ADDENDUM #1
RFP# 2014-12-002
Baggage Cart Rental Concession
January 2, 2015
1. Will there be an onsite tour available for this project?
No, there will not be an onsite tour for this project.
2. Due to the release of this RFP over the holiday season and very short turn around,
we request an extension of 30 days for the project.
There will not be a thirty (30) day extension granted for this project; however the revised
scheduled dates are as follows:
ACTIVITY (All times are EST)
DATE
Second Deadline for Submission of Written January 15, 2015
Questions by 12:00 p.m.
Proposals are Due by 12:00 p.m.
February 3, 2015
Evaluation of Proposals
Week of February 9, 2015
City Council Date
February 23, 2015
Estimated Start Date
April 1, 2015
3. Can you please supply all copies of monthly sales report activity submitted by
current provider for the past three years?
Calendar Year 2012
MONTH
January
February
March
April
May
June
July
August
September
October
November
December
SALES
$ 9,307.23
7,763.17
8,044.52
11,454.55
12,244.06
13,786.48
15,262.47
16,467.13
12,941.72
10,954.31
11,923.08
12,161.31
Calendar Year 2013
MONTH
January
February
SALES
$13,764.10
9,745.22
March
April
May
June
July
August
September
October
November
December
10,027.97
11,999.07
13,721.21
15,463.40
16,234.97
17,329.60
11,157.11
12,304.43
11,066.67
14,590.21
Calendar Year 2014
MONTH
January
February
March
April
May
June
July
August
September
October
November
December
SALES
$15,284.85
10,085.78
10,278.79
11,917.95
13,272.73
15,889.98
18,769.23
16,502.10
11,913.29
12,626.57
10,067.13
4. Can you please supply copies of all activity reports relating to the luggage cart sales
by location for the past three years?
This information is not available.
5. Can you please supply copies of all submitted monthly rental/revenue reports, split
by cash/credit/location or any combination CLT possesses, for the past three years?
Calendar Year 2012
MONTH
January
February
March
April
May
June
CASH
$3,946.00
3,409.00
3,042.00
4,272.00
4,334.00
5,526.00
CREDIT CARD
$6,036.00
4,917.00
5,586.00
8,013.00
8,808.00
9,260.00
July
August
September
October
November
December
5,838.00
5,997.00
4,380.00
3,849.00
4,224.00
4,127.00
10,532.00
11,664.00
9,504.00
7,904.00
8,588.00
8,916.00
Calendar Year 2013
MONTH
January
February
March
April
May
June
July
August
September
October
November
December
CASH
$ 4,982.00
3,284.00
3,547.00
4,245.00
5,256.00
5,337.00
5,256.00
6,074.00
3,942.00
3,885.00
3,593.00
5,061.00
CREDIT CARD
$ 9,780.00
7,168.00
7,208.00
8,624.00
9,460.00
11,252.00
12,160.00
12,512.00
8,024.00
9,328.00
8,280.00
10,592.00
CASH
$ 5,329.00
3,657.00
3,400.00
3,878.00
4,727.00
5,770.00
6,503.00
5,355.00
3,981.00
3,986.00
3,277.00
CREDIT CARD
$11,064.00
7,160.00
7,632.00
8,904.00
9,508.00
11,272.00
13,632.00
12,344.00
8,800.00
9,560.00
7,524.00
Calendar Year 2014
MONTH
January
February
March
April
May
June
July
August
September
October
November
December
6. Are there any battery units currently in place at CLT? If so, how many and what
locations?
Yes, there are three (3) battery powered units located at: E Concourse near gate E1; C
Concourse near gate C10; and Baggage Claim near Zone D/E. However, the battery
powered units are for back-up only. Reference Scope# 8 – The selected proposer must
maintain an adequate number of battery-powered dispensing devices, and sufficient
number of reserve batteries, to provide continuous service in the event of temporary
relocations due to Airport construction (page 6).
7. Are there data lines currently available for the cart vending units?
Yes, data lines are available for each vending unit.
8. The RFP suggests gross revenue share, before taxes and fees are taken out; whereas
currently and usually deductions are allowed for sales tax, rewards, and refunds.
Please clarify this.
The RFP does not suggest gross revenue, but states percent of gross revenue. Reference
Compensation to the City, Percent of Gross Revenues: Proposer must also propose the
percentage of gross revenues to be paid to CLT. “Gross Revenues” is defined as all
income collected under the rights granted in the Concession Agreement without
deductions for taxes, fees or licenses (page 7).
9. Can you please supply the daily user rate of the FIS area for the past three years?
We are currently charged $0.40 per cart in the FIS.
10. Please supply all count reports/invoices sheets for the FIS for the past three years.
There is no report. The staff counts the carts at noon each day to ensure we always have
400 before the start of flight arrivals.
11. What is the daily accessibility for staff to replenish the FIS?
Providing the employee has a Customs Seal on their badge, the FIS is typically assessable
from 7:00 a.m. to 9:00 p.m.
12. In the vending unit description, it does not state that the units need to accept coins
as payment. It is intentionally left out? Will CLT actually accept units without this
feature?
The vending units should be able to accept coins as well as $1.00 and $5.00 bills. No,
CLT will not accept units without this feature. It was assumed that the coin acceptance
feature was standard on all vending units.
13. Would CLT consider options other than gross revenue share, such as a flat fee?
No, a flat fee will not be considered.
14. It states that CLT will provide storage/office space. Is this area free of charge to the
cart provider? If not, please provide the rental costs per SF and/or that of the
current provider.
This area is free of charge.
15. The parking deck drawings did not print clearly. They are attached for your
viewing.
16. Attachment E – Form Concession Agreement. The Concession Agreement is
attached for your viewing.
BAGGAGE CART CONCESSION AGREEMENT
Between the
CITY OF CHARLOTTE
and
[INSERT]
Date: [INSERT]
This BAGGAGE CART CONCESSION AGREEMENT (hereinafter called “Agreement”)
made and entered into by and between the CITY OF CHARLOTTE, a municipal corporation of
the State of North Carolina (“City”), and [INSERT] ( “Company”).
WITNESSETH:
THAT, WHEREAS, the City owns and operates the Charlotte Douglas International
Airport (“Airport”); and
WHEREAS the City issued a Request for Proposals to Develop and Oversee Baggage Cart
Rental Concession on December 18, 2014(“RFP,” including any subsequent addenda); and
WHEREAS the Company submitted a proposal in response to the RFP that meets all terms
and conditions of the RFP (“Proposal,” including subsequent modifications negotiated between
City and Company); and
WHEREAS the City and Company desire to enter into this Agreement to operate the
concession for baggage carts in accordance with the terms and conditions set forth below; and
NOW, THEREFORE, for and in consideration of the mutual covenants, agreements and
conditions contained in this Agreement and in the RFP and Proposal, both of which are hereby
incorporated by reference and made a part hereof, City does hereby grant unto Company certain
rights, licenses and privileges on and in connection with the Airport as follows:
AGREEMENT
ARTICLE I
LEASED PREMISES
Section 1.01 Leased Premises. The “Leased Premises” are those locations upon the Airport
made available to the Company for the installation of and maintenance of baggage carts, baggage
cart vending units and other equipment (collectively, the “Equipment”) as approved by the City’s
Aviation Director and consistent with the terms of the RFP and Company’s Proposal. Current
locations for the Equipment, as of 14 February, 2007, are shown on Exhibit A incorporated herein
by reference and attached hereto.
Section 1.02 Title to Leased Premises. Title to the Leased Premises remains in the City and
Company’s interest is solely that of tenant.
Section 1.03
condition.
Condition of Leased Premises. Company accepts the Leased Premises in “as is”
Section 1.04
Equipment. Company shall completely obtain, supply, install and operate in the
Leased Premises at its sole cost and expense all Equipment, the design and exact location of
which must be approved by the Aviation Director. Unless abandoned or sold, Equipment shall be
and remain the property of the Company.
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(a) Within ninety (90) days of the Commencement Date, Company shall have
completed installation and replacement of all existing Cart Management Units
currently in the Airport with the upgraded units described on the specifications page
incorporated by reference and attached hereto as Exhibit B.
(b) Within ninety (90) days of the Commencement Date, Company shall have
completed the installation of [INSERT NUMBER] upgraded carts with advertising
panels, as described on the specifications page incorporated by reference and
attached hereto as Exhibit C. Company shall remove all the old-model Baggage
Carts currently in the Airport at or after the installation of the new carts.
Section 1.05 Encumbrances.The Leased Premises shall be accepted by Company subject to any
and all then existing easements or other encumbrances, and City shall have the right to install, lay,
construct, maintain, repair and operate such sanitary sewers, drains, storm water sewers, pipelines,
manholes, connections, water, oil or gas pipelines, and telephone and telegraph power lines and
such other appliances and appurtenances necessary or convenient in connection therewith, over,
in, upon, through, across and along the Leased Premises, or any part thereof, and to enter
thereupon at reasonable times for any and all such purposes; provided, however, that no right of
City provided for in this paragraph shall be so exercised as to interfere unreasonably with the
Company’s operations hereunder nor result in added expense to Company in conducting its
operations hereunder and provided further that City shall conceal all lines, pipes or conduits
installed in or through the Leased Premises behind, beneath or within partitioning, columns,
ceilings or floors.Rights on Airport and in Terminal. In addition to the right to use the Leased
Premises in the operation of the Concession pursuant to this Agreement, the Company shall have:
(a) Common Facilities. The right (which shall extend to Company’s employees,
patrons, guests and invitees), in common with others, to use the public portions of
the Airport and appurtenances thereto.
(b) Ingress and Egress. The right (which shall extend to Company’s employees,
patrons, guests, invitees, suppliers of materials and furnishers of service, and their
equipment, vehicles and other property), in common with others, of free ingress to
and egress from the Airport over Airport roads, driveways and common areas, as
shall be specified as such from time to time by the City.
(c) Employee Parking. The right to a reasonable number of vehicular parking
spaces for the use of employees of Company to be provided in the City’s employee
parking facility, for which the City may make reasonable charges.
(d) Public Parking. The right to have its customers use the public parking facilities
available on the Airport in common with other members of the public and for fees
identical with those charged the general public.
Section 1.07
Utilities.
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(a) In consideration of Concession Fees payable pursuant to Section 3.01 of this
Agreement, the City will provide all utilities for the Leased Premises at no
additional cost to Company.
(b) City shall provide electricity to the Leased Premises by means of wiring
installations in existence at the time of delivery and will make available such
electrical fixtures, appliances and equipment existing in the Leased Premises in as-is
condition without charge. All installation of electrical fixtures, appliances and
equipment within the Leased Premises shall be subject to City’s prior written
approval, and Company further agrees that its use of electrical current shall never
exceed the capacity of the wiring installation in place.
(c) Company agrees that it will endeavor to utilize all energy supplied to it in the
Terminal in an efficient manner, and Company expressly agrees to comply with all
City energy conservation programs and with all rules and regulations with respect
thereto existing at the commencement of this Agreement or thereafter adopted
during the term hereof.
(d) In all instances of any damage to any utility service line caused by Company, its
employees, contractors, suppliers, agents or invitees, Company shall be responsible
for the cost of repairs.
(e) Should the installation of any equipment by Company require a modification to
the buildings electrical or heating systems or the relocation or installation of an
electrical outlet or the use of electrical power other than that provided through the
standard terminal electrical outlets, the cost of such modification, installation or
relocation shall be borne entirely by Company.
Section 1.08 City’s Right to Enter and Inspect. The City shall have the right to enter any part of
the Leased Premises at reasonable or necessary times for the purposes of inspection, protection or
exercising any rights under this Agreement.
ARTICLE II
TERM AND RESTRICTIONS ON USE
Section 2.01 Base Term. The Base Term of this Agreement shall be five (5) years commencing
on [INSERT] (“Commencement Date”) and expiring on [INSERT] (“Expiration Date”).
Section 2.02 Extension Terms. This Agreement shall automatically renew for up to two (2)
additional one (1) year terms (the “Extension Terms”) upon the same covenants, terms and
conditions of this Agreement unless terminated by City or Company upon written notice to the
other party no less than sixty (60) days prior to the expiration of the Base Term or first Extension
Term. Upon expiration of the final Extension Term, this Agreement may continue on a month-tomonth basis (the "Holdover Term") upon the same covenants, terms and conditions of this
Agreement subject to termination by either party upon thirty (30) days written notice.
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Section 2.03 Restrictions on Use. Each area constituting a part of the Leased Premises shall be
used solely and exclusively for the purposes contained herein and approved by the City’s Aviation
Director. Company shall limit its operations on the Leased Premises to activities necessary to the
Concession. The failure of Company to so utilize the Leased Premises over a continuous period
in excess of sixty (60) days for reasons that are not otherwise excused under this Agreement shall
be deemed an abandonment of the Leased Premises by Company and therefore a failure to
perform under this Agreement permitting City to give notice of default under Article 10 hereof.
Section 2.04 Garbage and Refuse Storage and Removal.Company shall strictly comply with all
Airport rules and regulations and other rules and regulations regarding the disposal of trash and
garbage, shall regularly remove from all concession areas to the garbage or refuse disposal area all
rubbish, refuse, and garbage and shall remove the accumulation of all such material in said
garbage or refuse disposal area at frequent intervals. Accumulation of boxes, cartons, barrels or
other similar items shall not be permitted in public areas at Airport.
Section 2.05 Noise, Odor, Vibrations and Annoyances. Company shall conduct its operations in
an orderly and proper manner so as not to commit any nuisance or waste in the concession areas
or annoy, disturb or be offensive to others at the Airport and shall take all reasonable measures,
using the latest known and most practicable devices and means, to eliminate any unusual,
nauseous or objectionable smoke, gases, vapors, odors, or any vibrations tending to damage the
Leased Premises used.
Section 2.06
Prohibited Acts. Company shall not:
(a) Conduct its operations in a manner that deprives the public of its rightful, equal
and uniform use of Airport property.
(b) Conduct its operations so as to interfere with reasonable use by others of
common facilities on the Airport.
(c) Conduct its operations in such a way as to hinder police, fire fighting or other
emergency personnel in the discharge of their duties or so as to constitute a
hazardous condition that would increase the risks normally attendant upon the
operations contemplated under this Agreement.
ARTICLE III
FEES, RENTS AND CHARGES
Section 3.01 Concession Fees Owed by Company to City. As fees for the Concession rights
herein granted and as rental for the Leased Premises (collectively herein “Concession Fees”),
Company shall pay to the City during each Lease Year a sum equal to [INSERT NUMBER]% of
Company’s “Net Revenue” from baggage carts during the Lease Year.
(a) Lease Year. As used in this Agreement, “Lease Year” shall mean the twelvemonth period beginning on the Commencement Date and each successive twelvemonth period during the term of this Agreement; provided, however, the last “Lease
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Year” shall terminate at the close of business one day before expiration of the fifth
twelve-month period.
(b) Net Revenue. As used in this Agreement, “Net Revenue” shall mean the total
sum of money received by the Company for or in connection with the rental or use
of any baggage carts at the Airport, regardless of where payment is made or
received, excluding the following:
(i)
The amounts of any federal, state, or municipal sales taxes or other
similar taxes collected from customers.
(ii)
Any amounts paid out to customers as a refund for the return of
baggage carts, said refund currently set at [INSERT NUMBER] cents per
cart.
(iii)
The amounts paid to Company by City, including both the actual
rental fee and return reimbursement, for those baggage carts the City elects
to provide to passengers free of charge in the International Arrivals section
of the Airport.
No deductions from Net Revenue other than those specifically stated herein shall be allowed.
Section 3.02 Rental Fees Owed by City to Company. City currently elects to provide a certain
number of baggage carts to passengers in the International Arrivals section of the Airport (“FIS”)
free of charge. City may, at the sole discretion of the Aviation Director or his designee, elect to
add or decrease the number of carts provided at any time and adjust its rental fees accordingly.
City shall pay Company:
(a) the base rental amount of [INSERT NUMBER] cents per day per cart; and
(b) the supplemental reimbursement amount of [INSERT NUMBER] cents per cart
that leaves FIS for which passengers may receive a return reward even though said
passengers did not initially pay for the cart. Calculation of the supplemental
reimbursement owed is described in Section 3.04 below.
City shall not pay Company any revenue, nor any portion or percentage thereof, that may accrue
from advertising placed in or on the Equipment.
Section 3.03 Payment of Concession Fees to City. The procedure for the payment of fees by
Company to City shall be as follows:
(a) Within twenty-five (25) days after the end of each calendar month during the
term of the Agreement, Company shall provide the Aviation Director with an
accounting of its year-to-date Net Revenue together with payment in the amount of
the Concession Fee through the end of the preceding month, less any payments
previously made to the City.
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(b) The City shall be entitled to assess a late payment fee of one and one-half
percent (1.5%) per month or any fraction thereof for any amounts that are past due
under this Agreement.
(c) The City shall be entitled to recover its reasonable attorneys’ fees in connection
with any legal action taken to enforce its rights hereunder.
Section 3.04 Payment of Rental Fees to Company. The procedure for the calculation and
payment of fees by City to Company shall be as follows:
(a) Airport shall set the number of baggage carts required for placement in FIS,
currently [INSERT NUMBER] (the “Pre-set Number”)
(b) Each morning, no later than noon EST, Company shall count the number of
carts located in FIS. Based on that count, Company shall add the number of carts
required, if any, to reach the Pre-set Number. Airport shall reserve the right to
monitor the counting and/or to have Airport staff count the carts before or after
Company to ensure that the number of carts meets the Pre-set Number.
(c) Airport shall pay the base rental amount described in 3.02 (a) and the
supplemental reimbursement described in 3.02 (b) for the number of carts required
to be added, if any, to reach the Pre-set Number. Company shall send invoices to
the Airport on a calendar month basis and Airport shall submit such payments to
Company as soon as practicable after receipt of said invoices.
Section 3.05 Books of Account and Auditing. Company shall keep at its office in Charlotte,
North Carolina, true and complete records and accounts of its Net Revenue. Annually, within
ninety (90) days after the end of each Lease Year, Company shall furnish a true and accurate
statement for the preceding Lease Year of all such Net Revenue during such preceding year,
which statement shall be certified to be correct by an authorized representative of Company.
Company agrees to give the City access during reasonable hours for inspection of all or any of
Company’s books and records, and Company agrees that it will keep and preserve for at least six
(6) years evidence of Net Revenue and business transacted during such period. The City shall
have the right at any time and from time to time to audit all of the records of Company relating to
business transacted at the Airport and the Company, upon request, shall make all such information
available for such examination at the Airport. If, as a result of such audit, it is established that
Company or any sub-concessionaire has understated its Net Revenue or business transacted for
any year by two percent (2%) or more, the entire expense of said audit shall be borne by
Company. Any additional Concession Fees due as a result of such audit shall forthwith be paid by
Company to City with interest thereon at the rate of eighteen percent (18%) per annum from the
end of the month in which the discrepancy occurred.
Section 3.06 Licenses, Fees and Taxes. The Company agrees to pay, when due, all licenses,
fees, taxes and assessments charged, assessed or levied by any governmental authority in order to
carry on Company’s business at the Airport. No such payment shall be considered a payment of
rent entitling the Company to a credit under any other provision of this Agreement. The failure to
pay any tax, license, fee, or assessment, the validity of which shall be contested in good faith and
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with reasonable promptness, shall not be interpreted as a violation of this covenant until such
contest shall have been resolved in the taxing authority’s favor or abandoned or the time for
objection or appeal has expired.
ARTICLE IV
OPERATION OF CONCESSION
Section 4.01 Scope. The Company shall enjoy the exclusive right, privilege and obligation to
operate the Concession pursuant to and consistent with the terms and conditions of the RFP,
Proposal and this Agreement.
Section 4.02 Operational Standards. The Company acknowledges and agrees that a primary
objective and purpose under this Agreement is to provide to the traveling public baggage carts in a
cost effective, convenient and high quality manner so as to increase the Airport’s business and to
reflect favorably on the image of the City and the Airport. Company shall at all times during the
term of the Agreement use its best efforts to comply with this objective and purpose in the
operation of the Concession. Company further acknowledges the City’s reliance on Company’s
intended manner of operation of the Concession as set forth in the Company’s Proposal, as may
have been negotiated and modified. Company shall operate the Concession in accordance with its
Proposal, RFP, and this Agreement unless otherwise expressly authorized in writing by City.
Section 4.03 Mode of Operation. Company shall conduct its concession business at the Airport
as herein authorized in a reasonable and safe manner consistent with the overall image and
atmosphere of a high class public facility. In striving to serve the public, Company shall maintain
a high degree and high standard of quality of equipment; furnish prompt, courteous, efficient, and
nondiscriminatory service adequate to meet all reasonable requests; and ensure polite and
inoffensive conduct and demeanor on the part of its representatives, agents, servants and
employees.
Section 4.04 Installation of Equipment. The Equipment shall comply with all the assurances
contained in the RFP and Proposal, specifications in this Agreement, and shall meet the general
design criteria as approved by the City. Company shall install the Equipment in accordance with
the schedule set forth in Section 1.04 of this Agreement. During installation and replacement of
any part of the Equipment, Company and its subcontractors shall not interfere with the operation
of the Airport and shall make every effort to minimize any inconvenience to other concessionaires
and tenants at the Airport, Airport employees, the traveling public and other occupants of the
Airport premises. All baggage cart or cart management unit installations shall conform to the
Americans with Disabilities Act.
Section 4.05 Service, Maintenance and Repair of the Equipment. Company shall, at its expense,
keep the Equipment in a clean, neat, orderly and good working condition and in good repair at all
times. Company shall clean the exterior surface of the baggage cart vending units at least once
each day. In order to keep the Equipment clean and functional at all times, Company shall
perform daily routine inspection of the Equipment. Company shall repair all damaged Equipment
within twenty-four (24) hours of discovery of the need for repair through inspection or
notification of the need for repair and shall place a display sign over any baggage cart vending
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unit stating that it is not available for service. At any given time, Equipment out of service or
repair shall not exceed five percent (5%) of the respective inventory for baggage carts, baggage
cart vending units. Company shall be available on an on-call basis for service twenty-four (24)
hours per day, seven (7) days per week, accessible by a local telephone call. Company shall
immediately respond to all emergency calls. Company shall continually retrieve baggage carts
and restock the baggage cart vending units and throughout the day, seven (7) days per week and
shall provide adequate personnel for such tasks. Baggage carts and baggage cart vending units
shall be available to the traveling public twenty-four (24) hours a day, seven (7) days a week.
Section 4.06 Posting of Information. Each baggage cart vending unit shall be (a) clearly
numbered, (b) display simple operating instructions and rate information, (c) provide a local
telephone number for service calls and (d) clearly post a telephone number and information
regarding reimbursement procedures for money lost in the Equipment and for the reporting of
damaged or malfunctioning Equipment or other emergency.
Section 4.07 Security. Company shall be required to take such security precautions with respect
to the Equipment and Leased Premises and its operations and service personnel as the Federal
Aviation Administration (“FAA”) and the City in its discretion may require, from time to time.
Company shall comply with its security plan as submitted with its Proposal, as modified from
time to time with the approval of the City. The security plan shall include, at a minimum,
provisions for employee security training, for the removal and proper disposal of abandoned
items, and emergency response procedures
Section 4.08 Unclaimed or Abandoned Baggage. Company shall be solely responsible for all
items left upon the baggage carts for extended periods of time.
Section 4.09 Concession Manager. Company shall designate an on site representative who has
sufficient authority and responsibility to ensure proper operation of the Concession, to render
decisions and to take all necessary action in connection with this Agreement. Any designation
shall be subject to the City’s prior written approval. Such a person (or his or her authorized
representative) shall be available whenever the Concession is in operation.
Section 4.10 Rate Schedule. Company will charge customers for baggage cart use on a per
transaction basis including any applicable refund for return of baggage carts to cart management
units. The initial rate for baggage carts shall be $[INSERT NUMBER] per cart with a [INSERT
NUMBER] cent reward for returns. Company may from time to time propose revisions to its rate
schedule for consideration by the Aviation Director but shall not vary the amounts charged or
refunded from those set forth above without the prior written approval of the Aviation Director.
Section 4.11 Required Standard. The Equipment shall be new, of the highest quality and
maintained and operated in a safe, clean, orderly and inviting condition at all times. Company’s
employees shall be clean, courteous, efficient and neat in appearance at all times and shall wear an
approved uniform and name tag, stating their name and title and identifying the Company.
Company shall not employ any person who uses improper language or acts in an offensive manner
or in a manner detrimental to the best interests of the City.
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Section 4.12 City’s Right to Modify Leased Premises. In addition to the Leased Premises,
additional areas and facilities of the Airport may be made available as the City may find necessary
to provide for the orderly growth of the Airport. In that event, Company agrees to utilize the
additional Leased Premises and place Equipment thereon or, at its option to waive its exclusive
rights hereunder, in which case City may enter into a separate concession agreement with another
party for the Leased Premises in the expanded area. The City also reserves the right to prohibit
the use of any public area when in its judgment such use will not be in the best interests of the
City and to require the removal or relocation of any Equipment when determined necessary for the
convenient operation of the Airport or when required by other users of Airport premises having
exclusive rights over such areas (including current Leased Premises). If City does modify,
relocate or remove Leased Premises pursuant to its rights herein described, it shall provide written
notice to Company and update Exhibit A. City shall not be liable to Company for any diminution
or deprivation of Company’s rights hereunder on account of the exercise of its right to modify the
Leased Premises.
Section 4.13 Additional Service. In addition to providing Equipment to the Leased Premises,
Company shall be allowed the opportunity to propose additional locations for consideration by the
Aviation Director. Any such additional locations approved by the Aviation Director shall be
subject to the same terms and conditions as for the Concession being operated pursuant to this
Agreement. Such additional service will be permitted at the Aviation Director’s discretion, but
only upon satisfactory proof by the Company that such service will not detract from the essential
service to be provided pursuant to this Agreement.
Section 4.14 Inspection and Review. At City’s discretion, responsible representatives of City
may make a complete inspection of Company’s operations, including a review of quality of
service, prices charged, maintenance of premises, fixtures and equipment, and such other items as
City may wish to review.
Section 4.15 Advertising on Equipment. City shall be entitled to place advertisements in or on
the Equipment, specifically in or on those baggage carts with advertising panels. All sales and
installation and removal of advertisements are the responsibility of the City. The installation and
removal of the advertising from the Equipment will be done in accordance with Company’s
approved procedures, which are attached hereto as Exhibit D. All revenue resulting from such
advertising sales belongs to and remains with the City. Company shall promptly make the carts
with advertising panels available and accessible to City upon request for City to place the
advertisement.
Section 4.16
Drug-Free Workplace. Company will provide a Drug-Free Workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession or use of controlled substance is prohibited in
the facilities and specifying the actions that will be taken against employees for
violation of such prohibition.
(b) Notifying the employee in the statement required by Paragraph 12-9(a) that, as a
condition of employment, the employee will:
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(i)
Abide by the terms of the statement; and
(ii)
Notify the employer of any criminal drug statute conviction for a
violation occurring in the workplace no later than five (5) days after such
conviction.
(c) Notifying the City within ten (10) days after receiving notice under
subparagraph (b)(2) from any employee or otherwise receiving actual notice of such
conviction.
(d) Taking one of the following actions within thirty (30) days of receiving notice
under subparagraph (b)(2) with respect to any employee who is so convicted:
(i)
Taking appropriate personnel action against such employee up to
and including termination; or
(ii)
Requiring such employee to participate satisfactorily in a drug abuse
assistance or rehabilitation program approved for such purposes by a
federal, state or local Health Law Enforcement or other appropriate agency.
(e) Making a good faith effort to continue to maintain a Drug-Free Workplace
through implementation of subparagraphs (a) through (d).
ARTICLE V
MAINTENANCE, ALTERATIONS, REPAIRS AND UPKEEP
Section 5.01
Maintenance of the Leased Premises.
(a) The City shall be responsible for the structural maintenance, repair and upkeep
of the Airport. Company shall be obligated, without cost to City, to maintain all
Equipment installed by Company in good repair and in a clean and orderly
condition and appearance and shall keep the areas immediately adjacent to the
Leased Premises clean and orderly and free of obstructions. Company shall replace
as necessary any faded, worn, unclean or other unattractive Equipment, as
determined by the Aviation Director.
(b) The City shall be the sole judge of the quality of maintenance. The City may at
any reasonable time, without notice, inspect the Leased Premises and Equipment to
determine if satisfactory maintenance is being performed. If City determines that
maintenance is not satisfactory, City shall so notify Company in writing. If said
maintenance is not performed by Company within fifteen (15) days after receipt of
written notice, City or its agents shall have the right to perform necessary cleaning
and maintenance and Company agrees to promptly reimburse City for the direct cost
thereof, plus twenty-two (22%) percent thereof for administrative overhead.
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(c) Notwithstanding the above provision, any hazardous or potentially hazardous
condition shall be corrected immediately upon receipt by Company of oral notice
given by City.
Section 5.02 Repairs. The Company agrees to make all repairs to the Leased Premises and
Equipment, except for the repairs or work which are the responsibility of the City, and will
maintain and keep same in good condition and repair, and will surrender and deliver up the
Leased Premises at the termination of this Agreement in as good order and condition as the same
exists at the commencement of the term of this Agreement, reasonable wear and tear and
uninsurable casualty excepted.
Section 5.03 Alterations to Leased Premises. Company will make no alterations to the Leased
Premises except after first obtaining the written consent of the City, such consent not to be
unreasonably withheld or delayed. All alterations shall be modern, first-class, safe, fire-resistant,
attractive in appearance and architecturally compatible with the Terminal. All alterations made by
the Company shall be at the Company’s expense, and shall be made in a workmanlike manner
without damage, except such that is repaired or corrected by the Company. The City shall have
the right to review and approve in writing the plans and specifications for such alterations.
Section 5.04 Right to Improvements. The Company shall have the right upon the termination of
this Agreement to remove any Equipment, furnishings, trade fixtures or other equipment which
have not been affixed to the real estate so as to become fixtures and any other improvements that
the City shall have given written consent to removal; provided, however, that Company shall not
be in default hereunder, and provided further, that Company, at its sole cost and expense, shall
repair or shall reimburse the City for the cost of repairing any damage which may be caused by
such removal. Upon failure of Company to remove its furnishings, trade fixtures and equipment
by the date of termination of this Agreement, the Aviation Director shall have the right to remove
them, notwithstanding any security interest in same, and to store them at a location of his choice,
and Company shall pay to the City the cost of such removal and storage; or at the option of the
City any such property remaining after the termination of this Agreement shall immediately be
and become the property of the City.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
Section 6.01 City Held Harmless. Company shall indemnify, defend and hold harmless the
City, its public officials, officers, agents and employees from and against all claims, damages,
losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from
any event or occurrence in or upon the Leased Premises or any part thereof, or otherwise in any
way arising from Company’s operations under and during the term of this Agreement, unless and
to the extent such claims are caused by the negligence or willful misconduct of City or its public
officials, officers, agents and employees. Company shall purchase insurance, as described in
Section 6.02 below, which insurance shall provide coverage for this contractual liability. In any
case in which Company provides a defense to the City pursuant to this indemnity, the defense will
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be provided by attorneys reasonably acceptable to the City. The provisions of this Paragraph shall
survive the expiration or early termination of this Agreement.
Section 6.02 Liability Insurance. Company shall maintain in force during the term of this
Agreement vehicular liability insurance and commercial liability insurance. Such insurance
policies shall include contractual liability coverage for the indemnification obligation contained in
Section 6.1 above.
(a) Vehicular Liability. The Company shall maintain bodily injury and property
damage liability insurance covering all owned, non-owned and hired automobiles
for limits of not less than $1,000,000 bodily injury each person, each accident and
$1,000,000 property damage, or $1,000,000 combined single limit each
occurrence/aggregate.
(b) Commercial General Liability. The Company shall maintain bodily injury and
property damage liability as shall protect the Company and any sub-concessionaire
performing work under this contract from claims of bodily injury or property
damage which arise from Company’s operations on the Airport premises, whether
such operations are performed by Company, any sub-concessionaire, or anyone
directly or indirectly employed by either. The amounts of such insurance shall not
be less than $1,000,000 bodily injury each occurrence/aggregate and $1,000,000
property damage each occurrence/ aggregate or $1,000,000 bodily injury and
property damage combined single limits each occurrence/aggregate. This insurance
shall include coverage for products/ completed operations, personal injury liability.
Section 6.03 Certificates Evidencing Coverage: Insurer Acceptable to City. A certificate
evidencing all insurance coverage required of Company under this Article 6 shall be filed with the
City prior to the Commencement Date, and Company shall inform its insurer(s) that such
certificate shall provide that such insurance coverage will not be canceled or reduced without at
least thirty (30) days prior written notice to the City. At least ten (10) days prior to the expiration
of any such policy, a certificate showing that such insurance coverage has been renewed shall be
filed with the City. If such insurance coverage is canceled or reduced, the Company shall within
fifteen (15) days after receipt of written notice from the City of such cancellation or reduction in
coverage, file with the City a certificate showing the required insurance has been reinstated or
provided through another insurance company or companies. The company or companies
furnishing insurance pursuant to this Article shall be qualified to issue insurance effective in the
State of North Carolina and be of sound and adequate financial responsibility to fulfill their
obligations hereunder.
Section 6.04 Workers’ Compensation and Employer’s Liability Insurance. Company shall
maintain workers’ compensation and employer’s liability insurance in the amounts and form
required by the laws of the State of North Carolina. Company shall furnish a certificate of said
insurance to the City certifying that the City will be given thirty (30) days written notice of nonrenewal, cancellation or other material change.
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ARTICLE VII
EQUAL EMPLOYMENT OPPORTUNITY, NON-DISCRIMINATION,
PUBLIC USE AND FEDERAL GRANTS
Section 7.01 Equal Employment Opportunity. Company assures that it will comply with 14
CFR Part 152, Subpart E, to the extent the regulation may be applicable, 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. Company assures that no
person shall be excluded on these grounds from participating in or receiving the services or
benefits of any program or activity covered by said Subpart E. Company assures that it will
require that its covered sub-organizations provide assurances to Company that they will similarly
comply with all applicable provisions of 14 CFR Part 152, Subpart E.
Section 7.02 Certification of Non-Discrimination. By the execution of this Agreement, the
Company certifies as follows:
“We, the supplier of goods, materials, equipment or services covered by this bid or
contract, will not discriminate in any way in connection with this contract in the
employment of persons, or refuse to continue the employment of any person, on account
of the race, creed, color or national origin of such persons.”
Section 7.03 Federal Grants and Public Use. The parties acknowledge that the Airport will be
operated as a public airport, subject to the provisions of the Federal Aviation Act, so that nothing
contained in this Agreement shall be construed to grant or authorize the granting of an exclusive
right within the meaning of Section 308 of the Federal Aviation Act of 1958. The City reserves
the right to further develop or improve, as it sees fit, the Airport, its landing area and taxiways,
and to construct other airports, regardless of the desires or views of Company and without
interference or hindrance therefrom. This Agreement shall be subordinate to the provisions of any
existing or future agreement between the City and the United States of America, including
instrumentalities thereof, relative to the operation or maintenance of the Airport, the execution of
which has been or may be required as a condition precedent to the expenditure of federal funds in
developing the Airport.
Section 7.04 Non-discrimination. Company for itself, its successors and assigns, as part of the
consideration hereof, does hereby covenant and agree that to the extent within its power:
(a) No person shall be excluded from participation in, denied the benefit of, or be
otherwise subjected to discrimination in the use of the Airport’s facilities because of
his or her race, color, sex or national origin.
(b) In the construction of any improvements on, over or under the Airport and the
furnishing of services thereat, no person shall be excluded from participation in, or
denied the benefits of such construction or service, or otherwise be subjected to
discrimination, because of his or her race, color, sex or national origin.
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(c) Company shall use the Leased Premises in compliance with all other
requirements imposed by or pursuant to 49 CFR Part 21, as said regulations now or
hereafter provide.
(d) Company, for itself, its heirs, successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree as a covenant running with
the land that in the event facilities are constructed, maintained, or otherwise
operated on the Leased Premises for a purpose involving the provision of similar
services or benefits, the Company, shall maintain and operate such facilities and
services in compliance with all other requirements imposed pursuant to Title, 49,
Code of Federal Regulations, Department of Transportation, Subtitle A, Offices of
the Secretary, Part 21, Nondiscrimination in Federally assisted programs of the
Department of Transportation Effectuation of Title VI of the Civil Rights Act of
1964, and as said Regulations may be amended.
(e) In the event of breach of any of the above nondiscrimination covenants, the City
shall have the right to terminate this Agreement and to re-enter and repossess the
Leased Premises and hold the same as if said Agreement had never been made or
issued. This provision shall not be effective until the procedures of Title 49, Code
of Federal Regulations, Part 21 have been followed and completed including
exercise or expiration of appeal rights.
Section 7.05 Modifications to Comply with Federal Laws, Regulations or Agreements. Should
the United States or any instrumentality thereof having authority to do so require that any
provision of this Agreement that is in violation of any federal law or regulation or any-provision
of an existing grant agreement between the City and the United States or any instrumentality
thereof be changed or deleted or should any such change or deletion be required in order for the
Airport either to continue as a part of the National Airport System Plan or to retain its eligibility to
participate in ADAP and similar successor federal programs or to avoid forfeiture of previous
financial assistance, the City may give the Company notice that it elects that any such change or
deletion be made. Company shall then elect either to consent to any such change or deletion or to
terminate this Agreement. Such election shall be made in writing and delivered to the city within
thirty (30) days of the date the City gave notice to the Company of its election that any such
change or deletion be made.
Section 7.06 Compliance with Americans with Disability Act of 1990. Company shall fully
comply with all applicable provisions of the Americans With Disabilities Act of 1990, P.L. 101336, 104 Stat. 327 (ADA), expressly including, but not limited to, all requirements otherwise
imposed on the City regarding the Leased Premises and invitees of Company, insofar as the
Leased Premises is considered a place of public accommodation and invitees or employees are
covered by the services, programs and activity previsions of Title II of ADA.
Section 7.07 Recapture by United States Government. It is understood and agreed between the
parties hereto that this Agreement shall be terminated if the United States of America, in
exercising its right to recapture under the terms of the instrument conveying the premises to the
City, requires such termination, and further that this Agreement shall be subject and subordinate
15
to the provisions of any existing or future agreement between the City and the United States
relative to the operation or maintenance of the Airport, the execution of which has been or may be
required by the provisions of the Federal Airport Act of 1946, as amended, or any future act
affecting the operation or maintenance of the Airport.
Section 7.08 Non-Discrimination Provision for All City Contracts. The City is committed to
promoting equal opportunities for all and to eliminating prohibited discrimination in all forms. As
a condition of entering into this agreement, the Company represents and warrants that it will fully
comply with the City's commercial non-discrimination policy, as described in Section 2, Article V
of the City Code, and consents to be bound by the award of any arbitration conducted thereunder.
As part of such compliance, the Company shall not discriminate on the basis of race, gender,
religion, national origin, ethnicity, age, or disability in the solicitation, selection, hiring, or
treatment of subcontractors, vendors, suppliers, or commercial customers in connection with a city
contract or contract solicitation process, nor shall the company retaliate against any person or
entity for reporting instances of such discrimination. The company shall provide equal opportunity
for subcontractors, vendors and suppliers to participate in all of its subcontracting and supply
opportunities on city contracts, provided that nothing contained in this clause shall prohibit or
limit otherwise lawful efforts to remedy the effects of marketplace discrimination that has
occurred or is occurring in the marketplace. The company understands and agrees that a violation
of this clause shall be considered a material breach of this agreement and may result in
termination of this agreement, disqualification of the company from participating in City contracts
or other sanctions.
As a further condition of entering into this agreement, the Company agrees to:
(a) Promptly provide to the city all information and documentation that may be
requested by the city from time to time regarding the solicitation, selection,
treatment and payment of subcontractors in connection with this agreement; and
(b) If requested, provide to the city within sixty days after the request a truthful and
complete list of the names of all subcontractors, vendors, and suppliers that
company has used on city contracts in the past five years, including the total dollar
amount paid by contractor on each subcontract or supply contract. The company
further agrees to fully cooperate in any investigation conducted by the city pursuant
to the city's commercial non-discrimination policy as set forth in Section 2, Article
V of the City Code, to provide any documents relevant to such investigation that are
requested by the city, and to be bound by the award of any arbitration conducted
under such policy. The company understands and agrees that violation of this clause
shall be considered a material breach of this agreement and may result in contract
termination, disqualification of the company from participating in city contracts and
other sanctions.
ARTICLE VIII
DAMAGE OR DESTRUCTION OF LEASED PREMISES
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Section 8.01 In the event of damage or casualty to any part of the Leased Premises, City shall
elect to either: (i) repair such damage or casualty and provide Company with such substitute
premises as shall be necessary to allow Company to continue its operations at substantially the
same level as before said damage or casualty or (ii) terminate this Agreement. Such election shall
be made within a reasonable time following occurrence of such damage or casualty and shall be
evidenced by a written statement delivered to Company. In the event that City elects to repair
such damage or casualty, Company shall cooperate fully and shall grant all of City’s reasonable
requests in connection therewith. City shall not be liable to Company for any other costs,
damages, claims or suits with regard to the damage or destruction of the Leased Premises,
including costs for damage to the property within and contents of Leased Premises or Company’s
lost revenues or profits.
ARTICLE IX
ASSIGNMENT AND SUBLETTING
Section 9.01 Company shall neither assign nor transfer this Agreement or any right or interest
granted to it by this Agreement without the prior written consent of the City, such consent not to
be unreasonably withheld. Provided, however, that Company may assign and transfer this
Agreement in its entirety without such consent to any successor-in-interest of Company with or
into which Company may merge or consolidate or which may succeed to the assets of Company
or a major portion thereof related to its Airport concession business. No such assignment or
sublease shall serve to release the Company from any of its obligations, duties or responsibilities
under this Agreement unless the City agrees to such release in writing. Any such sublease shall
be in writing and promptly upon the execution thereof, Company shall furnish a copy to the City.
ARTICLE X
TERMINATION AND DEFAULT
Section 10.01 Default by Company. The happening of any one or more of the following listed
events and the expiration of any notice and cure periods herein provided (which events, upon such
expiration, are hereinafter referred to singularly as “Event of Default” and plurally as “Events of
Default”) shall constitute a breach of this Agreement on the part of Company, namely:
(a) The filing by, on behalf of, or against Company of any petition or pleading to
declare Company a bankrupt, voluntary or involuntary, under any bankruptcy act or
law, which is not dismissed within sixty (60) days after the date of filing;
(b) The commencement in any court or tribunal of any proceeding, voluntary or
involuntary, to declare Company insolvent or unable to pay its debts, which is not
dismissed within sixty (60) days after the date of filing;
(c) The failure of Company to pay any fees or any other amount payable under this
Agreement within ten (10) days after written notice by the City that the same is due
and payable, except that any failure to pay which shall be caused by a
miscalculation of the Net Revenue or a failure notwithstanding the exercise of due
diligence to have timely information concerning Net Revenue, shall not be deemed
17
a default provided such rent is paid within ten (10) days after the correct amount
thereof has been determined;
(d) The failure in any material respect of Company to perform, fully and promptly,
any act required of it under the terms of this Agreement, or otherwise to comply
with any term or provision hereof within the shorter of: (i) the time specifically
required, or (ii) thirty (30) days after written notice by the City to Company to do
so, unless such default cannot be cured within such period and Company has in
good faith commenced and is prosecuting the cure thereof, in which case Company
shall have a reasonable extension of such period in order to cure such default.
(i)
The appointment by any court or under any law of a receiver, trustee
or other custodian of the property assets of business of Company;
(ii)
The assignment by Company of all or any part of its property or
assets for the benefit of creditors;
(iii)
Company’s abandonment of the operation of the Concession at the
Airport;
(iv)
The sale or levy upon the Company’s real or personal property
located on the Airport by any official legally entitled to do so.
(v)
Material default by Company under the terms of any other
agreement between City and Company.
Section 10.02 Effect of Default. Upon the happening of any Event of Default as defined in
Section 10.01 above and the failure of Company to cure such default in the time period set forth in
said section, the City shall have all the remedies available to it under the law including, but not
limited to, the right to terminate the term of this Agreement by written notice from the City to the
Company, which termination shall be effective as of the date of said written notice. City shall be
entitled to recover its reasonable attorneys’ in connection with any legal action taken to enforce its
rights hereunder.
Upon any termination of the term hereof, whether by lapse of time or otherwise, Company shall
promptly surrender possession and vacate the Leased Premises and deliver possession thereof to
the City, and Company hereby grants to the City full and free license to enter into and upon the
Leased Premises in such event and with or without process to expel or remove Company and any
others who may be occupying the Leased Premises and to remove therefrom any and all property,
including Equipment, using for such purpose such force as may be necessary without being guilty
or liable for trespass, eviction, or forcible entry of detainer and without relinquishing the City’s
right to rent or any other right given to the City hereunder or by operation by law. Except as
otherwise expressly provided in this Agreement, Company hereby expressly waives the service of
demand for the payment of rent or for possession of the Leased Premises or for re-entry of the
Leased Premises, including any and every form of demand and notice prescribed by any statute or
other law.
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Section 10.03 Waiver. No waiver by the City of default by Company of any of the terms,
covenants or conditions hereof by Company shall be construed to be a waiver of any subsequent
default. The acceptance of rental or the performance of all or any part of this Agreement by the
City for or during any period or periods after default of any of the terms, covenants and conditions
herein contained to be performed, kept and observed by Company shall not be deemed a waiver of
any right on the part of the City to declare a default or cancel this Agreement until City shall have
expressly agreed in writing to waive said default.
Section 10.04 Right of City to Terminate by Cancellation. In addition to its right to terminate due
to an event of default on the part of Company, City shall have the rights:
(a) In the event of abandonment of the Terminal as the passenger terminal for
enplaning and deplaning passengers with respect to regularly scheduled airline
flights, this Agreement shall immediately terminate.
(b) In the event the City elects to make substantial alterations to the Terminal
which, in the sole judgment of the City, require a material relocation of a material
portion of the Leased Premises, City reserves the right to terminate or renegotiate
this Agreement with Company.
Section 10.05 City Not Liable. City shall not be liable to Company for any diminution or
deprivation of Company’s rights hereunder on account of the exercise of City’s right to terminate
the Agreement or to modify or alter the Leased Premises under any of the provisions in this
Agreement or by operation of law.
Section 10.06 Right of Company to Terminate by Cancellation. Company may terminate this
Agreement and cancel all of its obligations hereunder at any time that Company is not in default
in the payment of any rentals, fees or charges payable to the City hereunder by giving written
notice to be served as hereinafter provided upon or after the happening of any one of the following
events:
(a) The inability of the Company to use the Leased Premises for a period in excess
of sixty (60) days, because of the issuance of any order, rule or regulation by the
United States or an instrumentality thereof preventing the Company from operating
at the Leased Premises for cause or causes not constituting a default under this
Agreement;
(b) The assumption by the United States or an instrumentality thereof of the
operation, control or use of the Airport or any substantial part thereof in such a
manner as to substantially restrict the Company for a period of at least ninety (90)
days from operating its business at the Airport;
(c) The withdrawal or cancellation by the United States or an authorized
instrumentality thereof of the right of regularly scheduled airlines to operate at the
Airport;
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(d) The issuance by any court of competent jurisdiction of an injunction restraining
the use of the Airport or the Leased Premises if said injunction shall remain in force
for more than ninety (90) days.
ARTICLE XI
GENERAL PROVISIONS
Section 11.01 No Warranties or Inducements. By executing this Agreement, Company
acknowledges that the City does not warrant the validity of any information that may have been
furnished to Company concerning the volume of passengers who have traveled through the
Airport in the past, amounts of past concession revenues, or maintenance and operation cost rates
or totals, and that City has not intended to provide or warrant any forecast of future passenger
volumes, concession revenues, or maintenance and operation costs rates or totals; that such
information as the City has furnished with respect to these and other matters has been intended
merely as one source of information available for consideration by Company, which Company has
been encouraged to verify through its own investigation; that in these negotiations, Company has
relied upon its own resources as to all of these matters; and that it has not relied upon any
inducements or forecasts of the City.
Section 14.02 Restrictions and Regulations. The operations conducted by Company pursuant to
this Agreement shall be subject to:
(a) Ordinances, rules, regulations, orders and restrictions which are now in force or
which may be adopted hereafter by City or the Aviation Director with respect to the
operation of the Airport, including restrictions on airline schedules or arrivals and
departures;
(b) Any and all orders, directions or conditions issued, given or imposed by the City
with respect to the use of the roadways, driveways, curbs, sidewalks, parking areas
or public areas on the Airport; and
(c) Any and all applicable laws, ordinances, rules, statutes, regulations or orders,
including, but not limited to, environmental, statutes, regulations or orders of any
governmental authority, federal, state or municipal, lawfully exercising authority
over the Airport or Company’s operations, including restrictions on airline
schedules of arrivals and departures.
(d) It is intended that the standards, obligations and duties imposed by this
Agreement shall be maintained and complied with by Company in addition to its
compliance with all applicable governmental laws, ordinances and regulations, and
in the event that any of said laws, ordinances and regulations shall be more stringent
than the standards, duties and obligations imposed on Company hereunder, then
Company shall comply with such laws, ordinances and regulations in the operations
under this Agreement.
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Section 14.03 Situs and Service of Process. Company agrees all actions or proceedings arising
directly or indirectly from this Agreement shall be litigated only in courts having situs within the
State of North Carolina and Company hereby consents to the jurisdiction of any local, state or
federal court located within Mecklenburg County, North Carolina, and waives personal service of
any and all process upon the Company herein, and consents that all such service of process shall
be made by certified mail, return receipt requested, directed to the Company at the address
hereinafter stated, and service so made shall be complete three (3) days after the same shall have
been posted as aforesaid.
Section 14.04 Force Majeure. Neither party hereto shall be liable to the other for any failure,
delay or interruption in the performance of any of the terms, covenants, or conditions of this
Agreement due to causes beyond the control of that party, including, but not limited to, strikes,
boycotts, labor disputes, shortages of materials, acts of God, acts of the public enemy, acts of
superior governmental authority, weather conditions, floods, riots, rebellion, sabotage, or other
circumstances for which such party is not responsible or which are not in its power to control.
Section 14.05 Agreement Binding Upon Successors. Subject to the limitation on assignment of
Company’s rights under this Agreement, the Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the parties hereto.
Section 14.06 Applicable Law. This Agreement and every question arising hereunder shall be
construed or determined according to the laws of the State of North Carolina.
Section 14.07 Company’s Dealings With City. Whenever in this Agreement, the Company is
required or permitted to obtain the approval of, consult with, give notice to, or otherwise deal with
the City, the Company shall deal with the City’s authorized representative; and unless or until the
City shall give Company written notice to the contrary, the City’s authorized representative shall
be the Airport’s Aviation Director, or his designee. Likewise, any action specified to be taken
herein by the City may, unless otherwise set forth, be taken by the Aviation Director, or his
designee.
Section 14.08 Notices, Consents and Approval. All notices, consents and approvals required or
authorized by this Agreement to be given by or on behalf of either party to the other shall be in
writing and signed by a duly designated representative of the party by or on whose behalf they are
given, and shall be deemed given at the time a registered or certified letter properly addressed,
postage prepaid, is deposited in any United States post office.
(a)Notice to the City shall be addressed and delivered to
Aviation Director, Charlotte Douglas International Airport
P.O. Box 19066
Charlotte, North Carolina, 28219.
(b)
Notice to the Company shall be addressed and delivered to:
[INSERT NOTICE INFORMATION]
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Section 14.09 Independent Contractor. The parties hereto agree that the Company is an
independent contractor and not subject to direction or control of the City, except as specified in
this Agreement, and except by general rules and regulations adopted for the control and regulation
of the Airport and its facilities.
Section 14.10 Interpretation. The language of this Agreement shall be construed according to its
fair meaning, and not strictly for or against either City or Company. The section headings
appearing herein are for the convenience of the parties and shall not be deemed to govern, limit,
modify or in any manner affect the scope, meaning or intent of provisions of this Agreement. If
any provision of this Agreement is determined to be void by any court of competent jurisdiction,
then such determination shall not affect any other provision of this Agreement and all such other
provisions shall remain in full force and effect; and it is the intention of the parties hereto that if
any provision of this Agreement is capable of two constructions, one of which would render the
provision void and the other of which would render the provisions valid, then the provision shall
have the meaning which renders it valid.
Section 14.11 Waiver of Claims. Lessee hereby waives any claim against the City and its elected
officials, officers, agents or employees for loss of anticipated profits caused by any suit or
proceeding attacking the validity of this Agreement or any part thereof, or by any judgment or
award in any suit or proceeding declaring this Agreement null, void or voidable or delaying the
same or any part hereof.
Section 14.12 Waivers. Every provision herein imposing an obligation upon City or Lessee is a
material inducement and consideration for the execution of this Agreement. No waiver by City or
Lessee of any of the terms, covenants or conditions of this Agreement, or noncompliance
therewith, shall be deemed or taken as a waiver at any time thereafter of the same or any other
term, covenant or condition herein contained, nor of the strict and prompt performance thereof.
No delay, failure or omission of the City to re-enter the Leased Premises or to exercise any right,
power, privilege or option arising from any default, or subsequent acceptance of fees then or
thereafter accrued shall impair any such right, power, privilege or option or be construed to be a
waiver of any such default or acquiescence therein. No notice by City shall be required to restore
or revive time as being of the essence hereof after waiver by City of default in one or more
instances.
Section 14.13 Entire Agreement.The provisions of this Agreement contain the entire
understanding between the parties hereto and said Agreement may not be changed, altered or
modified in any manner except by written amendment fully executed by both City and Company.
In the event of a conflict between the terms of this Agreement and the terms of the RFP or the
Proposal, the terms of this Agreement will prevail.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned parties, through their duly authorized
representatives, have caused this Agreement to be executed as of the effective date set forth
above.
BY:
[INSERT COMPANY NAME]
Signature:
________________________________________
Printed Name: ________________________________________
Title:
________________________________________
Date:
________________________________________
CITY OF CHARLOTTE
Signature:
________________________________________
Printed Name: ________________________________________
Title:
________________________________________
Date:
________________________________________
This instrument has been pre-audited in the manner required by the Local Government Budget and
Fiscal Control Act.
Finance Manager
City of Charlotte
Date
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