which Concessionaire has access to,
in any form whatsoever including oral, written, and
machine-readable form, video, audio, phonorecord, recorded media,
drawings, schematics, samples, devices, software, formulas,
services, processes, procedures, protocols, trade secrets,
intellectual property, and business or strategic plans.
3.1.12. “City Personnel” means all employees, but not elected
officials. 3.1.13. “Concession” means the rights and obligations
granted to Concessionaire
under this Agreement.
3.1.14. “Concessionaire” is defined in the Preamble of this
Agreement and includes its successors and assigns.
3.1.15. “Countersignature Date” means the date shown as the date
countersigned by
the City Controller on the signature page of this Agreement.
3.1.16. “Day” or “Days” means calendar day, including weekends and
legal holidays,
whether capitalized or not, unless otherwise specifically provided.
In the case of plural “days,” those days will be consecutive.
3.1.17. “Digital Billboard” means __________________________, and
which may
provide, without limitation, those services and applications as set
forth on Exhibit A.
3.1.18. “Director” means _______________________, or his or her
designee. 3.1.19. “Documents” mean notes, manuals, notebooks,
plans, computations, computer
databases and diskettes, software, tabulations, exhibits, reports,
underlying data, charts, analyses, maps, letters, models, forms,
photographs, the original tracings of all drawings and plans, and
other work products (and any modifications or improvements to them)
that Concessionaire prepares or provides under this
Agreement.
SAMPLE AGREEMENT – SUBJECT TO CHANGE
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Digital Billboard 202_
3.1.20. “Fiscal Quarter” means the periods between and including
(1) January 1st
through March 31st, (2) April 1st through June 30th, (iii) July 1st
through September 30th, and (iv) October 1st through December
31st.
3.1.21. “Gross Consideration” means all cash and non-cash
consideration.
3.1.22. “Include” and “including,” and words or similar import,
shall be deemed to be
followed by the words “without limitation.” 3.1.23. “Installation
Site(s)” means the locations in the City of Houston that are
designated by the Director for the installation of the Digital
Billboards as described in Exhibit B.
3.1.24. “Intellectual Property Rights” means patents, registered
designs and
trademarks, together with applications therefor and copyrights of
any kind. 3.1.25. “Minimum Annual Guarantee” means those amounts
set forth in Exhibit D. 3.1.26. “Operational Date” means the date
on which a Digital Billboard is installed and
capable of carrying advertisements and performing the functions and
services set forth in this Agreement.
3.1.27. “Notice to Proceed” means a written communication from the
Director to
Concessionaire instructing Concessionaire to begin performance.
3.1.28. “Parties” mean all the entities set out in the Preamble,
who are bound by this
Agreement.
3.1.29. “Revenue” means the net revenue receive by Concessionaire
and calculated as _______________________.
3.1.30. “Term” means the entire period during which this Agreement
is in effect,
starting on the Countersignature Date and continuing through the
final date of termination or expiration of this Agreement,
including any renewals or extensions.
4. RIGHTS AND DUTIES OF CONCESSIONAIRE
4.1. Scope of Concession Services
4.1.1. For and in consideration of the City’s grant of the
non-exclusive right, license and privilege to design, implement,
construct, install, operate, maintain, repair, replace, upgrade and
remove the Concession in the Installment Sites set forth on Exhibit
B during the Term of this Agreement, Concessionaire shall provide
all labor, materials, supplies, equipment, and supervision
necessary to perform the Services described in this Agreement.
Notwithstanding the previous sentence, the City is not limited in
its ability to authorize digital or non-digital advertising on
City-owned land or in the public right of way, including but not
limited to _____________________________.
SAMPLE AGREEMENT – SUBJECT TO CHANGE
9
Digital Billboard 202_
The license also does not limit any advertising on City-owned land
or right of way used or otherwise held for the operation of any
City aviation facility, including George Bush Intercontinental
Airport, William P. Hobby Airport and Ellington Airport.
4.1.2. This Agreement does not grant Concessionaire the right to
perform any services, sell any merchandise, or engage in any other
business or commercial activity on City-owned property that is not
expressly granted in this Agreement.
4.2. Concessionaire’s Removal of Existing Signs and Placement and
Installation of Digital Billboards
4.2.1. Concessionaire’s Removal of Existing Signs
4.2.1.1. Concessionaire is the owner of ___________ existing
signs
(“Existing Signs”) in the locations shown on Exhibit B. Within
______ (time period) from the Countersignature Date,
Concessionaire, at its sole cost and expense, shall remove and
fully demolish the Existing Signs before any Digital Billboards are
installed. Concessionaire shall remove _____ existing signs for
every one Digital Billboard to be installed under this Agreement.
Existing Signs do not include signs that are reasonably anticipated
to be acquired by a governmental entity for a public project within
five years of the Countersignature Date of this Agreement.
4.2.1.2. Before removing an Existing Sign(s), Concessionaire shall,
at its
sole cost and expense, obtain all Required Approvals required in
connection with the removal of such Existing Sign(s) as set forth
in Section 4.2.3.
4.2.1.3. Concessionaire shall perform the removal of the Existing
Signs in
compliance with all applicable federal and state laws, including
environmental laws, and the City’s Code of Ordinances.
4.2.2. Placement
4.2.2.1. Concessionaire’s placement of Digital Billboards shall be
limited to
those designated Installment Sites as agreed to by both Parties and
approved by the City Engineer and Chief Information Officer.
Concessionaire and City shall work together in good faith to
discuss the number and Installment Sites within the City for the
installation of Digital Billboards within the initial locations set
forth in Exhibit B. Concessionaire shall pay all expenses
associated with planning the Installment Sites within the initial
locations set forth in Exhibit C. The initial request for approval
of an Installment Site shall be submitted in writing by
Concessionaire to the Director. The Director shall then obtain the
review of the City Engineer and the Chief Information Officer who
will accept or reject the Installment Site and advise
Concessionaire. The final decision as to where Digital Billboards
may be located shall be made by the Director, and the
SAMPLE AGREEMENT – SUBJECT TO CHANGE
10
Digital Billboard 202_
City reserves the right, in the exercise of its reasonable
discretion, to reject any proposed Installment Site requested by
Concessionaire and may direct placement at an alternative
Installment Site. Concessionaire and the City agree that the number
of Installment Sites within the City shall not be greater than
_______ and that no Digital Billboards may be located in the Scenic
District, which is defined in the City of Houston Sign Code. When
the Parties have agreed to any one or more proposed Installment
Sites and all Plans, as defined in this section, have been approved
and finalized by the Parties, a replacement Exhibit C shall be
provided along with the Director’s written request under this
Section noting the appropriate change to the Installment Sites. Any
such change to Exhibit C shall not require an amendment of this
Agreement, provided the Director and Concessionaire execute a
signed Exhibit C.
4.2.2.2. The City reserves the right, at its sole discretion, to
revoke approval of an Installment Site listed in Exhibit C. In the
event an Installment Site is revoked by the City, the Parties agree
the Director will provide written notice to Concessionaire. If the
Concessionaire is required by the City to remove and relocate one
or more of the Digital Billboards from any of the Installment
Sites, the City and Concessionaire shall work together in good
faith to find mutually agreeable alternative Installment Site(s)
within the City for the Digital Billboard(s) for a period of thirty
days (the “Relocation Period”).
4.2.2.2.1. If the Parties agree to an alternative Installment
Site
during the Relocation Period, a replacement Exhibit B shall be
provided along with the Director’s written request under this
Section noting the appropriate change to the Installment Site. Any
such change to Exhibit C shall not require an amendment of this
Agreement, provided the Parties execute a signed Exhibit C.
4.2.2.2.2. If the City does not make available an alternative
Installment Site that is acceptable to Concessionaire during the
Relocation Period, this Agreement shall terminate based on
relocation and be of no further force and effect with respect to
such Digital Billboard that was unable to be relocated, and
Concessionaire shall remove the Digital Billboard and restore the
Installment Site as close as reasonably practical, to its original
conditions, subject to reasonable wear and tear, and shall do such
work as is reasonably necessary to cap off the utilities serving
the Installment Site. An alternative Installment Site shall be
deemed to be acceptable to Concessionaire if such Installment Site
has economic value that is comparable to that of the previous
Installment Site. A replacement Exhibit C shall be
SAMPLE AGREEMENT – SUBJECT TO CHANGE
11
Digital Billboard 202_
provided along with the Director’s written request under this
Section noting the appropriate change to the Installment Sites. Any
such change to Exhibit C shall not require an amendment of this
Agreement, provided both Parties execute a signed Exhibit C.
4.2.2.2.3. Concessionaire shall be solely responsible for the cost
and expense of the removal or relocation of any Digital Billboard.
Any removal or relocation of Digital Billboards under this section
must be completed within 45 days after the Director provides a
replacement Exhibit B. The Director, in his sole discretion, may
extend this period. The City agrees that it may not permit any
person or entity, other than Concessionaire, to remove the Digital
Billboard(s) upon the termination or expiration of this Agreement
as to an Installment Site; provided, however, if Concessionaire
fails to remove its property within 45 days of termination of an
Installment Site or in an emergency situation that poses harm to
the public or to City property, the City may remove the Digital
Billboard at Concessionaire’s expense without any liability for
damage by reason of such removal. In addition, upon expiration or
termination of this Agreement, Concessionaire shall remove all
Concessionaire-owned material and equipment (including but not
limited to the Digital Billboards) from City’s premises and City
owned property within 45 days after expiration or termination. The
time period may be extended upon approval by the Director. The City
reserves the right to deny any extension of time. Concessionaire
shall not charge any fees or penalties or invoice City for the
Concessionaire-owned equipment or materials due to Concessionaire’s
failure to remove all Concessionaire-owned material and equipment
within the permitted time of 45 days.
4.2.2.3. Concessionaire covenants and agrees that during the Term
it will
not sell, convey, mortgage or pledge or otherwise dispose of
Digital Billboards without the prior written consent of the
Director. Concessionaire shall not use or grant the Digital
Billboards as security interest.
4.2.2.4. Concessionaire and City agree that nothing in this
Agreement
provides Concessionaire the exclusive right to occupy and install a
Digital Billboard on any particular location in the City.
4.2.2.5. Concessionaire agrees that Concessionaire bears the full
risk of the
site and local physical conditions at the Installment Site(s) where
the Digital Billboards will be installed and the Concessionaire
will not be entitled to any payments, adjustment to the payments
due to the City under this Agreement, or any extension in time for
its
SAMPLE AGREEMENT – SUBJECT TO CHANGE
12
performance of the Services as result of the same.
4.2.2.6. {Further terms regarding lease of City property to be
negotiated and inserted}
4.2.3. Required Approvals
4.2.3.1. Before erecting, constructing, installing, or placing a
Digital
Billboard on an Installment Site, Concessionaire shall, at its sole
cost and expense, obtain all Required Approvals required in
connection with such Digital Billboard. “Required Approvals” means
any and all governmental authorizations or approvals, permits,
licenses and entitlements that Concessionaire or the City deems
reasonably necessary for the construction, installation,
maintenance, operation and relocation or removal work in connection
with the Digital Billboards or Concessionaire’s obligations under
this Agreement and the display of static and digital content on the
Digital Billboards, including but not limited to: (1) obtaining all
permits, (2) paying all governmental taxes, fees and other costs,
(3) filing all necessary plans, preparing all documents, and
obtaining all necessary approval of all governmental departments
having jurisdiction, (4) obtaining all required certificates of
inspection and approval for the installation, operation and
maintenance of the Digital Billboards in the Installment Sites and
the display of static and digital content on the Digital
Billboards.
4.2.3.2. Concessionaire shall comply with all requirements of the
City’s Code of Ordinances, including but not limited to Building,
Electrical, and Fire Codes, and all other applicable codes.
4.2.3.3. Concessionaire shall comply with all applicable laws in
the
construction, installation, maintenance, operation and relocation
or removal work in connection with the Digital Billboards or
Concessionaire’s obligations under this Agreement, including but
not limited to the federal Highway Beautification Act and the
regulations promulgated thereunder at 23 C.F.R. Part 750, the Texas
Highway Beautification Act, Tex. Transp. Code Chapter 393 and the
state regulations promulgated thereunder, the 1972 Agreement
between the Federal Highway Administration and the State of Texas
regarding outdoor advertising, and other applicable laws and
regulations.
4.2.3.4. From and after the Countersignature Date, Concessionaire
shall
work to ensure that the Required Approvals are obtained for the
construction, installation, maintenance, operation and relocation
or removal work in connection with the Digital Billboards or
Concessionaire’s obligations under this Agreement and the display
of static and digital advertising content on the Digital
Billboards. During any time when Concessionaire is seeking the
Required Approvals, Concessionaire may engage in certain efforts as
Concessionaire deems necessary to advocate for the same. If
and
SAMPLE AGREEMENT – SUBJECT TO CHANGE
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Digital Billboard 202_
when issued, such permits shall be issued in the name of the
Concessionaire. Concessionaire and the City agree that the Digital
Billboards will not be installed at the Installment Sites unless
and until the Required Approvals are obtained.
4.2.3.5. Concessionaire shall bear all costs and expenses
associated with
obtaining any and all Required Approvals.
4.2.2. Planning
4.2.3.1 Concessionaire shall pay all expenses associated with the
planning, implementing, construction, installation, maintenance,
operation and relocation or removal work in connection with the
Digital Billboards including, but not limited to, preparation,
construction, and installation of Digital Billboards and
installation of electrical lines to the Digital Billboards.
4.2.3.2 Within 30 days from the Countersignature Date and before
the
installation of any Digital Billboard, Concessionaire shall at its
sole cost and expense, prepare and deliver to the City drawings,
plans and specifications (the “Plans”), setting forth in reasonable
detail compliance with the Minimum Design Specifications set forth
in Exhibit ___, the work necessary to construct and install the
Digital Billboard(s), including but not limited to the Installment
Site, the dimensions and size of the Digital Billboard to be
installed at an Installment Site, the method of installation, and
photos, drawings, and renderings of the Digital Billboard that
adequately depict the appearance, design concept, general color
scheme, fixtures and graphic elements. The Director, City Engineer,
and Chief Information Officer shall review the Plans, and the
Director shall provide the City’s response within ________ after
receipt of the Plans. Concessionaire shall review any comments to
the Plans provided by the City and provide a response to those
comments within 30 days of receipt of the City’s response. The
Parties shall continue in this manner until such time as the Plans
are approved by the Director. Concessionaire shall not begin any
Installation Work as defined in this Section with respect to a
particular Installment Site unless and until the City has approved
the Plans, which approval will not be unreasonably withheld,
conditioned, or delayed. If the Plans are approved, the Director
shall issue a Notice to Proceed with the construction and
installation of the Digital Billboards.
4.2.3. Installation Work
4.2.4.1. Within 10 days of receipt of the City’s approval of the
Plans, the City’s Notice to Proceed, and Required Approvals,
Concessionaire shall prepare an installation schedule and deliver
the same to the Director. After consultation with the City Engineer
and the Chief Information Officer, the Director shall either
approve, disapprove, or require such modifications to the
installation schedule as the
SAMPLE AGREEMENT – SUBJECT TO CHANGE
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Digital Billboard 202_
Director may deem necessary and appropriate within a reasonable
time. Once approved, the installation schedule shall be attached to
this Agreement as Exhibit ___, which shall not require an amendment
to this Agreement, provided that both Parties execute a signed
Exhibit ____. Concessionaire shall work diligently to install the
Digital Billboards in accordance with the installation schedule
approved by the Director. All Installation Work shall be at
Concessionaire’s sole cost and expense and shall be completed
within the time periods set forth in Exhibit ___. Concessionaire
must seek and obtain approval of any change to the installation
schedule from the Director. Any such change to the installation
schedule or corresponding changes to Exhibit ___ shall not require
an amendment of this Agreement, provided both Parties execute a
signed Exhibit ___.
4.2.4.2. All Digital Billboard equipment must be new and not be
refurbished. 4.2.4.3. Concessionaire shall perform the Installation
Work in a good and
workmanlike manner and in compliance with all applicable laws,
regulations, regulations and rules and the Required
Approvals.
4.2.4.4. Concessionaire represents that it or its agent has
inspected all
Installment Sites and familiarized itself with the surface,
subsurface, external, and internal conditions found there.
Concessionaire accepts the Installment Sites and City-owned
property in their present condition “as is” as of the
Countersignature Date of this Agreement. Concessionaire
acknowledges that no representations have been made by the City or
any of its agents to Concessionaire with respect to the condition
of the Installment Sites or City Properties, nor have there been
any promises made to alter, repair, improve, or replace them before
or after the Parties execute this Agreement.
4.3. Concessionaire’s Operation of Digital Billboards
4.3.1. Concessionaire shall furnish billboard and advertising
services through the
use of Digital Billboards for the purpose of displaying static and
digital content, including but not limited to City Messages, City
Public Service Messages, and Advertising Messages, consistent with
the services and applications set forth in Exhibit ____.
4.3.2. Concessionaire shall provide all equipment, software,
personnel,
supervision, capital and other goods and services and maintenance
and support necessary to perform under this Agreement.
4.3.3. Concessionaire shall, at no cost to the City, deploy updates
to the Software
used to operate the Digital Billboards from time to time during the
Term of this Agreement to ensure that such Software remains
reasonably up to date and functional for its purposes.
Concessionaire shall also provide such content updates as are
reasonably required by the terms of this Agreement and otherwise
ensure that the Digital Billboards remain functional for
their
SAMPLE AGREEMENT – SUBJECT TO CHANGE
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Digital Billboard 202_
purposes. Concessionaire shall pay all costs associated with
developing and updating the Software and operating system for the
Digital Billboards and any technology developed by or at the
direction of Concessionaire for the Digital Billboards.
4.3.4. Concessionaire, at its sole cost and expense, shall be
responsible for
implementing and appropriately updating policies, procedures and
technology in accordance with commercially reasonable industry
standards and practices designed to prevent unauthorized access to
Concessionaire’s or the Digital Billboards’ systems in connection
with the provision of the Services under this Agreement.
“Unauthorized Access” means (1) any access, use, or other activity
by a person or party other than Concessionaire involving
Concessionaire’s or the Digital Billboards’ systems that is not
expressly authorized by Concessionaire or under this Agreement and
(ii) any breach involving Concessionaire’s or the Digital
Billboards’ systems that may comprise such system; examples of
Unauthorized Access include but is not limited to hacking, abuse,
adverse interference, or infection with viruses, worms and other
malicious or destructive code. Concessionaire, at its sole cost and
expense, shall be responsible for applying commercially reasonable
internal information security practices, including but not limited
to implementation of vulnerability testing and management and
intrusion detection monitoring, using appropriate firewall and
anti-virus software, which shall be continuously updated on a
scheduled basis, maintaining such countermeasures, operating
systems, and other applications with up-to-date virus definitions
and security patches, installing and operating security mechanisms
in the manner in which they were intended sufficient to ensure that
Concessionaire’s or the Digital Billboards’ systems will not be
impacted nor operations disrupted in connection with the usage or
provision of the Services under this Agreement, and permitting only
authorized users access to computer systems and applications.
Concessionaire shall promptly report an incident of Unauthorized
Access affecting the Digital Billboards under this Agreement to the
City. Any report shall describe in reasonable detail the
circumstances surrounding the Unauthorized Access and the steps
being taken by Concessionaire to remedy the breach. Concessionaire
shall be liable for any damages resulting from such a breach.
4.3.5. Concessionaire shall meet with the Director, as and when
requested by the
Director, to discuss the development of City Messages for the
Digital Billboards. City Messages shall appear on the Digital
Billboards during the frequencies and amounts set forth in Exhibit
____.
4.3.6. Advertising. Concessionaire shall adhere to its advertising
policy attached
hereto as Exhibit I when placing advertising on Digital Billboards.
In addition, Concessionaire shall not place advertising on Digital
Billboards that violates sponsorship agreements in effect as of the
Countersignature Date between the City and its sponsors. Subject
only to the restrictions expressly set forth in this Agreement,
which the City shall have the right to enforce at all times,
Concessionaire has the right to make all decisions regarding the
acceptance of advertising for the Digital Billboards pursuant to
its own advertising policy and goals and shall be solely
responsible for such decisions. It is the City’s express intent,
and the Digital Billboards shall at all times be so operated, that
the Digital Billboards and the City property on which they are
located are not designated
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Digital Billboard 202_
public forums for the purposes of any First Amendment forum
analysis. This requirement is a material inducement to the City’s
execution of this Agreement and is not severable.
4.3.6. Concessionaire shall comply with all federal, state and
municipal laws, orders,
rules and regulations applicable to the use of the Digital
Billboards and the display of content on the Digital Billboards,
including but not limited to the federal Highway Beautification Act
and the regulations promulgated thereunder at 23 C.F.R. Part 750,
the Texas Highway Beautification Act, Tex. Transp. Code Chapter 393
and the state regulations promulgated thereunder, the 1972
Agreement between the Federal Highway Administration and the State
of Texas regarding outdoor advertising, and the City of Houston
Code of Ordinances, and shall be solely responsible for the costs
associated with such compliance.
4.3.7. Concessionaire shall be responsible for all ongoing
operating costs of the Digital Billboards.
4.3.8. Each Digital Billboard must be attractive, functional and
resistant to rough usage
and vandalism. 4.3.9. Concessionaire, at its sole cost and expense,
shall be responsible for
implementing and appropriately updating policies, procedures and
technology in accordance with commercially reasonable industry
standards and practices designed to prevent unauthorized access to
Concessionaire’s or the Digital Billboards’ systems (and any
system, server, cloud, or equipment in which Concessionaire or the
Digital Billboards’ systems interface with, connect to, transmit
through, or otherwise store or transmit data) in connection with
the provision of the Services under this Agreement. “Unauthorized
Access” means (1) any access, use, or other activity by a person or
party other than Concessionaire involving Concessionaire’s or the
Digital Billboards’ systems that is not expressly authorized by
Concessionaire or under this Agreement and (ii) any breach
involving Concessionaire’s or the Digital Billboards’ systems (and
any system, server, cloud, or equipment in which Concessionaire or
the Digital Billboards’ systems interface with, connect to,
transmit through, or otherwise store or transmit data) that may
comprise such system; examples of Unauthorized Access include but
is not limited to hacking, misuse, abuse, interference, or
infection with time bombs, protect codes, data destruct keys,
viruses, worms, trojan horses, and other malicious or destructive
code or other programming devices that are intended to access,
modify, delete, damage, deactivate, or disable Concessionaire’s or
Digital Billboard’s systems (or any system, server, cloud, or
equipment in which Concessionaire or the Digital Billboards’
systems interface with, connect to, transmit through, or otherwise
store or transmit data). Concessionaire, at its sole cost and
expense, shall be responsible for applying commercially reasonable
information security practices, including but not limited to
implementation of vulnerability testing and management and
intrusion detection monitoring, using appropriate firewall and
anti-virus software, which shall be continuously updated on a
scheduled basis, maintaining such countermeasures, operating
systems, and other applications with up-to-date virus definitions
and security patches, installing and operating
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Digital Billboard 202_
security mechanisms in the manner in which they were intended
sufficient to ensure that Concessionaire’s or the Digital
Billboards’ systems (and any system, server, cloud, or equipment in
which Concessionaire or the Digital Billboards’ systems interface
with, connect to, transmit through, or otherwise store or transmit
data) will not be impacted nor operations disrupted in connection
with the usage or provision of the Services under this Agreement,
and permitting only authorized users to access computer systems and
applications. Concessionaire shall promptly report an incident of
Unauthorized Access affecting the Digital Billboards under this
Agreement to the Director. Any report shall describe in reasonable
detail the circumstances surrounding the Unauthorized Access and
the steps being taken by Concessionaire to remedy the breach.
Concessionaire shall be liable for any damages and expenses
resulting from such a breach.
4.4. Concessionaire’s Maintenance of Digital Billboards
4.4.1. Throughout the Term of this Agreement, Concessionaire, at
its own expense,
shall keep the Digital Billboards and any associated equipment in
the Installment Sites neat and clean and maintain the Digital
Billboards and any associated equipment in the Installment Sites in
good and operable condition and in safe condition and free of
rusts, stains, scratches, missing paint, graffiti and in good
working order including the illumination of the displays.
Concessionaire also agrees, at its own expense, to keep such areas
free from the accumulation of debris or trash.
4.4.2. Concessionaire shall establish a written preventive
maintenance program,
subject to the initial written approval and periodic review of the
Director. Concessionaire shall perform maintenance in accordance
with the approved maintenance program. All repairs and replacements
shall be of a quality substantially equal to the original in
materials and workmanship.
4.4.3. Additionally, Concessionaire shall begin all work necessary
to repair any damage
to or non-functioning element(s) of the Digital Billboards within
24 hours after receipt of written notice of the need for such
repairs and shall provide the Director with a status of update
within 24 hours after beginning such work.
4.4.4. If a repair does not require the replacement of the Digital
Billboard,
Concessionaire shall use best efforts to complete the same within
five business days after beginning such work. If a repair requires
a replacement of the Digital Billboard, Concessionaire shall (a)
remove the Digital Billboard within five business days and cap any
utility connections and other work as necessary to make the
Installment Site safe and the Digital Billboard structurally sound
and (b) use best efforts to complete the replacement work within 60
days after beginning such work. In either event, Concessionaire
shall perform such repair and replacement work as reasonably
necessary throughout the Term to ensure the Digital Billboards are
capable of operating for their intended purposes.
4.4.5. Concessionaire shall maintain a fully stocked inventory of
all spare parts required
for the Equipment. Concessionaire shall constantly replenish the
inventory as parts are used for maintenance services. If
Concessionaire uses all practicable means to comply with this
clause but is unable to complete any maintenance services because
of a lack of spare parts, the Director may, on
Concessionaire’s
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Digital Billboard 202_
written request, allow a longer period of time for the completion
of the maintenance services.
4.5. Refurbishment and Upgrade of Digital Billboards
4.5.1. No later than nine years after the date of installation of a
Digital Billboard,
Concessionaire shall, at the Concessionaire’s sole cost and
expense, refurbish and upgrade such Digital Billboard so as to
restore such Digital Billboard to an equivalent functionality
comparable to digital sign technology then being sold in the
outdoor advertising market. If necessary, such refurbishment and
upgrade requirement may require the complete replacement of the
display panel, including LED lights, fixtures, wiring and sing
components, addition of light diffusing or controlling features,
incorporation of new solar, energy savings or similar “green”
features, sand similar improved technologies.
4.6. Personnel of Concessionaire
4.6.1. Concessionaire shall assign a fully qualified and
experienced representative (“Concessionaire’s Manager”) to the City
who will be competent to properly manage the Concession and who
will serve as liaison between Concessionaire and the Director with
full authority to make decisions for Concessionaire as may be
required under the terms of this Agreement. On or before the
Countersignature Date of this Agreement, Concessionaire shall have
provided to the Director the following:
4.6.1.1. the name, business address and telephone number of
Concessionaire’s Manager; and
4.6.1.2. the name, business address and telephone number of an
alternate person who is authorized to take such action in the
absence of Concessionaire’s Manager.
4.6.2. If at any time the Director is not satisfied with
Concessionaire’s Manager (or a
replacement manager), the Director shall notify Concessionaire in
writing setting forth the Director’s complaints. Within 20 days
after receipt of any such notice, Concessionaire shall respond in
writing detailing the corrective action taken to resolve the
Director’s concerns. If still not satisfied, the Director shall
have the right to require by notifying Concessionaire in writing,
that the Concessionaire’s Manager (or a replacement manager) be
removed from performance under this Agreement. Concessionaire shall
comply with any such demand but only after securing the services of
a replacement manager who has been approved in writing and in
advance by the Director. In no event shall more than 60 days
elapsed from the time Concessionaire receives notice of Director’s
demand to remove and the time a new Concessionaire’s Manager is
performing under this Agreement. If during the Term, Concessionaire
desires to change Concessionaire’s Managers, it may do so only
after having notified the Director in writing with the name,
telephone number and business address of the new manager, the
effective date of the appointment, and received the Director’s
prior written approval.
4.6.3. Concessionaire shall make citizen satisfaction a priority in
providing services
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Digital Billboard 202_
under this Agreement. Concessionaire shall train its employees to
be customer service-oriented and to positively and politely
interact with citizens when performing contract services.
Concessionaire’s employees shall be clean, courteous, efficient,
and neat in appearance and committed to offering the highest
quality of service to the public. If, in the Director’s opinion,
Concessionaire is not interacting in a positive and polite manner
with citizens, he or she shall direct Concessionaire to take all
remedial steps to conform to these standards.
4.6.4. Concessionaire shall control the conduct, demeanor, and
appearance of its
officers, agents, employees, representatives, and subcontractors
working for or doing business with it while on City property. Upon
objection from the Director to Concessionaire concerning the
conduct, demeanor or appearance of any such person(s),
Concessionaire shall forthwith take all steps necessary to remove
the cause of the objection, including, but not limited to, removal
of such person(s) from performing under this Agreement.
4.7. Rights of Access
4.7.1. Concessionaire, its subcontractors, agents, employees,
contractors, suppliers
and invitees are granted, subject to the other terms and conditions
of this Agreement, the right of ingress and egress over and across
any and all City- owned property as reasonably necessary to access
the Installment Sites for the purposes set forth in this
Agreement.
4.8. Taxes
4.8.1. Concessionaire shall pay, prior to delinquency, all taxes of
whatever character
that may be levied, assessed, or charged upon the property, real
and personal, owned by Concessionaire, or upon Concessionaire’s
Digital Billboards, or other property thereon, or upon
Concessionaire; provided, however, Concessionaire shall have the
right to contest any such taxes.
4.9. Coordinate Performance
4.9.1. Concessionaire shall coordinate its performance with the
Director and other persons that the Director designates.
Concessionaire shall promptly inform the Director and other
person(s) of all significant events relating to the performance of
this Agreement.
4.10. Reports 4.10.1. Concessionaire shall submit all reports and
progress updates required by the
Director, including but not limited to the following reports:
4.10.1.1. Progress Report. Concessionaire shall provide monthly
progress
reports to track progress and compliance with terms of this
Agreement. Concessionaire shall submit the monthly Progress Report
to the Director on the first Monday of each month beginning the
first Monday of the month following City Council approval of the
Agreement. These monthly reports shall continue until
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Digital Billboard 202_
_________________. The monthly Progress Reports shall include, but
not be limited to the following:
4.10.1.1.1. {TO BE NEGOTIATED AND INSERTED}
4.10.1.2. Sales and Advertising Report. Concessionaire shall
provide a quarterly report describing in reasonable detail sales
efforts undertaken by Concessionaire and the advertisers using the
Digital Billboards, the terms of the advertisement arrangement made
with such advertiser, and any other information reasonably request
by City.
4.10.1.3. Revenue Report. Concessionaire shall provide a quarterly
report tracking the amount of revenue generated by each Digital
Billboard.
4.10.1.4. {TO BE NEGOTIATED AND INSERTED}
4.11. Prompt Payment of Subcontractors
4.11.1. In accordance with the Texas Prompt Payment Act,
Concessionaire shall make
timely payments to all persons and entities supplying labor,
materials, or equipment for the performance of this Agreement.
CONCESSIONAIRE SHALL DEFEND AND INDEMNIFY THE CITY FROM ANY CLAIMS
OR LIABILITY ARISING OUT OF CONCESSIONAIRE’S FAILURE TO MAKE THESE
PAYMENTS.
4.12. Ownership of City Information
4.12.1. The City is, will be, and shall remain at all times the
owner of all City Information.
Concessionaire expressly acknowledges that the City has all right,
title, or other ownership interest in the City Information and
Concessionaire shall not possess or assert any lien or other right
against the City Information. The City is, will be, and shall
remain the owner of all City data, including City-specific data
created or generated by either party, pursuant to this Agreement.
The City may use this City data, including data provided by
Concessionaire, for any purpose. At all times, including during or
after the termination or expiration of this Agreement or any
license Concessionaire grants to the City, the City retains the
right to reveal or extract the City’s Information and all City data
and City-specific data from the Concessionaire-provided Software,
Equipment, hardware, documentation, and Documents, and the right to
use the City data, City-specific data, and the City Information for
the City’s own use, for use with other non- Concessionaire
software, Equipment, or hardware, or to load elsewhere.
Concessionaire shall provide a data export tool that is requested
or approved by the Director that returns City data and
City-specific data on demand. Concessionaire shall not use City
data, City Information, and City-specific data for any other
purposes other than what is expressly specified in this
Agreement.
4.13. Confidentiality of City Information
4.13.1. Concessionaire, its agents, employees, contractors, and
subcontractors shall
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Digital Billboard 202_
hold all City Information that they receive, or to which they have
access, in strictest confidence. Concessionaire, its agents,
employees, contractors, and subcontractors shall not disclose,
disseminate, or use the Information unless the Director authorizes
it in writing. Concessionaire shall obtain written agreements from
its agents, employees, contractors, and subcontractors which bind
them to the terms in this Section.
4.14. Security of City Information
4.14.1. Concessionaire, its agents, employees, and subcontractors
agree to be bound
by the terms regarding the confidentiality and security of the
City’s interest as set forth in Exhibit E (Security
Addendum).
4.15. Work Products
The City may use all notes, plans, computations, databases,
tabulations, exhibits, photographs, reports, underlying data and
other work products (collectively, the “Documents”) that
Concessionaire prepares or obtains under this Agreement.
Concessionaire hereby grants a perpetual, non-exclusive license to
the Documents to City for use.
4.15.1. Concessionaire warrants that it owns or has obtained all
intellectual property rights
to the Documents and that it has obtained all the rights for the
City to use such Documents without the need for further or
additional licenses or costs to the City.
4.15.2. Concessionaire shall deliver the original Documents to the
Director on request.
Within five working days after this Agreement terminates,
Concessionaire shall deliver to the Director the original
Documents, and all other files and materials Concessionaire
produces or gathers during its performance under this
Agreement.
4.15.3. Except for as provided for under this Agreement,
Concessionaire conveys no
interest in its intellectual property rights in the Digital
Billboards to the City. For clarity, this applies only to the
equipment and services provided under this Agreement and does not
affect any license or assignment Concessionaire conveys to the City
under other agreements.
4.15.4. Diagnostic software, documentation, equipment, or other
material
Concessionaire uses to do installation, warranty, or service may be
furnished with the products. Concessionaire conveys no title or
license to this material, and it remains Concessionaire’s exclusive
property. Concessionaire is responsible and liable for securely
storing its property, and the City shall not be responsible or
liable for any damage, disappearance, or theft of Concessionaire’s
property.
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22
4.16. Compliance with Laws 4.16.1. Concessionaire shall comply with
all applicable state and federal laws and
regulations and the City Charter and Code of Ordinances.
4.17. Environmental Laws
4.17.1. Concessionaire shall comply with all federal, state and
local environmental rules, regulations, statutes, or ordinances,
including but not limited to Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended (42 U.S.C. §9601
et seq.), the Hazardous Materials Transportation Authorization Act
of 1994 (49 U.S.C. §5101 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. §6901), the Toxic Substances Control Act of
1976 as amended (15 U.S.C. §2601 et seq.), the Clean Air Act (42
U.S.C. §7401 et seq.), the Clean Water Act (33 U.S.C. §1251 et
seq.), the Safe Drinking Water Act (42 U.S.C. §300(f) et seq.), as
any of the foregoing are amended from time to time, or orders of
the Environmental Protection Agency (“EPA”), the Texas Commission
on Environmental Quality (“TCEQ”), and any other governmental
agency with the authority to promulgate environmental rules and
regulations (“Environmental Laws”). Concessionaire shall promptly
reimburse the City for any fines or penalties levied against the
City because of Concessionaire’s failure to comply.
4.17.2. Concessionaire shall not possess, use, generate, release,
discharge, store, dispose of, or transport any Hazardous Materials
on, under, in, above, to, or from the site except in strict
compliance with the Environmental Laws. “Hazardous Materials” mean
any substances, materials, or wastes that are or become regulated
as hazardous or toxic substances under any applicable federal,
state, or local laws, regulations, ordinances, or orders.
Concessionaire shall not deposit oil, gasoline, grease, lubricants,
or any ignitable or hazardous liquids, materials, or substances in
the City’s storm sewer system or sanitary sewer system or elsewhere
on City Property in violation of the Environmental Laws.
4.18. Conflicts of Interest
4.18.1. If an actual or potential conflict arises between the
City’s interests and the
interests of other clients Concessionaire represents,
Concessionaire shall immediately notify the Director by fax
transmission or telephone. If the Director consents to
Concessionaire’s continued representation of the other clients, he
or she shall notify Concessionaire in writing. If the Director does
not issue written consent within three Business Days after receipt
of Concessionaire’s notice, Concessionaire shall immediately
terminate its representation of the other client whose interests
are or may be in conflict with those of the City.
5. TERM AND TERMINATION 5.1. Agreement Term
5.1.1. This Agreement is effective on the Countersignature Date and
remains in effect for twenty (20) years unless sooner terminated
under this Agreement.
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23
5.2. Termination for Convenience by the City.
5.2.1. The Director may terminate this Agreement at any time by
giving 30 days written notice to Contractor with a copy of the
notice to the CPO. The City’s right to terminate this Agreement for
convenience is cumulative of all rights and remedies which exist
now or in the future.
5.2.2. On receiving the notice, Contractor shall, unless the notice
directs otherwise,
immediately discontinue all services under this Agreement and
cancel all existing orders and subcontracts that are chargeable to
this Agreement.
5.2.3. TERMINATION OF THIS AGREEMENT AND RECEIPT OF PAYMENT
FOR
SERVICES RENDERED ARE CONTRACTOR’S ONLY REMEDIES FOR THE CITY’S
TERMINATION FOR CONVENIENCE, WHICH DOES NOT CONSTITUTE A DEFAULT OR
BREACH OF THIS AGREEMENT. CONTRACTOR WAIVES ANY CLAIM (OTHER THAN
ITS CLAIM FOR PAYMENT AS SPECIFIED IN THIS SECTION), IT MAY HAVE
NOW OR IN THE FUTURE FOR FINANCIAL LOSSES OR OTHER DAMAGES
RESULTING FROM THE CITY’S TERMINATION FOR CONVENIENCE.
5.3. Termination for Cause by the City
5.3.1. If Concessionaire defaults under this Agreement, the
Director may either terminate this Agreement or allow
Concessionaire to cure the default as provided below. The City’s
right to terminate this Agreement for Concessionaire’s default is
cumulative of all rights and remedies which exist now or in the
future. Default by Concessionaire occurs if:
5.3.1.1. Concessionaire fails to perform any of its duties under
this
Agreement, including but not limited to the payment of Concession
Fees to the City;
5.3.1.2. Concessionaire becomes insolvent; 5.3.1.3. all or a
substantial part of Concessionaire’s assets are assigned for
the benefit of its creditors; or 5.3.1.4. a receiver or trustee is
appointed for Concessionaire.
5.3.2. If a default occurs, the Director will deliver a written
notice to Concessionaire
describing the default and the termination date. The Director, at
his or her sole option, may extend the termination date to a later
date. If the Director allows Concessionaire to cure the default and
Concessionaire does so to the Director’s satisfaction before the
termination date, then the termination is ineffective. If
Concessionaire does not cure the default before the termination
date, then the Director may terminate this Agreement on the
termination date, at no further obligation of the City.
5.3.3. To effect final termination, the Director must notify
Concessionaire in writing with
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Digital Billboard 202_
a copy of the notice to the CPO. After receiving the notice,
Concessionaire shall, unless the notice directs otherwise,
immediately discontinue all services under this Agreement, and
promptly cancel all orders or subcontracts chargeable to this
Agreement.
5.4. Termination for Cause by Concessionaire
5.4.1. Concessionaire may terminate its performance under this
Agreement only if the
City defaults and fails to cure the default after receiving written
notice of it. Default by the City occurs if the City fails to
perform one or more of its material duties under this Agreement. If
a default occurs and Concessionaire wishes to terminate the
Agreement, then Concessionaire must deliver a written notice to the
Director describing the default and the proposed termination date.
The date must be at least 30 days after the Director receives the
notice. Concessionaire, at its sole option, may extend the proposed
termination date to a later date. If the City cures the default
before the proposed termination date, then the proposed termination
is ineffective. If the City does not cure the default before the
proposed termination date, then Concessionaire may terminate its
performance under this Agreement on the termination date.
6. FEES PAYABLE TO CITY
6.1. Fees 6.1.1. Initial Fee. {To be negotiated and inserted}
6.1.2. Rent. Concessionaire shall, in exchange for the rights
granted by the City in this
Agreement, pay to the City throughout the Term of this Agreement
yearly Concession Fees, which shall be the greater of: 6.1.1.1. an
amount equal to ________ percent (____%) of the Revenue for
each Digital Billboard during each year of the Term and
6.1.1.2. the Minimum Annual Guarantee as described in Exhibit ___
applicable to such year.
6.1.3. The amount of Minimum Annual Guarantee shall be prorated
based upon the
number of Digital Billboard that are operational in a given year
and also to reflect the actual amount of time during that year that
a revenue-producing Digital Billboard is operational, defined as
the Digital Billboard’s go-live date to December 31st of that year.
If additional Digital Billboard are installed in additional
Installment Sites as permitted in this Agreement, revenues from
such additional Digital Billboard shall be included in determining
Concession Fee.
6.2. Due Date and Delinquency
6.2.1. From and after the Operational Date for each Digital
Billboard and throughout the remainder of the Term, the Concession
Fee for such Digital Billboard shall be paid in quarterly
installments due on the fifteenth (15th) day after the completion
of each Fiscal Quarter. Concessionaire shall submit to the
City
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Digital Billboard 202_
simultaneously with the payment of the Concession Fee, a statement
of Concessionaire’s Revenue for the immediately preceding Fiscal
Quarter.
6.2.2. In the event that Concessionaire is delinquent in paying the
City (beyond the 15th
day) the Concession Fee, without waiving any other right of action
available to the City, the Director may require by written notice
that Concessionaire pay the City interest on such delinquent
payment(s) at the highest rate allowed by law from the date such
payment(s) was due and payable until paid. Concessionaire agrees to
pay the City interest that may be required under this
Section.
6.2.3. Concessionaire expressly agrees that interest, at the
highest rate allowed by law,
may begin to accrue on delinquent payments on the first day after
the due date of the Fiscal Quarter payment.
_______________________________
The Director may designate another address for payment by providing
notice by personal delivery, certified mail, return receipt
requested, or nationally recognized overnight courier to
Concessionaire at the address listed in Section 1.1.
Payments may also be made electronically as requested by the
Director.
6.3. Reconciliation
6.3.1. On or before January 15th of each calendar year,
Concessionaire shall submit to
the Director a written statement of Revenue for the immediately
preceding calendar year (“Reconciliation Statement”). The
Reconciliation Statement shall contain a detailed statement of the
Revenue of each Digital Billboards including but not limited to the
following information and any other information reasonably required
by the Director:
6.3.1.1. The monthly Revenue for each Digital Billboards;
6.3.1.2. A calculation of the amount due the City based upon such
Revenue;
and 6.3.1.3. A schedule of showing the total quarterly payments to
the City
during the subject year.
6.3.2. The Reconciliation Statement shall be made to determine the
correctness of the computation of Revenue and that Concession Fees
have been properly paid to the City. The Director shall verify that
the Reconciliation Statement is accurate. Failing verification,
Concessionaire shall resubmit its statement reflecting the
Director’s findings.
6.3.2.1. If a Reconciliation Statement shows that the amount of
Concession
Fee paid during any calendar year was less than the amount actually
due and owing by Concessionaire for such year, then
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Digital Billboard 202_
Concessionaire shall pay such shortfall not later than 10 days
after written notice from the Director.
6.3.2.2. If a Reconciliation Statement shows that the amount of
Concession
Fee paid during any calendar year exceeded the amount actually due
and owing by Concessionaire, Concessionaire shall credit such
overage against Concession Fee payments next coming due until
reimbursed in full; provided, however, that for the last calendar
year of the Term, the City shall reimburse Concessionaire for the
amount of any overpayment within thirty (30) days after receipt of
written notice from Concessionaire.
7. RIGHTS AND DUTIES OF CITY
7.1. Utilities
7.1.1. Concessionaire shall perform all work necessary to, and pay
all costs associated with bringing utility services and
telecommunications services to each Installment Site, including any
and all costs associated with negotiating and obtaining access
rights across private property in connection with the same.
Additionally, Concessionaire shall pay the costs of all utility
services and telecommunication services used or consumed
Concessionaire on each Installment Site directly to the suppliers
of such services.
7.1.2. If any utility services are interrupted or otherwise
unavailable to one or more
Digital Billboards due to no fault of Concessionaire, City shall
use reasonable efforts to aid Concessionaire to ensure the utility
services are restored to such Digital Billboard as soon as
reasonably practicable.
7.2. Right of Access and Inspection
7.2.1. The City shall have the right to inspect Concessionaire’s
Digital Billboards for the
purpose of observing the performance by Concessionaire of its
obligations under this Agreement, and for the doing of any act or
thing which the City may be obligated or have the right to do under
this Agreement, the City’s Code of Ordinances, or other applicable
City codes.
7.3. Audits
7.3.1. The Director and the City Controller shall have the right to
perform, or have
performed, audits of Concessionaire’s books and records for the
purpose determining Concessionaire’s compliance with this
Agreement. Concessionaire shall keep its books and records
available for this purpose for at least five years after this
Agreement terminates. If the books and records are located outside
of Harris County, Texas, Concessionaire agrees to make them
available in Harris County, Texas. This provision does not affect
the applicable statute of limitations.
7.4. Access to Data
7.4.1. The City shall, to the extent permitted by law, allow
Concessionaire to access
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Digital Billboard 202_
and make copies of documents in the possession or control of the
City or available to it that are reasonably necessary for
Concessionaire to perform under this Agreement.
7.4.2. The City does not, however, represent that all existing
conditions are fully
documented, nor is the City obligated to develop new documentation
for Concessionaire’s use.
7.4.3. For any raw data created, assembled, used, maintained,
collected, or stored by
the Concessionaire for or on behalf of the City, Concessionaire
shall provide the City either the raw data itself or the ability to
extract the raw data in a format mutually agreed upon by both
parties at no additional cost to the City.
8. RELEASE AND INDEMNIFICATION
8.1. RELEASE 8.1.1. CONCESSIONAIRE AGREES TO AND SHALL RELEASE THE
CITY, ITS
AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES
(COLLECTIVELY THE “CITY”) FROM ALL LIABILITY FOR INJURY, DEATH,
DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH
OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE
INJURY, DEATH, DAMAGE, OR LOSS IS CAUSED BY THE CITY’S SOLE OR
CONCURRENT NEGLIGENCE AND/OR THE CITY’S STRICT PRODUCTS LIABILITY
OR STRICT STATUTORY LIABILITY. CONCESSIONAIRE HEREBY COVENANTS AND
AGREES NOT TO SUE THE CITY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF
ACTION DIRECTLY OR INDIRECTLY RELATED TO ITS RELEASE UNDER THIS
SECTION. FOR THE AVOIDANCE OF DOUBT, THIS COVENANT NOT TO SUE DOES
NOT APPLY TO CLAIMS FOR BREACH OF THIS AGREEMENT.
8.2. INDEMNIFICATION
8.2.1. CONCESSIONAIRE AGREES TO AND SHALL DEFEND, INDEMNIFY,
AND
HOLD THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL
REPRESENTATIVES (COLLECTIVELY THE “CITY”) HARMLESS FOR ALL CLAIMS,
CAUSES OF ACTION, LIABILITIES, FINES, AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS’ FEES, COURT COSTS, AND ALL OTHER
DEFENSE COSTS AND INTEREST) FOR INJURY, DEATH, DAMAGE, OR LOSS TO
PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO
PERFORMANCE UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION,
THOSE CAUSED BY:
8.2.1.1. CONCESSIONAIRE’S AND/OR ITS AGENTS’, EMPLOYEES’,
OFFICERS’, DIRECTORS’, CONCESSIONAIRES’, OR SUBCONTRACTORS’
(COLLECTIVELY IN NUMBERED PARAGRAPHS 8.2.1.1 – 8.2.1.3,
“CONCESSIONAIRE”) ACTUAL OR ALLEGED NEGLIGENCE OR INTENTIONAL ACTS
OR OMISSIONS;
8.2.1.2. THE CITY’S AND CONCESSIONAIRE’S ACTUAL OR ALLEGED
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CONCURRENT NEGLIGENCE, WHETHER CONCESSIONAIRE IS IMMUNE FROM
LIABILITY OR NOT; AND
8.2.1.3. THE CITY’S AND CONCESSIONAIRE’S ACTUAL OR ALLEGED
STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY, WHETHER
CONCESSIONAIRE IS IMMUNE FROM LIABILITY OR NOT.
8.2.2. CONCESSIONAIRE SHALL DEFEND, INDEMNIFY, AND HOLD THE
CITY
HARMLESS DURING THE TERM OF THIS AGREEMENT AND FOR FOUR YEARS AFTER
THE AGREEMENT TERMINATES.
8.3. INTELLECTUAL PROPERTY RELEASE AND INDEMNIFICATION
8.3.1. CONTRACTOR AGREES TO AND SHALL RELEASE AND DEFEND,
INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND
LEGAL REPRESENTATIVES (COLLECTIVELY THE “CITY”) HARMLESS FROM ALL
CLAIMS OR CAUSES OF ACTION BROUGHT AGAINST THE CITY BY ANY PARTY,
INCLUDING CONTRACTOR, ALLEGING THAT THE CITY’S USE OF ANY
EQUIPMENT, SOFTWARE, PROCESS, OR DOCUMENTS CONTRACTOR FURNISHES
DURING THE TERM OF THIS AGREEMENT INFRINGES ON A PATENT, COPYRIGHT,
SERVICE MARK, OR TRADEMARK, OR MISAPPROPRIATES A TRADE SECRET.
CONTRACTOR SHALL PAY ALL COSTS (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS’ FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS, AND
INTEREST) AND DAMAGES AWARDED.
8.3.2. CONTRACTOR SHALL ALSO INDEMNIFY, DEFEND AND HOLD THE CITY
(AS DEFINED ABOVE) HARMLESS FROM ALL CLAIMS OR CAUSES OF ACTION
BROUGHT AGAINST THE CITY BY ANY PARTY ARISING FROM OR ALLEGING THAT
ANY ADVERTISING OR OTHER CONTENT DISPLAYED BY CONTRACTOR OR
CONTRACTOR’S CUSTOMER’S: (A) INFRINGES ANY PATENT, COPYRIGHT,
SERVICE MARK OR TRADEMARK, (B) MISAPPROPRIATES ANY TRADE SECRET,
(C) IN ANY WAY CONSTITUTES LIBELOUS OR DEFAMATORY CONTENT, OR (D)
CONSTITUTES UNFAIR OR DECEPTIVE TRADE PRACTICES. CONTRACTOR SHALL
PAY ALL COSTS (INCLUDING , WITHOUT LIMITATION, ATTORNEY’S FEES,
COURT COSTS, AND ALL OTHER DEFENSE COSTS, AND INTEREST) AND DAMAGES
AWARDED.
8.3.3. CONTRACTOR SHALL NOT SETTLE ANY CLAIM ON TERMS WHICH
PREVENT THE CITY FROM USING THE EQUIPMENT, SOFTWARE, PROCESS, AND
DOCUMENTS WITHOUT THE CITY’S PRIOR WRITTEN CONSENT.
8.3.4. WITHIN SIXTY (60) DAYS AFTER BEING NOTIFIED OF THE
CLAIM,
CONTRACTOR SHALL, AT ITS OWN EXPENSE, EITHER (1) OBTAIN FOR THE
CITY THE RIGHT TO CONTINUE USING THE EQUIPMENT, SOFTWARE, PROCESS,
AND DOCUMENTS OR, (2) IF BOTH PARTIES AGREE, REPLACE OR MODIFY THEM
WITH COMPATIBLE AND
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FUNCTIONALLY EQUIVALENT PRODUCTS. IF NONE OF THESE ALTERNATIVES IS
REASONABLY AVAILABLE, THE CITY MAY RETURN THE EQUIPMENT, SOFTWARE,
OR DOCUMENTS, OR DISCONTINUE THE PROCESS, AND CONTRACTOR SHALL
REFUND THE PURCHASE PRICE.
8.4. SUBCONTRACTOR’S INDEMNITY
8.4.1. CONCESSIONAIRE SHALL REQUIRE ALL OF ITS SUBCONTRACTORS
(AND THEIR SUBCONTRACTORS) TO RELEASE AND INDEMNIFY THE CITY TO THE
SAME EXTENT AND IN SUBSTANTIALLY THE SAME FORM AS ITS RELEASE AND
INDEMNITY TO THE CITY.
8.5. INDEMNIFICATION PROCEDURES
8.5.1. Notice of Claims. If the City or Concessionaire receives
notice of any claim or
circumstances which could give rise to an indemnified loss, the
receiving party shall give written notice to the other party within
30 days. The notice must include the following:
(a) a description of the indemnification event in reasonable
detail,
(b) the basis on which indemnification may be due, and
(c) the anticipated amount of the indemnified loss.
This notice does not estop or prevent the City from later asserting
a different basis for indemnification or a different amount of
indemnified loss than that indicated in the initial notice. If the
City does not provide this notice within the 30-day period, it does
not waive any right to indemnification except to the extent that
Concessionaire is prejudiced, suffers loss, or incurs expense
because of the delay.
8.5.2. Defense of Claims
8.5.2.1. Assumption of Defense. Concessionaire may assume the
defense of the claim at its own expense with counsel chosen by it
that is reasonably satisfactory to the City Attorney.
Concessionaire shall then control the defense and any negotiations
to settle the claim, subject to the City Attorney’s consent or
agreement to the settlement, which consent or agreement shall not
unreasonably be withheld. Within 10 days after receiving written
notice of the indemnification request, Concessionaire must advise
the City as to whether or not it will defend the claim. If
Concessionaire does not assume the defense, the City shall assume
and control the defense, and all defense expenses constitute an
indemnification loss.
8.5.2.2. Continued Participation. If Concessionaire elects to
defend the
claim, the City may retain separate counsel to participate in (but
not control) the defense and to participate in (but not control)
any settlement negotiations.
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9.1.1. Concessionaire shall maintain the following insurance
coverages in the following
amounts:
Workers’ Compensation Statutory for Workers’ Compensation
Employer's Liability • Bodily Injury by Accident $500,000 (each
accident) • Bodily Injury by Disease $500,000 (policy limit) •
Bodily Injury by Disease $500,000 (each employee)
Commercial General Liability: Bodily and Personal Injury; Products
and Completed Operations Coverage
Bodily Injury and Property Damage, Combined Limits of $1,000,000
each Occurrence, and $2,000,000 aggregate
Automobile Liability $1,000,000 combined single limit for (1) Any
Auto or (2) All Owned, Hired, and Non-Owned Autos
Professional Liability Coverage $1,000,000 per occurrence;
$2,000,000 aggregate Excess Liability Coverage, or Umbrella
Coverage, for Commercial General Liability and Automobile
Liability
$1,000,000.00
Aggregate Limits are per 12-month policy period unless otherwise
indicated.
9.2. Insurance Coverage 9.2.1. At all times during the term of this
Agreement and any extensions or renewals,
Concessionaire shall provide and maintain insurance coverage that
meets the Agreement requirements. Prior to beginning performance
under the Agreement, at any time upon the Director’s request, or
each time coverage is renewed or updated, Concessionaire shall
furnish to the Director current certificates of insurance,
endorsements, all policies, or other policy documents evidencing
adequate coverage, as necessary. Concessionaire shall be
responsible for and pay (a) all premiums and (b) any claims or
losses to the extent of any deductible amounts. Concessionaire
waives any claim it may have for premiums or deductibles against
the City, its officers, agents, or employees. Concessionaire shall
also require all subcontractors or consultants whose subcontracts
exceed $100,000 to provide proof of insurance coverage meeting all
requirements stated above except amount. The amount must be
commensurate with the amount of the subcontract, but no less than
$500,000 per claim.
9.3. Form of insurance
9.3.1. The form of the insurance shall be approved by the Director
and the City
Attorney; such approval (or lack thereof) shall never (a) excuse
non-compliance with the terms of this Section, or (b) waive or
estop the City from asserting its
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rights to terminate this Agreement. The policy issuer shall (1)
have a Certificate of Authority to transact insurance business in
Texas, or (2) be an eligible non- admitted insurer in the State of
Texas and have a Best’s rating of at least B+, and a Best’s
Financial Size Category of Class VI or better, according to the
most current Best’s Key Rating Guide.
9.4. Required Coverage
9.4.1. The City shall be an Additional Insured under this Contract,
and all policies,
except Professional Liability and Workers’ Compensation, shall
explicitly name the City as an Additional Insured. The City shall
enjoy the same coverage as the Named Insured without regard to
other Agreement provisions. Concessionaire waives any claim or
right of subrogation to recover against the City, its officers,
agents, or employees, and each of Concessionaire’s insurance
policies, except professional liability, must contain coverage
waiving such claim. Each policy, except Workers’ Compensation and
Professional Liability, must also contain an endorsement that the
policy is primary to any other insurance available to the
Additional Insured with respect to claims arising under this
Agreement.
9.5 Notice
9.5.1 CONCESSIONAIRE SHALL GIVE 30 DAYS’ ADVANCE WRITTEN
NOTICE
TO THE DIRECTOR IF ANY OF ITS INSURANCE POLICIES ARE CANCELED OR
NON-RENEWED. Within the 30-day period, Concessionaire shall provide
other suitable policies in order to maintain the required coverage.
If Concessionaire does not comply with this requirement, the
Director, at his or her sole discretion, may immediately suspend
Concessionaire from any further performance under this Agreement
and begin procedures to terminate for default.
10. PERFORMANCE SECURITY
10.1. Concessionaire, without expense to the City, shall cause to
be made, executed and
delivered to the City on or before the Effective Date, performance
bonds or irrevocable letter of credit (“Payment and Performance
Bonds”) as set forth below to secure the faithful performance by
Concessionaire of all contractual obligations relating to the
manufacturing, assembly, installation, maintenance and operation of
the Digital Billboards and the removal of all Digital Billboards
and the restoration of the City right of ways or property affected
by their removal of the Digital Billboards upon the termination or
expiration of this Agreement, whichever is earlier, and all other
obligations of the Concessionaire pursuant to this Agreement (the
“Bonded Obligations”), except for Concessionaire’s obligations to
pay Rent or the Initial Fee as set forth in Section 6.1; provided,
however, that if an event of default exists under this Agreement,
as a result of a failure to pay any payment obligations to the
City, the Payment and Performance Bonds shall continue to secure
all Bonded Obligations of the Concessionaire pursuant to this
Agreement and as may be otherwise provided by applicable laws, in
the limits of such Payment and Performance Bonds, notwithstanding
the occurrence and continuation of such event of default.
Concessionaire must maintain the Payment and Performance Bonds
during the entire term of the Agreement and until the
Concessionaire has satisfied all of its Bonded Obligations pursuant
to this Agreement, including any such Bonded Obligations extending
beyond the term of this Agreement.
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10.2. Concessionaire may obtain a single performance bond or
irrevocable letter of credit that
meet the standards set forth in Section 10.3, or separate Payment
and Performance Bonds to cover the Bonded Obligations, as
follows:
10.2.1. Installation Bond. A surety performance bond or an
irrevocable letter of credit
in the amount of $10,000,000.00 to secure the faithful performance
by Concessionaire of its obligations to manufacture, assemble,
install and maintain the Digital Billboards, as provided in this
Agreement (“Installation Bond”). The coverage afforded by the
Installation Bond with respect to the manufacture, assembly and
installation of the Digital Billboards shall continue until
Concessionaire has successfully completed installation of the
Digital Billboards as required under this Agreement and all such
signs are operational. In the event that such Installation Bond
should ever be called upon and the surety required to perform under
its, then to the extent that there are additional Digital
Billboards that remain to be installed, Concessionaire shall
provide a replacement bond (or cause the amount under such initial
bond to be increased) so that at all times during the installation
process there is bond coverage sufficient to insure the
installation of all signs remaining to be installed. Thereafter,
such bond shall assure only the performance of Concessionaire’s
obligations under this Agreement; provided, however, that if such
maintenance obligations are covered by both a manufacturer’s
warranty and separate services agreement, and no such bond is
required under applicable laws, then no continuing maintenance bond
shall be required.
10.2.2. Removal Bond. A surety performance bond or an irrevocable
letter of credit in the amount of $10,000,000.00 to secure the
faithful performance by Concessionaire of its obligations to remove
the Digital Billboards and restore all property affected by the
removal of the Digital Billboards upon the termination or
expiration of this Agreement, whichever is earlier. Concessionaire
agrees it must at all such times maintain a Removal Bond.
10.2.3. The Payment and Performance Bonds must collectively secure
all Bonded
Obligations and must all be provided by the same surety, unless
otherwise approved by the City
10.3. Standards for Performance Bond or Irrevocable Letter of
Credit. Any performance bond
or irrevocable letter of credit obtained by Concessionaire shall
meet the following standards. 10.3.1. Performance Bond. Any
performance bond obtained by Concessionaire shall be
substantially in the form attached as Exhibit J and executed by
Concessionaire and a corporate surety company authorized to do
business in Texas having an “underwriting limitation” of at least
the amount of the penal sum of the bond. Said surety bond shall be
renewable annually and shall be kept in full force until
termination of this Agreement.
10.3.2. Irrevocable Letter of Credit. An irrevocable letter of
credit, substantially in the form attached as Exhibit K, payable
upon presentation to a solvent bank or savings and loan in the
initial principal amount equal to the amounts stated in Section
10.2, which shall be kept in full force and effect until the
termination of
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this Agreement.
10.4. If Concessionaire is found by the City to be in default under
this Agreement, the City shall have the right to enforce the
performance bond or the letter of credit and apply the proceeds of
it to cover payments owed to the City by Concessionaire and to pay
such reasonable costs as may be incurred by the City as a result of
Concessionaire‘s breach of contract. However, in no event shall
enforcement of the bond or letter of credit be deemed an exclusive
remedy to the City.
11. CITY PROGRAMS
11.1. Compliance with Equal Opportunity Ordinance
11.1.1. Concessionaire shall comply with the City’s Equal
Employment Opportunity Ordinance as set out in Section 15-17 of the
Code of Ordinances.
11.2. MWBE Compliance
11.2.1. Concessionaire shall comply with the City’s Minority and
Women Business
Enterprise ("MWBE") programs as set out in Chapter 15, Article V of
the City of Houston Code of Ordinances. Concessionaire shall make
good faith efforts to award subcontracts or supply agreements in at
least ____% of the product design and fabrication (if applicable),
delivery, installation, maintenance and support to MWBEs.
Concessionaire acknowledges that it has reviewed the requirements
for good faith efforts on file with the City’s Office of Business
Opportunity (“OBO”), and will comply with them.
11.3. Drug Abuse Detection and Deterrence
11.3.1. It is the policy of the City to achieve a drug-free
workforce and workplace. The
manufacture, distribution, dispensation, possession, sale, or use
of illegal drugs or alcohol by Concessionaires while on City
Premises is prohibited. Concessionaire shall comply with all the
requirements and procedures set forth in the Mayor’s Drug Abuse
Detection and Deterrence Procedures for Concessionaires, Executive
Order No. 1-31 (“Executive Order”), which is incorporated into this
Agreement and is on file in the City Secretary’s Office.
11.3.2. Before the City signs this Agreement, Concessionaire shall
file with the Contract
Compliance Officer for Drug Testing (“CCODT”):
11.3.2.1. a copy of its drug-free workplace policy;
11.3.2.2. the Drug Policy Compliance Agreement substantially in the
form set forth in Exhibit F, together with a written designation of
all safety impact positions; and
11.3.2.3. if applicable (e.g. no safety impact positions), the
Certification of No
Safety Impact Positions, substantially in the form set forth in
Exhibit G.
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11.3.3. If Concessionaire files a written designation of safety
impact positions with its
Drug Policy Compliance Agreement, it also shall file every 6 months
during the performance of this Agreement or on completion of this
Agreement if performance is less than 6 months, a Drug Policy
Compliance Declaration in a form substantially similar to Exhibit
H. Concessionaire shall submit the Drug Policy Compliance
Declaration to the CCODT within 30 days of the expiration of each
6-month period of performance and within 30 days of completion of
this Agreement. The first 6-month period begins to run on the date
the City issues its Notice to Proceed or if no Notice to Proceed is
issued, on the first day Concessionaire begins work under this
Agreement.
11.3.4. Concessionaire also shall file updated designations of
safety impact positions
with the CCODT if additional safety impact positions are added to
Concessionaire's employee work force.
11.3.5. Concessionaire shall require that its subcontractors comply
with the Executive
Order, and Concessionaire shall secure and maintain the required
documents for City inspection.
11.4. Pay or Play
11.4.1. The requirements and terms of the City of Houston Pay or
Play program, as set
out in Executive Order 1-7, as revised from time to time, are
incorporated into this Agreement for all purposes. Concessionaire
has reviewed Executive Order No. 1-7, as revised, and shall comply
with its terms and conditions.
11.5. Anti-Boycott of Israel
11.5.1. Concessionaire certifies that Concessionaire is not
currently engaged in, and
agrees for the duration of this Agreement not to engage in, the
boycott of Israel as defined by Section 808.001 of the Texas
Government Code.
11.6. Zero Tolerance Policy for Human Trafficking and Related
Activities
11.6.1. The requirements and terms of the City of Houston’s Zero
Tolerance Policy for
Human Trafficking and Related Activities, as set forth in Executive
Order 1-56, as revised from time to time, are incorporated into
this Agreement for all purposes. Concessionaire has reviewed
Executive Order 1-56, as revised, and shall comply with its terms
and conditions as they are set out at the time of this Agreement’s
Countersignature Date. Concessi