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HomeMy WebLinkAboutContract 33952 CITY SEC"S7-AljY OONTRAC NO. `�� ALLIANCE AIRSHOW AGREEMENT STATE OF TEXAS § COUNTY OF TARRANT § This Alliance Airshow Agreement ("Agreement") is made and entered into by and between the City of Fort Worth, a home-rule municipal corporation in Tarrant, Denton, and Wise Counties, Texas, acting herein by and through its duly authorized Assistant City Manager (the "City"), and Alliance Air Productions, a Texas nonprofit corporation("Permittee"). AGREEMENT That for and in consideration of the mutual promises, covenants and representations contained herein, the parties agree as follows: 1. TERM The City hereby grants to Permittee the periodic, temporary use of property comprising a portion of Fort Worth Alliance Airport (the "Airport") for a five (5) year term commencing on the date of execution of this Agreement by the parties and terminating December 31, 2011, unless otherwise extended as described below. 2. PRESENTATION OF AIRSHOW For each calendar year this Agreement remains in effect, Permittee may present one or more Airshow(s) for the general public (individually, "Airshow," collectively "Airshows") at the Airport upon its notification to the City of its election to do the same in the manner described below. Permittee will conduct one Airshow during calendar year 2006 in accordance with Permittee's Airshow Proposal (as hereinafter defined), attached hereto as Exhibit "A" and made a part of this Agreement for all purposes, and Permittee's Map (as hereinafter defined), attached hereto as Exhibit "B" and made a part of this Agreement for all purposes. Should Permittee desire to present an Airshow(s) during a calendar year subsequent to 2006 during the term of this Agreement, after December 1 of the preceding year, but before December 31 of the preceding year, Permittee must notify the City in writing of such. For example, should Permittee desire to present an Airshow(s) during calendar year 2007, after December 1, 2006, but before December 31, 2006, Permittee must notify the City in writing of such. Permittee's written notice must include (a) the number of Airshows that will be held in the relevant year, (b) the dates of the Airshow(s), and (c) a description of the activities that will comprise the Airshow(s) (the "Airshow Proposal"). Each subsequent Airshow Proposal shall become Exhibit "A" to this Agreement and shall supersede the previous Exhibit "A" to this Agreement. Permittee's written notice must also include a map of the Airport delineating the specific area at the Airport that Permittee intends to use during the Airshow(s) ("Map"). Such area desired for use at the Airshow(s) shall be subject to the approval of the Federal Aviation Administration ("FAA"). Alliance Airshow Agreement City of Fort Worth ��`y,�?, 1" Alliance Air Productions OFF1 Page 1 of 18 C ITi SECRELAI,2U Each subsequent Map shall become Exhibit "B" to this Agreement and shall supersede the previous Exhibit "B" to this Agreement. The area designated on the Map to be utilized for the Airshow(s) shall hereinafter be referred to as the "Premises." Within thirty(30) days of the City's receipt of the Airshow Proposal for the relevant year, the City will notify Permittee in writing should it have any objection to any aspect of the Airshow Proposal; the writing must specify the matters to which the City objects. If written notice is not received by Permittee by such date, then the Airshow Proposal is deemed accepted by the City. Following receipt of an objection to the Airshow Proposal by the City, Permittee will submit a revised Airshow Proposal to the City for its consideration. Within thirty(30) days of the City's receipt of the revised Airshow Proposal, the City will notify Permittee in writing should it have any objection to any aspect of the revised Airshow Proposal; the writing must specify the matters to which the City objects. If written notice is not received by Permittee by such date, then the Airshow Proposal is deemed accepted by the City. Permittee will continue to submit revised Airshow Proposals to the City in the manner described in this Section 2 until the Airshow Proposal is accepted, or is deemed accepted,by the City. 3. RENEWALS Provided Permittee is in compliance with all terms and conditions of this Agreement, Permittee may, at its sole option, request to extend the term of this Agreement beyond December 31, 2011, for an additional five (5) years from January 1, 2012 through December 31, 2016. To extend the term of this Agreement beyond December 31, 2011, Permitee must deliver written notice to the City on or before June 30, 2011, notifying the City of Permittee's request to further extend the term of this Agreement for such additional five (5) year period. The City shall have the option, at its sole discretion, to grant Permittee's request for such extension. In granting such extension, the City shall consider the amount of revenue generated from previous Airshows, the performance of Permittee in hosting previous Airshows, and any other factors the City may consider relevant in determining whether or not to grant such extension. If the City grants the extension, for each year of the extended term of this Agreement, Permittee shall have the right to utilize the Airport for the presentation of one or more Airshows upon notification to the City in the same manner as described above in Section 2 of this Agreement. If the City declines to grant Permittee's request to extend the term of this Agreement, this Agreement shall terminate on December 31, 2011. This Agreement will be administered on behalf of the City by Alliance Air Management, Ltd. ("Operator") pursuant to Operator's management and operations agreement with the City (City Secretary Contract No. 20060), including all amendments (the "Management Agreement") for so long as the City's agreement with Operator remains in effect. 4. USE OF PERMISES Permittee will use the Premises solely for the purpose of presenting Airshow(s) for attendance by the general public. The presentation of the Airshow(s) will also concern the sale of food,beverages and novelties to the attendees of the Airshow(s). Alliance Airshow Agreement ^' iS 1 City of Fort Worth �. �,� 4ti.. t.�� �:V Alliance Air Productions' Page 2 of 18 T Y'V'N h 111, SSA Entrance onto the Premises by members of the general public for Airshow attendance may be subject to payment of an admission charge or charges, parking and/or other fees. If any such charges or fees are imposed, Permittee reserves the right to include in its schedule of charges and fees the provision that such charges and/or fees do not apply to certain age groups of the general public. The schedule of admission charges shall be posted and clearly visible at each admission gate. Permittee will not make or suffer any unlawful, improper or offensive use of the Premises or any part thereof. Accordingly, Permittee will not permit the use of loud, abusive, foul, or obscene language upon the Premises, nor will it permit any obscene acts or conduct by any person or persons upon the Premises. The use of such language or the occurrence of any obscene acts or conduct will result in the removal of any person or persons who used or performed the same from the Premises by Permittee or its officers, agents, representatives or employees. 5. OBLIGATIONS OF PERMITTEE Permittee will also be responsible for, or do the following, in connection with its presentation of the Airshow(s). (a) Permittee will be responsible for entering into all agreements with the Airshow performers and concessionaires and all other contracts for services necessary to conduct the Airshow(s), and will be responsible for paying all sums connected to such agreements and contracts. (b) Permittee must obtain FAA approval or waivers of airspace and ground layout, and all other required approvals, and submit such approvals and waivers to the City at least fifteen (15) days prior to the commencement of the respective Airshow(s) in the relevant year. (c) Permittee will provide all necessary sound equipment and a suitable narrator for the Airshow(s). (d) Permittee will (i) be responsible for the supervision, control, parking, and containment of all aircraft involved in the Airshow(s); (ii) coordinate the activities of the Airshow(s) with the fixed base operators of the Airport; (iii) coordinate crash/fire/rescue service, surveillance and equipment for each performer of the Airshow(s); (iv) coordinate the Airshow(s) with the Airport control tower personnel; and (v) be responsible for the supervision, control, parking, and containment of all vehicles other than aircraft at the Airshow(s). (e) Permittee will be responsible for the supervision, control, and containment of all spectators, concessionaires, and performers in the Airshow(s) and shall provide sufficient first-aid centers. (f) Permittee will (i) be responsible for the containment, pickup, and disposal of all trash and garbage related to and resulting from the Airshow(s); (ii) provide all of Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 3 of 18 a .:�✓�FC Il� u 5 G�n the necessary portable toilets and drinking water for use by the Airshow spectators and participants; and (iii) perform post-Airshow housekeeping on the Premises to the satisfaction of City and Operator. (g) Permittee will arrange for and supervise all concessions for food, beverages and novelties at the Airshow(s) and will collect proceeds from the concessionaires with whom it has contracted. 6. COMPENSATION For and in consideration of the privileges granted herein, for each year Permittee presents an Airshow(s) at the Airport during the term of this Agreement, Permittee will pay to the City the sum of Ten Thousand Dollars ($10,000) ("Annual Airshow Fee") at least ten (10) days prior to the date the first Airshow will be held at the Airport by Permittee in the relevant year. Payment of the Annual Airshow Fee is a condition precedent to Permittee's right to conduct its Airshow(s) on the Premises. In any year during the term of this Agreement that Permitee does not conduct an Airshow at the Airport, an Annual Airshow Fee is not required to be paid by Permittee to the City. Further, in any year Permittee and the Naval Air Station Joint Reserve Base ("NASJRB") co-produce an Airshow(s) at NASJRB as discussed at Section 17 of this Agreement, an Annual Airshow Fee is not required to be paid by Permittee to the City. Nothing in this Agreement shall be construed or interpreted as requiring the City to make any payments or expenditure of monies in connection with the planning, preparation or presentation of the Airshow(s), either to or on behalf of Permittee or any other party. The City shall not pay state sales tax receipts that might be owed to the State of Texas by Permittee, its concessionaires or performers, or by any such other party. 7. DEFINITIONS "Charitable Purposes" means contributions to, or expenditures for, educational and/or charitable organizations for use in Fort Worth, Texas, in furtherance of Permittee's purposes as an organization exempt from tax pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), which may include, but is not limited to, contributions to, or expenditures for, military, morale and welfare organizations. Permittee will apply for exemption from federal income tax pursuant to Code Section 501(c)(3). The term "Profits" in a given year means the amount remaining from Gross Revenue (as hereinafter defined) after subtracting all Operating Expenses (as hereinafter defined) and restoring the Airshow Reserve Fund (as hereinafter defined). The term "Gross Revenue" in a given year means all monies, including sales tax,received and realized by Permittee relating to Permittee's operation of the Airshow(s) in the respective year, including, by way of example, but not by limitation, monies from all donations, sponsorship contributions, advance ticket sales, gate receipts,poster sales, concession operations, and parking. Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 4 of 18 The term "Operating Expenses" in a given year means all direct and indirect expenses incurred by Permittee relating to Permittee's presentation of the Airshow(s) in the respective year, including, by way of example, but not by limitation, the Annual Airshow Fee, expenses incurred in complying with Section 11 of this Agreement, costs of planning and preparing for the Airshow(s), costs of insurance required by Section 19 of this Agreement, and the costs of other insurance obtained by Permittee with respect to its presentation of the Airshow(s). Such Operating Expenses must be reasonable, necessary and pertinent in Permittee's presentation of the Airshow(s) according to generally accepted accounting principles. The amortization or depreciation of all capital assets will fall under the term Operating Expenses. An "Airshow Reserve Fund" will be established and maintained by Permittee and used to fund Operating Expenses for the presentation of the Airshow(s) from one year to the next. The amount to be maintained in the Airshow Reserve Fund will vary from year to year. The amount to be maintained in the Airshow Reserve Fund is to be that amount that is equal to fifty percent (50%) of the Operating Expenses of Permittee in the immediately preceding year the Airshow(s) was held. For example only, if Gross Revenue in 2006 is $500,000 and Operating Expenses in 2006 are $250,000, then $125,000 (fifty percent (50%) of the $250,000 Operating Expenses) should be maintained in the Airshow Reserve Fund for 2007. Profits for 2006 would be $125,000 ($500,000 of Gross Revenue less $250,000 of Operating Expenses less $125,000 for the Airshow Reserve Fund). In a given year, to the extent Gross Revenue does not exceed the sum of Operating Expenses and the amount necessary to fund the Airshow Reserve Fund in the particular year, the Airshow Reserve Fund is to be funded to the extent the funds are available. In no event will the City be responsible for reimbursement to Permittee of Operating Expenses in any year that Gross Revenue does not exceed Operating Expenses. During calendar year 2006, all expenses that would normally be paid from the Airshow Reserve Fund will be paid by Permittee and any such expenses will be reimbursed to Permittee following the completion of the Airshow(s) held in 2006 provided the funds are available to reimburse such expenses. Any expenses not reimbursed to Permittee from the 2006 Airshow monies due to lack of funds will be reimbursed to Permittee following the completion of any subsequent Airshows to the extent of funds available from such subsequent Airshows. Upon termination of this Agreement, any funds remaining in the Airshow Reserve Fund shall be distributed to Permittee for Permittee to utilize for Charitable Purposes. 8. USE OF PROFITS For each year this Agreement remains in effect, fifty percent (50%) of the Profits for the relevant year shall be allocated to Permittee ("Permittee's Share") and fifty percent (50%) of the Profits shall be allocated to the City ("City's Share"). Permitee shall use its share of Profits for Charitable Purposes. Permittee, shall deposit the City's Share each year into an account identified by the City in writing (the "City's Account"); the City's Share will be held in the City's Account until such time as the funds are appropriated for use as approved by the Fort Worth City Council. Until such time as Permittee's Share is expended for Charitable Purposes, Permittee's Share will be maintained by Permittee in an individual account (the "Profits Account") at a local financial institution within the City of Fort Worth and will not be commingled with any other funds of Permittee. Further, until such time as the City's Share is deposited into the City's Account, the City's Share will likewise be held along with Permittee's Alliance Airshow Agreement City of Fort Worth MW21u Alliance Air Productions 1•15W21u Pages of 18 { Share in the Profits Account. In the event of termination of this Agreement, all Profits that have been identified as the "City's Share" shall be immediately transferred to the City into an account identified by the City in writing. For purposes of determining the amount of Profits for a given year, Permittee shall submit to the City, on or before ninety (90) days following the final day of the final Airshow for each year this Agreement remains in effect, a statement, prepared by a certified public accountant acceptable to the City, reflecting all Gross Revenue received and all Operating Expenses incurred by Permittee in connection with its presentation of the Airshow(s) for the applicable year. 9. ACCESS TO RECORDS During the initial term, the renewal term (if any), and for three (3) years after the termination or expiration of this Agreement, Permittee will permit the City, and its agents, representatives or employees, at the City's request and at the City's sole cost, to conduct an audit of Permittee's financial books and records as they pertain to Permittee's planning, preparation and presentation of the Airshow(s)under this Agreement. 10. NONDISCRIMINATION Permittee will operate the Premises for the benefit of the public and will (a) furnish good, prompt and efficient service adequate to meet all the demands for its services on the Premises; (b) furnish its service on a fair, equal and nondiscriminatory basis to all users of the Premises; and (c) charge fair, reasonable and non-discriminatory prices for each unit of sale or service, provided, that Permittee may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar types of price reductions to volume purchasers. No person, on the grounds of race, color or national origin will be excluded from, or otherwise subject to discrimination in the use of, the Premises. Permittee will use the Premises in compliance with all requirements pursuant to Title 49, Code of Federal Regulations, Part 21, as the regulations may be amended from time to time. In the event of Permittee's breach of these nondiscrimination covenants, the City may terminate this Agreement. 11. MAINTENANCE/REPAIRS Permittee, at its expense, will keep and maintain the Premises, and any improvements thereon, in good condition and will do all work and make all repairs necessary or advisable to restore the Premises to a safe operation status in accordance with the airport certification requirements enumerated in Title 14, Code of Federal Regulations, Part 139. Permittee will be required, at its own expense, to mitigate any damages to Airport property. Permittee will permit the City's agents, representatives or employees to inspect the Premises at any time for the foregoing. The City may request Permittee in writing to make any repairs that are, in the City's reasonable opinion, necessary to be performed by Permittee upon the Premises. Permittee will Alliance Airshow Agreement City of Fort Worth Alliance Air Productions V �17�%z1 JIV� J Page 6of18 cause any requested repairs to be made. Should Permittee fail, to undertake requested repairs within thirty (30) days after receipt of a written request from the City, the City may, within its discretion, undertake to make such repairs. In such event, the City will bill Permittee for the cost of such repairs and Permittee shall pay the bill upon its receipt. Upon the City's request, Permittee will replace any landscaping on the Premises, including, but not limited to, any greenery, plants, flowers, and shrubbery, which was destroyed by Permittee's officers, agents, representatives, employees, contractors, subcontractors, concessionaires, performers, patrons, invitees, or licensees in Permittee's use of such Premises. Further, Permittee will maintain and police the Premises in order to keep the Premises at all times in a clean and sanitary condition and in compliance with all ordinances and regulations of the City. Permittee will permit the City's agents, representatives or employees to inspect the Premises at any time for the foregoing. 12. IMPROVEMENTS Permittee will not make or suffer any waste of the Premises. Permittee will not place any permanent improvements upon the Premises or make any permanent alterations to said Premises, including penetration of paved surfaces, except for any such permanent improvements or alterations that are approved in writing by the City. 13. COMPLIANCE WITH LAWS In its performance of this Agreement, Permittee will comply with (a) all federal, state and local laws, including all ordinances and regulations of the City, (b) all rules, regulations and requirements of Operator, (c) all rules, regulations and requirements of each of the City's Police, Fire, Health, Transportation and Public Works, and Aviation Departments, and (d) all rules, regulations and requirements of the FAA. If the City or the FAA calls the attention of Permittee to any violation of any of the foregoing on the part of Permittee, or of any officer, agent, representative, employee, contractor, subcontractor, or performer of Permittee, Permittee will immediately cause such violation to cease and cause the correction of such violation. With respect to any proposed pyrotechnics display during the Airshow(s), Permittee assumes all responsibility for the same. Further, Permitee will comply with the directions of the City's Aviation Department, of Operator, and of the Fire Chief of the City, and the duly authorized representatives of the foregoing, with respect to any pyrotechnics display and concerning the relocation of planes due to any pyrotechnics display. 14. INDEPENDENT CONTRACTOR Permittee will operate hereunder as an independent contractor as to all rights and privileges herein contained and not as an officer, agent, employee, contractor or subcontractor of the City. Nothing herein shall be construed as creating a partnership or joint enterprise between Permittee and the City, and the doctrine of respondeat superior shall not apply as between Permittee and the City. Permittee will be solely responsible for the acts and omissions of its officers, agents, representatives, employees, contractors, subcontractors, concessionaires, performers,patrons, invitees, and licensees. Alliance Airshow Agreement City of Fort Worthi �� Alliance Air Productions Page 7 of 18 15. ASSIGNMENT Permittee will not assign all or any part of its rights, privileges or duties under this Agreement, and any attempted assignment of same shall be void and constitute grounds for termination of this Agreement by the City. 16. CONCESSIONAIRES/SUBCONTRACTORS Notwithstanding any provision of this Agreement to the contrary, Permittee may enter into the agreements, contracts and relationships discussed in this Section 16. Permittee may enter into concession agreements and service agreements in connection with the presentation of the Airshow(s); provided, however, any such agreements shall incorporate by reference the terms of this Agreement and Permittee shall cause such concessionaires and service providers to comply with the terms of this Agreement. Permittee may also contract with subcontractors to assist Permittee in the presentation of the Airshow(s). Permittee has contracted with Alliance Aviation Management, Ltd., a Texas limited partnership, to provide management and administrative functions on behalf of Permittee in connection with the Airshow(s) (the "Administrative Agreement"), and the City consents to the same. However, the Administrative Agreement does not relieve Operator of any duties or obligations it would have to the City under the Management Agreement. Further, Permittee shall not take any action or conduct its business in any manner that would cause Operator to be in breach of the Management Agreement or to breach any other obligations or duties which Operator may owe to the City. 17. NAVAL AIR STATION JOINT RESERVE BASE Also notwithstanding any provision of this Agreement to the contrary, Permittee has the right, but not the obligation, to work with NASJRB to co-produce the Airshow(s) in any year subsequent to 2006 provided this Agreement remains in effect. Any agreement with NASJRB to co-produce the Airshow(s) will specify whether the Airshow(s) will be conducted at the Airport or at NASJRB. If a co-production of the Airshow(s) is determined by Permittee and NASJRB to be in the best interest of Permittee and NASJRB for a particular year, Permittee will notify the City of its intent for co-production, and of the location for the Airshow(s), for such year and submit a proposal following the same procedures for the Airshow(s) for such year in the same manner as prescribed in Section 2 of this Agreement. 18. INDEMNIFICATION PERMITTEE SHALL BE LIABLE AND RESPONSIBLE FOR ANY CLAIMS, DEMANDS, LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND OR PERSONAL INJURY OF ANY KIND OR CHARACTER, INCLUDING DEATH, WHETHER REAL OR ASSERTED,ARISING OUT OF PERMITTEE'S NEGLIGENCE OR INTENTIONAL MISCONDUCT IN CONNECTION WITH ITS USE OF OR OPERATIONS ON THE PREMISES RELATED TO THE PLANNING, PREPARATION AND PRESENTATION OF THE AIRSHOW(S) OR RELATED TO PERMITTEE'S BREACH OF THIS AGREEMENT. Alliance Airshow Agreement My. - City of Fort WorthAlliance Air Productions Page 8 of 189 EE PERMITTEE, AT PERMITTEE'S OWN EXPENSE, SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY AND ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY CLAIM, LAWSUIT OR OTHER ACTION FOR DAMAGES OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO PERMITTEE'S BUSINESS AND ANY RESULTING LOST PROFITS) AND PERSONAL INJURY,INCLUDING DEATH, WHETHER REAL OR ASSERTED,ARISING OUT OF PERMITTEE'S NEGLIGENCE OR INTENTIONAL MISCONDUCT IN CONNECTION WITH ITS USE OF OR OPERATIONS ON THE PREMISES RELATED TO THE PLANNING, PREPARATION AND PRESENTATION OF THE AIRSHOW(S) OR RELATED TO PERMITTEE'S BREACH OF THIS AGREEMENT. PERMITTEE ASSUMES ALL RESPONSIBILITY AND AGREES TO PAY THE CITY FOR ANY AND ALL INJURIES OR DAMAGES TO AIRPORT PROPERTY, THE PREMISES OR ANY IMPROVEMENTS THEREON WHICH ARISE OUT OF OR IN CONNECTION WITH ANY AND ALL NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS OF PERMITTEE, OR ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR LICENSEES. THE CITY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE FOR ANY PROPERTY BELONGING TO PERMITTEE, OR ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, CONCESSIONAIRES, PERFORMERS, PATRONS, INVITEES, OR LICENSEES, WHICH MAY BE STOLEN, LOST, DESTROYED OR IN ANY WAY DAMAGED ON THE PREMISES DUE TO PERMITTEE'S NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND PERMITTEE HEREBY INDEMNIFIES AND HOLDS HARMLESS THE CITY AND ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL SUCH CLAIMS AND SUITS. THE CITY DOES NOT GUARANTEE POLICE PROTECTION TO PERMITTEE OR ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, CONESSIONAIRES, PERFORMERS, PATRONS, INVITEES, OR LICENSEES, AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE SUSTAINED BY ANY OF THEM RESULTING FROM EITHER NORMAL OR MALICIOUS DAMAGE OR INTENTIONAL CONDUCT. PERMITTEE SHALL COMPLY WITH ALL APPLICABLE REGULATIONS OF THE FAA RELATING TO AIRPORT SECURITY ON THE PREMISES WHICH IS RELATED TO PERMITTEE'S PLANNING, PREPARATION AND PRESENTATION OF THE AIRSHOW(S) THEREON, AND SHALL COOPERATE WITH THE CITY IN THE IMPLEMENTATION AND ENFORCEMENT OF THE CITY'S SECURITY PLANA T THE AIRPORT. PERMITTEE SHALL PAYALL FINES IMPOSED BY THE FAA ON THE CITY OR PERMITTEE RESULTING FROM PERMITTEE'S FAILURE TO COMPLY WITHSUCHFAA REGULATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PERMITTEE WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES OR SPECIAL DAMA GES. Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 9 of 18 19. INSURANCE No later than thirty (30) days prior to the first Airshow for a particular year, Permittee will furnish proof to the City that it has secured and paid for a policy of liability insurance covering all risks related to Permittee's proposed use of the Premises. Said policy shall be in the following amount: Single limit bodily injury and property damage liability $5,000,000 per occurrence After the Airshow(s) held in 2006, the City may change the policy amount for any subsequent Airshows should the City deem it advisable to do so due to a change in the Airshow performance that would increase the City's liability; provided, however, to change the policy amount for any subsequent Airshows, the City must provide Permittee with written notice of any such change prior to November 1 of the year preceding the year in which the City proposes that the change in policy amount is to be effective. The policy must provide that in the event of cancellation, notice of cancellation must be given in writing to the City's Aviation Department, with a copy to the City's Risk Management, at least ten (10) days prior to the effective date of cancellation. Permittee will name as additional insureds on the certification of insurance the City, Operator, and all other parties that are specified by the City for each Airshow, as their interests may appear. The City will provide Permittee with written notice of the parties to identify as additional insureds on the certificate of insurance prior to November 1 of the year preceding the year in which the City proposes that the revised list of additional insureds is to be effective. Such list, as may be modified by the City from time to time, will be attached to this Agreement as Exhibit "C" and made a part hereof for all purposes. 20. TERMINATION In the event of a breach by Permittee of any covenant contained in this Agreement, the City may, at its option, declare this Agreement terminated and may enter upon and take possession of the Premises. Within twenty-four (24) hours of this Agreement's termination, Permittee will peaceably deliver possession of the Premises, in a good and tenantable condition, to the City. If Permittee fails or refuses to deliver such possession, the City has the right to expel, and if necessary remove forecably, Permittee and its property from the Premises; the City shall incur no liability as a result of any such removal. At the termination of this Agreement, all items on the Premises that were not previously located on the Premises prior to the Permittee's occupancy thereof must be removed by Permittee. Such items include, but are not limited to, ropes, barricades, trash, trash cans, portable toilets, abandoned motor vehicles and vehicle parts, placards, bleachers, ticket stands, and exhibition and concession stands. In the event Permittee fails to remove any such items at the termination of this Agreement, Operator may, within its discretion, after issuing written Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 10 of 18 notice to Permittee twenty-four (24) hours in advance, undertake to remove any such remaining items. In such event, Operator will bill Permittee for the cost of such removal and Permittee shall pay the bill upon its receipt. Permittee shall indemnify, hold harmless, release and defend the City, and its agents, representatives and employees, from any and all claims, liability or suits resulting from the damage, destruction, loss, removal and disposal of items remaining on the Premises at the termination of this Agreement. 21. ENCUMBRANCES Permittee has no power to do any act or make any contract that may create or be the foundation of any lien upon the Premises, and any such contract or lien created shall be void. Should any such lien upon the Premises be created or filed, Permittee, at its sole expense, will liquidate and discharge the same within thirty (30) days after the creation or filing thereof. Should Permittee fail to liquidate and discharge any such lien, such failure will constitute a breach of this Agreement. 22. NOTICES Any notice or communication required in the administration or performance of this Agreement shall be sent as follows: To the City: c/o Alliance Air Management, Ltd. Attention: President 2221 Alliance Boulevard, Suite 100 Fort Worth, Texas 76177 With a Copy to: City Manager City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 To Permittee: Alliance Air Productions Attention: President 2221 Alliance Boulevard, Suite 100 Fort Worth, Texas 76177 Any such notice shall be deemed delivered to the other party within three (3) days following the party's deposit of the notice in the care of the United States Postal Service, certified mail, return receipt requested. 23. FORCE MAJEURE In the event either the City or Permittee is rendered unable, wholly or in part, by Force Majeure (as hereinafter defined) to perform under this Agreement, then, upon .such party's issuance of written notice to the other party, giving full particulars of such Force Majeure as soon as possible after the occurrence of the cause relied upon, the obligations of the party giving Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 11 of 18 such notice, to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of any Force Majeure. Either the City or the Permittee, as the case may be, will attempt to remedy any such Force Majeure to the extent possible. In no event will Permittee be allowed to conduct its Airshow(s) for the respective year on dates other than those agreed to in writing by the City, nor will Permittee be required to conduct or complete its Airshow(s) scheduled in the applicable year if a Force Majeure event occurs. The term "Force Majeure" includes, but is not limited to, acts of God, acts of the public enemy, acts of a superior governmental authority, mandate or orders by the Federal Government, war, blockades, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, tornados, hurricanes, arrests and restraints of government and people, explosions, sabotage, breakage or damage to machinery or equipment and any other inabilities of either party, whether similar to those enumerated or otherwise, and not within the control of the party claiming such inability, which by the exercise of due diligence and care such party could not avoid. 24. ENTIRETY OF AGREEMENT The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter of this Agreement and may not be modified by evidence of any prior or contemporaneous negotiations, representations, agreements and understandings. This Agreement supersedes, cancels and is in substitution of all agreements heretofore entered into between the parties with respect to the subject matter covered by this Agreement. No other representations, agreements or understandings between the parties will be binding, unless in writing and signed by authorized representatives of the parties to this Agreement. This Agreement may only be amended in writing signed by the parties hereto. 25. CHOICE OF LAW; VENUE This Agreement shall be governed by and construed under the laws of State of Texas. All matters litigated by or between the parties that involve this Agreement, the relationship of the parties or any related documents or matters hereunder, shall be brought only in Fort Worth, Tarrant County, Texas. 26. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 27. HEADINGS NOT CONTROLLING Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 12 of 18 28. NO CROSS-DEFAULT No event of default by Operator, or by any of its affiliates, under any lease, management agreement, or other agreement with the City will ever be an event of default by Permittee under this Agreement. Likewise, no event of default by Permittee under this Agreement will ever be an event of default by Operator, or by any of its affiliates, under any lease, management agreement, or other agreement with the City. [SIGNATURE PAGES FOLLOW) Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 13 of 18 IN WITNESS WHEREOF, the parties heretghhavq executeexecUteQ this Agreement in Fort Worth, Tarrant County, Texas, on the _day of 2006. THE CITY PERMITTEE CITY OF FORT WORTH ALLIANCE AIR PRODUCTIONS By: Y•B Marc Ott Name: Timoth D. Ward Assistant City Manager Title: Preside Date: 0Q.-0." Date: 8/29/06 ATTEST Marty Hendrix, 'ty Secretary APPROVED AS TO FORM AND LEGALITY: APPROVAL REOMMENDED: By: By: Assistant City Attorney Ahae F 1 y AirpgiUt Sy to s Direc or Date: 3( a 1. Date: (� r M&C: C,aI5z) Approved: (� Alliance Airshow Agreement City of Fort Worth Alliance Air Productions Page 14 of 18 } STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared -jAaAL-, A_ - , Assistant City Manager of the City of Fort Worth, Texas, known to me to be person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same in the capacity indicated as the act and deed of the City of Fort Worth, a home-rule municipal corporation of Tarrant County, Texas, for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this W/ day of 2006. Notary Public in and for the State of Texas �TMV HETTIF LANE dMY COMMISSION EXPIRES. My Commission Expires: + �*� ,July 26,2007 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Timothy D. Ward, President of Alliance Air Productions, a Texas nonprofit corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same in the capacity indicated as the act and deed of Alliance Air Productions, for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 9fl day of (,(S 32006. 0_� Notary Public in and for the State of Texas My Commission Expires: `'�yp9e•• K R IfILLNiAN o• �� (,,, � NOTARY PUBLIC l+QState of TexasAlliance Airshow Agreemento 'Comm. Exp. 04-28-2097 City of Fort Worth � '"� � Alliance Air Productions Page 15 of 18 EXHIBIT A FACT SHEET Dates: September 30—October 1,2006 As of: August 23,2006 Location: Alliance Airport-Fort Worth,Texas MAJOR ATTRACTIONS USAF Thunderbirds Tora-Tora-Tora Navy F-18 Demo Oreck Flight Team(Frank Ryder) USAF F-16 Demo Mig 17 -Randy Ball USAF Heritage Flight Jim LeRoy-Bull Dog Air Shows Lockheed F-16 Demo USAF F-15E Strike Eagle Demo US Navy Legacy Flight Jan Collme FINA EXTRA 300L Static Display-Military, General Aviation Aircraft and Helicopters VISIT US ON THE WEB AT www.allianceairshow.com NO RAIN DATE(APPEARANCES SUBJECT TO OPERATIONAL CAPABILITY) Admission is FREE. Parking is $10 per car load. INFORMATION: Fort Worth Air Show 2006 2221 Alliance Blvd. Fort Worth,Texas 76177 Phone 817-890-1000 Fax 817-890-1099 E-Mail: chris.ash@hillwood.com NO FOOD, COOLERS,ALCHOLIC BEVERAGES, PETS,BICYCLES, SKATE BOARDS, SCOOTERS OR IN LINE SKATES ALLOWED ON THE GROUNDS :l;rt, r t`;, .," L: f.OM1• 7�,x� ai `'L� - 4. as r • _ ,�;. - r tr s® - i [ r N,{ 0 2 d U C O R O - jca @ 3 O Y O L y C N O Y C o _ I � a s yi o! a a I o- d N N O K m N N � I d d m m � £ E W ? o U m C C U o o O Ir LL @ O ¢ L N N C L y O 0 H rn �I U C �a d _ y ¢ N � N O N J S V O � - U � c s O N O CII to L.2 N C a O v L m, aj o m m m o d m como0000000......... NN NNNNM�-N F�17 ._ N E (n M1♦ 8 a 'AMXd 319113 .zFW c LU Ll tl 1 u � DO © _ 1 aw � � a LU 1 aa� IL Y H A 1 H AVMIXVI AL n waw j8 .110 301M(oil OM \ 3 1\ M1 'I J TA]� I0 3ONpl llp It \� 0 1111 a 0 AMl tl AMl / t w 0 a \ in U c M � O Exhibit C The following will be listed as additional insureds on the certificate of insurance: 1. Alliance Air Productions 2. City of Fort Worth 3. Alliance Air Services 4. Alliance Air Management, LTD 5. Hillwood 6. Ralph S. Royce City of Fort Worth, Texas Mayor and �ouncil Communication COUNCIL ACTION: Approved on 6/20/2006 DATE: Tuesday, June 20, 2006 LOG NAME: 55AIR SHOW REFERENCE NO.: C-21539 SUBJECT: Authorize Execution of an Air Show Agreement with Alliance Air Productions for a Term of Five Years with the Option to Extend the Agreement for an Additional Five Years at Fort Worth Alliance Airport - - RECOMMENDATION: It is recommended that the City Council authorize the City Manager to: 1. Authorize execution of an air show agreement with Alliance Air Productions for a term of five years with the option to extend the agreement for an additional five years at Fort Worth Alliance Airport. DISCUSSION: )n November 28, 2005, the City of Fort Worth Aviation Department received a letter from the Aviation Heritage Association (AHA) stating that they no longer wished to participate, either financially or operationally, in any air show beyond calendar year 2005. Alliance Air Services, manager of Fort Worth Alliance Airport, requested approval to continue moving forward with the planning for the 2006 Air Show, since the USAF Thunderbirds were committed to perform at the show, September 30th and October 1st. Staff concurred with that approach and Alliance Air Services commenced the organization of the event committing significant time and resources associated with the planning for the air show. Initially staff with the concurrence of the City Attorney's Office directed Alliance Air Services to proceed with the air show planning under the existing Management Agreement. Subsequently, Alliance Air Services has requested that a separate agreement be executed with a newly formed entity d/b/a Alliance Air Productions a Texas nonprofit corporation. The proposed term of the agreement is for five years with the option to extend the agreement for an additional five years. This property is located in COUNCIL DISTRICT 2. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material effects on City funds this fiscal year TO Fund/Account/Centers FROM Fund/Account/Centers abmitted for City Manager's Office b Marc Ott (8476) Originating Department bead: Mike Feeley (5403) Additional Information Contact: Mike Feeley (5403) Logname: 55AIR SHOW Page 1 of 2