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HomeMy WebLinkAboutCedar Skyline Corporation-5/11/2015FACILITY USE AGREEMENT This Facility Use Agreement (the "Agreement") is entered into as of Vk 2015, by and between Cedar Skyline Corporation, d/b/a Main Street Waterloo ("Main Street") and the City of Waterloo, Iowa, acting by and through the Leisure Services Commission ("City"). RECITALS A. City owns and operates Iry Warren Memorial Golf Course, Byrnes Park, and Byrnes Pool (the "Public Facilities"). B. Main Street desires to use a significant portion of the Public Facilities to conduct a community festival (the "Festival") for public benefit in conjunction with the My Waterloo Days celebration. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises exchanged herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Extent of Premises. City authorizes Main Street to use and occupy those portions of the Public Facilities that consist of open turf areas of the park and golf course driving range (the "Premises"). This authorization does not include the right to use any building or equipment located on or about the Premises or Public Facilities. City has not reviewed applicable legal requirements or limitations imposed by any local, state, or federal governmental authority that may affect Main Street's use of the Premises. Main Street shall conduct its own review of applicable law and shall be solely responsible for meeting all legal requirements, including but not limited to permits, licensure, or governmental approval. 2. Responsibility. Subject to the terms of this Agreement, the parties agree that Main Street is solely responsible for all activities related to staging and operation of the Festival, that City is not responsible therefor to any extent except as expressly provided herein, and that any undertaking not specifically assumed by City hereunder shall be solely that of Main Street. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to be for the benefit of any third party or to impose any obligation upon City or Main Street of any kind whatsoever with regard to any third party. 3. Authorized Activities. Main Street is authorized to conduct the Festival on June 13, 2015, with the Park Premises open to the general public for such purposes from 6:OOam to 12:OOam (midnight). Pool hours and access from 1:OOpm to 4:30pm on June 13, 2015. Main Street shall first have access to the Premises beginning on a date to be agreed upon hereafter for purposes of setting up for the Festival and making other necessary preparations, and if earlier access is needed then Main Street shall first obtain express authorization from the Leisure Services Director. Main Street is authorized to permit vendors, exhibitors, performers, technicians and contractors to have access to the Premises at any time that Main Street itself is permitted access. City reserves the right to restrict the use of equipment, vehicles and vendor set up based on ground conditions that exist at the time. The general public shall be allowed access to the Premises at regulated hours. 3.1. Sanitation Facilities; Trash. Main Street shall arrange for delivery, servicing and removal of portable toilets in sufficient number, according to generally accepted industry standards, for the expected Festival attendance and duration. Main Street shall also place trash containers throughout the Premises, sufficient in number and dispersed throughout the Premises so as to provide adequate and convenient facilities to collect such trash and refuse as is likely to be generated. Promptly upon completion of the Festival, the Premises shall be cleaned and restored to the condition they were in before the Festival, toilet facilities shall be emptied and removed, and all litter and trash shall be picked up and disposed of. City -owned restroom facilities located on the Public Facilities will be closed for the Festival. 3.2 Public Pool. Byrnes Pool will be reserved for usage of Main Street from 1:OOpm- 4:30pm on June 13, 2015. Pool will be open for general public use during all other hours and parking/access for pool patrons shall be maintained at all times other than the above listed rental hours. 3.3. Supply of Materials. Main Street shall be responsible for supplying all necessary materials and equipment that will be used during the Festival. Such material and equipment includes, but is not limited to, fencing materials, materials to supply all electrical needs for the Festival, and all staging equipment. The City shall not be responsible for furnishing any equipment or materials, except as otherwise provided herein. 3.4. Site Control. Main Street shall arrange for adequate support personnel, through volunteers or hired workers, to control vehicular and pedestrian traffic flow, to ensure that the general public and permitted Vendors (defined below), exhibitors, performers, technicians, and contractors have ingress and egress to and from the Premises at and through authorized points of access, to collect and dispose of trash and debris, and for general security and crowd control purposes. Main Street shall hire professional security personnel, including police officers for the City of Waterloo, Iowa, to assist with general security and crowd control issues. Main Street shall have the affirmative obligation to prevent members of the general public and permitted Vendors, exhibitors, performers, technicians, and contractors from entering any part of the Public Facilities other than the Premises as authorized above. 3.5. Parking. Except for pool parking as stated in paragraph 3.2 above, Festival organizers, vendors and patrons may use available parking at the Public Facilities and on the public streets. 3.6. Post -Festival Cleanup. After the Festival, and no later than 9:00 p.m. on June 14, 2015 unless the Leisure Services Director consents to an extension of time, all temporary facilities, equipment and improvements shall be removed from the Premises, all trash and other debris shall be collected and disposed of, and the Premises shall in all ways be restored as nearly as possible to the condition in which it existed before the Festival. If Main Street fails to timely perform required post -Festival cleanup, then City may employ such persons, or utilize its own personnel, to perform said work, and Main Street shall remit payment to City, within thirty (30) days of written demand, in full reimbursement for all costs incurred by City or for the expense of time, resources or 2 personnel of City in performing such work. Any amounts not timely reimbursed shall accrue interest at the rate of one percent (1%) per month or portion thereof, until paid in full. 4. Rental Fee. As compensation to City for closure of the Public Facilities and Main Street's use of the Premises, Main Street shall pay to City the sum of $2,233.00 for closure of Iry Warren Golf Course and $2,000.00 for rental of the Byrnes Pool for a total of $4,233.00 within ten (10) days after billing by City. 5. Vendors. Main Street may hire or engage such vendors and concessionaires of food, beverages or merchandise (collectively, "Vendors") as Main Street desires in the exercise of its sole discretion; provided, however, that no Vendor shall be permitted to offer for public use or purchase any article that is dangerous, flammable, or offensive to the senses, that is a "weapon" as defined by city policy, or that bears a message that is obscene or that is derogatory to the City of Waterloo or its citizens. Vendors shall comply, as applicable, with any state or local regulatory requirements for sales taxes, alcoholic beverage licensing, health, safety, and sanitation, and Main Street shall provide evidence of compliance to the Leisure Services Director upon request. 6. Exhibitors and Performers. Main Street shall be solely responsible to hire or engage any and all performers, exhibitors or entertainers, and any and all contractors that it deems necessary or convenient to aid in preparation for, conduct of, and tear down after the Festival. 7. Construction on Premises. Main Street shall obtain the prior consent of the Leisure Services Director before any significant construction activities are undertaken, whether of a temporary or permanent nature, and whether done by Main Street or any Vendor, exhibitor, technician or contractor. The Leisure Services Director may, in his sole discretion, deny approval or condition his approval upon the imposition of restrictions or requirements, which may include, but are not limited to, code compliance, plan approval, insurance, and bonding. Unless otherwise authorized by the Leisure Services Director, after the Festival Main Street shall remove any improvements placed or constructed, and the Premises shall be restored to the condition they were in before the construction or placement of such improvements. In addition, there shall be no hole drilling, placement or driving of stakes, or other excavation work on the Premises without the prior consent of the Leisure Services Director, which may be withheld or conditioned in his sole discretion, including but not limited to the marking of the location and size of any excavation or hole on the ground surface. 8. Indemnity. Main Street agrees to defend, indemnify and hold harmless City, its officials, officers, employees, and agents, from and against any and all claims, demands, actions, causes of action and liabilities whatsoever, including but not limited to reasonable attorneys' fees and expenses, existing at law or in equity, whether sounding in tort or contract, arising from or in any way connected with the acts or omissions of Main Street, its officers, directors, employees, consultants, technicians, contractors, Vendors, or agents, (a) with respect to the Festival, (b) with respect to any and all activities in or upon the Premises or Public Facilities relating to the use of same for purposes of the Festival or activities related to the Festival occurring before or after same, including but not limited to any damage done to Public Facilities, and (c) in otherwise performing their duties under this Agreement. 9. Waiver. Main Street agrees that it takes the Premises in their "AS IS" condition, without any representation or warranty by City as to the condition of same or their suitability for 3 any purpose contemplated by this Agreement. Main Street hereby waives all claims, demands, actions, causes of action and liabilities of any type or nature whatsoever that it may at any time have against City, its officials, officers, employees and agents, in any way relating to any failure of City to properly maintain, operate and manage the Public Facilities or the Premises in a safe manner for any reason or any cause whatsoever; provided, however, that if the Leisure Services Director exercises any prerogative under this Agreement or applicable law to take control over any aspect of the Festival or the Premises, then the provisions of this Section shall not apply to any claims arising out of such assumption of control. 10. Insurance. A. Each party will each keep its respective property interests in the Premises and its liability in regard thereto, and the personal property on the Premises, reasonably insured against hazards and casualties: that is, fire and those items usually covered by extended coverage. B. Main Street further covenants and agrees that it will procure and maintain property damage and general liability insurance in a responsible company or companies authorized to do business in the State of Iowa, in amounts not less than $2,000,000. Such insurance shall, at minimum, cover liability arising from premises operations, independent contractors, personal injury, products, and completed operations and liability assumed under an insured contract, including but not limited to the activities of Main Street, its officers, directors, employees, consultants, technicians, contractors, Vendors, or agents. Certificates or copies of said policies, naming City as an additional insured, and providing for thirty (30) days' advance notice to City before cancellation, shall be delivered to City no later than May 29, 2015. A renewal certificate shall be provided to City prior to expiration of any policy. C. Main Street will not do or omit the doing of any act which would vitiate any insurance, or increase the insurance rates in force upon the real estate improvements on the Premises or upon any personal property of Main Street upon which City by law or by the terms of this Agreement, has or shall have a lien. D. Main Street further agrees to comply with recommendations of Iowa Insurance Services Office and to be liable for and to promptly pay any increase in insurance rates on said Premises and on any buildings of which said Premises are a part, due to increased risks or hazards resulting from Main Street's use of the Premises otherwise than as herein contemplated and agreed. E. Main Street shall require Vendors, exhibitors, technicians and performers (collectively, "Third Parties"), to provide proof of general liability insurance with coverage of no less than $1,000,000 per occurrence and insurance against damage to or loss of the Third Party's own property. F. Except as expressly stated to the contrary in this Agreement, subrogation rights are not waived. 11. Non -Discrimination. The parties agree that no person shall be excluded from participating in, nor otherwise be denied the benefit of or subjected to discrimination at, the 4 Festival, or with respect to facilities related to the Festival, on the basis of race, color, national origin, religion, creed, sex, sexual orientation, gender identity, disability or age. 12. No Assignment. Main Street may not assign or sublease its interest in this Agreement or the Premises without the prior written consent of City. 13. Termination for Cause. City may terminate this Agreement at any time for "cause" by delivery of fourteen (14) days' advance written notice to Main Street. "Cause" means (a) Main Street is in material breach of any term, condition, or provision of this Agreement and shall have failed to cure such breach within fourteen (14) days of receipt of written notice thereof from City specifying the nature of the breach, or (b) acts of personal dishonesty by Main Street, its officers, directors, employees, consultants, contractors or agents, intended to result in substantial personal enrichment to Main Street or such person, willful and deliberate disregard for the interests of City that are done in bad faith, or illegal conduct causing injury to City. Waiver of any default is not a waiver of any other or subsequent default. 14. Legal Action. If City initiates any action to enforce the terms of this Agreement or to recover damages for the breach hereof by Main Street, then if City prevails in such action Main Street shall be liable for all attorneys' fees and expenses incurred by City. 15. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person or by United States registered or certified mail, postage prepaid and addressed: MAIN STREET Main Street Waterloo 212 E. 4th Street Waterloo, Iowa 50703 Attn: President CITY Waterloo Leisure Services 1101 Campbell Avenue Waterloo, Iowa 50701 Attn: Leisure Services Director Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or (ii) three (3) business days following the date of deposit if mailed as stated above. 16. Relationship of Parties. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between City and Main Street nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 17. Severability. In the event any provision of this Agreement is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal, or unenforceable as written, but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so limited. 18. Miscellaneous Provisions. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement is the entire 5 agreement between the parties pertaining to the subject matter hereof and supersedes all prior understandings or agreements relating to the subject matter hereof, whether oral or written, and this Agreement may not be modified except by the mutual written agreement of both parties. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Facility Use Agreement by their duly authorized representatives as of the date first set forth above. CEDAR SKYLINE CORPORATION, d/b/a MAIN STREET WATERLOO By: • c \ ,cis, c_`t_ Title: ���J coal 6 CITY OF WATERLOO, IOWA By: Ernest G. Clark, Mayor Attest: �.. Suzy Schaes, City Clerk