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HomeMy WebLinkAboutContract for Advertising Campaign in City Garage.pdfAGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 1 of 15 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Paul Burns, Parking Manager Greg Sullivan, City Attorney Chris Kukulski, City Manager SUBJECT: Award of bid to Color World for indoor advertising program within Bridger Park Downtown, the city’s parking garage. MEETING DATE: May 9, 2011 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to sign the contract with Color World to sell, manufacture, install, maintain, and display advertising in Bridger Park Downtown parking garage. BACKGROUND: This project was given the green light by the City Commission at the October 18, 2010, meeting. To make this project a reality, the City Commission approved changes to Chapter 3.28 of the Bozeman Municipal Code on November 15, 2010, via Ordinance No. 1797. The changes allowed the city to enter into a contract for an advertising campaign with the purpose of creating revenue for the City. It is the intent of the Bozeman Parking Commission to have advertising signs installed on the empty interior walls of Bridger Park Downtown, the city-owned parking garage on East Mendenhall Street. Generally, interior walls of parking garages are dull, drab, lifeless landscapes. The Parking Commission sees interior advertising as an opportunity to lighten up the gray walls. Signage will bring vitality to the structure and has been shown to decrease graffiti and vandalism. In addition to the interior walls of Bridger Park Downtown, the stairwells and elevators are also potential sites for signage. Sign materials will be full-color, easily cleaned, and securely installed. In order to make this program a success, the Parking Commission wanted to enter into an agreement with a vendor that will be beneficial to both parties. The attached contract calls for the Parking Commission to receive 40 percent of proceeds with expected first-year earnings of about $4,000. 44 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 2 of 15 The Parking Commission will supply the platform for the advertising in the form of Bridger Park Downtown. The selling of the ads, the creation and installation of the signage, and the repairing and maintaining of the signs will be done by Color World as detailed in the attached contract. Four bids were received for this project. A subcommittee of the Parking Commission analyzed each bid and awarded the contract to Color World. Unlike other contracts that call for payment by the city for specific services and are usually awarded to the lowest bid, the Parking Commission considered a bidder’s ability to generate the most revenue, which would come from the highest placement of well-designed ads at attractive pricing. Here is the scoring: Obvious Color World Ink Outside the Box Sign-A-Rama Percent payment 35% 40% 40% 40% Maintenance NA P NA P Dummy ads NA P P P Material 3M Sintra 3M Sintra Ad rates $100 $140 $250 $150 Install fee P No No No Plan -A-Gram (score 4=best) 1 3 4 2 Presentation (score 4=best) 2 4 3 1 Overall rating 3 1 2 3 FISCAL EFFECTS: It is anticipated that as Bridger Park Downtown continues to be the choice of downtown parkers, interior advertising could generate revenue of up to $4,000 per year. In fact, the ceiling may be much higher in the future. Revenues will go towards the maintenance and promotion of Bridger Park Downtown. There is no expected expense for the City. ALTERNATIVES: As suggested by the City Commission. Attachments: Advertising contract with Color World Report compiled on: April 25, 2011 45 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 3 of 15 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE This Agreement to sell, manufacture, install and maintain display advertising in Bridger Park Downtown Parking Garage (“Agreement”) is effective the ___ day of ___________ 2011, between the City of Bozeman (“City”), a self-governing municipal government organized and existing under the laws of the State of Montana, with its primary office located at 121 North Rouse Avenue, Bozeman, MT 59715 and Color World of Montana Inc (“Color World”), a company organized and existing under the laws of the State of Montana with its primary office located at 201 East Mendenhall Street, Bozeman, MT 59715. WHEREAS, City of Bozeman Ordinance No. 1797 and Chapter 3.28, Bozeman Municipal Code (BMC) states advertisements are allowed on City-owned property; and WHEREAS, City of Bozeman Ordinance No. 1797 and Chapter 3.28, BMC, states City may enter into a contract of up to three years with a private vendor for the purpose of an advertisement program; and WHEREAS Color World desires to sell, manufacture, install and maintain display advertising (the “Equipment”) on the property of City, the location described as Bridger Park Downtown, located at 26 East Mendenhall Street; and WHEREAS City agrees to such installation, operation and maintenance, subject to the terms and conditions hereinafter set forth and the provisions of Ordinance No. 1797 and Chapter 3.28, BMC. NOW THEREFORE, in consideration of the premises and the covenants and agreements set forth herein, City and Color World agree as follows: 1. DEFINITIONS. In this Agreement, unless there is something in the subject matter or context inconsistent therewith, the expressions following shall have the meanings indicated below: Claims: Claims and liabilities of any and every nature whatsoever including, but not limited to: a. all claims, liabilities, demands, suits, proceedings, judgments, decrees and awards arising out of or relating to harms, injuries, damages, death or destruction of or to person, property, or business, or arising out of or relating to any violation of (or failure to comply with) any applicable law; b. all theories of relief recognized at law or in equity (including, but not limited to, theories of relief that impose liability without proof of fault or negligence); c. all losses, damages (including punitive and exemplary damages and awards of attorneys’ fees), environmental costs and damages (including investigation and remediation 46 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 4 of 15 expenses, removal costs, and natural resource damages), expenses (including reasonable attorneys’ fees), costs, penalties, forfeitures and fines; and d. awards made under any act respecting industrial accidents and occupational diseases or similar legislation, actions and proceedings. City Property: Bridger Park Downtown parking facility. Fee: The quarterly fee payable by Color World to City with respect to this License including without limitation the monthly rental payments stipulated at Section 4 hereof. Premises: Any portion of City Property that is subject to the License. Project: The associated equipment and hardware, and any modification, replacement and additions thereto, on City Property. 2. AGREEMENT TO INSTALL. a. Subject to the terms and conditions hereof, City hereby agrees Color World may install, construct, operate, maintain, modify, repair, add-to, re-install, relocate, remove and replace display advertising along, in, under and, upon written approval by City, on or over City’s Bridger Park Downtown and in all cases subject to the terms of this Agreement. b. Color World’s performance under this Agreement must at all times comply with Ordinance No. 1797 and Chapter 3.28, BMC. 3. TERM. The term of this Agreement shall begin on the date of execution of this Agreement by the parties and expire on April 30, 2013. Provided it has complied with all terms and conditions herein contained, Color World will have the right, at its option, upon written notice to City not less than two months prior to the expiration of the term, to cause the term of this Agreement to be extended for a further period of one year upon the same terms and conditions as contained in this Agreement, save for the right to renew and for the Fee, which shall be negotiated between the parties during the notice period. 4. FEES. In consideration of this License: a. During the term of this Agreement, Color World shall pay to City a fee of 40 percent of total monthly revenue collected by the Color World for advertising displayed in Bridger Park Downtown pursuant to this Agreement. 47 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 5 of 15 b. The fee shall be payable quarterly in arrears, by the 30th day of the end of the month after the quarter ends, provided, however, that, unless otherwise provided, no payment shall be due and payable by Color World to City in respect of any portion of the Equipment until Color World has installed such Equipment on a portion of the Property. 5. OWNERSHIP AND RESPONSIBILITIES. a. For the purpose of this Agreement only, Color World shall be deemed to be the sole owner of the Equipment and Associated Equipment and Hardware and shall be solely responsible for the installation, construction, operation, maintenance, modification, repair, addition to, reinstallation, relocation, removal, and replacement thereof regardless of method of attachment or installation. Except for the responsibilities and undertakings expressly mentioned in this Agreement and required by Chapter 3.28, BMC, City shall not be involved in any manner in the above-mentioned activities and in no event shall it be responsible for any such activities. b. Color World, at its sole cost and expense, will furnish all materials, parts, components, equipment, and hardware necessary to construct, install, operate, maintain, modify, repair, add-to, re-install, replace, relocate, and remove the Project or any part thereof in accordance with the design approved by City and any specifications required by this Agreement. Any such work shall be performed in conformity with all applicable statutes, the law, ordinances, regulations, rules, codes, orders, or specifications of the City. c. Color World will install up to six separate sign frames for the purpose of initial launch of the program. These frames will include a graphic advertising that each unit is available and who to call. The sizes of the initial sign frames installed for the start up program will be determined by Color World and will be installed in a reasonable time frame. The installation locations of the initial sign frames will be mutually acceptable to both Color World and the City. d. Color World shall maintain sole authority over retail pricing of the advertising units and reserves the right to increase or decrease retail advertising prices at any time for any reason. e. Subject to Chapter 3.28, BMC, Color World reserves the right to offer the ad space to anyone willing to pay the advertising fees, regardless of their location, type or size of business or entity. The City will use best efforts to approve advertisements within 48 hours after receipt of a new advertisers name and a digital proof of the advertising art in which to approve or disapprove and an advertiser/advertisement. f. Color World will reserve the right to terminate an individual advertising agreement with any advertiser at any time for any reason. g. Color World will make every attempt to maximize advertising revenue by placing advertisers in proper locations for the potential value. Color World will have a signed 48 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 6 of 15 agreement with each advertiser. City of Bozeman can request a copy or all agreements with the advertisers. h. The Color World will place dummy boards in the frames already mounted to fill up the frame until an ad is sold. The boards will read “To place your ad here – Call BigLook at 587-4508” or something similar and approved by the City. i. Once a month Color World will make a visual inspection of all signage for any indication of potential issues. However, if the City brings to the attention of Color World any potential issues, Color World shall resolve the issue within 48 hours of being notice by the City. Options for resolution could be replacement or repairing should damage or defacement occur. 6. CONFORMITY. Color World shall ensure the Equipment utilizing the City Property shall be suitable in every respect for the purposes for which it is intended and shall be installed in accordance with the plans and specifications submitted by Color World and approved by City and maintained in a manner satisfactory to City, and the construction and installation of same shall be in accordance with all applicable requirements and orders of the parties or its successors, including without limitation all local, state, and federal laws, as applicable, in all cases at the sole expense of Color World and shall be constructed and maintained so as not to interfere with the activities or business of City. All signage must abide by standards set in Bozeman Municipal Code, Chapter 3.28, BMC, as amended. All artwork will have the City of Bozeman parking brand included. This brand will consist of 15 percent of the bottom of each sign, on a blue banner with white “P” in the lower left corner. 7. COST AND EXPENSES. Color World shall reimburse City for any cost or expense incurred by City as a result of the construction, installation and ongoing operation and maintenance of the Project within 30 days of receipt of City’s invoice therefore together with supporting documentation. Any outstanding amount owed to City shall bear interest at the annual rate of eight percent from the date that any such amounts become due until payment thereof. The provisions of this section shall apply to any and all construction, installation, operation, maintenance, repair, addition to, reinstallation, replacement, relocation, or removal or any other work with respect to the Project. 8. ENTRY NOTICE. Color World and its agents and contractors shall have the right to enter upon City’s property to survey, design, inspect, construct, maintain, add-to, repair, replace, relocate, or remove any part or portion of the Project or for any other reason related to the Project without notice. City shall 49 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 7 of 15 have the right to change the designation of the person to be consulted in emergency situations by written notice to Color World. 9. TERMINATION. Upon the termination of the Project by mutual agreement at the end of the term or pursuant to Section 16 of this Agreement or any extension thereof, Color World shall remove at its cost the corresponding sign frame within 10 days. If the termination of this Agreement results from an event of default as defined in Section 16 hereof, then City, upon termination, shall, at its option, either become the owner of the Project without compensation to Color World or require Color World to remove the Project at Color World’s own cost, risk, and expense, from City Property and Color World shall then restore City Property to the condition existing prior to the construction of the Project and shall make good any damage caused to the City Property by such removal. 10. DAMAGES TO THE PROJECT. Any damage done to City Property by the construction, installation, operation, maintenance, repairs, reinstallation, replacement, relocation and removal of the Equipment or any part thereof, or any other work by or on behalf of Color World, or by any vandalism to the Equipment, shall be repaired by Color World and, except where the event giving rise to such repair is caused by any act, omission or negligence of City, its employees, agents, or contractors, shall be at the sole expense of Color World, who shall reimburse City for such expenses within 30 days after receipt by Color World of a written statement of such expenses. Any damage done to the Color World Equipment caused by any act, omission or negligence of City, its employees, agents, or contractors of, shall be repaired by Color World and shall be at the sole expense of City, who shall reimburse Color World for such expenses within 30 days after receipt by City of a written statement of such expenses. Color World will clean (if possible) or remove a sign that has been defaced or damaged the next business day after notification by the City, regardless of the cause of damage or defacement. Color World will contact the advertiser to replace the sign within five business days. The City is not responsible for damage to signs. Cost to replace damaged signs will be the responsibility of the advertiser. If the advertiser chooses not to replace the sign Color World will install a sign promoting the advertising space. The City shall bear no responsibility or liability for signs damaged by third parties. Any such liability shall lie solely with Color World. If damage or defacement of a sign causes damage to City property, Color World will restore City property to the condition existing prior to the construction of the Project and shall make good any damage caused to the City property by such damage or defacement. 50 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 8 of 15 11. INDEMNIFICATION AND WAIVER. a. Color World agrees it will make no Claim against City, its officers, and employees, including those of the Bozeman Parking Commission, for anything suffered or sustained by Color World or Color World’s employees, representatives, agents, or invitees, or by any other person or corporation, which is based upon, arises out of, or is connected directly or indirectly with Color World’s activities under this Agreement or anything not done as required hereunder, or relating to Color World’s performance and activities under this Agreement or entry upon the City property, or any other entry permitted hereunder or in any manner relating to the existence of the Project on the Property, and hereby waives as against City, its officers, employees, representatives, and agents, including those of the Bozeman Parking Commission, all such Claims. b. Color World agrees to indemnify and hold harmless the City, its officers and employees, including those of the Bozeman City Parking Commission, from and against any and all Claims, by whomsoever made, brought, or prosecuted, and from and against any and all loss, damages, or expenses suffered or incurred by City, its officers, employees, representatives, or agents, including those of the Bozeman Parking Commission, and which are based upon, arise out of, or are connected directly or indirectly with this Agreement or anything done hereunder or anything not done as required hereunder, or relating to Color World’s entry upon the City Property or any other entry permitted hereunder or in any manner relating to the existence of the Project on the City Property, including, without limitation, any third-party Claims in connection with the Project, as well as any Claims arising out of or pertaining to losses or damages sustained by third parties by reason of the relocation of the Project. c. The waiver and indemnity given in the two preceding sub-sections shall not apply to the extent prohibited by law or to the extent that the said Claim is caused or contributed to by the negligence or wrongful acts of City or its employees, representatives, or agents. d. Except in case of gross negligence, where Color World under any provision of this Agreement or at law is liable to City, such liability, notwithstanding any other provision of this Agreement, shall be restricted to direct losses, damages, and liabilities incurred by City, and Color World shall not be required to compensate City for indirect or consequential damages, such as, but not limited to, loss of revenue or profit nor for loss of revenue or profit should same be considered or qualified as direct losses, damages, or liabilities. e. In the event of the occurrence of any event the City asserts is an indemnifiable event pursuant to this Section, City, as the indemnified party, shall notify Color World, promptly. If such event involves the Claim of any third party and Color World confirms in writing its responsibility therefore, Color World shall have sole control over, and shall assume all expense with respect to, the defense, settlement, adjustment or compromise of such claim; provided, however, that: 51 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 9 of 15 i. City shall have the right to participate in the defense of such Claim and to employ counsel at its own expense to assist in the handling of such Claim; and ii. Color World shall obtain the prior written approval of City, which shall not be unreasonably withheld or delayed, before entering into any settlement, adjustment, or compromise of such Claim; and iii. Color World shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and City shall be entitled to have sole control over, the defense or settlement of any Claim to the extent the Claim seeks an injunction or other equitable relief against City which, if successful, could materially adversely affect the business, operations, assets, condition (financial or otherwise) or prospects of City. If Color World does not assume sole control over the defense, settlement, adjustment or compromise of such Claim as provided in this Section, City shall have the right to defend, settle, adjust, and compromise the Claim in such manner as it may deem appropriate at the cost and expense of Color World, and Color World shall promptly reimburse City therefore in accordance with this section. Should the City be required to assert its or any other persons or entities right to indemnification under this section should the City obtain a determination from a court of record it is entitled to indemnification of a Claim under this section the City shall be entitled to reasonable attorney fees and costs, including those of the Bozeman City Attorney, incurred in its effort to assert its right to indemnification. The obligations of both parties set out in this section shall continue to be enforceable notwithstanding the termination of this Agreement. 12. REPRESENTATIONS AND WARRANTIES. a. City represents and warrants to Color World as follows: i. This Agreement has been duly authorized, executed, and delivered by City and constitutes a valid, binding, and legally enforceable agreement of City; and ii. The execution and delivery of this Agreement and the performance of the covenants and agreements herein contained are not limited or restricted by and are not in conflict with any contract, agreement, or other instrument to which City is bound. b. Color World represents and warrants to City as follows: i. This Agreement has been duly authorized, executed, and delivered by Color World and constitutes a valid, binding and legally enforceable agreement of Color World; 52 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 10 of 15 ii. The execution and delivery of this Agreement and the performance of the covenants and agreements herein contained are not limited or restricted by and are not in conflict with any contract, agreement, or other instrument to which Color World is bound; and iii. The installation of the Equipment will be in compliance with all applicable local, state, and federal laws. 13. ASSIGNMENT. Neither this Agreement nor the permission hereby granted shall be assigned or licensed by Color World without the prior written consent of City, which consent shall not be unreasonably withheld or delayed. Without limiting or restricting, in any manner whatsoever, the City’s right to refuse the said consent on other reasonable grounds, it is expressly understood and agreed that the refusal by City to grant such consent shall be deemed reasonable where the financial standing, reputation, business experience, or type and quality of business of the proposed assignee or licensee of Color World is not satisfactory to City.. Notwithstanding the foregoing, Color World may assign this Agreement and all of Color World’s rights and obligations herein to an Affiliate or successor company, partnership or joint venture in the context of any reorganization, with the consent of the City, provided that there is no change of control, that the assignee has expressly agreed to be bound by all the terms and conditions of this Agreement and has assumed all of Color World’s obligations hereunder, and that Color World gives due notice of such assignment to City. 14. PERMITS. Color World, at its sole cost and expense, shall secure and maintain in effect all federal, state, and local permits and licenses required for the construction, installation, operation, maintenance, repair, reinstallation, replacement, relocation, and removal, as the case may be, of the Project, including, without limitation, zoning, building, health, environmental, or communication permits or licenses, and shall indemnify City against payment of the cost thereof and against any fines and penalty that may be levied for failure to procure or to comply with such permits or licenses as well as any remedial cost to cure violations thereof. Color World shall continue to comply with all applicable laws throughout the term hereof. 15. TAXES. Color World agrees it will pay any tax or fees due for any aspect of the Project. 16. DEFAULT. An event of default shall occur under this Agreement when Color World breaches or fails to perform or comply with any covenant, provision hereunder. No default under this section shall be deemed to have occurred unless written notice thereof setting forth the facts of such default 53 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 11 of 15 has been given to Color World and Color World has not, within 30 days thereafter, cured or caused to be cured such default. In case of emergency, the aforementioned notice may be given orally, and a default is deemed to have occurred if Color World has not cured or caused to be cured such default within 24 hours thereafter. For the purposes hereof, an emergency shall mean and include any situation which, in City’s reasonable opinion at the time it makes the determination, causes an immediate and serious threat to the City property, the safety of its employees or agents, third persons, or the normal pursuit of its operations. When an event of default occurs, City may: a. cure the reason giving rise to the default using its own resources and require repayment by Color World of all necessary costs and expenses, including attorney fees, incurred to cure the default; or b. in the event such default is material, in addition to the preceding remedy, terminate this Agreement with a delay of 30 days following the giving of notice to Color World of its intention to terminate this Agreement unless Color World shall, before the expiry of said 30 day delay, takes bona fide steps to remedy the default which has given rise to the right to terminate this Agreement. Where the default is of such nature that it cannot be reasonably cured within the aforementioned delays, such default shall be deemed to be cured if Color World shall have commenced to cure or caused to be cured such default and such curing of the default shall be proceeded to completion with utmost diligence. Notwithstanding the foregoing, if the default results from an Event of force majeure, City shall not have the right to terminate this Agreement, but may pursue any other remedies as may be available to it in law or in equity. In the event the Agreement is terminated under this Section, all monies paid by Color World will be kept by City as liquidated damages. This liquidated damages clause shall apply if Color World decides, for any reason whatsoever, to terminate the License before the expiration of this Agreement. 17. INSURANCE. The insurance requirements of this section are in addition to and separate from any other obligations contained in this Agreement. Color World shall obtain and maintain for the duration of this Agreement commercial general liability insurance naming the city, its officers, and employees, including those of the Bozeman Parking Commission, as additional insureds on a primary non-contributory basis for all activities conducted under or related to this Agreement. The additional insured coverage shall be in a form acceptable to the Bozeman city attorney and shall be provided prior to the commencement of any work or activities to be performed under this Agreement with minimal coverage as follows: Type of Coverage Limits Employers' Liability: $ 100,000.00 per accident 54 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 12 of 15 General Liability: Limits Bodily Injury & Property Damage Single and combined $ 1,000,000.00 per accident General Aggregate: $ 2,000,000.00 Excess Liability Coverage (umbrella) $1,000,000.00 each occurrence Automobile: Bodily Injury covering all $ 1,000,000.00 each person automobiles, trucks, tractors, trailers, or other $ 1,000,000.00 each occurrence automotive equipment whether owned or rented by Engineer or owned by employees of Engineer. Property Damage covering $ 100,000.00 each occurrence all automobiles, trucks, tractors, trailers, or other automotive equipment whether owned or rented by Engineer or owned by employees of Engineer OR Bodily Injury & Property $1,000,000.00 each occurrence Damage Single and combined In addition to the above insurance coverage, Color World shall secure and maintain without naming the City, its officers, and employees, or those of the Bozeman Parking Commission, as an additional insured, professional errors and omissions coverage as follows: Professional Errors & Omissions: $ 1,000,000.00 per claim and aggregate each occurrence The insurance policies contemplated hereby shall be acceptable to City and shall contain an endorsement which provides that City shall be given not less than 90 days’ written notice in advance of any cancellation, termination, change or amendments restricting coverage. Furthermore, Color World shall maintain workers’ compensation insurance which fully meets the requirements of Montana law. 55 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 13 of 15 18. NOTICES Except as otherwise provided in this Agreement, any demand, notice, invoice, authorization, or other communication to be given to a party in connection with this Agreement shall be given in writing and shall be given by personal delivery, by registered mail, or by email addressed to the recipient as set forth as follows or to such other address, individual, or email number as may be designated by notice given by the party to the others: Color World of Montana Inc dba Color World Printers 201 East Mendenhall Street Bozeman, MT 59715 Attention: Michael Burgard michaelb@colorworldprinters.com City of Bozeman 121 North Rouse Avenue Bozeman, MT 59715 Attention: Paul Burns, Parking Manager pburns@bozeman.net Any demand, notice, invoice, or other communication given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof and, if given by registered mail, on the third business day following the deposit thereof in the mail and, if given by telecopy, on the day of transmittal thereof if given during the normal business hours of the recipient and on the business day during which such normal business hours next occur if not given during such hours on any day. If the party giving any demand, notice or other communication knows or ought reasonably to know of any difficulties with the postal system which might affect the delivery of mail, any such demand, notice or other communication shall not be mailed but shall be given by personal delivery or by telecopy. 19. GOVERNING LAW; VENUE This Agreement shall be interpreted and construed in accordance with the laws of the State of Montana with venue in the Eighteenth Judicial District, Gallatin County, Montana. 20. RECORDATION This Agreement shall not be recorded by Color World against title to the City Property or otherwise, and any such recording by Color World shall automatically constitute an event of default hereunder. 21. DISCHARGE OF LIENS Color World covenants and agrees that it shall not create or permit to remain, but will remove and discharge or cause to be removed and to be discharged promptly at its cost and expense any lien, encumbrance, charge, claim of lien, privilege, hypothec, or mortgage upon City Property in 56 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 14 of 15 or upon which the Project is located, which arises out of the use hereunder by Color World or by reason of labor, material, or services furnished or claimed to have been furnished for Color World under this Agreement or by any person under any agreement between Color World and any advertiser. 22. GENERAL PROVISIONS a. The rights, duties, obligations, and liabilities of the parties pursuant to the relationship created pursuant to this Agreement shall be limited to those rights, duties, obligations, and liabilities set out in this Agreement. Nothing herein contained shall be construed to create a partnership or joint venture between the parties. Except as expressly authorized by the terms and conditions hereof, nothing herein contained shall be construed to authorize a party to act as the agent of any other party, or to permit any party to act on behalf of or bind any other party. b. Each of the parties agrees to execute and deliver all such other additional instruments and documents and to do such other acts and things as may be necessary more fully to effectuate this Agreement and the relationship created hereby. c. The headings used in this Agreement are for reference purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement. d. Any provision in this Agreement which is prohibited or unenforceable in whole or in part in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. e. Pursuit by a party of any of the remedies provided for in this Agreement shall not preclude pursuit by it of any other remedies provided by law or in equity, nor shall it constitute a forfeiture or waiver of any amount due to it or of any damages accruing by reason of the violation of any terms, provisions, and covenants contained in this Agreement. f. No waiver by any party of the performance of any provision, condition, or requirement herein shall be deemed to be a waiver of, or in any manner release the other parties from, performance of any other provision, condition, or requirement herein; nor deemed to be a waiver of, or in any manner, release the other parties from future performance of the same provision, condition, or requirement; nor shall any delay or omission by any party to exercise any right hereunder in any manner impair the exercise of any such right or any like right accruing to it thereafter. g. This Agreement, including the attachments, constitutes the entire agreement among the parties and there are not and shall not be any verbal statements, representations, warranties, undertakings, or agreements between the parties purporting to vary its terms, and this Agreement may not be amended or modified in any respect, except by written instrument signed by the parties hereto. 57 AGREEMENT TO SELL, MANUFACTURE, INSTALL, MAINTAIN AND DISPLAY ADVERTISING IN THE BRIDGER PARK PARKING GARAGE Page 15 of 15 h. Color World and City will each appoint a manager to interface with each other. i. All employees or contractors of Color World or any other person engaged in the performance of work or services under this Agreement shall be considered employees or contractors of Color World only and not of the City or the Bozeman Parking Commission. j. Should a court of competent jurisdiction order that City does not have the legal authority to install, sell, or display advertising at the Bridger Park Downtown facility, all obligations of the parties under this Agreement shall be terminated and no damages of any kind whatsoever shall be claimed by either party against the other. City shall have no liability of any kind for damages made by any advertiser for which Color World has entered into an agreement. Color World shall have no more than 30 days from the date of such order to remove all equipment installed under this Agreement. IN WITNESS WHEREOF, each party to this agreement has caused it to be executed on the date indicated above. COLOR WORLD Business Name: ________________________________________________ Business Owner: ________________________________________________ Signature: _______________________________________________________ Date: _____________________________________________________________ City of Bozeman Business License Number: _____________________________ CITY OF BOZEMAN City Manager: Chris Kukulski: ___________________________________________________________ Date: __________________________________________________________________ ATTEST City Clerk: Stacy Ulmen: ______________________________________________________________ Date: ____________________________________________________________________ 58