HomeMy WebLinkAbout06/19/2018 06D Airport Advertising Agreement with BBOLD Advertising; Yakima Air Terminal-McAllister FieldBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDASTATEMENT
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Item No. 6.D.
For Meeting of: June 19, 2018
ITEM TITLE: Resolution authorizing an agreement with BBOLD Advertising and
Marketing Corporation for property located at the Yakima Air
Terminal -McAllister Field
SUBMITTED BY: Robert K. Peterson, Airport Director, 509-575-6149
SUMMARY EXPLANATION:
The Yakima Air Terminal -McAllister Field's main terminal building provides the opportunity to
advertise local businesses and events on professional advertisement displays throughout the
building. Airport staff has identified a local marketing firm within the valley who has expressed
interest in assisting the airport with updating and managing the displays. This agreement will allow
BBold Advertising and Marketing the opportunity to manage and improve the airport's advertising
while providing the airport with additional revenues to support the operations and maintenance of
the facilities.
ITEM BUDGETED:
Yes
STRATEGIC PRIORITY: Economic Development
APPROVED FOR
SUBMITTAL:
City Manager
STAFF RECOMMENDATION:
Adopt Resolution
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date
0 Resdution 6%7.%2018
D Agreement 6/7/2018
Type
Resd ution
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RESOLUTION NO. R -2018-
A RESOLUTION authorizing an Airport Advertising Agreement with BBOLD Advertising and
Marketing Corporation for the Yakima Air Terminal -McAllister Field.
WHEREAS, the City owns and operates Yakima Air Terminal -McAllister Field in accordance
with applicable Federal, State and Local regulations; and
WHEREAS, the airport has advertising space available for lease within the terminal building,
parcel number 181335-31001, located at 2300 West Washington Avenue; and
WHEREAS, the City conducted a nationwide search under a Request for Proposal in 2017 for
an advertising firm to lease advertising space within the airport terminal building; the search yielded no
bidders which allowed the City to contact local advertising and marketing firms within the Yakima area;
and
WHEREAS, the City of Yakima and BBOLD Advertising and Marketing Corporation, a
corporation organized and incorporated in the State of Washington, have negotiated an Airport
Advertising Agreement to provide advertising and marketing services within the terminal building at the
Yakima Air Terminal -McAllister Field, as set forth in the "Airport Advertising Agreement" attached
hereto and incorporated herein by this reference; and
WHEREAS, the City Council has determined that approval of the attached advertising
agreement is in the best interest of residents of the City of Yakima, and will promote the purpose and
services provided by the Yakima Air Terminal -McAllister Field; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized and directed to execute and administer the attached and
incorporated Airport Advertising Agreement with BBOLD Advertising and Marketing Corporation to
provide advertising and marketing services within the terminal building at the Yakima Air Terminal -
McAllister Field.
ADOPTED BY THE CITY COUNCIL this 19th day of June, 2018.
ATTEST: Kathy Coffey, Mayor
Sonya Claar Tee, City Clerk
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AIRPORT ADVERTISING AGREEMENT
This Advertising Agreement, hereinafter referred to as "Agreement," is made and entered
into this 1St day of July, 2018, by and between the Yakima Air Terminal -McAllister Field, a
Department of the City of Yakima existing under the laws of the State of Washington,
hereinafter referred to as the "Airport", and BBold Advertising and Marketing, a corporation
which is, or shall be prior to initiation of the contract term, registered with and qualified to do
business in the State of Washington, hereinafter referred to as the "Contractor."
WITNESSETH:
WHEREAS, the Airport is the authority responsible for oversight of the Yakima Air
Terminal -McAllister Field, hereinafter referred to in its entirety as the "Facility"; and,
WHEREAS, the Contractor is a corporation engaged in the business of operating
airport display advertising concessions similar in nature to that proposed for the Airport; and,
WHEREAS, the Airport wishes to grant to Contractor the right to operate the Airport's
display advertising concession at the Facility under an agreement containing mutually
satisfactory terms and covenants.
NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions,
privileges, obligations and agreements herein contained, and intending to be bound hereby, the
Airport and the Contractor mutually undertake, promise and agree, each for itself and its
successors and assigns, as follows:
Article I.
TERM
This Agreement shall become effective at execution. The term ("Term")
of this Agreement shall commence on 1, July, 2018, and continue for five
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(5) years thereafter. The Term of this Agreement may be extended by
mutual consent for one (1) additional five (5) year term. The one
additional five year term shall be deemed automatically exercised by the
Airport provided that during the previous five (5) year Term Contractor
satisfied the following operational standards and this Agreement is not
terminated as provided for in Article 12 below:
a. Contractor will invest no less than $5,000.00 into the advertising
program at the Airport;
b. Contractor will make no less than 25 telephone sales calls per
Agreement year, which calls shall be documented by Contractor
(subject to availability of displays for sale);
c. Contractor will ensure that at least 75% of advertisers at the
Airport are local and regional advertisers, with regional
advertisers being defined as advertisements for services or goods
located in Washington, Oregon, Idaho or British Columbia;
d. Contractor will provide architect -approved engineering drawings of
improvements installed in the facility;
e. Contractor will provide its personnel sufficient time for display
case relocation to be completed within 14 days of Airport request ;
f. Contractor will provide maintenance staff and scheduling, with
onsite availability within 48 hours upon Airport or Advertiser
request for service;
g. Contractor will provide graphic guidance to advertisers and obtain
written Airport approval of all graphic renditions prior to install;
and
h. Contractor will assist Airport staff in public relations efforts including
media release support.
If these standards are not met during the initial contract Term, the additional
Term extension may only be implemented by specific approval by the Airport
Director at the Yakima Air Terminal -McAllister Field.
1.2 This Agreement will automatically expire upon the expiration of the term and
extension.
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Article II.
PRIVILEGES AND OBLIGATIONS OF THE CONTRACTOR
2.1 The Airport hereby grants to Contractor the right to operate, maintain
and provide the Facility -wide display advertising concession.
Contractor acknowledges that the Airport may enter into agreements
with Yakima Valley Tourism, the Greater Yakima Chamber of
Commerce, and FLYYKM allowing each party to create displays
which may include materials that constitute advertising. The locations
of these displays are determined at the sole discretion of the Airport.
Contractor will have no responsibility or authority regarding these
displays, or future community displays in these locations, which are
hereby exempted from this Agreement.
2.2 Contractor shall develop and maintain a comprehensive advertising
program totally integrated and coordinated as to design, quality, and
content for the Facility. Under this program, Contractor shall have the
right to establish, operate, service and maintain prime quality, expertly
designed commercial advertising displays, including, but not limited
to: wall and floor back -lit units, product cases, posters, direct telephone
line hotel and transportation displays, electronic displays, computer
displays, video displays, board advertising, outdoor advertising and
other forms of advertising relating to an attractive and profitable means
for the graphic/digital displays of materials, articles, and services of
various manufacturers, industries, companies, and persons.
2.3 All installations shall be in good taste, professionally developed, and
of such high caliber as to contribute to the establishment of the Facility
as a prestigious location for commercial advertising media.
2.4 The specific locations for digital displays, backlit displays, product
cases, poster boards, telephone boards and all other sites available
for advertising use at the Facility shall be the Assigned Areas as
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depicted in Exhibit "A". The Assigned Areas shall include a minimum
of 20 locations for advertising signs, etc. Any additional areas made
available for advertising at the Facility by the Airport Director after the
initial completion of Exhibit "A" shall be added to the Assigned Areas
identified in Exhibit "A" and, in such instance, Exhibit "A" shall be
amended to include such additions. Airport shall have the sole discretion
to determine locations of advertisements in the Assigned Areas and as to
any extensions of the Assigned Areas.
2.5 All Assigned Areas selected are subject to relocation at any time at the
Airport's discretion in accordance with the provisions for "relocation"
provided herein. Should the Airport and the Contractor disagree on any
advertising locations, the Airport's decision shall be final. The Airport
shall make best efforts to provide advertising locations of at least equal
number, passenger exposure and commercial advertising value as those
represented in the original Exhibit "A". In the event that an Assigned Area
is required to be deleted and the deleted area represents thirty percent
(30%) or more of Contractor's original Exhibit "A", Contractor 's
Minimum Annual Guarantee, defined in paragraph 6.1, below, shall be
proportionally reduced.
2.6 Contractor shall be responsible for the commercial advertising program
within the Assigned Areas at the Facility and shall consistently apply its
fiscal, marketing, and administrative resources to that program.
Contractor shall make best efforts to:
a. Develop, on a continuing basis, integrated master plans for
advertising at the Facility;
b. Follow quality criteria that recognize the need for integrity of design
and advertising content appropriate to the prestige and dignity of
the Facility;
c. Practice space utilization planning which will recognize and meet the
needs of all advertising classifications and insure maximum revenue
return to the Airport consistent with the scope and integrity of the of
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the advertising master plan;
d. Provide a sales person with ability and experience of sufficient scope
to solicit and sell local, regional, and national advertising for display
at the Facility, with a primary emphasis on local and regional
advertising; and
e. Provide advertising and display equipment and fixtures that are
consistent with the architectural design of the Facility.
2.7 Except as provided elsewhere in this Agreement, Contractor shall pay all
expenses associated with planning, implementing, and operating the
display -advertising program provided for in this Agreement, including,
without limitation, the cost of qualified, licensed professional
installation of new electric and telecommunication wiring and
operating service costs associated with telecom/electronic
communications wiring within the Assigned Areas.
2.8 Upon execution of this Agreement, the Contractor shall have rights of
ingress and egress to and from the Assigned Areas, including but not
limited to common use roadways, subject to any rules or regulations which
may have been established or shall be established in the future by the
Airport. Such rights of ingress and egress shall apply to the Contractor's
employees, customers, agents, contractors, suppliers, and other authorized
individuals. In the event access is required to any sterile, secured or SIDA
areas in the terminal building, Contractor's employees shall be required to
obtain a Security Identification Display Area security badge.
2.9 Employees, agents, and contractors shall be permitted to park at the
Facility under the same terms and conditions as employees of other
Contractors at the Facility. Visiting service personnel shall be permitted
to park in areas designated for temporary vendor parking.
2.10 The Contractor may utilize additional storage space identified by the
Airport as may be available for such purposes, at the discretion of the
Airport.
2.11 The Contractor shall have the right to install and maintain appropriate
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informational signs in the Assigned Areas, provided that the design,
installation and maintenance of such signs shall be consistent with the
graphic standards and policies of the Airport. All such signage shall be
subject to written approval of the Airport prior to installation.
Article III.
ADVERTISING RATES AND STANDARDS
The Contractor agrees to use the Assigned Areas solely for the sale,
placement and display of advertising products and shall make good faith
efforts to maintain, develop and increase the sales of advertising developed
hereunder.
3.2 The Contractor shall submit to the Airport, upon request, a schedule of
monthly rates to be applied to the advertising locations. Advertising
locations may be subject to quantity purchase and other incentive
discounts and to standard sales/advertising agency deductions or
commissions.
Advertisements, advertising copy, advertising materials and the manner of
commercial presentation ("Advertisements") shall be subject to the
approval of the Airport. The Airport shall provide written notice to
Contractor of any disapproval of Advertisements within ten (10) days of
submission of graphics sample by Contractor. Contractor shall not display
any Advertisements reasonably disapproved by the Airport. Contractor
shall immediately remove from the Facility upon written demand of the
Airport, at Contractor's sole cost and expense, any disapproved
Advertisements. In the event that any so disapproved Advertisement is not
removed promptly upon receipt of written demand, the Airport may
remove and store said Advertisement. The Airport shall not in any way be
held responsible or liable for any damage to any Advertisement so
removed.
3.4 No Advertisements reasonably considered offensive by the Airport may
be presented to the public. The Contractor will promptly remove or
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modify the presentation of any Advertisement if so directed by the
Airport.
3.5 Where any backlit or other graphic display case of Contractor does not
contain an Advertisement, such display case shall contain filler graphics
promoting charitable entities or advertising sales at the Facility.
Article IV.
RESPONSIBILITY OF AIRPORT
4.1 The Airport shall provide finished floors, walls, and ceilings for the Assigned
Areas.
4.2 The Airport shall be responsible to provide maintenance and upkeep of
partitions about the perimeter of the Assigned Areas, structural walls
and supports, structural roof construction, structural floor construction,
exterior window walls designed about the perimeter of the Assigned
Areas, facility security, and existing electric service and electrical
connections to the Assigned Areas and any existing telecom/electronic
communications conduit and wiring to the Assigned Areas. The Airport
shall further be responsible for the general maintenance and upkeep
of the Facility outside of Contractor's Assigned Areas.
Article V.
WORK BY CONTRACTOR
5.1 Contractor shall submit plans and specifications for the work to be
performed pursuant to this Agreement ("Preliminary Plans") to the Airport
for review.
5.2 The Airport Director shall, within twenty-one (21) days of receipt of any
such Preliminary Plans, provide notice to Contractor of its approval or
disapproval of the Preliminary Plans. Review and approval by Airport
shall be based on the conformity of such plans and specifications to the
general architectural and aesthetic plan for the Facility and such approval
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shall not be unreasonably withheld. Any written notice to Contractor of
disapproval shall include the reason for such rejection with adequate
specificity to allow Contractor to modify such Preliminary Plans
accordingly.
5.3 In the event of disapproval of the Preliminary Plans or any portion thereof
by the Airport, the Contractor shall have up to fourteen (14) days to
submit adequately revised Preliminary Plans for Airport review. Approval
of the revised Preliminary Plans by the Airport shall not be unreasonably
withheld.
5.4 Once approved by the Airport, the Preliminary Plans shall become final
("Final Plans"). No changes or alterations shall be made to the Final Plans
after approval by the Airport, except as may be agreed to in writing by the
parties.
5.5 The Contractor shall, upon request, submit a schedule depicting the
estimated time required to complete the construction and installation of the
displays and improvements identified in the Final Plans.
5.6 Upon written "Notice to Proceed" from the Airport Director, the
Contractor shall immediately begin construction and installation of the
approved displays and improvements in the Assigned Areas and pursue
the same to completion. However, any delay in construction and
installation due to fire, earthquake, wars, acts of the Airport or one of the
Airport's contractors, or other impediment beyond the control of the
Contractor shall reasonably extend the time within which such
construction and installation shall be completed. During all times of
construction Contractor shall maintain a safe and clean work area that is
protected by appropriate barriers, as necessary and reasonable to insure the
public safety.
5.7 Except as otherwise provided herein, all work shall be at Contractor's sole
cost and expense and Contractor shall provide all necessary labor,
supervision, materials, supplies and transportation.
5.8 All work performed by Contractor shall be in accordance with the Final
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Plans. No structural alterations or improvements shall be made to or upon
the Assigned Area without the prior written approval of the Airport. The
determination of the quality and acceptability of the finishes in the
Assigned Areas shall be within the sole discretion of the Airport Director.
5.9 All improvements and displays installed by the Contractor in the
Assigned Areas shall be of high quality, safe, fire resistant materials and
shall be attractive in appearance.
5.10 One reproducible final "as built" copy of the Final Plans for all displays
and improvements, as may have been revised by the parties during the
course of construction and installation, shall, upon request, be signed by
the Contractor and submitted to the Airport Director within ninety
(90) days following completion of the construction and installation.
5.11 Upon completion of the work, the Contractor shall, upon request,
forthwith provide the Airport with a certification that the improvements
and displays have been constructed and installed in accordance with the
Final Plans, and in strict compliance with all applicable building codes,
laws, statutes, ordinances and regulations.
5.12 All permanent improvements made to the Assigned Areas by the
Contractor shall be and remain the property of the Contractor until the
expiration or earlier termination of this Agreement, at which time said
permanent improvements shall become the property of the Airport.
Notwithstanding anything to the contrary in this Agreement, all non-
permanent advertising displays, equipment, trade fixtures, materials and
supplies of Contractor, which shall include, without limitation, telephone
boards, wall displays and freestanding displays and display cases, are and
shall remain the property of Contractor unless Contractor shall fail within
sixty (60) days following the expiration or earlier termination of this
Agreement to remove such personal property. In the event of such failure
to remove non -permanent property, title to such personal property shall be
considered abandoned, and, at the option of the Airport, vest in Airport at
no cost to Airport.
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5.13 All improvements, displays, equipment and interior design and decor
constructed or installed by the Contractor or its agents, including the plans
and specifications therefore, shall conform to all applicable statutes,
ordinances, building codes, and rules and regulations. Contractor shall
obtain at its -own expense all necessary federal, state or local permits
and/or licenses prior to commencing any work.
Article VI.
PRIVILEGE FEES, CHARGES AND ACCOUNTABILITY
6.1 Subject to the terms hereof, Contractor agrees to pay to the Airport the
greater of thirtv-five Percent (35%) of the Gross Revenue derived from
the sale of advertising space at the Facility ("Percentage Fee") or a
"Minimum Annual Guarantee (MAG)" of ei2ht thousand Dollars
($8,000.00). The foregoing fees shall be referred to jointly and severally
herein as the "Airport Fee". "Gross Revenue", as used herein, shall mean
all monies paid to Contractor for advertising sales made at or from the
Assigned Areas, regardless of when or where the order therefore is
received or delivered, whether on a cash basis or credit; provided,
however, that:
a. Gross Revenue shall exclude the following:
(i) Any amount paid by advertisers in connection with design,
fabrication or installation of any advertiser's specialty or
custom display/graphics (including, without limitation, the
printing, distributing or maintaining of any advertiser's
brochures) or with the design, fabrication, installation or
ongoing service of any new media technologies (including,
without limitation, the programming and maintenance charges
for computer -operated, plasma screen, video, interactive or
motion displays);
(2) Any amount paid by the advertisers to Contractor for telephone
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or data service; and
{3} Any sales or excise tax imposed by law and separately stated to
and paid by an advertiser ("Sales Tax").
b. Quantity purchase and incentive discounts shall be allowed.
6.2 One quarter of the MAG shall be paid by the Twenty-fifth (25th) day of the
first month of each calendar quarter beginning with the first calendar quarter
of the term of this Agreement. For the purposes of the agreement the calendar
quarters are September, December, March, and June.
The Percentage Fee, when applicable as described in paragraph 6.1, above,
shall be paid by the Twenty-fifth (25th) day of the month following each
calendar quarter of service, beginning with the month following the first
calendar quarter in which Contractor used the Assigned Areas for display
advertising purposes. Such Percentage Fee shall be due for the previous
calendar quarters on September 25th, December 25th, March 25th, and June
25th of each calendar year. Notwithstanding the above, any real estate tax,
use tax, or other state and local taxes relating to the Assigned Areas or
other property of the Airport and levied or assessed to Contractor shall be
deducted from the Airport Fee.
6.3 In the event that the following condition occurs during the term of this
agreement, Contractor's obligation to pay the Airport as set forth in
Article 6.2 shall be reduced to 1/4 of $6,000.00 for each quarter of the
period of time during which the condition exists:
1. The number of enplaned passengers on scheduled airline flights to
andfcomthe Airport during any year of the Term decreases by thirty
percent (30%) or more below those officially recorded during the
year 2015. As used herein, `enplaned passengers' shall be
defined as those passengers reported to the Airport by the airlines
and recorded by the Airport on monthly operations reports.
6.4 Contractor shall furnish to the Airport for each calendar quarter a
statement showing total Gross Revenue for the preceding calendar quarter.
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With each quarterly statement, the Contractor shall remit to the Airport
the Percentage Fee derived through the end of the last month of the
preceding calendar quarter.
6.5 The Contractor shall keep full and accurate books and records showing all
Gross Revenue and the Airport shall have the right, through its
representatives, and at all reasonable times, to inspect and audit all such
records as may be necessary to verify the reported Gross Revenue,
including State of Washington sales tax return records. The Contractor
agrees that all such books and records shall be maintained at Contractor's
office location for at least six (6) years following the end of the Agreement
Term. The Contractor agrees that a review of the records, if so requested
by the Yakima Air Terminal -McAllister Field, shall take place in Yakima,
WA; thus the records will have to be made available at a convenient time
and location in Yakima, WA.
6.6 No later than one hundred twenty (120) days after the end of Contractor's
fiscal year, Contractor shall furnish to the Airport the written statement of
a Certified Public Accountant stating that the Percentage Fee paid by the
Contractor to the Airport pursuant to this Agreement during each of
Contractor's calendar quarters is accurate. Such statement shall also state
Gross Revenues as shown on the books and records of Contractor that
were used to compute the Percentage Fee made to the Airport during the
period covered by the statement.
6.7 Without waiving any other right of action available to the Airport, in the event
that Contractor is delinquent for a period of thirty (30) days or more in
paying to the Airport any fees payable to the Airport pursuant to this
Agreement, the Contractor shall pay to the Airport interest thereon at the rate
of twelve percent (12%) per annum from the date such amount was due and
payable until fully paid. Such interest shall not accrue with respect to disputed
amounts being contested in good faith by Contractor.
6.8 In the event that any additional Airport Fee shall be determined to be
rightly due and owing by any audit of Contractor's books and records as
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provided in Article 6.5, such amount shall forthwith be paid by the
Contractor to the Airport with interest thereon at the rate of twelve percent
(12%) per annum from the date such additional Airport Fee initially
became due; provided, however, that the foregoing not be applied to
amounts contested in good faith by Contractor. Should a discrepancy be
found, the Contractor shall pay any costs associated with an auditor's
revi ew.
Article VII.
CONTRACTOR OPERATIONS
7.1 The management, maintenance and operation of the Assigned Areas shall
at all times be under the supervision and direction of an active, qualified,
competent manager who shall at all times be subject to the direction and
control of the Contractor.
7.2 The operations of Contractor, its employees, agents, suppliers and
contractors shall be conducted in an orderly and professional manner.
7.3 The Contractor agrees that its employees and sub -contractors shall be of
sufficient number so as to properly conduct the Contractor's operation in a
manner consistent with the terms of this Agreement.
7.4 The Contractor is responsible for the cost of its internet service provider.
Article VIII.
MAINTENANCE
8.1 The Contractor shall provide at its own expense such janitorial and cleaning
services and supplies as may be necessary for the operation and maintenance
of the Assigned Areas. The Contractor also agrees to keep and maintain the
Assigned Areas in a clean, neat, attractive and sanitary condition.
8.2 The Contractor agrees to maintain and make necessary general repairs to
all of the improvements, fixtures and equipment placed or installed in the
Assigned Areas by Contractor, including, without limitation, signs,
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showcases, displays, and telephone boards. Contractor agrees to keep and
maintain in good condition the electrical equipment located at or on the
Assigned Areas.
8.3 All repairs done by the Contractor or on its behalf shall be of first class
professional quality in both materials and workmanship. All repairs shall
be made in conformity with the rules and regulations prescribed from time
to time by federal, state or local authority having jurisdiction over the
work in the Contractor's Assigned Areas.
8.4 The Contractor shall, in a timely manner, provide for the adequate
sanitary handling and removal of all trash, garbage and other refuse caused
as a result of the Contractor's operations.
8.5 The Airport shall have the right to construct or install over, in, under or
through the Assigned Areas new lines, pipes, mains, wires, conduits and
equipment; provided, however, that such repair, alteration, replacement or
construction shall not unreasonably interfere with Contractor's use of the
Assigned Areas. The Airport will repair at its sole cost, any damage to
Contractor's property resulting from such activities.
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Article IX.
COMPLIANCE
9.1 The Contractor, its officers, agents, servants, employees, contractors, and
licensees shall comply with all present and future laws, ordinances, orders,
directives, rules and regulations of the United States of America, the State
of Washington and the City of Yakima, together with their respective
agencies, departments, authorities or commissions ("Applicable Law").
9.2 Except as otherwise provided herein, on or before their respective due
dates Contractor shall pay to the appropriate authority all federal, state and
local taxes which may be levied on account of the business being
conducted in the Assigned Areas, or in good faith timely contest the same.
It is the expressed intent of the parties that this Agreement grant no real
property rights to Contractor. Contractor's advertising displays and
equipment shall not be viewed as Contractor's real property. The Airport
shall not assess or bill Contractor for any property, real estate, or lease tax.
Contractor shall maintain in current status all federal, state, and local
licenses and permits required for the operations of the business conducted
by Contractor.
9.3 Contractor shall pay wages that are not less than the minimum wages
required by law to persons employed in its operations hereunder.
9.4 This Agreement is governed by the laws of Washington. Any disputes
relating to this Agreement shall be resolved in accordance with the laws of
Washington in a court of competent jurisdiction in Yakima County,
Washington.
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Article X.
ASSIGNMENTS AND SUBAGREEMENTS
10.1 Contractor shall not assign this Agreement or allow same to be assigned
by operation of law or otherwise without the prior written consent of
Airport.
Article XI.
INSURANCE AND INDEMNIFICATION
11.1
Contractor shall protect, defend, indemnify and hold Airport, its elected
and appointed officials, officers, employees, boards and commissions
completely harmless from and against any and all liabilities, demands,
suits, claims, losses, fines, or judgments arising by reason of the injury or
death of any person or damage to any property, including all reasonable
costs from investigation and defense thereof (including but not limited to
reasonable attorney fees, court costs, and expert fees), of any nature
whatsoever to the extent caused by the negligence or willful misconduct of
Contractor, its agents, employees, licensees, or contractors, and arising
out of or incident to the operation of the Facility advertising program
pursuant to this Agreement. Contractor shall have the right to control the
defense of any such claim, suit or other action as mentioned above for
which Contractor indemnifies the Airport. This subsection shall not create
any third party rights and shall not be interpreted as a waiver by the
Airport of any immunities or limitations on damages available to the
Airport pursuant to Applicable Law.
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11.2 Insurance: It is understood that the Airport does not provide insurance coverage for
Contractor for any work or activities performed under this Agreement. At all times
during performance of the Services, Contractor shall secure and maintain in effect
insurance to protect the Airport and Contractor from and against all claims, damages,
losses, and expenses arising out of or resulting from the performance of this
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Agreement. Contractor shall provide and maintain in force insurance in limits no
less than that stated below, as applicable. The Airport reserves the right to require
higher limits should it deem it necessary in the best interest of the public. If
Contractor carries higher coverage limits than the limits stated below, such higher
limits shall be shown on the Certificate of Insurance and Endorsements and the
Airport shall be named as an additional insured for such higher limits.
11.2.1 Commercial General Liability Insurance. Before this Agreement is fully executed
by the parties, Contractor shall provide the Airport with a certificate of insurance as
proof of commercial liability insurance with a total liability limit of the limits
required in the policy, subject to minimum limits of Two Million Dollars
($2,000,000) per occurrence combined single limit bodily injury and property
damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate
shall clearly state who the provider is, the coverage amount, the policy number, and
when the policy and provisions provided are in effect. Said policy shall be in effect
for the duration of this Agreement. The policy shall name the City of Yakima and
Airport, its elected and appointed officials, officers, agents, employees, and
volunteers as additional insureds. The insured shall not cancel or change the
insurance without first giving the Airport thirty (30) calendar days prior written
notice. The insurance shall be with an insurance company or companies rated A -VII
or higher in Best's Guide and admitted in the State of Washington.
11.2.2 Automobile Liability Insurance.
(a) If Contractor owns any vehicles, before this Agreement is fully executed
by the parties, Contractor shall provide the Airport with a certificate of insurance as
proof of automobile liability insurance and personal umbrella liability insurance with
a total liability limit of the limits required in the policy, subject to minimum limits of
One Million Dollars ($1,000,000) per occurrence combined single limit bodily injury
and property damage. Automobile liability will apply to "Any Auto" and be shown
on the certificate.
(b) If Contractor does not own any vehicles, only "Non -owned and Hired
Automobile Liability" will be required and may be added to the commercial liability
coverage at the same limits as required in that section of this Agreement, which is the
Section entitled "Commercial General Liability Insurance".
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(c) Under either situation described above, the required certificate of insurance
shall clearly state who the provider is, the coverage amount, the policy number, and
when the policy and provisions provided are in effect. Said policy shall be in effect
for the duration of this Agreement. The policy shall name the City of Yakima, the
Airport, its elected and appointed officials, officers, agents, employees, and
volunteers as additional insureds. The insured shall not cancel or change the
insurance without first giving the Airport thirty (30) calendar days prior written
notice. The insurance shall be with an insurance company or companies rated A -VII
or higher in Best's Guide and admitted in the State of Washington.
11.2.3 Statutory workers' compensation and employer's liability insurance as required by
state law.
Failure of either or all of the additional insureds to report a claim under such insur-
ance shall not prejudice the rights of the City of Yakima, the Airport, its officers,
employees, agents, and representatives there under. The Airport, the City of Yakima,
and its elected officials, officers, principals, employees, representatives, and agents
shall have no obligation for payment of premiums because of being named as
additional insureds under such insurance. None of the policies issued pursuant to the
requirements contained herein shall be canceled, allowed to expire, or changed in any
manner that affects the rights of the City of Yakima and Airport until thirty (30) days
after written notice to the Airport of such intended cancellation, expiration or change.
Article XII.
TERMINATION BY AIRPORT
12.1 In addition to all other remedies available to the Airport, this Agreement
shall be subject to termination by Airport should any one or more of the
following events occur ("Contractor Default"):
a. If Contractor shall neglect or fail to perform or observe any of the
terms, provisions, conditions or covenants herein contained and on
Contractor's part to be performed and observed and if such neglect or
failure should continue more than thirty (30) days after Contractor's
receipt of written notice of such neglect or failure or, if more than
18
21
thirty (30) days shall be required to cure the neglect or failure
because of the nature of the default, if Contractor shall fail, within
said thirty (30) day period, to commence and thereafter diligently
proceed to cure such default;
b. If the Contractor's rights hereby created shall be taken by execution
or by other process of law;
c. The taking by a court of competent jurisdiction of Contractor's assets
pursuant to proceedings under the provisions of any federal or state
reorganization code or act, insofar as the enumerated remedies for
license default are provided for or permitted in such code or act;
d. If any court of competent jurisdiction shall enter a final order with
respect to Contractor, providing for modification or alteration of the
rights of creditors;
e. If Contractor shall continually, after receiving notice, fail to abide by
any material Applicable Law;
f. If Contractor shall fail to make productive use of the Assigned
Areas; or,
g. If Contractor shall abandon the Assigned Areas or shall discontinue
the conduct of its operations in the Assigned Areas.
12.2 In the event Contractor shall fail to cure a Contractor Default within the
time herein specified, the Airport, then, or at any time thereafter, while
such breach is continuing, shall have the right, at its election, to terminate
this Agreement by giving at least ten (10) days written notice to
Contractor.
12.3 If Airport shall terminate this Agreement by reason of a condition of
Contractor Default, Contractor shall forthwith remove its non- permanent
improvements, fixtures, displays and equipment from the Assigned Areas
at its own expense on or before the effective termination date. Any non-
permanent improvements, fixtures, displays and equipment not so
removed shall be deemed abandoned on the day after the effective date of
the termination and the Airport may dispose of the items as it wishes.
19
13.2
22
Article XIII.
FINANCIAL GUARANTEE
CONTRACTOR will be required to provide a financial guarantee in the
amount of eight thousand dollars ($8,000.00). The financial guarantee
shall be submitted no later than thirty (30) days after the execution of the
Agreement and renewed on the anniversary date of the Agreement.
If a financial bond is chosen as the method for complying with this Article,
all financial bonds must be provided from a surety that has a rating of "A"
from AM BEST, MOODY'S, OR STANDARD AND POOR'S, and is licensed to
operate in the State of Washington.
The financial guarantee may be in the form of a bond, letter of credit from
CONTRACTOR's banking institution or a certified cashier's check
payable without recourse to the City of Yakima. The financial guarantee
shall be subject to forfeiture in the event of failure of the CONTRACTOR
to fully perform the contract. Should the damages incurred by Airport as a
result of the failure to perform as required by the Agreement exceed
$8,000, the Airport shall have the right to recover any additional damages
allowable under law.
Article XIV.
TERMINATION BY CONTRACTOR
14.1 In addition to all other remedies available to the Contractor, this
Agreement shall be subject to termination by the Contractor, should any
one or more of the following events occur("Airport Default"):
a. The abandonment of the Facility for longer than sixty (60) days;
b. The issuance of an order or injunction by any court of competent
jurisdiction preventing or restraining the use of the Facility in such a
manner as to substantially restrict the Contractor from conducting its
operation of the Facility display advertising concession where such
order or injunction was not caused by any act or omission of the
20
23
Contractor; provided that such order or injunction remain in force for
at least thirty (30) days;
c. The breach by the Airport of any of the material terms, covenants, or
conditions of this Agreement to be kept, performed, and observed by
the Airport, and the failure of the Airport to remedy such breach for a
period of thirty (30) days after receipt of written notice from the
Contractor of the existence of such breach;
d. The assumption by the United States Government, or any authorized
agency thereof, of the operation, control or use of the Facility and its
facilities in such a manner as to substantially restrict the Contractor
from conducting its display advertising concession if such restriction
be continued for a period of sixty (60) days or more;
e. The destruction of such a significant portion of the Facility terminal
building(s) due to fire, earthquake or any other causes not the fault of
Contractor so as to make continuation of the advertising concession
commercially unreasonable.
14.2 In lieu of or in addition to other rights granted hereunder, during any of
the above events of Airport Default, there shall be an abatement in
Contractor 's obligations, fees and charges that may otherwise be due
Airport to the extent such obligations or Contractor 's ability to generate
advertising revenues are affected by such events.
In the event of Airport Default, Contractor shall then, or at any time
thereafter, have the right, at its election, to terminate this Agreement by
giving at least ten (10) days written notice to Airport. Contractor shall upon
the passing of the ten (10) days quit and surrender the Assigned Areas and
any permanent improvements, as described in Article 5.12, to the Airport. In
such event, Contractor shall be reimbursed by the Airport for the
undepreciated portion of its actual capital costs (including, without
limitation, construction and installation costs) of the permanent and non-
permanent improvements, fixtures, displays and equipment used or acquired
21
24
to be used in the Assigned Areas per a ten year straight-line depreciation
schedule.
Article XV.
SECURITY
15.1 Contractor agrees to observe all security requirements of CFR1542, and
the Airport's security rules and regulations, as the same may from time to
time be amended. Contractor shall take such steps as may be necessary or
directed by the Airport to ensure that its employees, agents and sub-
contractors observe these requirements.
Article XV.
FIRE AND OTHER DAMAGE
16.1 In the event that structural or permanent portions of the Assigned Areas
shall be partially damaged by fire or other casualty not the fault of
Contractor, the Contractor shall give immediate notice after discovery
thereof to the Airport and the same shall be repaired at the expense of the
Airport without unreasonable delay unless Airport determines that the
damage is so extensive that repair or rebuilding is not feasible. From the
date of such casualty until such area is so repaired (including if such area
is not repaired) any fee payments otherwise due hereunder shall abate in
amounts proportional to the loss of available advertising space; provided,
however, that if an area shall be so slightly injured in any such casualty as
not to be rendered unfit for normal usage, the fees related thereto shall not
cease or be abated during any repair period. In the event of the area being
damaged by fire or other casualty to such an extent as to render it
necessary in the exclusive judgment of the Airport not to rebuild the same,
then, at the option of the Airport or Contractor, and upon thirty (30) days
written notice to the other, this Agreement as it applies to said area shall
cease and come to an end, and the fees payable to the Airport shall be
proportionally adjusted to represent the loss of the use of the area to
22
Contractor. If the Airport elects to rebuild said areas, the Airport shall
notify Contractor of such intention within thirty (30) days of the date of
the damage.
Article XVII.
Contract Documents
25
17.1 This Contract, the Request for Proposals No. #11718P, Scope of Work,
conditions, addenda, and modifications and Contractor's proposal (to the
extent consistent with Yakima City documents) constitute the Contract
Documents and are complementary. Specific Federal and State laws and the
terms of this Contract, in that order respectively, supersede other inconsistent
provisions. These Contract Documents are on file in the Office of the
Purchasing Manager, 129 No. 2nd St., Yakima, WA, 98901, and are hereby
incorporated by reference into this Contract.
Article XVIII.
APPROVALS
18.1 Whenever this Agreement calls for approval by the Airport, such approval
shall be evidenced by the written approval of the Airport Director or his
designee.
Article XIX.
ENVIRONMENTAL PROTECTION
19.1 Contractor agrees to comply in the performance of this Agreement with
all applicable environmental laws, statutes, ordinances, regulations and
orders, including all rules and regulations adopted by Airport relating to
protection of the environment.
Article XX.
GENERAL PROVISIONS
20.1 Federal Aviation Act. Section 308- Nothing herein contained shall be
deemed to grant the Contractor any exclusive right or privilege within the
meaning of Section 308 of the Federal Aviation Act. Without derogation
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26
to the Act and subject to the terms and provisions hereof, the Contractor
shall have the sole right to use the Assigned Areas for advertising purposes
under the provisions of this Agreement.
20.2 Subordination to Agreements With the United States Government- This
Agreement is subject and subordinate to the provisions of any agreement
heretofore or hereafter made between the Airport and the United States
Government relative to the operation or maintenance of the Facility, the
execution of which has been required as a condition precedent to the
transfer of federal rights or property to the Airport for airport purposes, or
the expenditure of federal funds for the improvement or development of
the Airport, including the expenditure of federal funds for the development
of the Facility in accordance with the provisions of the Federal Aviation
Act of 1958, as it has been amended from time to time. The Airport
represents that it has no existing agreements with the United States
Government in conflict with the express provisions hereof and covenants
that it will not enter into any such agreements with the U.S. Government
which would frustrate the purposes of this Agreement.
20.3 Nonwaiver ofRights- No failure by either party to strictly enforce any
of the terms, covenants, and conditions hereof to be performed, kept, and
observed by the other party shall be construed as, or shall operate as, a
waiver of any subsequent default of any of the terms, covenants, or
conditions herein contained, to be performed, kept, and observed by the
other party.
20.4 Notices - All notices, requests and other communications under this
Agreement shall be effectively given only if in writing and sent by
United States certified mail, return receipt requested, postage prepaid,
or by nationally recognized and receipted overnight courier service
(e.g. FedEx, UPS, DHL or Airborne Express) guaranteeing next
business day delivery, addressed as follows:
If to Airport:
ATTENTION: Robert K. Peterson, Airport Director
Yakima Air Terminal -McAllister Field
24
2406 W. Washington Ave, Suite B
Yakima, WA 98903
(509) 575-6149
Rob .Peterson@yakimawa.gov
(509) 575-6260
If to Contractor:
27
ATTENTION: Shane G Pierone
BBOLD Advertising & Marketing
1707 Conover Drive
Yakima, WA 98908
Shane@bboldl .com
(509) 654-8465
OR to such other addresses of which Airport or Contractor shall have
provided notice as herein provided.
20.5 Captions- The headings of the several articles of this Agreement are
inserted only as a matter of convenience and for reference and in no
way define, limit, or describe the scope or intent of any provisions of
this Agreement and shall not be construed to affect in any manner the
terms and provisions hereof or the interpretation or construction
thereof.
20.6 Severability- If one or more clauses, sections, or provisions of this
Agreement shall be held to be unlawful, invalid, or unenforceable, the
parties hereto agree that the remaining portions of this Agreement or
portions thereof shall not be affected thereby, and such remaining
provisions or portions thereof shall remain in full force and effect.
20.7 Right to Develop Facility- The Airport reserves the right to engage in
major development, construction and improvement to the Facility as it
may see fit, regardless of the desires or view of the Contractor and
without interference or hindrance.
20.8 Successors and Assigns Bound- This Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the parties hereto.
20.9 Right to Amend- In the event that the Federal Aviation Administration or
its successors requires modifications or changes in this Agreement as a
25
28
condition precedent to the granting of funds for the improvement of the
Facility, or otherwise, the Contractor agrees to consent to such
amendments, modifications, revisions, supplements, or deletions of any of
the terms, conditions, or requirements of this Agreement as may be
required.
20.10 Force Maj eure- Neither the Airport nor the Contractor shall be
deemed in violation of this Agreement if it is prevented from performing
any of the obligations hereunder by reason of strikes, boycotts, labor
disputes, embargoes, shortages of material, acts of God, acts of the public
enemy, acts of superior governmental authority, weather conditions, riots,
rebellion, sabotage, or any other circumstances for which it is not
responsible or which is not within its control.
20.11 Right of Relocation/Removal- The Airport reserves the general right to
relocate or delete portions of the Assigned Area in accordance with the
terms of this Agreement. Notice of such required relocation or removal
shall be provided to Contractor in writing from the Airport no less than
sixty (60) days prior to such requirement. Costs incurred by Contractor
relating to any Airport -ordered removal or relocation of an Assigned Area
prior to the expiration or earlier termination of this Agreement shall be
evidenced by invoice costs and thereafter may be deducted by Contractor
from subsequent Airport Fee payments. In addition to the above, where an
Assigned Area is being removed or relocated, any refunds or credits
granted to affected advertisers resulting there from shall be deducted from
the calculation of Gross Revenues.
Article XXI.
DISADVANTAGED BUSINESS ENTERPRISE AND NONDISCRIMINATION
21.1 Contractor agrees to submit all information necessary for the Airport to
determine the eligibility of an individual or firm for certification as a
Disadvantaged Business Enterprise, or a regional or local suboperator.
Contractor agrees that it will comply with the Airport's Disadvantaged
26
29
Business Enterprise Program, which Program shall be in accordance with
49 CFR Part 23 and shall apply to Contractor as an "Airport Contractor."
Contractor agrees that participation by Disadvantaged Business
Enterprises will be in accordance with the goals and objectives of the
Airport's Program.
21.2 Nondiscrimination- The Contractor assures that it will undertake an
affirmative action program as required by 14 CFR Part 152, Subpart E, to
insure that no person shall, on the grounds of race, creed, color, national
origin, or sex, be excluded from participating in any employment activities
covered in 14 CFR Part 152, Subpart E. Further, the Contractor shall not
discriminate based on any other basis that would violate state or federal
law.
Article XXII.
ENTIRE AGREEMENT
22.1 The parties hereto understand and agree that this instrument contains the
entire agreement between the parties hereto. The parties hereto further
understand and agree that the other party and its agents have made no
representations or promises with respect to this Agreement or the making or
entry into this Agreement, except as in this Agreement expressly set forth.
No claim or liability or cause for termination shall be asserted by either
party against the other and such party shall not be liable by reason of the
making of any representations or promises not expressly stated in this
Agreement, any other written or oral agreement with the other being
expressly waived.
22.2 The individuals executing this Agreement warrant that they have full
authority to execute this Agreement on behalf of the entity for whom they
are acting herein.
22.3 The parties hereto acknowledge that they have thoroughly read and
understand this Agreement, including any exhibits or attachments hereto.
27
Article XXIII
RECORDS RETENTION
30
(a) The records relating to this Agreement shall, at all times, be subject to inspection by
and with the approval of the Airport, but the making of (or failure or delay in making)
such inspection or approval shall not relieve Contractor of responsibility for
performance in accordance with this Agreement, notwithstanding the Airport's
knowledge of defective or non -complying performance, its substantiality or the ease of
its discovery. Contractor shall provide the Airport sufficient, safe, and proper facilities
and equipment for such inspection and free access to such facilities. Contractor's
records relating to this Agreement will be provided to the Airport upon the Airport's
request.
(b) Contractor shall also promptly furnish the Airport with such information and records
which are related to this Agreement as may be requested by the Airport. Until the
expiration of six (6) years after final payment of the compensation payable under this
Agreement, or for a longer period if required by law or by the Washington State
Secretary of State's record retention schedule, Contractor shall retain and provide the
Airport access to (and the Airport shall have the right to examine, audit and copy) all of
Contractor's books, documents, papers and records which are related to this
Agreement.
(c) All records relating to the terms under this Agreement must be made available to the
Airport, and also produced to third parties, if required pursuant to the Washington
Public Records Act, Chapter 42.56 RCW or by law. All records relating to
Contractor's work, or any other term of this Agreement must be retained by Contractor
for the minimum period of time required pursuant to the Washington State Secretary of
State's record retention schedule.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the date and year first
above written.
28
LESSOR:
31
YAKIMA AIR TERMINAL - McALLISTER FIELD
2406 W. Washington Avenue, Suite B
Yakima, Washington 98903
(509) 575-6149 - phone
(509) 575-6185 - fax
Cliff Moore, City Manager Date
STATE OF WASHINGTON
County of Yakima
I certify that I know or have satisfactory evidence that Cliff Moore signed this instrument,
on oath stated that he is authorized to execute this instrument and acknowledged it as the
City Manager to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Date
By:
Notary Public
Appointment Expires
29
LESSEE:
Shane G. Pierone
BBOLD Advertising & Marketing
1707 Conover Drive
Yakima, WA 98908
shane@bboldl.com
(509) 654-8465 (Cell)
32
Shane G. Pieron, BBOLD Advertising & Marketing Partner Date
STATE OF WASHINGTON
County of
I certify that I know or have satisfactory evidence that Mr. Shane G. Pieron signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the Partner to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
Date
By:
Notary Public
Appointment Expires
30
33
DeNard Jones
BBOLD Advertising & Marketing
1707 Conover Drive
Yakima, WA 98908
Jenard "a bbold 1. com
(509) 594-9270 (Cell)
DeNard Jones, BBOLD Advertising & Marketing Co-owner Date
STATE OF WASHINGTON
County of
I certify that I know or have satisfactory evidence that Mr. DeNard Jones signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the Partner to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
Date
By:
Notary Public
Appointment Expires
Exhibit "A"
32
34
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