sample agreement – subject to change

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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
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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
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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.
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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
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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.
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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 _____________________________.
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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
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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
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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
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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
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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
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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
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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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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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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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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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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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_________________. 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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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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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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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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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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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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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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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