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HomeMy WebLinkAboutRES.233.02-02-1987 BILL N0. 87-19 RESOLUTION N0. �=� A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A LEASE AND CONCESSION AGREEMENT WITH ACKERLEY AIRPORT ADVERTISING, INC. FOR A CAPE GIRARDEAU MUNICIPAL AIRPORT TERMINAL BUILDING ADVERTISING CONCESSION BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI , AS FOLLOWS: SECTION 1 . The City Manager on behalf of the City of Cape Girardeau, Missouri , is hereby authorized to enter into a Lease and Concession Agreement with Ackerley Airport Advertising, Inc. for a Cape Girardeau Municipal Airport terminal building advertising concession . A copy of said Agreement is attached to this Resolution and made a part hereof . ; PASSED AND ADOPTED THIS ��<�2C / DAY OF , 1987 . � � � ., '.�• � � � `.,�� r ncis E. Rhodes , Mayor ATTEST; �. Alvin M. Stoverink , City Clerk LEASE AND CONCESSION AGREEMENT TERMINAL BUILDING ADVERTISING CONCESSION THIS AGREEMENT, made and entered into on this day of , 1987. by and between the City of Cape Girardeau , Missouri , hereinafter referred to as " City" and Ackerley Airport Advertising, Inc. , hereinafter referred to as "Ackerley" . � WITNESSETH : SECTION 1 . GENERAL That for and in consideration of the payments and agreements hereinafter mentioned to be made by Ackerley, the City does hereby grant to Ackerley the right to serve as exclusive National and Regional Sales Representative for all advertising displays at the Cape Girardeau Municipal Airport and to solicit and make contracts in its own name for advertising and exhibit material to be displayed therein. The approximate number, types and sizes of advertising and exhibit spaces, and their locations, as well as additional locations as may be authorized from time to time by the City as being available to Ackerley at the sole discretion of the Airport Manager . SECTION 2. TERM OF AGREEMENT The term of this agreement shall be for a period of five years commencing on April 1 , 1987 and running through March 31, 1992. SECTION 3. PERCENTAGE FEES AND PAYMENTS In consideration of the foregoing, Ackerley agrees to pay the City a percentage of gross revenues received by Ackerley for each of the years the agreement is in effect . Percentage First Year : 40$ Second Year : 50$ Third Year : 50$ Fourth Year : 50� Fifth Year : 50$ The term "gross revenues" as used herein shall be defined as the amount received by Ackerley from advertisers or their agencies for the use of advertising facilities under this Agreement, but shall not include any amount paid by advertisers in connection with design, fabrication, installation or removal of the advertiser ' s displays or any amount paid by the advertisers to Ackerley for telephone service . It is further understood that such gross receipts shall not include standard commissions paid to advertiser 's recognized advertising agencies , quantity purchase discounts actually allowed, uncollectibles at year-end or any taxes imposed by law which are separately stated to and paid by a customer and directly payable to Ackerley. Ackerley may deduct from payments otherwise due the City the amount of any sales , use , gross receipts, occupational or similar taxes (but not income or property taxes ) paid by Ackerley in connection with its operations under this Agreement . Ackerley may establish a single rate for telephone center installations that will include telephone service charges . In this event, Ackerley may deduct from each months ' receipts the actual telephone charges paid by Ackerley for that month ' s telephone service and pay to the City the applicable percentage of the remainder . Ackerley shall pay and submit all reports and payments required by this Agreement to the address shown below, until changed by written notification. Mr . J. Jef f_ Fiancock Airport Manager City Hall 401 Independence, P. 0. Box 617 Cape Girardeau , Missouri 63701 The City shall send any and all notices to Ackerley under this Agreement to the address shown below, until changed by written notification : Donald E. Carter_ Vice President/General r�Ianager Ackerley Airport Advertising, Inc. 2001 Sixth Avenue, Suite 3300 Seattle, Washington 98121 Upon termination of this Agreement for any reason, the City in its sole discretion may authorize the continuation of any advertising, in which event Ackerley shall continue to receive its commissions liereunder for the then remaining portion of the term of any such contract for any such advertising. SECTION 4. NON-DISCRIMINATION Ackerley, in exercising any of the rights or privileges herein granted to it , shall not on the grounds of race, sex, color or national origin , discriminate or permit discrimination against any person or group of persons in any manner prohibited by Part 15 of the Federal Aviation Regulations . The City is hereby granted the right to take such action, anything to the contrary herein not�vithstanding, as the United States may direct to enforce this non-discrimination covenant . SECTIOPd 5. RECORDS/ACCOUNTING/PAYMENT Ackerley, during the term of this Agreement, shall maintain and keep, or cause to be maintained and kept , a full , complete and -2- accurate permanent record and account of all sales of advertising space and services and all sums of money paid or payable for , or on account, or arising out of the business transactions conducted with respect to said terminal advertising by or for the account of Ackerley for each day of the term hereof and such records and accounts and all supporting records at all times shall be open to inspection and audit by the City and its duly authorized agents or representatives . Ackerley shall keep and preserve or cause to be kept and preserved, until the City authorizes the destruction thereof , all records relating to the sale of advertising space under this Agreement . On or before the twentieth day of the month following the close of each calendar month ( or fractional part thereof ) during the term of this Agreement, to and including the month following the close of the calendar month in which the term of this Agreement shall terminate , Ackerley shall deliver to the City all payments due the City for funds collected for the preceding calendar month and a complete written statement showing in all reasonable detail the net amount of sales for the preceding calendar month, including therein a statement of the number and dollar amounts of all credits , if any, made during such period . SECTION 6. LAWS, ORDINANCES AND REGULATIONS Ackerley shall comply with all laws , ordinances , regulations and rules of the City and the Federal , State , County and City governments which may be applicable to its operation under this Agreement . SECTION 7. APPROVAL OF ADVERTISING MATERIAL AND RATES All advertising material and exhibit material , advertisements and manner of presentation shall be subject to approval by the City. The City may disapprove any such items at its own discretion . Ackerley will immediately remove from the airport premises at its sole cost and expense, upon written demand of the City or its authorized representative, any display showcase, sign, poster or other advertising material which may be considered objectionable by the City. In the event that such material is not removed immediately upon receipt of written demand the City 's authorized representative may remove said material or display and Ackerley will pay any warehouse or storage rental incurred by such action . The City or its authorized representative shall not in any way be held responsible or liable for any damage to the equipment materials so removed . Airport management and/or City shall have -3- approval of any rate increase proposed to be charged advertising clients . SECTION 8 . FACILITIES AND SERVICES TO BE PROVIDED BY CITY City shall , without cost to Ackerley: A. Furnish the wall spaces and/or other areas in the condition required to accept display cases and exhibits in the approximate number , type, sizes and locations, as well as additional locations , as may from time to time be approved . B. Supply electrical outlets at each approved location and any additional approved locations . ( Except for flat panel poster locations . ) C. Provide electrical current in reasonable amounts for the lighting of advertising material and for the operation of the displays . D. �Jithout incurring any liability for property damage , provide normal police surveillance and protection of the displays against vandalism or trespass and will report to Ackerley the discovery of any damage or unsightly appearance requiring immediate correction . E. Provide Ackerley with all requested and available information pertaining to the traffic exposure, positions of all advertising facilities within the airport and pertaining to the availability of such facilities for sale and to authorize Ackerley to include all such information in its schedules and promotional material . F. Daily cleaning and maintenance of advertising equipment will be provided by the City. SECTION 9 . SERVICES AND EQUIPMENT TO BE FURNISHED BY ACKERLEY Ackerley shall , without cost to the City : A. Will replace or repair display advertising inventory as necessary. B. Insert all advertising material whenever possible at hours of minimum passenger and visitor activity within the Airport or at such hours as are approved by the Airport Manager_ . C. Continuously promote the concept of airport terminal advertising and conscientiously solicit and endeavor to sell local , national and regional advertisers and -4- advertising agencies on the use of the advertising facilities located at the airport . D. Act as an advertising consultant to the City rendering advice and information from Ackerley ' s national and regional offices . E. Install all inventory . SECTION 10 . DEPRIVAL OF ADVERTISING SPACE If Ackerley is deprived of its advertising space in said Airport because the premises are rendered untenable or unfit for the uses and purposes contained in this Agreement, without fault on the part of Ackerley, its employees , agents or independent contractors , or if the public is denied normal access to the Airport or any parts of the terminal containing advertising displays of Ackerley, for any reason, including but not by way of limitation ; a strike affecting a major airlines servicing the Airport , the City shall allow to such advertisers for such periods proportionate abatement of the payments due hereunder . If , within 90 days after the premises have been rendered untenable or unfit as above described or the public has been denied normal access to the airport , said premises shall not have been repaired or reconstructed, or placed in operation , Ackerley may give the City written notice of its intention to cancel this Agreement in its entirety as of the date of such damage or destruction or denial of access , without any liability being incurred thereby on the part of Ackerley or the City. SECTION 11 . ASSIGNMENT This Agreement shall not be assigned, transferred, pledged or otherwise encumbered, without the prior approval of the City. SECTIUN 12. INDEMNIFICATION AND HOLD HARMLESS (a) Ackerley shall indemnify and hold harmless the City and its agents , or employees for all suits and actions of every name and description brought against them or which may result, for or on account of , any injuries or damage received or sustained by any person , or property, by or from the acts of the said Ackerley, its agents , servants or employees . (b ) Protection against loss by fire or other casualty to the contents of the advertising displays shall not at any time be an obligation of the City. SECTION 13. INSURANCE In connection with SECTION 1?. of this Agreement, Ackerley shall maintain during the term of this Agreement, Comprehensive General Liability Insurance in amounts not less than a combined single -5- limit of $1 ,000 , 000. 00 per occurrence for bodily injury and property damage , indemnifying the City against such bodily injury or property damage claims , and furnish the City an appropriate Certificate from the insurance carrier showing the insurance to be in force which Certificate shall also be in the effect that such insurance shall not be changed or cancelled without ten (10) days prior written notice to the City. SECTION 14 . DEFAULTS BY ACKERLEY ( a ) Failure of Ackerley to promptly make payments of any charges and amounts required to be paid as set forth in SECTION 3 herein , shall constitute a default and the City may at its option , terminate this Agreement after fifteen ( 15) days notice in writing, unless the default be cured within the notice period . (b) Failure of Ackerley to comply with any other covenants of this Agreement shall constitute a default, and the City may at its option, terminate this Agreement after thirty ( 30) days notice in writing, unless the default be cured within the notice period . (c ) The City may, at its option, terminate this Agreement after thirty ( 30) days notice in writing, if a lien is filed against the interest of this Agreement and is not removed within a reasonable time by Ackerley. (d ) The happening of any of the following events shall constitute a default by Ackerley and the City may, at its sole option , ipso facto , terminate this agreement without notice to Ackerley, to-wit : abandonment of the premises or discontinuation of operations; filing of insolvency ; reorganization or bankruptcy petitions; adjudication as a bankrupt ; making of a general assignment for the benefit of creditors . SECTION 15. TERMINATION BY ACKERLEY OR THE CITY (a ) This Agreement shall be subject to cancellation by Ackerley or the City in the event of any one or more of the following events : 1 . The permanent abandonment of the airport. 2, The lawful assumption by the United States Government or any authorized agency thereof , of the operation, control or use of the Airport , or any substantial part or parts thereof in such a manner as to substantially restrict Ackerley from operating therein for a period in excess of 90 days . 3. The issuance by any court of competent jurisdiction of any injunction in any way substantially preventing or restraining the use of the Airport, and the remaining in -6- force of such injunction for a period in excess of ninety ( 90) days . (b ) This Agreement shall be subject to cancellation by Ackerley in the following event : The default by the City in the performance of any cov�nant or agreement herein required to be performed by the City and the failure of the City to remedy such default for a period of sixty ( 60) days after receipt of written notice by Ackerley to remedy the same . (c ) Upon termination of this Agreement for any reason, Ackerley at its sole cost and expense, shall remove from the property and premises of the City by the termination date , all advertising frames , contrivances , equipment and materials which Ackerley and those claiming by, through or under it , were permitted to install or maintain under the rights given by this Agreement, and shall restore said property and premises to the condition that existed immediately prior to the commencement of this Agreement, reasonable wear and tear allowed, and if it shall fail to do so within thirty ( 30) days , then the City may effect such removal or restoration at the cost and expense of Ackerley and Ackerley agrees to pay the City such cost and expense promptly upon receipt of proper invoices therefore . SECTION l6 . AGREEMENT BINDING The terms of this Agreement shall be binding upon the executors, administrators, successors and assigns of the parties hereto . SECTION 17 . STATUS OF ACKERLEY It is understood and agreed that Ackerley does not lease any space from the City and is not a Lessee or Tenant of any space hereunder . Ackerley is acting as a sales representative and advertising consultant only. Ackerley shall not be construed as the agency or employee of the city for any purpose or in any manner whatsoever . Ackerley is to be, and shall remain , an independent contractor or independent representative with respect to all rights , privileges , obligations and services performed under this Agreement. SECTION 18. FIXTURES All electrical alterations , modifications , additions or improvements (except for movable advertising displays , movable personal property and removable trade fixtures ) , at any time placed in or upon the airport by Ackerley shall be deemed to be and become a part of the realty and the sole and absolute property of the Airport terminal upon completion thereof. Movable advertising displays shall not be deemed to become the property of the City and Ackerley shall have the right to remove said property -7- from the leased premises on or before the time of termination of this Agreement . SECTION 19. ENTIRE AGREFMENT This Agreement constitutes the entire Agreement between Ackerley and the City. IN WITNESS WHEREOF, Ackerley and the City have executed this Agreement as of the day and year first above written. CITY OF CAPE GIRARDEAU, MISSOURI Gary A. Eide , City Manager ATTEST : Alvin M. Stoverink , City Clerk ACKERLEY AIRPORT ADVERTIS ING, INC. [Typed Name & Title of Signer ] ATTEST : [ Typed rdame & Title of Signer ] -8-