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HomeMy WebLinkAboutKiwanis Club-7/18/2011Cf/v Ack 1/1$120« AIRPORT USE AGREEMENT This Airport Use Agreement (the "Agreement") is entered into as of 2011, by and between Kiwanis Club of Waterloo, Iowa ("Kiwanis") and th Iowa, acting by and through the Waterloo Airport Board ("Board"). RECITALS of Waterloo, A. Board owns and operates grounds, facilities, and an airport known as the Waterloo Regional Airport (the "Airport"). B. Kiwanis desires to use a significant portion of the Airport grounds and facilities to conduct an air show (the "Show") for public benefit. 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. Board authorizes Kiwanis to use and occupy those portions of the Airport grounds that are identified generally on Exhibit "A" attached hereto (the "Premises"), provided that the Airport Director shall be authorized at any time to limit or expand the Premises in his sole discretion, or interrupt the use thereof, consistent with the reasonable needs of the Show as balanced against other Airport needs. This authorization does not include the right to use any building or equipment located on or about the Premises. Board has not reviewed applicable legal requirements or limitations imposed by any local, state, or federal governmental authority that may affect Kiwanis's use of the Premises. Kiwanis 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 Kiwanis is solely responsible for all activities related to staging and operation of the Show, that Board is not responsible therefor to any extent except as provided herein, and that any undertaking not specifically assumed by Board hereunder shall be solely that of Kiwanis. 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 Board or Kiwanis of any kind whatsoever with regard to any third ply 3. Authorized Activities. Kiwanis is authorized to conduct the Show from August 26 to 28, 2011, with the Premises open to the general public for such purposes from 8:00 a.m. to 6:00 p.m. daily. Kiwanis shall first have access to the Premises on August 25, 2011 for purposes of setting up for the Show and making other necessary preparation, and if earlier access is needed then Kiwanis shall first obtain express authorization from the Airport Director. All activities on the Premises shall be coordinated with the Airport Director to ensure no conflict with regular or competing Airport uses. Kiwanis is authorized to permit vendors, exhibitors, performers and contractors to have access to the Premises at any time that Kiwanis itself is permitted access. The general public shall be allowed access to designated parking areas and to other clearly marked areas on the Premises at regulated hours. 3.1. Fencing. To mitigate the risk of damage to other airport property and to aid in controlling site activities, the publicly accessible portions of the Premises shall be fenced off from other airport property. Kiwanis shall use orange barrier fencing to demarcate all publicly accessible portions of the Premises. Such fencing shall be at least four (4) feet in height and shall be staked with steel fence posts at such distances of separation as will maintain the fencing in a fully upright position. From time to time during the Show dates, Kiwanis will make such repairs as are necessary to keep the fencing erect. Kiwanis shall be solely responsible to erect, maintain, and remove the fencing, but airport personnel may assist if available. 3.2. Sanitation Facilities; Trash. Kiwanis shall arrange for delivery, servicing and removal of portable toilets in sufficient number, according to generally accepted industry standards, for the expected Show attendance and daily duration. Kiwanis 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. No less often than after the conclusion of the Show for each day, Kiwanis shall empty all trash containers, empty or replace toilet facilities, and pick up loose trash, refuse and debris on the Premises. 3.3. Site Control. Kiwanis 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, 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. Kiwanis shall hire professional security personnel to monitor all gateways of controlled access to the spectator and exhibition area. Kiwanis shall have the affirmative obligation to prevent members of the general public and permitted Vendors, exhibitors, performers, and contractors from entering any part of the Airport grounds other than the Premises as authorized above. 3.4 Off -Site Controls. The parties acknowledge that the Show is intended and expected to attract significant response from the general public which may impact private property in the areas neighboring the Airport. In an effort to mitigate such impacts, Kiwanis agrees to notify, in writing or in person, the owner and/or tenant of each business and residence fronting on the following roadways: Airport Boulevard and all streets accessible therefrom lying north of Airline Highway; Leversee Road from Lone Tree Road to Airline Highway; Airline Highway from Leversee Road to Wagner Road; and Wagner Road from Airline Highway to Dunkerton Road. Kiwanis shall take note of any comments received from such owners or tenants, shall confer with same in appropriate instances, and shall generally take such mitigating measures as are reasonable in the circumstances. 3.5. Terminal Use. The airport terminal and other buildings are not available for use by any person in connection with the Show, except for the U.S. Air Force Thunderbirds and such other persons or uses as the Airport Director may specifically authorize in advance. 3.6. Post -Show Cleanup. After the Show, and no later than August 30, 2011 unless the Airport Director consents to an extension of time, all temporary facilities, equipment and 2 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 Show. If Kiwanis fails to timely perform required post -Show cleanup, then Board may employ such persons, or utilize its own personnel, to perform said work, and Kiwanis shall remit payment to Board, within thirty (30) days of written demand, in full reimbursement for all costs incurred by Board or for the expense of time, resources or personnel of Board in performing such work. Any amounts no timely reimbursed shall accrue interest at the rate of one percent (1%) per month or portion thereof, until paid in full. 4. Professional Manager. Kiwanis shall engage a professional consultant to plan, coordinate and manage any and all Show activities relating to aerial exhibitions or performances. Said consultant shall have prior experience in providing such services for similar events. 5. Vendors. Kiwanis may hire or engage such vendors and concessionaires of food, beverages or merchandise (collectively, "Vendors") as Kiwanis 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, health, safety, and sanitation, and Kiwanis shall provide evidence of compliance to the Airport Director upon request. 6. Exhibitors and Contractors. Kiwanis shall be solely responsible to hire or engage any and all exhibitors of aircraft, equipment or paraphernalia, any and all performers, and any and all contractors, that it deems necessary or convenient to aid in preparation for, conduct of, and tear down after the Show. 7. Construction on Premises. Although it is assumed that Kiwanis will undertake no significant construction activities on the Premises, Kiwanis shall obtain the prior consent of the Airport Director before any such activities are undertaken, whether of a temporary or permanent nature, and whether done by Kiwanis or any Vendor, exhibitor or contractor. The Airport Director may, in his sole discretion, deny his 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 Airport Director, after the Show Kiwanis 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 Airport 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. FAA Approvals. No later than August 25, 2011, Kiwanis shall provide to the Airport Director such evidence as is satisfactory to the Airport Director that all approvals of the Federal Aviation Administration needed for the Show have been received, including but not limited to approvals from Air Traffic Control (ATC) and Flight Standards District Office (FSDO). 9. Promotional Restrictions. Kiwanis shall not, without the prior written consent of Board, erect, install or publish, or cause to be erected, installed or published, any signs, banners or 3 advertisements on the Premises, on any billboard, in any publication, or on any broadcast or cable television medium, that uses the name of the Board, the City of Waterloo, or any logos or trademarks of either, or that suggests or represents that Board or the City of Waterloo is involved in producing or sponsoring the Show. Kiwanis further shall not, without the prior consent of the Airport Director, erect or install, or cause to be erected or installed, any sign on the Premises. 10. Compensation to Board. Board has estimated in good faith that it will incur approximately $30,000 in costs or losses in connection with the Show and related activities. Provided that Kiwanis performs the terms set forth in this Agreement, then Board will agree to accept $18,200 in full satisfaction for such costs and losses, which shall be due and payable in full by Kiwanis no later than September 30, 2011, provided, however, that upon written request from Kiwanis, Board may extend the time for payment in the event that Kiwanis has a pending insurance claim for loss or damage in connection with the Show or the cancellation thereof in whole or in part. 11. Indemnity. Kiwanis agrees to defend, indemnify and hold harmless Board, 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 Kiwanis, its officers, directors, employees, consultants, contractors, Vendors, or agents, (a) with respect to the Show, (b) with respect to any and all activities in or upon the Premises relating to the use of same for purposes of the Show or activities related to the Show occurring before or after same, and (c) in otherwise performing their duties under this Agreement. 12. Waiver. Kiwanis agrees that it takes the Premises in their "AS IS" condition, without any representation or warranty by Board as to the condition of same or their suitability for any purpose contemplated by this Agreement. Kiwanis 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 Board, its officials, officers, employees and agents, in any way relating to any failure of Board to properly maintain, operate and manage the Airport or the Premises in a safe manner for any reason or any cause whatsoever; provided, however, that if the Airport Director exercises any prerogative under this Agreement or applicable law to take control over any aspect of the Show or the Premises, then the provisions of this Section shall not apply to any claims arising out of such assumption of control. 13. 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. Kiwanis further covenants and agrees that it will procure and maintain casualty and liability insurance in a responsible company or companies authorized to do business in the State of Iowa, in amounts not less than those approved in advance by Board and its insurance consultant. Such insurance shall, at minimum, cover liability arising from premises operations, independent contractors, personal injury, products, and completed operations and 4 liability assumed under an insured contract, including but not limited to the activities of Kiwanis, its officers, directors, employees, consultants, contractors, Vendors, or agents. Certificates or copies of said policies, naming Board as an additional insured, and providing for thirty (30) days' advance notice to Board before cancellation, shall be delivered to Board no later than August 22, 2011. A renewal certificate shall be provided to Board prior to expiration of any policy. C. Kiwanis 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 Kiwanis upon which Board by law or by the terms of this Agreement, has or shall have a lien. D. Kiwanis 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 Kiwanis's use of the Premises otherwise than as herein contemplated and agreed. E. Kiwanis shall require Vendors, exhibitors 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. 14. 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 Show, or with respect to facilities related to the Show, on the basis of race, color, national origin, religion, creed, sex, sexual orientation, gender identity disability or age. 15. No Assignment. Kiwanis may not assign or sublease its interest in this Agreement or the Premises without the prior written consent of Board. 16. Termination for Cause. Board may terminate this Agreement at any time for "cause" by delivery of fourteen (14) days' advance written notice to Kiwanis. "Cause" means (a) Kiwanis party 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 Board specifying the nature of the breach, or (b) acts of personal dishonesty by Kiwanis, its officers, directors, employees, consultants, contractors or agents, intended to result in substantial personal enrichment to Kiwanis or such person, willful and deliberate disregard for the interests of Board that are done in bad faith, or illegal conduct causing injury to Board. Waiver of any default is not a waiver of any other or subsequent default. 17. Legal Action. If Board initiates any action to enforce the terms of this Agreement or to recover damages for the breach hereof by Kiwanis, then if Board prevails in such action Kiwanis shall be liable for all attorneys' fees and expenses incurred by Board. 5 18. 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: KIWANIS Kiwanis Club of Waterloo, Iowa P. O. Box 1502 Waterloo, Iowa 50704 Attn: Jerry Holbach BOARD Waterloo Airport Board 2790 Airport Blvd. Waterloo, Iowa 50703 Attn: Airport 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. 19. 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 Board and Kiwanis nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 20. 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. 21. 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 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 Airport Use Agreement by their duly authorized representatives as of the date first set forth above. KIWANIS CLUB OF WATERLOO, IOWA WATERLOO Al' ORT BOARD , Chairperson orw By: dk M. L. Adams, President 6 B Attest: , Secretary 13 0 V . t --i" • cr i'