Contract 114.00023
Poster Bollard Advertising and Management
CONTRACT dated the ______ day of ________ 2017
PARTIES
1.
WELLINGTON CITY COUNCIL (the
"Council")
2.
PHANTOM BILL STICKERS LTD (the
"Company")
BACKGROUND
A
The Company has offered to maintain and upgrade a network of poster
bollards, construct and install a number of New Bollards in Wellington City
to provide advertising for Arts, community, and event organisations (The
Target Market) and associated management services, at no cost to Council.
B
The Company is to arrange for advertising on all the Bollards and will
collect all revenue from such advertising and pay to Council a licence fee.
C
The Company will maintain all Bollards during the term of the Contract and
will, at Council's option, transfer ownership of the New Bollards to Council
at the end or earlier termination of the Contract.
D
Subject to the terms of this Contract the Company is to have exclusive
advertising rights to the Bollards.
E
The Council and the Company now wish to enter into this Contract to
record the terms and conditions of their agreement.
IT IS AGREED AS FOLLOWS:
OPERATIVE PROVISIONS
1.
Scope of Services
1.1
The Company shall perform the following tasks (herein referred to as "the Services")
in accordance with the terms of this Contract
(i) Renew and replace all Bollards and Business Information Poles
(ii) Install New Bollards and Business Information Poles
(iii)
Maintain and repair Bollards and Business Information Poles
(iv)
Manage advertising on all Bollards
(v)
Design, install and manage business information poles
(vi)
Manage illegal postering and graffiti surrounding Bollard locations
1.2
A more comprehensive description of the Services required to be performed are set
out in Schedule 1.
1.3
The Company shall give notice to the Council within ten (10) Working Days of t he
Company becoming aware of any matter which will change, or has the likelihood
of changing or has changed the scope of the Services. The notice shall give
reasonable detail of the nature of the change and the Company's planned response.
2.
Grant of Licence
2.1
The Council shall, subject to the terms of this Contract, in consideration of
the Company maintaining the Bollards and the Company transferring the ownership
of the Bollards to the Council at the end or earlier termination of this Contract
(should it choose that option):
(a)
Allow the Company to erect New Bollards;
(b)
Grant to the Company licences on the terms and conditions set out in this
Contract for the sites on which the Bollards (including the relocation of
Bollards) are to be placed; and
(c)
Grant to the Company an exclusive right to advertise on the Bollards.
2.2
The Council grants to the Company, as licensee, a licence to use the Sites to
install New Bollards or to which New Bollards are to be relocated and a licence to
advertise on all Bollards and Pole Poster Holders.
2.3
The Council grants and the Company, as licensee, accepts a licence to use the Sites
for the term of this Contract (less one day) or such shorter term if the
Contract is terminated prior to expiry of the term.
2.4
In respect of the licence, the Council and the Company covenant as follows:
(a)
the Company and its subcontractors, servants and agents shall have access
to the Site(s) as provided for in this Contract;
(b)
the Council will not interfere with the Company's reasonable use
and enjoyment of the Site(s) during the term of this Contract; and
(c)
the Council shall take no responsibility for loss or damage to the Bollards
which are to occupy the Site(s), however caused.
2.5
The Company covenants:
(a)
to use the Site(s) for the purposes defined in this Contract and for no
other purpose;
(b)
not to assign the benefit of the licence for use of the Site(s) or to grant
any sub licence for use of the Site(s) except as provided for under the
terms of this Contract;
(c)
to keep the Site(s) in a clean and tidy manner;
(d)
To keep the surrounding area (up to 50m) of all Sites clear of graffiti
and illegal postering as described in clause 4.5
(e)
to comply with all statutes, regulations and ordinances regarding the
provision of the Company's services and the use of the Site(s) for that
purpose;
(f)
to keep the Council indemnified against any claims for liability for
damage, loss or injury which may occur to the Site(s), the Company
or to any other person; and
(g) on expiry or termination of the licence for each Site, to ensure that the
Site(s) are left in the condition required by the terms and conditions of this
Contract.
2.6
The Company has no personal right of occupation on the terms specified under this
Contract and has no interest in the land which form the Sites under this Contract. The
legal right to possession and control over the Sites remains vested in the Council
throughout the term of this Licence.
3.
Bollard Installation Programme
3.1 Programme
The company will, at its sole expense (subject to the provisions of clause 15), renew or
upgrade all Bollards and supply and install New Bollards as specified in Schedule 1 - Scope
of Services at such sites as are identified and approved under the terms of this Contract
3.2
Bollard Locations
The Company may propose location(s) for the New Bollard(s) and the Council will
either approve or reject the location at its sole discretion.
3.3
By entering into this Agreement, the Council does not offer any assurance that there
are sufficient suitable sites available for the installation of the bollards proposed under
clause 3.1 or 3.2, the final number of which shall be determined only following an
investigation of available sites and the completion of the approval process described
within this Agreement.
4.
Term of Contract
4.1
Initial Term
This Contract commences on the Commencement Date first above written for a term
of T h r e e ( 3 ) years and, subject to clause 4.2, ends on the Expiry Date or
earlier termination in accordance with this Contract or by operation of law.
4.2
Renewal
Subject to the conditions below being satisfied, the Company shall, upon the
expiration of the Initial or Renewal Term, have the right to renew this Contract for a
further term of two (2) years from the Renewal Date. The renewed Contract will be
upon and subject to the terms and conditions contained and implied in this Contract,
and shall include a right to renew the Contract for up to two (2) Renewal Terms of
two (2) years each so that the Company's occupancy of the Sites will, in any event,
expire on or before the Final Expiry Date. The conditions required to be satisfied
prior to any renewal being granted are:
4.2.1 The Company requests the renewal in writing no more than twelve (12)
months and no less than six (6) months prior to the expiration of the Term;
4.2.2 h4.2.2 The Council policies, goals, objectives and bylaws continue to permit and
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be supported by the Services to be performed beyond the expiry of the Term.
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4.2.3 The Company is not, at the expiration of the Term, in breach of any
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term or condition of this contract or any other contract between the Company
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and the Council;
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4.2.4 The Company has promptly and fully observed and adhered to the terms
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of this Contract during the Term and including meeting the criteria for the
successful conduct of the Services described in clause 4.3;
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4.2.5 The Company pays the Council's reasonable costs in obtaining all
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necessary approvals and documentation for such renewal.
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t4.3 The Parties agree that the Council shall only be required to grant extensions of
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term of this Agreement if it be satisfied, on reasonable grounds, that what it
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sought to achieve by granting a licence in the first place has and continues to be
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met.
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4.4 The Council's criteria for the successful conduct of the Services require the
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Company to satisfactorily comply with the terms and conditions of this
Agreement including, in particular:
t(a)
The Bollards are kept looking tidy, displaying current posters only, that they
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are checked and maintained by the Company's personnel at least once a day on
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each day of the year including all Public Holidays.
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(b)
The Bollards are stripped and cleaned when required to maintain their clean
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and tidy appearance and to preserve their use.
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t(c)
All postering paper and glues are cleaned up from the ground within 30 metres
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of the Bollards daily.
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(d)
No posters are displayed or allowed to remain on the Bollards that do not meet
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the Council's criteria of what constitutes an acceptable poster for the purposes
of display on Bollards described in clause 11.3.
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r(e)
The Company meets its obligations in respect of making available ten
percent (10%) of the total space on all Bollards and a free postering service in
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accordance with the provisions of clause 11.9.
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(f)
The Company not placing posters illegally on Council or other property in the
City subject to the clarification as to what is "illegal postering" described in
clause
4.5.
(g)
There not be a significant growth in the level of illegal postering generally or
demand in excess of the 10% provision in clause 11.9 that might be avoided by
the Council increasing by a significant margin the available space on the
bollards for what would otherwise be illegal posters. A "significant margin"
would for this purpose be in excess of 30% of total space on all Bollards.
(h)
Illegal postering is removed from all sites described in clause 4.5 within a radius
of 50m from an approved Bollard site.
(i)
Graffiti is to be removed within 50m of an approved Bollard site. This activity is
to be monitored and recorded through the Council’s “Stop Tag” app.
4.5
"Illegal Postering" is postering which is illegal under any law or bylaw, or placed without
the permission of the Council or property owner on any Council or privately owned items
including but not limited to: buildings, structures, street furniture, signal control cabinets,
shelters, poles, parks, planter boxes and footpaths and road surfaces.
5. Company's Obligations
5.1 Comply with directions
The Company shall comply with all reasonable directions given by the Council's Representative.
5.2 Provide equipment and materials
The Company shall provide all equipment, tools, materials and supplies required to perform the
Services unless otherwise specified in this Contract.
5.3 Personnel
(a)
The Company shall ensure that all its Personnel when providing the Services have a neat
and tidy appearance. All Personnel shall wear identification, clearly displayed, s h o w i n g
that they are employed by the Company.
(b)
The Company shall ensure that the Personnel conducting the Services conduct themselves
in a proper manner so that they not bring either the Company or the Council into disrepute.
If the Council is concerned as to the conduct or appearance of any Personnel, the Council
will provide particulars of its concerns to the Company and the Company shall
immediately ensure its Personnel satisfy the Council's standards and requirements and if
the Company is not able to satisfy the Council, the Company shall withdraw those
Personnel not meeting Council's standards from carrying out the Services until the
Council is satisfied those Personnel concerned will, in future, meet the Council's
standards and requirements.
5.4 Co-operation
The Company shall in providing the Services co-operate, at its sole cost, with the Council, its
employees, Council's contractors and third party utility operators.
5.5 Comply with legislation and Council standards
The Company shall comply with all applicable legislation including but not limited to, all
Wellington City Council bylaws and Council's corporate policies that establish the standards and
parameters within which it requires the Services to be performed. Relevant policies and
current bylaws applicable to this Contract, specifically Part 17.4
"Hoardings, Posters and
Notices in Public Places", can be found on the Council’s website and may be revised and
replaced from time to time.
The Company, its Personnel and any subcontractors engaged by the Company to carry out any
part of the Services shall at all times comply with the requirements of Wellington City Council's
"Code of Practice for Temporary Traffic Management" and
"Code of Practice for Working on the
Road". The latest versions of each of these Codes of Practice are available on the Council's
website.
5.6
Reporting
5.6.1 The Company shall provide the Council with the reports detailed in
Schedule 2 and keep such other reports and records that the Council may consider
relevant and as advised by the Council in carrying out the Services and deliver these
to the Council at the time(s) and frequency specified by the Council.
5.6.2 The Company shall ensure that it has sufficient technical and secretarial support to
ensure the timely completion and submission of all reports and other information
required to be provided under this Contract.
5.7
Quality Assurance
5.7.1 5.71 The Company shall comply with all reasonable quality assurance standards
of the Council where notified by the Council to the Company in
writing (to the extent that such standards are not contrary to any express
provisions of this Contract).
5.7 2 T he Company and Council shall meet regularly (as a minimum once
every three months) to discuss and ensure that the Company is delivering the
Services in compliance with:
(a)
elements of this Contract regarding the quality of the Services to be provided;
(b) health and safety requirements under clause 5.15 of this Contract;
(c) the Scope of Services, including but not limited to:
(i)
reliability and timeliness in provision of the Services;
(ii)
overall management of provision of the Services;
(iii)
customer service and public relations;
(iv)
compliance with confidentiality requirements;
(v)
accuracy in all documentation and verbal communications;
(vi)
complaints procedures; and
(vii)
reporting procedures.
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5.8
Consents
5.8:1
The Company shall obtain all necessary consents and permits to carry out the
Services. The Company shall meet the costs of all consents and the cost of complying
with any conditions of any consent.
5.8.2
Should the Company fail to meet any conditions or pay the cost of any consents,
the Council may meet such conditions and costs. The Parties shall prior to incurring any
costs discuss the work required, the basis of the fee and reach agreement as to what is
appropriate prior to the work being undertaken. Any costs incurred by Council in that
regard shall be paid by the Company to Council immediately upon receipt by the Company
of written request for payment. Any costs or expenses incurred by Council under this
clause shall be a debt due and owing from the Company to the Council.
5.9
Audit and monitoring of Services
5.9.l
The Company is responsible for monitoring the quality of the Services
provided under this Contract and its compliance with the requirements of this Contract.
5.9.2
The Council may monitor and audit the performance of the Company from
time to time. An audit may take the form of spot checks and/or a more formal audit. The
objective of such audit shall be to ascertain the level of compliance by the Company with
the requirements of this Contract, with a particular focus on the quality of the Service. The
Council will give the Company reasonable notice if a formal audit is to be undertaken.
The Company will make available all reasonable information requested by the Council for
any formal audit.
5.9.3
Where, as a result of any audit undertaken by the Council, the Council is not
reasonably satisfied that the Company is adequately performing any aspect of the
Services the Council may inform the Company of its concerns and request by written
notice that the Company remedy any part of the Services not being adequately provided.
5.9.4
If the Company does not comply with the terms of the written notice and
rectify the Services provided within twenty (20) working days or such greater time period
as is stated in the notice issued under clause 5.9.3, then the Council may terminate this
Contract.
5.10
Access to adjoining properties
The Company shall obtain authority to have a reasonable right of entry upon and to do
any act upon any adjoining property to Council property as may be necessary to
remove, install or maintain any Bollard on any Site. All costs involved in obtaining such
right shall be borne by the Company. The Company shall respect the rights of the
adjoining property owners and shall make good as soon as practicable any damage to
adjoining properties arising out of the Company's operations.
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5.11
Target market
5.11.1 The Company shall ensure that during the term of this Contract it
provides the target market (as described in Schedule 3) reasonable access to advertise
on the Bollards. This includes free advertising space as described in clause 11.9
5.1.1.2 The description of the target market may be amended from time to time.
Any such amendment must be agreed to between the parties. The
Company's agreement to any such amendment shall not be unreasonably withheld. The
Council's agreement to any such amendment shall be at its absolute discretion. Any such
change shall not be effective until recorded in writing and signed by both parties as an
amendment to Schedule 3.
5.11.3 The Company acknowledges that the level of advertising charges on
Bollards enables the target market to have reasonable access to cost-effective
advertising. The Company agrees that it shall only increase its advertising charges if it
can be reasonably assured that the target market will continue to afford to have access
to advertising on Bollards. If the Council is concerned the Company has used its
position in the market to raise its prices beyond that which is reasonable in the light of
the foregoing requirements, then the parties shall, at the discretion of the Council, refer
the Company's pricing practices under dispute resolution procedures for expert
determination with the intent that such determination shall be binding on the parties.
5.12
Company's Representative
5.12.1
The Company shall at all times during the term of this Contract
appoint a competent person acceptable to the Council to be the Company's
Representative. The Company's Representative shall be authorised to receive all
directions and instructions in connection with the Company's provision of the
Services.
5.12.2 The Company's Representative shall be contactable by the Council at
all times (including by telephone, mobile telephone, facsimile, pager or other suitable
communication device).
5.12.3 The Company may appoint a replacement Company's Representative with the
Council's written consent and such consent will not be unreasonably withheld.
5.12.4 The Council may at any time by notice in writing to the Company
object on reasonable grounds to the continuance of any person as the
Company's Representative. The Council's notice shall state the grounds upon which the
objection is based. The Company shall, subject to clause 5.12.3 as soon as practicable,
appoint a replacement person to that position.
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5.13
Liaison with the Council
5.13.1
All routine and day to day communications by the Company with the Council
shall subject to any express contrary provision in this Contract be directed by the
Company to the Council's Representative at the address shown in clause 6.2. The Council
shall give its instructions and communicate to the Company's Representative or as the
Company's Representative shall direct.
5.13.2 In accordance with clause 5.7.2 the Company and the Council shall engage
in meetings and any additional meeting as reasonably requested by the Council's
Representative to review the Services and discuss any issues relating to the
performance of the Services and Council's requirements.
5.14
Subcontractors
5.14.1 The Company may engage subcontractors as have been approved in writing
by the Council (such approval not to be unreasonably withheld) and as necessary to
carry out part of the Services under this Contract. The Company will be responsible for
the payment of the subcontractors' fees.
5.14.2 The Company shall not subcontract all of the Services to be provided by it
under this Contract.
5.15
Health and Safety
5.15.1 The Service Provider has represented to the Council that it has the capability to
comply with all relevant health and safety legislation and regulations in force from time to
time or replaced, and the Council has relied on that representation when entering into this
Agreement.
5.15.2 Each Party to this contract must, in connection with the performance of its
obligations and the exercise of its rights under this contract, comply with its obligations
under health and safety legislation including the Health and Safety at Work Act 2015, as
amended, or replaced from time to time, and including any regulations, approved codes of
practice (
HS Law), and guidelines in force at the time.
5.15.3 The Council will notify the Service Provider of any known existing, new or changed
hazards and information relevant to the health and safety of workers undertaking the
Contracted Services.
5.15.4 The Service Provider will apply best industry knowledge to the management of its
health and safety obligations under this Agreement and shall develop and maintain a
Contracted Services-specific health and safety management plan. Based on the health and
safety risks and nature of works being undertaken, or as requested by the Council, a site-
specific health and safety management plan, or similar will be developed, prior to work
commencing. The plan(s) and any updates and/or reviews of the plan(s) (at least annually
and following contract and/or HS Law changes), are subject to Council approval and must
as a minimum cover:
a) The allocation of responsibilities for health and safety, including the responsibilities of
sub-contractors
b) Hazard and risk management processes including:
i. a hazard / risk register and job safety analysis (or similar) with preference provided
to eliminating controls followed by minimising controls (i.e. substitution, isolation,
engineering controls) and subsequent management of residual risk. This should
align with the Council hazard register’s identified hazard categories and minimum
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controls, plus all additional hazards and controls identified by the Service Provider.
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ii. A description of what the contractor will do to ensure that new hazards that arise
during the Contract Works are identified and their risks reduced as far as is
reasonably practicable.
iii. Requirements for the management of specific high risks e.g. electricity, traffic
management, hazardous substances
iv. Safety and personal protective equipment and/or clothing
c) Training and competency of workers including general and site specific inductions
d) Engagement and management of subcontractors, including sharing of Council’s
expectations under this contract
e) Incident management
f)
Emergency management
g) Plant and equipment calibration, maintenance, certification and use
h) Safety in design principles (as appropriate)
i)
Supervision, inspections, and observations
j)
Worker participation
k) Monitoring and reporting
l)
Drug and alcohol testing programme, including pre-employment; random; post
incident and reasonable cause.
m) Health and wellbeing strategies
5.15.5 In the second week of each month the Service Provider shall provide a monthly health and
safety compliance report to the Council including the following health and safety
performance indicators for the preceding month end:
a) Hazard and control updates e.g. changes to the hazard register, Standard Operating
Procedures
b) Training and competency updates e.g. H&S courses or on-job assessments
c) Audits, inspections, and safety observations competed
d) Drug and alcohol testing updates
e) Number of workers vs number of inductions completed
f)
Occupational health monitoring status e.g. due or completed
g) Incident reporting including trend analysis; top 4 hazard categories
h) Investigation updates including status of actions
5.15.6 The Council may carry out health and safety observations and/or inspections (planned
and unplanned) during the term of the Agreement.
5.15.7 A review annually and at completion of the Agreement will be undertaken to review health
and safety performance of the Service Provider.
5.15.8 The Service Provider must promptly notify the Council in writing after any of the following
occurs as they relate to the provision of Contracted Services to the Council:
a) a hazard may or does exist, or a situation may arise or has arisen where any person may not
be safe or harm may result to any person;
b) any accident, incident or notifiable event has occurred including those that, under HS Law,
must be notified to a regulator;
c) the preventative action taken or proposed in relation to any accident, incident or notifiable
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event; and/or
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d) any regulatory step taken against the Service Provider under HS Laws in response to any
accident, incident or situation;
5.15.9 The Service Provider shall maintain a register of incidents, investigate them, identify causes
and take all reasonably practicable steps to ensure all persons under the Service Provider's
control or about the site are not at risk of harm.
5.15.10 The Service Provider will give the Council a copy of any report which the Service Provider
is required to make to a public authority on any health and safety accident, incident or
situation which is associated with the provision of the Contracted Services.
5.15.11 The Service Provider shall ensure their workers comply with duties placed on them under
HS Law as it relates to this Agreement and the specific health and safety plan relating to the
Contracted Services.
5,15.12 Where there are overlapping health and safety duties across the Person Conducting
Business or Undertaking (PCBUs) then consultation, co-operation and coordination
between the relevant Parties will occur to determine, agree, and record the health and
safety management requirements for workers associated with the Contracted Services.
5.15.13 These health and safety provisions are in addition to, and do not replace or exclude, the
Service Provider's obligation to comply with any other health and safety obligations either
under this contract or at law.
5.15.14 To the extent permitted by law, the Service Provider indemnifies and shall keep
indemnified the Council against all costs, damages, loss and expense incurred or suffered
by the Council for any breach by the Service Provider of the requirements of the health and
safety provisions of this Agreement and HS Law.
Key Performance Indicators
1. Monthly reports are on time and meet all of the criteria set out in the contract
2. Hazard management practices are dynamic and this is reflected in monthly reporting to
Council as set out in the contract
3. All workers are supervised on the job until such time as they are deemed competent to work
alone safely
4. Incidents reported to WCC within 24 hours of occurrence, or immediately for notifiable
events.
5. Actions from investigations are reported to Council and closed out within agreed
timeframe.
5.16
Council's Facilities
5.16.1 The Company and its Personnel shall not use any Council facilities unless
provided under this Contract or with the prior written consent of the Council's
Representative.
6.
The Council's obligations
6.1
Provisions of information
If the Company requests the Council in writing, the Council will provide the
Company with any further information or documents held by the Council which can
reasonably be considered to be relevant or of assistance to the Company in the
performance of the Services provided the provision of such information does not
cause any conflict with the Council's statutory or other contractual responsibilities.
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6.2
Council's Representative
6.2.1 The Council shall at all times during the term of this Contract appoint a
competent and authorised representative to be Council's Representative. The Council's
Representative is authorised by the Council to give and receive all directions and
instructions in connection with the Services on behalf of the Council. As at the date
of this Contract the Council's Representative is the party referred to in clause 25.16.
6.2.2 The Company and the Company's Representative shall at all times liaise with
this person with regard to any aspects of this Contract.
6.2.3
The Council may replace the Council's Representative at any time by
providing notice to the Company in writing.
6.2.4
The Company may object on reasonable grounds to the continuance of
any person as the Council's Representative by giving notice in writing. The
Company's notice shall state the grounds upon which the objection is based. The
direct manager of the Council's Representative will review the objection and, subject
to clause 6.2.3, appoint a replacement person to that position.
7.
Designation of Sites
7.1
The determination and location of Sites is to be in accordance with the provisions of
this Contract.
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7.2
The Sites for the Bollards and other approved advertising locations are as listed in
Schedule 5, which may be updated from time to time.
7.3
The Company may by written notice to the Council request consent for new Sites for
the installation or relocation of Bollards or Pole Poster Holders. The Company's
notice shall specify the details of the site and the type of advertising structure for
which approval is being requested.
7.4
In determining the best position for a New or relocated Bollard the Council shall take
account of:
(a)
the geographic distribution of Bollards;
(b)
how the Bollard will sit with existing or proposed street furniture, pedestrian
access and the aesthetics of the public spaces in relation to the proposed Site;
(c)
maintaining safety line of sight for traffic and pedestrians; and
(d)
such other factors as the Council shall determine in its discretion. The
Company shall include information on these aspects in its notice under
clause 7.3.
7.5
The Council will consider the suitability of each Site within fifteen (15) working days
(subject to any difficulties that may arise in respect of a particular Site) and advise the
Company in writing as to whether or not a Site is acceptable to the Council. The
Council's consideration as to the suitably of a Site shall be determined by t h e
Council in its sole and unfettered discretion and Council's decision in this regard shall
be final.
7.6
The Company shall not commence work to install a New Bollard or to relocate a
Bollard until it has obtained Council's written consent under this clause.
7.7
Once the Company has received written confirmation that a Site is acceptable and
available to it, it shall proceed as soon as practicable with installation or relocation
of the Bollard.
7.8
Any consent granted by Council under this clause shall lapse six months from the date
of approval if the Company has not commenced physical construction/relocation of
the Bollard on the approved Site(s).
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8.
Design and installation
8.1
Design
8.1.1 The Design for all New Bollards and Pole Poster Holders shall be in
accordance with the standard specifications contained in Schedule 4 – Design
specification
8.1.2 Any variation to the standard designs specified in Schedule 4 is to be
approved by Council in writing prior to construction commencing in
accordance with clause 8.1.4.
8.1.3 The Company warrants that the construction of the New Bollards and
Pole Poster Holders will be in accordance with the specifications detailed in
Schedule 5 and that the installation will be in accordance with all applicable
laws, building standards and any conditions contained in any consents issued.
8.1.4 The Company may during the term of this Contract propose to the
Council a new or amended Design for the Bollards. This may come from
the renewal programme for all Bollards. Any new or amended Design
shall be developed at the Company's cost. The Company shall not use any
new or amended Design unless it has obtained prior written approval from the
Council that such Design is acceptable to the Council. The Council is to
have sole and unfettered discretion as to whether it consents to any new or
amended Design.
8.1.5 Where any new or amended Design is used for the construction of New
Bollards, the Company shall warrant that the Design will be fit for purpose. If
any errors, omissions, inadequacies or other defects are found in any new or
amended Design then that shall be corrected at the Company's cost
notwithstanding any consent or approval given under this Contract by Council
as a party to this Contract or Council as a regulatory body to the Design and
installation of the New Bollards.
8.2
Installation
8.2.1 The Parties agree that subject to the availability of sites as determined in
accordance with clause 7 and the proviso contained within clause 3.3, it is the
general intention that New Bollards and Pole Poster Holders be erected to
supplement existing Bollards according to the programme outlined in
Schedule 1 - Scope of Services in order to provide a suitable coverage of
advertising locations within Wellington City and eliminate illegal postering
and postering on other Council owned infrastructure and items.
8.2.2 The Company will not be entitled to compensation of any kind should
the Council, acting in its regulatory capacity, at any time, or for any reason,
delay the Company in the installation of the Bollards.
8.2.3 The Company shall not install any New Bollards or relocate or
replace any Bollards without prior written approval under clause 7.
8.3 The Company shall:
14
(
a) i
(a)
n
install all Bollards in a good and workmanlike manner in accordance with the
s
specifications set out in schedule 4;
(b)
tinstall all Bollards in compliance with any consents obtained for
a
the installation of Bollards;
(c)
luse its best endeavours to prevent any danger or unreasonable or unnecessary
lnuisance being caused to any person or property as a result of the installation
of the Bollards
(d)
a
install all Bollards in a timely manner such that they be installed without
ldisruption to the public
(e)
lcomply with all building codes, permits, building consents, resource consents,
and any other consents obtained or required to be obtained for the
B
installation of the Bollards
(f)
o
arrange for the searching of records to determine the existence and position of
lpipes, cables and other utilities on or about any Site(s)
(g)
lbe responsible for physically locating the position of all utilities and
shall arrange with the controlling authorities for any necessary exploratory
a
work, location, protection, isolation, offsetting, reinstatement or alterations
r
required;
d
(h)
be responsible for protecting all utilities and for arranging for the
s
reinstatement or repair of any damage resulting from its operations to such
utilities;
i
(i)
upon completion of installation remove all surplus plant and materials and
n
debris and leave the Site(s) in a clean and tidy condition for use by the Council
and the public; and
(j)
a
furnish Council with the as-built records for the New Bollard indicating the
exact location, the construction completion date and the total construction
g
costs.
o
8.4 The Council shall:
(a) assist the Company where possible and as required to the best of its resources.
9.
Bollard Design
9.1
The Company acknowledges that the Council is the sole and exclusive proprietor of
the standard Design of its Bollards and that such Designs will only be used by the
Company for the purpose of providing the Services under this Contract.
9.2
The Council acknowledges that where the Company designs a New Bollard without the
benefit of the Council's Design, then the Company's Design shall remain the
Company's property
provided that the Council shall be entitled to use the Design
or grant to other parties the right to use the Design within the City of Wellington free of
any fees or breach of copy right both during the term of this contract and after its
expiry or earlier termination.
9.3
Notwithstanding the foregoing, the Company may use its own Bollard Design in
areas outside the City of Wellington both during the term of this contract and after its
expiry or earlier termination.
15
9.4
The Company shall do all things necessary and/or required by the Council for the proper
application or protection of any Bollard Design developed by the Council under this
Contract, including but not limited to execution of all documents or assignments and
provision of all necessary information, records or materials for the Council or any other
party, provided that the Council shall bear the reasonable costs of such actions that may
be incurred by the Company. The Company shall provide as soon as practicable written
notice to the Council of any claim or action by any third party against either the Company
or the Council in respect of the parties' Bollard Design rights that are the subject of this
Contract.
9.5
The Company warrants that it’s Design of a New Bollard will not infringe any
copyright design or other proprietary right of any third party. The Company
indemnifies and holds the Council harmless from and against any and all loss,
cost, damage and expense that the Council may suffer or incur as a result of any
such infringement.
10.
Exclusivity
10.1 The Council grants to the Company during the Initial Term and through two (2)
subsequent renewals the exclusive right to advertise on all Bollards in Wellington City
on land owned by the Council, subject to the qualifications herein contained.
10.2 If during the Initial Term and two (2) subsequent renewals of the contract, the Council
wishes to install or grant licences to install bollards in Wellington City on land owned
by the Council which the Company does not wish to include under the provisions of
this Agreement, then the Council may, at its election, grant to third parties the rights in
respect of such additional bollards as the Council shall determine in its discretion.
10.3 In the event of the Council granting a renewed term of this Contract then in respect of
the then-existing Bollards the Council grants to the Company during the renewed term
an exclusive right to advertise on such Bollards, subject to the qualification as to the
10% free use as defined in clause 11.9 with such right to continue on each renewal.
10.4 The Council may in a second renewed term and thereafter install or grant licences
to install further bollards in Wellington City without the need of first offering them
to the Company.
11.
Advertising
11.1 The Company has exclusive right to advertise on all Bollards. All revenue obtained
from advertising on the Bollards during the term of this Contract shall be to the
account of the Company.
11.2 The following terms and conditions shall apply to advertising on Bollards:
(a)
it shall be the Company's responsibility to carry out all functions associated
with advertising;
(b)
the Company's exclusive rights to advertise are subject to the terms and
conditions of this Contract; and
Poster Bollard Contract 114.00023
16
(c)
the Council may require the removal of any advertising that in the Council's
opinion affects traffic safety. In such cases, the Company will not be
compensated by the Council for any loss in revenue from the removal of such
advertising.
11.3
The following advertising shall not be permitted:
(a)
advertising of tobacco and tobacco related products;
(b)
advertising containing words or images of a pornographic nature, or which
would be deemed by the censor of the Indecent Publications Tribunal to be
inappropriate;
(c)
advertising which would be deemed by the Race Relations Conciliator to be
culturally insensitive or in any manner offend the principles of the Human
Rights Act 1993;
(d)
advertising which the Children and Young Persons Service would find
inappropriate because of the detrimental effect or exploitation it portrays of
young people;
(e)
advertising which the Privacy Commissioner would find inappropriate or
which would offend the principles of the Privacy Act 1993;
(f)
(
c)
advertising which promotes or condones drink driving;
(g)
advertising targeted at promoting and/or encouraging underage drinking of
alcohol, in particular, but not limited to, the advertising of any product
containing alcohol on any Bollards within 200 metres of any primary,
intermediate or secondary school;
(h)
advertising that promotes the commercial sex industry; and
(i)
any type of advertising that is false or misleading, which promotes unlawful or
illegal goods, services or activities, or which is othe1wise unlawful, offensive
or obscene, as determined by the Council.
11.4 Any non-permitted material displayed or placed on any Bollards shall be removed as
required by notification by the Council.
Failure to do so within 24 hours of
notification will entitle the Council to remove the material. Any costs incurred by
Council for the removal of such material shall be payable by the Company to the Council.
11.5 During the term of this Contract, Special Events may occur. The Company
acknowledges that advertising restrictions may be imposed on it during the period of
such Special Events either by statute, regulation or (on the authority of the Council
first given) at the direction of the governing body of the Special Event and the effect
of such restriction may include a requirement that:
(a)
part of the advertising be removed from the Bollards to be replaced by Special
Event advertising for the Special Event from locations which are on or near the
location of the Special Event;
Poster Bollard Contract 114.00023
17
official sponsors obtain preferential advertising rights; and
(b)
restrictions apply as to the parties entitled to advertise and/or the nature of
advertising allowed during the Special Event.
11.6 Where the Company has advertising restrictions imposed upon it pursuant to these
clauses, the Company shall not be entitled to claim compensation or reimbursement
from the Council for any expenses, costs or losses whatsoever. The Company shall be
entitled to require payment for its advertising charges for advertising on the Bollards
that may be required for the Special Event.
11.7 The Company will comply with all directions from Council in relation to advertising
during any Special Event period identified above. The Company shall have no claim
against Council in relation to revenue foregone or additional costs incurred in
complying with any such requirements.
11.8 The Company shall ensure that it does not display advertisements for goods or
services that compete either directly or indirectly with the goods or services provided
by retailers adjacent to the Bollards. The Council shall be entitled in its absolute
discretion to determine compliance with this restriction.
11.9
The Company shall:
(a)
Provide 10% of the total space on all Bollards, where the total available space
is greater than or equal to four (4) square metres, for posters installed by third
parties other than the Company and/or by the Company where they do not
charge their customer for such posters where it be for charitable purposes or
where
they
be so directed by the Council to provide space available to parties
approved by the Council. Such posters shall:
(i)
be distributed equitably amongst the various locations of Bollards or as
otherwise required by the Council;
(ii)
be proportionally placed on the appropriate Bollards with other posters;
and
(iii)
remain on the Bollards for a period of up to 7 days.
(b) Promote and provide a paste up service for up to 25 A3 sized posters for the target
market at no cost for each event
The Company shall not receive any payment from the Council or any other party for
these posters.
Poster Bollard Contract 114.00023
11.10 The Company shall maintain a record of the number of posters that are placed on the
Bollards by third parties and the Company free of charge with such records to be
available to the Council to ensure that the Company provides 10% of the total space
on all bollards without charge. The Company will use its best endeavours to ensure
that the Bollards are utilised as much as possible and discourage illegal postering.
11.11 Should the Company be required to remove any advertising material from any Bollard
upon request from any advertising complaints authority, the Company will
immediately, at its cost, remove such material. The Council shall not be liable to the
Company for any loss of revenue from the removal of such material.
12.
Alteration and additions
12.1
The Company may choose to or be required to carry out alterations or additions to the
Bollards.
12.2
The Company shall not carry out any alterations or additions to any Bollard without
prior written consent from Council. Consent by Council under this clause shall not be
consent by the Council as a regulatory body which, where required, needs to be
separately sought by the Company. The costs of any consents, alterations and
additions to the Bollards are to be borne by the Company, other than where request for
alterations or additions is made by the Council in which case the Council will be
responsible for the cost of the same.
13.
Relocation and Removal
13.1
At any time during the term of this Contract the Council may require the Company
to remove or relocate a Bollard by giving written notice to the Company to that effect.
13.2 Where the Council requests the Company to remove or relocate a Bollard, the cost
of doing so shall be borne by the Company.
13.3
The Company may from time to time request Council's approval to relocate a Bollard.
Any request to relocate a Bollard must be in writing. The Company shall not relocate
Bollards until it has obtained prior written approval. The cost of removal and
installation of a Bollard pursuant to this clause 13.3 shall be borne entirely by the
Company.
13.4
Removal and/or relocation of Bollards by the Company will be undertaken in
accordance with the terms of this Contract.
13.5 Where the Council requires the Company to relocate a Bollard pursuant to clause 13.1
of this Contract, the Council will, subject to the requirements of approval of a Site,
work with the Company to find a replacement Site for the Bollard. Where the
parties cannot agree on a replacement Site the Council will nominate a Site.
13.6
No compensation shall be paid for any loss or damage to any Bollard including loss of
advertising revenue as a result of the removal and relocation. The costs of repair as a
result of any damage to any Bollard during the removal or relocation by the Company
is to be borne by the Company. The Company will as soon as practicable repair any
such damage.
13.7
Where a Bollard has been removed from any Site, the Company shall, at its sole
cost, reinstate any damage that has occurred as a result of the removal and reinstatement
of the area of the Site shall be to the same condition as the surrounding area.
Poster Bollard Contract 114.00023
13.8 Where the Council requires the Company to permanently remove a Bollard pursuant to
clause 13.1 of this Contract, the Council will, subject to the requirements of approval
of a Site, work with the Company to find a replacement Site for the Bollard. Where
no options for its replacement exist the site shall be deleted. Council shall not be liable for
any loss of revenue due to the permanent removal of any Bollards.
Poster Bollard Contract 114.00023
14.
Council Bollards
14.1
The Council owns the Bollards referred to as
"Council Bollards" listed in Schedule 6
as well as any New Bollards erected at its cost. Ownership of Council Bollards shall
at all times remain with the Council.
14.2
The Company is to have exclusive advertising rights on Council Bollards. All
advertising on Council Bollards must comply with the advertising restrictions set out
in this Contract.
14.3 The Company is to receive all revenue from advertising on Council Bollards during
the term of this Contract.
14.4 The Company is to maintain Council Bollards in accordance with clause 16 of this
contract.
15.
Licence Fee to Advertise on Bollards
15.1
The Council shall be entitled to charge the Company a Licence Fee for the use of each
Bollard whether Council or Company owned. S uch L i c e n c e F e e i s to be
determined in the manner set out below.
15.2 The Company shall pay a Licence Fee for each Bollard at the rates specified in clause
15.3, paid by quarterly instalments with the first instalment due on the 20th of
the month following the first quarter after the Commencement Date and quarterly
thereafter.
15.3
Rates for the Licence Fees will be based on t h e r a t e b i d i n t h e t e n d e r f o r
e a c h bollard for the first two years of the Initial Term. Thereafter, the Licence
Fees will be adjusted annually based on the percentage change in the average
advertising charges for the preceding year. (See schedule 6 for tendered licence fees and
advertising rates)
15.4
The Company is to report its Advertising fees structure each quarter
15.5
While the Company is responsible for promoting, managing and maintaining business
information poles there will be no charge for their use.
16. Maintenance
16.1. The Company shall, at its sole cost, repair and maintain all Bollards. Subject to fair
wear and tear, all Bollards and Pole Poster Holders shall be maintained to keep them
in the condition that reflects them being renewed or replaced at the start of the Contract.
16.2 In maintaining the Bollards, the Company shall:
(a)
keep each Bollard clean of graffiti;
(b)
as and when required to maintain both use and appearance of the Bollards to
remove all posters from all parts of the Bollards;
Poster Bollard Contract 114.00023
(c)
ensure that protective material is laid on the immediate area
around each Bollard when affixing advertisements to the
Bollards, or that any glue or other materials resulting from the
advertising is removed from the pavement;
(d)
repair any structural damage (howsoever caused) to
any Bollard within 48 hours of receiving notice of the
damage;
(e) where any damage to a Bollard creates a hazard, remove that
hazard and make the Bollard safe within 24 hours of receiving
notice of the damage;
(f)
use its best endeavours to ensure that the Bollards do not
become a danger to members of the public; and
(g)
ensure that at all times the use of the Bollards does not
interfere with any utility operators' assets or Council assets.
16.3
Where the maintenance of a Bollard is likely to affect the traffic flow
(including both vehicular and pedestrian traffic), the Company shall submit to
Council for Council's approval a traffic plan defining how traffic flows will be
impeded and how that will be dealt with under the traffic plan. All costs
associated with any traffic control required as a result of repairs and
maintenance to any B o llard shall be borne entirely by the Company.
16.4
In the event the Company fails to comply with the maintenance
requirements, the Council may undertake such maintenance and/or repair
work and shall notify the Company of the cost incurred by Council in
undertaking such work. The Company shall reimburse the Council for any
costs incurred by Council in this regard. Such costs shall be payable
immediately upon receipt by the Company of notification of the amount of
such costs.
16.5
Should the Company fail to comply with any of the maintenance requirements
of this Contract, the Council may give written notice of any failure on
the part of the Company to comply with those requirements and specify a
reasonable time period in the notice for the Company to remedy the failure
set out in the notice. Should the Company fail to remedy the failure
recorded in the notice then, without prejudice to Council's other rights and
remedies, expressed or implied, the Council may, by its employees and/or
companies, carry out such maintenance the Company has failed to · do
under this Contract. Any c o s t s e x p e n d e d b y t he C o u n c i l i n
e x e c u t i n g s u c h maintenance will be payable by the Company to the Council
upon demand.
17.
Emergency situations
17.1
If by reason of accident, failure or other event occurring to or in
connection with the Bollards, and if the Company's Representative
cannot be contacted or is unwilling or unable to act in time to secure
the Bollards, the Council may, on behalf of the Company, take
such emergency action as the Council's Representative considers
necessary. The Company shall be entitled to take control of such
operations as soon as it is willing and able to do so.
17.2
If the emergency action involves work which the Company was liable
to do at its own cost under this Contract, the reasonable cost of that
work shall be recoverable from the company by the Council. As soon
as practicable after the taking of the action, the Council shall notify
the Company of the emergency, and thereafter confirm in writing its
extent and cost.
17.3 The taking of any emergency action by the Council shall not relieve the Company of
any of its obligations under this Contract.
18. Liability Indemnity
18.1 The Company shall indemnify Council for any damages, costs, loss or expense
incurred by the Council to the extent that damage, cost, loss or expense is caused by
any breach by the Company of any of its obligations or warranties under this Contract
or as a direct result of any other act, error, or omission on the part of the Company and
provision of the Services. The Company's liability to indemnify the Council shall be
reduced proportionately to the extent any act or omission of the Council or its
employees, agents or other Companies of the Council contributes to the damage, cost,
loss or expense.
19. Insurance
19.1
Contract works insurance
19.1.1 The Company shall ensure that any contractor engaged to carry out
physical works under the Services effects insurance for the contract works
together with insurance for materials in the care or possession of the contractor.
19.1.2 The sum insured for contract works shall not be less than the total cost of each
new Bollard and cost of installation and/or relocation of Bollards.
19.2
Public liability insurance
19.2.1
The Company shall effect public liability insurance for at least the sum
of one million dollars ($1,000,000.00) for any one claim or series of claims arising
out of the same occurrence with no limit on the total number of occurrences
payable.
19.2.2
All public liability insurance effected by the Company must cover
liability for loss or damage to any property, injury or death or illness to any person
occurring anywhere in New Zealand arising out of the performance of the Services.
19.3
General insurance requirements
19.3.1 All insurances required by this Contract:
(a)
shall be effected with reputable insurers acceptable to the Council and on terms
approved by the Council. The Council's acceptance and approval shall not be
unreasonably withheld;
(b)
shall be in effect prior to the Company commencing the Services;
(c)
must continue in force until expiry or earlier termination of this Contract; and
(d)
shall provide that:
(i)
if a claim is made and accepted, the amount of cover shall
automatically be reinstated to the full cover required by this Contract;
(ii)
the insurance shall not be cancelled for non payment of premiums
without prior notification by the insurer in writing to the Company; and
(iii)
default by an insured does not prejudice the rights of the other insured
parties;
19.3.2
The Company shall, if requested by the Council, provide to the
Council verification from the insurer that the insurance required by this Contract is
in force.
19.3.3
The Company shall notify the Council in writing of any change to the
status of any insurance required under this Contract within five (5) Working
Days of becoming aware of the change.
19.3.4
If the Company fails to arrange or keep in force any insurance required
by this Contract, the Council may after notifying the Company in writing, arrange or
keep in force the insurance. The Council may pay any premium due and recover
that amount from the Company.
23
20.
Dispute Resolution
20.1 Without limiting the application of the clauses below relating to dispute
resolution, in the event of a dispute, disagreement or difference of opinion
("Dispute")
arising under the Contract, as to:
(a)
the meaning or application of any part of the Contract; or
(b)
any other matter touching or concerning the Contract;
the Parties shall actively and openly endeavour to amicably settle such Dispute
themselves, with a view to achieving prompt resolution.
20.2
Notice of Dispute
A party claiming that a Dispute has arisen must give written notice to the other party
specifying the nature of the Dispute. On receipt of such a notice, the Parties shall
endeavour to resolve the Dispute amicably and expeditiously using informal Dispute
resolution techniques agreed by them.
20.3
Dispute resolution technique
If the Parties do not agree within ten (10) Working Days of receipt of a notice given
under clause 21.2 as to:
(a)
the Dispute resolution technique and procedures to-be adopted;
(b)
the timetable for all steps in those procedures; or
(c)
the selection and compensation of the independent person required for such
technique;
then those matters shall be determined by the President of the Arbitrators and
Mediators Institute of New Zealand Inc.
20.4
Referral to senior management
If the Parties are unable to settle a Dispute amicably under clause 20.2 by conference
or negotiation, either party may issue a notice referring the Dispute to the senior
management of the Parties to resolve.
Within ten (10) Working Days of service of such a notice, senior management
representatives of each party shall meet and attempt to resolve the Dispute. Any
resolution shall be unanimous, recorded in writing and binding when signed by both
Parties.
24
20.5
Referral to mediation
If the senior management representatives either fail to meet or fail to resolve a Dispute
within ten (10) Working Days of its referral to them, or where neither party requires
referral to senior management within twenty (20) Working Days of the giving of
notice of a Dispute under clause 20.2, either party may at any time subsequently by
notice in writing to the other require the Dispute to be submitted to mediation.
20.6
Mediation
If any Dispute is submitted to mediation under clause 20.5, the following shall apply:
(a)
the mediation shall be conducted by a single mediator;
(b)
the Company and the Council shall endeavour to agree on a mediator;
(c)
if the Company and the Council cannot agree on a single mediator within five
(5) Working Days of service of notice of intention to commence mediation,
Institute of New Zealand Incorporated to appoint a sole mediator;
either party may request the President of the Arbitrators and Mediators
(d)
the mediator shall discuss the matter with the Company and the Council
(separately or jointly as the mediator may determine) and endeavour to resolve
the Dispute by agreement;
(e)
all discussions in the mediation shall be without prejudice and shall not, save
in the case of proceedings to enforce settlement concluded by mediation, be
referred to in any later proceedings; and
(f)
the Company and the Council shall bear their own costs in mediation and shall
pay the cost of the mediator in equal shares.
20.7
Arbitration
If the parties can not resolve the Dispute by mediation then either party may by written
notice to the other refer the Dispute to arbitration in accordance with the Arbitration
Act 1996 on the following terms:
(a)
a single arbitrator shall be appointed;
(b)
if the parties fail to agree on an arbitrator, then the President of the Arbitrators
and Mediators Institute of New Zealand Incorporated shall appoint the
arbitrator;
(c)
the place of arbitration shall be Wellington;
(d)
no person who has participated in an informal Dispute resolution of the
Dispute shall act as arbitrator;
(e)
the arbitrator will proceed promptly to deliver an award. The parties shall co-
operate fully in this respect;
25
(f)
the parties agree that the arbitrator's decision shall be final and binding; and
(g)
the Company and the Council shall bear their own costs in arbitration and (in
the absence of an arbitrator's award to the contrary) shall pay the costs of the
arbitrator in equal shares.
20.8
Performance of obligations
Pending the settlement of any Dispute, the parties shall continue to perform all their
obligations under the Contract except neither party shall be obliged to pay any money
which is the subject of the Dispute.
20.9
Compliance with Dispute resolution regime
A party to the Contract may not commence any court or arbitration proceedings
relating to a Dispute unless it has complied with the clauses above relating to Dispute
resolution (except where the party seeks urgent interlocutory or injunctive relief).
21. Transfer of ownership of Company owned Bollards
21.1
Upon expiry or early termination of this Contract the Council may elect to either:
(a)
require the Company to remove all or any of the Bollards owned by the
Company listed in schedule 5 or installed by the Company pursuant to this
Contract and restore the Site(s) in accordance with the terms of this Contract;
or alternatively
(b)
require the Company to transfer its ownership of Bollards installed by the
Company l i st e d i n s c h e d u l e 5 o r i n st a l l e d under this Contract to the
Council and the Council will pay to the Company such sum calculated on
the basis of the original cost price less provision for depreciation (straight
line) based on a term of 16 years. (A schedule of Bollard installation dates and
costs must be maintained by the Company at all times during the Contract)
21.2
The Council will notify the Company which option under clause 21.1 the Council
wishes to take. Should the Council choose the second option (clause 21.l(b)) then the
Company will do all things necessary and provide all documentation to confirm
transfer of ownership to the Council as soon as practicable.
21.3 Notwithstanding the provisions of clause 21.1 should the Council terminate this
Agreement as a consequence of the Company breaching its obligations hereunder giving
rise to the Council's entitlement to terminate, then in such an event the Council shall
be entitled to require the Company to transfer its ownership of Bollards to the
Council without any obligation on the Council to pay for the purchase of the same. In
such an event, the Council is to pay to the Company the depreciated value of the
assets being transferred consistent with clause 21.1(b) less any reasonable costs arising
from or due to the breach of obligations including (but not limited to) the reinstatement
of all Bollards consistent with clause 2.5(f), any legal or administrative costs
associated with the early termination and any costs attributable to or resulting from
the breach of obligations.
26
22
Termination
22.1 Early termination
22.1.1 Either the Council or the Company may terminate this Contract
immediately by notice in writing where provided for in this Contract or if a
party commits or allows to be committed any material breach of a term of this
Contract and fails to remedy the breach or fails to provide a solution to the
breach acceptable to the non-defaulting party within twenty (20) Working
Days of receiving written notice of such breach.
22.1.2
The Council may immediately terminate this Contract, by giving
written notice of termination to the Company, if any of the following events occur:
(a)
the Company having a petition presented or an order made or an effective
resolution passed or analogous proceedings taken for its bankruptcy,
liquidation, dissolution or winding up (except for the purposes of solvent
reconstruction);
(b)
the Company having an encumbrancer, receiver, liquidator, trustee or similar
officer take possession of or be appointed with respect to all or any part of its
business, assets, or undertakings;
(c)
the Company persistently failing or refusing to observe or perform any of the
duties or obligations required of it or made by it under this Contract and such
default has not been remedied within twenty (20) Working Days of the
Company receiving notice from the Council requiring that the default be
remedied;
(d)
the Company engaging in or its Personnel engaging in any conduct or practice
which is detrimental or harmful to the good name, goodwill or reputation of
the Council;
(e)
the Company abandons or repudiates this Contract; or
(f)
over a period of twenty (20) Working Days the Company commits a breach of
this Contract which, even although remedied, continues to occur and is in
Council's opinion impacting on, or interfering with, the delivery of the
Services.
22.1.3 Termination of the Contract shall not prejudice or affect the accrued
rights and liabilities of either party under this Contract
subject to the
qualification set out in clause 21.3.
22.2
Force Majeure
22.2.1 Neither party will be liable for any act, omission or failure to fulfil its
obligations under this Contract if such act, omission or failure arises from any
cause reasonably beyond its control (Force Majeure Event), which includes
floods, earthquakes and other acts of God, but which excludes:
27
(a)
any industrial actions;
(b)
any power, gas and other service failures;
(c)
any riots or public demonstrations; and
(d)
any governmental action which in any way may affect the provision of the
Services.
22.2.1 The party who cannot carry out its obligations under this Contract must give
the other party to this Contract notice as soon as practicable of the cause and
insofar as it is known the probable extent to which the party giving the
notice will be unable to perform or will be delayed in performing its obligation
under this Contract.
22.2.2 On the issue of notice of a Force Majeure Event the obligations of the party
giving the notice will be suspended insofar as that party is prevented
during the continuation or intervention of such cause to carry out its
obligations under this Contract.
22.2.3 The party giving notice which is affected by the Force Majeure Event must
take all reasonable steps to mitigate the effects of and eliminate the
intervening event and must resume performance of the Services as properly
and practicably as possible.
22.2.4 Should the Force Majeure Event continue for a period exceeding twenty
(20) Working Days from the date the party is unable to comply with the
obligations under this Contract has given notice to the other party, then the
party being the recipient of that notice may terminate this Contract by giving
written notice to the other party.
22.3
Handover report
22.3.l On expiry or earlier termination of this Contract the Company shall provide to
Council a handover report. The report shall contain all the details as to the
current position of all Bollards, a detailed description of the condition of each
Bollard, and any other information regarding such Bollards reasonably
required by Council as directed by Council's Representative.
23. Assignment
23.1 The Company will not assign this Contract (or any part of it) or otherwise part with
the possession of any of the Sites without first obtaining the written consent of the
Council, which the Council will give if the following conditions are fulfilled:
(a)
The Company proves to the satisfaction of the Council that the proposed
assignee is (or in the case of a company, the shareholders of the proposed
assignee are) respectable, responsible and have the financial resources to meet
the Company's commitments under this Contract and the relevant experience
to properly conduct the Services;
(b)
There is no subsisting breach of any of the Company's covenants hereunder;
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(c)
A Deed of Covenant in customary form approved or prepared by the Council is
duly executed and delivered to the Council; and
(d)
The Company pays the Council's proper costs and disbursements in respect of
the approval or preparation and stamping of any Deed of Covenant and all fees
and charges payable in respect of any reasonable enquiries made by or on
behalf of the Council concerning any proposed assignee.
23.2
Any change in the legal or beneficial ownership of any of the Company's shares or
issue of new capital whereby in either case there is a change in the effective
management or control of the Company will be deemed to be an assignment of this
Contract.
23.3
Unless specifically stated to the contrary in any written consent to an assignment or
subcontract, no assignment or subcontract shall release or discharge the Company
from any liability or obligation under this Contract.
24.
General
24.1
Set off
Council by this clause is authorised by the Company to deduct any monies payable by
the Company to the Council under this Contract from any monies payable by the
Council to the Company under this Contract.
24.2
Council as a regulatory body
24.2.1 The Company acknowledges that the Council in terms of its regulatory function as a
local authority is obliged to and shall act as an independent local
authority and not as a party to this Contract. The Company expressly acknowledges
that it shall have no right or claim against the Council in its capacity as party to this
Contract as a result of any lawful action, decision or determination made by the Coui:icil in
the performance of its regulatory function as a local authority except in the case of bad
faith by the Council in its capacity as a party to this Contract.
24.2.2 Any consent or approval of the Council acting in its regulatory
capacity shall not be construed as a consent or approval of the Council as a party to
this Contract.
24.2.3 Any consent or approval of the Council acting as a party to this Contract shall
not be construed as a consent or approval of the Council in its regulatory
capacity.
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24.3
Publicity and publication
Unless otherwise specified the Company shall not release public or media statements
or publish material related to the Services without the prior written approval of the
Council, which shall not be unreasonably withheld.
24.4
Confidentiality
The Company agrees that Confidential Information shall be treated as confidential. The
Company shall take all reasonable precautions to ensure that the Confidential
Information is not in any way disclosed to any third party (other than as is required to
perform the Services or to obtain any consent or approval of any other party the
Company may need to consult with in order to provide the Services) during or after
the term of this Contract. The Company shall not use or attempt to use any
Confidential information in any manner which may injure or cause loss to or likely to
injure or cause loss to the Council.
24.5
Official Information Legislation
24.5.1 The parties acknowledge that Council is subject to the Local
Government Official Information and Meetings Act 1987 and that 'under that
Act the Council may be required to release information about the Services and the
Company.
24.5.2 In addition, the Company agrees to comply with the requirements of the
abovementioned Act in relation to all information relating to the Council held by the
Company or its employees.
24.5.3 The Company will only release information where it has been
requested to release information pursuant to a request to the Council under the
Local Government Official Information and Meetings Act directly to a third party
through the Council unless compelled by a competent authority, in which case it will
immediately advise the Council as to the information released.
24.6
Changes in Council Policy and legislative changes
24.6.1 During the term of this Contract there may be changes in Council Policy
and/or legislative changes (which shall include changes to any bylaw relevant to
the Services) which may affect provision of the Services. The parties will in
good faith co-operate to make any amendments to this Contract that may be required
as a consequence of any such changes.
24.6.2 Where the parties cannot agree on changes required then Company may
elect rather than to continue the Contract amended as proposed by the Council to
terminate this Contract. Where the Contract is terminated by the Company under
this clause, the provisions of clause 22 shall apply.
24.7
No partnership
Nothing in this Contract constitutes the parties as partners or as agents for each other.
No party has any authority to bind the other or act on its behalf except to the extent
expressly provided for in this Contract.
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24.8
No employment contract
The parties expressly acknowledge that this is not a contract of employment but
rather requires the Company to supply specific Services.
24.9
Amendment
This Contract cannot be amended, modified or varied or supplemented except in
writing signed by duly authorised representatives of the parties.
24.10
Severance
The illegality, invalidity or unenforceability of any provision in this Contract will not
affect the legality, validity or enforceability of any other provisions.
24.11
Waiver
24.11.1 No right under this Contract shall be deemed to be waived except by notice in
writing signed by each party.
24.11.2 A waiver for either party will not prejudice its rights in respect of any
subsequent breach of this Contract by the other party.
24.11.3 Subsequent to any failure by either party to enforce any clause of this Contract,
or any forbearance, delay or indulgence granted by the other party will not
be constructed as a waiver of either party's rights under this Contract.
24.12
Governing law and jurisdiction
This Contract will be governed by and construed according to the law of New
Zealand. The parties agree to submit to the non-exclusive jurisdiction of the Courts of
New Zealand.
24.13
Cost
Notwithstanding the provisions of clause 22.3, each party shall carry their own legal
or administrative costs arising out of or in relation to negotiation and preparation of
this Contract together with any costs for any renewal or variation of this Contract.
24.14
Interest Payments
The Company shall pay interest calculated at the Default Interest Rate to the Council
on all amounts owing by the Company to the Council which have not been paid by the
date required under this Contract. Interest shall accrue from the date of default of
payment to the date of payment.
24.15
Entire Agreement
This Contract represents the entire agreement between the parties. No party shall be
bound by any prior warranty or representation unless included in this Contract.
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24.16
Notices
All notices and other communication provided for or permitted under this Contract
which are required to be in writing, will be sent by registered mail with postage
prepaid or by hand delivery or by facsimile.
Such notice given:
(a)
in person, is deemed to be served upon delivery
(b)
by facsimile, is deemed to be served upon the receipt of the correct electronic
confirmation that the facsimile has been transmitted successfully; or
(c)
by registered post, is deemed to be served upon acceptance of the registered
item.
Any such notice which has been served on a non-Working Day is deemed served on
the first Working Day after that day.
The addresses for notices are:
The Council:
Wellington City Council
Council's Representative:
Stephen Harte
Implementation Manager,
Network Improvements.
Address:
P 0 Box 2199
Wellington
Telephone:
04 499 4444
Facsimile:
04 801 3009
Mobile:
021 227 8084
Email:
[email address]
The Company:
Phantom Bill Stickers Ltd
Company's Representative:
Address
Telephone:
Facsimile:
Mobile:
Email:
or such other each party may notify in writing from time to time.
25. Definitions and Interpretation 25.1
Definitions
In this Contract the following definitions apply:
Bollard(s) means all Council-owned
and Company-owned existing and new
advertising bollards and pole poster holders.
Bollard
Design means all copyright, Design (registered or unregistered)
documentation, know-how or other protectable right.
Commencement Date means
Company's Representative means such person as the Company may nominate and
as may be approved by the Council (such approval not to be unreasonably withheld) in
accordance with clause 5.12 and as named in Clause 24.16.
Confidential Information means any Council information relating to the Services
other than information which:
(a)
has been published or otherwise has become part of the public domain other
than through acts or omissions of the recipient; or
(b)
has been furnished to the recipient by persons other than the Council (which
term includes persons employed by or acting for the Council) as a matter of
legal right and without restriction on disclosure; or
(c)
was already in the possession of the recipient without restriction on disclosure;
or
(d)
is required to be disclosed by any law or in relation to any proceedings or
action before any court, tribunal, or other competent authority or body.
Contract means this Contract and includes the Schedules and any additional
documents specified in this Contract.
Council Design means the standard bollard design used by Council.
Council Bollards means all Bollards erected at the cost of, and owned by, the
Wellington City Council.
Council's Representative means the representative of the Council as defined in
clause 6.2 and as named in clause 25.16.
Default Interest Rate means the commercial overdraft rate charged on commercial
accounts by the Bank of New Zealand.
Expiry Date means:
Initial Term:
30 January 2020
(if applicable)
First Renewal Term:
30 January 2022
Final Expiry Date means:
Second Renewal Term:
30 January 2024
GST means Goods and Services Tax in terms of the Goods and Services Tax Act
1985 at the rate prevailing from time to time.
GST Act means the Goods and Services Tax Act 1985.
HS Law means the Health and Safety at Work Act 2015, regulations and approved codes of practice.
Installation Programme means the programme for the installation of the New
Bollards as set out in Schedule 1.
New Bollard(s) means the Bollard(s) to be designed and installed (and relocated as
may be required) by the Company as per the requirements of this Contract.
Personnel means the personnel required to carry out the Services under this Contract
and as employed or contracted by the Company to place advertisements on the
Bollards.
Renewal Date means:
(if applicable)
First Renewal Term:
30 January 2020
(if applicable)
Second Renewal Term:
30 January 2022
Services means the Services set out in Schedule 1.
Scope of Services means the Scope of Services set out in Schedule 1.
Site(s) means the area under, over and above the areas described in Schedule 6 and as
may be added to or deleted from time to time under this Contract.
Special Event means those public events designated by the Council as having local,
regional or national significance that requires use of the Bollards in proximity to the
Special Event to display its advertisements.
Wellington City means that land owned by the Council suitable for the placement of
Bollards.
Working Day means a day on which registered banks are open for business in
Wellington excluding Saturdays and Sundays and Wellington Anniversary day.
25.2
Interpretation
In this Contract:
(a)
all monetary amounts are stated exclusive of GST and in New Zealand dollars
unless provided otherwise;
(b)
where the context permits the singular includes the plural and vice versa;
(c)
references to any party means the parties to this Contract and includes their
respective successors and permitted assignees (as the case may be);
(d)
references to clauses, schedules and to any attachments are to clauses in the
schedules and attachments (if any) to this Contract (unless otherwise stated);
(e)
where the context permits references to the Company this includes the
Company's employees, agents and officers;
(f)
all references to legislation include all subordinate legislation, any re-
enactment of or amendment to that legislation and all legislation passed in
substitution for that legislation;
(g) references to a person include a natural person, firm, corporation, association or
other entity whether incorporated or not and whether or not having a separate legal
personality;
(h)
the headings in this Contract shall not be used in its interpretation;
(i)
joint and several obligations that bind more than one person shall bind those
persons jointly and severally;
(j)
any consent granted by Council under this Contract shall not be held to be
consent by Council as a regulatory body unless such consent is given expressly
by Council in that capacity;
(k)
reference to the Council and the Company include their respective successors
and assigns;
(l)
where either party's consent or approval is required pursuant to any provisions
of this Contract, unless it be specified otherwise, that consent or approval shall
not be arbitrarily or unreasonably withheld or delayed.
27.
Business Information Poles
27.1
The parties acknowledge that at the date of this Agreement the design and possible
installation of Business Information Poles is under development.
27.2
The Company agrees that it shall provide its advice in respect of the design, installation
and location of such Business Information Poles.
27.3
Where the design and installation of such Business Information Poles is approved, the
provisions of this Agreement shall apply insofar as the Company shall erect, maintain and
advertise on such Business Information Poles in compliance with all standards and
obligations as set out in this Agreement as for Bollards unless otherwise stated.
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. Other Services
Any add value services identified through the tender process will be specified and incorporated under this
clause.
35
EXECUTION
IN WITNESS WHEREOF this Contract has been executed by
the parties as an agreement as of the date first appearing above.
SIGNED for and on behalf of
WELLINGTON CITY COUNCIL by:
……………………………………………………………..
under delegated a u thority
in the presence of:
Signature: )
Name: )
Position: )
Address: )
SIGNED for and on behalf of
PHANTOM BILL STICKERS LTD by:
………………………………………………………………..
in the presence of:
Signature: )
Name:
)
Position:
)
Address:
)