ADDENDUM NO. 1
REQUEST FOR PROPOSALS
TO MANAGE AND OVERSEE THE RECYCLING CENTER AND
SOLID WASTE DISPOSAL
at
CHARLOTTE DOUGLAS INTERNATIONAL AIRPORT
for the
CITY OF CHARLOTTE
NORTH CAROLINA
July 14, 2014
1. SAMPLE AGREEMENT
Attached below is a sample agreement in a form substantially similar to that which the
successful proposer will be asked to execute. The agreement represents the terms under the
Management Fee, Reimbursable Expenses and Performance Incentive compensation option.
If a Flat Fee option is chosen the irrelevant portions of this below agreement would be
deleted.
2. RESPONSES TO PROPOSER QUESTIONS
1. Can you provide a second opportunity to tour the ARC facility?
Answer: Yes, a second ARC facility tour will be offered at 1 p.m. on July 17th. If you are
interested in attending please send the list of attendees to procurement@cltairport.com by 5 p.m.
on July 16th. Attendees will meet at the ARC facility located at 4401 Yorkmont Dr. Charlotte, NC
28208. Do not enter the facility without a representative of the Airport.
2. Can the due date for Questions be pushed to July 21st?
Answer: No, all questions must be submitted by 4 p.m. July 15th, however, if a representative from
your company attends the second ARC facility tour, then questions directly related to the facility
may be asked no later than 5 p.m. on July 18th.
3. Can the due date for submission of the proposals be pushed to August 8th?
Answer: No, however we will extend the submission date until 5 p.m. on Monday, August 4th. The
drop off box will still be available as of July 25th and all other submission instructions will
remain the same.
Contract No.
Charlotte Douglas International Airport
Recycling and Solid Waste Disposal Services Agreement
with
[Company’s Name]
Table of Contents
I.
II.
III.
IV.
V.
VI.
Recycling and Solid Waste Disposal Services
Effective Date and Term
Premises
3.1
Ingress and Egress
3.2
Office, Storage and Operational Space
Compensation
4.1
Management Fee
4.2
Reimbursable Expenses
4.3
Performance Incentive
4.4
Payments to the Company
4.5
Payments for Recyclables and Compost
4.6
Annual Budget
4.7
Annual True-Up
4.8
Revenue Shortages
4.9
Additional Rents and Fees
4.10
Utilities, Maintenance and Janitorial
4.11
Licenses, Fees and Taxes
Records and Audit
5.1
Certified Annual Revenue Statement
5.2
Monthly Expense and Revenue Statement
5.3
Audit of Records
5.4
Audit Request
5.5
Overstated Expenses
5.6
U.S. Government Access
5.7
Non-Compliance Fines
Method of Operation
6.1
Management
6.2
Quarterly Meeting
6.3
Reporting
6.4
Badging
6.5
Employee Parking
6.6
Employee and Operational Handbook
6.7
Uniforms
6.8
Training
6.9
Customer Complaints
6.10
Background Checks
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Contract No.
VII.
VIII.
IX.
X.
XI.
6.11
Employee Bond
6.12
Facility Inspections
6.13
Marketing
6.14
Advertising, Trademarks and Logos
6.15
Loss, Theft or Damage to City Property
Termination
7.1
Non-Compliance and Violation
7.2
Cumulative or Continuous Violations
7.3
Default
7.4
Remedies
7.5
Remedies Non-Exclusive
7.6
Remedies Cumulative
7.7
Termination without Cause
7.8
Termination for Cause
7.9
Liability Upon Termination
Indemnification and Insurance
8.1
Indemnification
8.2
Insurance
Non-Discrimination, Public Use and Federal Grants
9.1
Non-Discrimination
9.2
Non-Discrimination Provision for City Contracts
9.3
Americans with Disabilities Act
9.4
Federal Grants and Public Use
9.5
Recapture by the United States Government
9.6
Company’s Non-Compliance
9.7
Modification to Comply with Federal Laws, Regulations or Agreements
Assignment, Transfer and Subleasing
Miscellaneous
12.1
Successors and Assigns
12.2
Suspension and Abatement
12.3
Broker’s Commission
12.4
Cooperation with Successor Company
12.5
Environmental Provisions
12.6
Airport Rules and Regulations
12.7
Airport Security
12.8
Amendment
12.9
Performance Bond
12.10
Independent Contractor
12.11
Drug-Free Workplace
12.12
E-Verify
12.13
Company’s Dealings with the City
12.14
No Warranties or Inducements
12.15
Waiver of Claims
12.16
Non-Waivers
12.17
Time of Essence
12.18
Force Majeure
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12.19
12.20
12.21
12.22
12.23
12.24
12.25
12.26
Severability
Entire Agreement
Interpretation
Choice of Law
Compliance with the Laws
Attorney’s Fees
Situs and Service of Process
Notices
Exhibits
A. Relevant Portions of the Proposal
B. Relevant Portions of the RFP
C. Performance Incentive
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Contract No.
CITY OF CHARLOTTE, NORTH CAROLINA
CHARLOTTE DOUGLAS INTERNATIONAL AIRPORT
RECYCLING AND SOLID WASTE DISPOSAL SERVICES AGREEMENT
This RECYCLING AND SOLID WASTE DISPOSAL SERVICES AGREEMENT (“Agreement”) by and
between the CITY OF CHARLOTTE, a municipal corporation of the State of North Carolina (“City”), and
[Company Name & Description], organized and existing under the laws of the State of [State] and
authorized to do business in the State of North Carolina (“Company”)(collectively the “Parties”).
WITNESSETH
THAT, WHEREAS, the City owns and operates Charlotte Douglas International Airport (“Airport”) in
Mecklenburg County, North Carolina, and has the authority to grant rights and privileges relating thereto;
WHEREAS, pursuant to Request for Proposals (“RFP”) dated July 3, 2014, the City solicited proposals
from firms qualified to and interested in operating the recycling and solid waste disposal services at the
Airport (the “Services”) and Company made a qualifying proposal; and
WHEREAS, the City wishes and the Company desires to provide the Services.
NOW, THEREFORE, for and in consideration of the mutual promises contained in this Agreement, the
City and Company agree as follows:
Article I
Recycling and Solid Waste Disposal Services
The Company shall do all usual and customary things necessary to manage and operate the
Services in a responsible manner, as set forth herein and in accordance with the terms and
conditions of this Agreement twenty-four hours a day, seven days a week, three hundred and
sixty-five days a year. The Company shall use its best efforts to provide the Services in a manner
so as to maximize revenues and minimize costs through a high degree of service and operating
efficiency.
Article II
Effective Date and Term
The initial term of the Agreement shall be three (3) years (“Term”), beginning on October 18, 2014
(“Effective Date”) and expiring on October 17, 2017. Additionally, the City may exercise two (2)
options to renew for additional one (1) year terms each, subject to Company’s consent. Each
contract year will run from October 18th through October 17th the following year (“Service Year”).
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Contract No.
Article III
Premises
3.1
3.2
Ingress and Egress. Company will have the non-exclusive right, in common with other Airport
tenants and the general public, for ingress and egress to the Airport and to the Airport Recycling
Center (the “ARC”).
Office, Storage and Operational Space. Company shall have access to the ARC and the associated
yard to facilitate the operation of the Services. Further, Company shall also have the office and
storage space as currently available inside of the ARC. Any further office or storage space needs
must be requested in writing and will be made available in the sole discretion of the Aviation
Director or his designee.
Article IV
Compensation
4.1
4.2
4.3
4.4
4.5
4.6
Management Fee. The Management Fee for the provision of the Services will be $[Insert
Amount] per Service Year. The Management Fee is an annual obligation that will be paid in twelve
equal installments, as stated in Section 4.4 below. Or [Flat Fee. City shall pay the Company
$[Insert Amount] per Service year for the provision of the Services. The Flat Fee is an annual
obligation that will be paid in twelve equal installments, as stated in Section 4.4 below.]
Reimbursable Expenses. The City shall reimburse the Company for approved expenses as set
forth in Exhibit A for the first Service Year, and as stated in the approved annual budget for each
of the following Service Years. The Company shall provide the City a report monthly for such
expenses as required by the Monthly Expense and Revenue Statement in Section 5.2 below.
Performance Incentive. On a quarterly basis, the City shall pay the Company a performance
incentive based on the scale set forth in Exhibit C. Company will be eligible to receive a
percentage of the gross revenues for the recycling and compost operation after the subtraction
of the management fee and reimbursable expenses received during the preceding quarter based
on the amount of waste recycled (“Performance Incentive”).
Payments to the Company. The City shall pay the Company one twelfth the estimated
Reimbursable Expenses as stated in the annual budget and one twelfth the management fee prior
to the [TBD] at the address stated in Section 12.25 below. Where the actual Reimbursable
Expenses for a given month are more than the amount reflected in the annual budget, the
Monthly Expense and Revenue Statement shall include an invoice for the overages. The City shall
remit payment within thirty (30) days of receipt of such invoice, however absent prior written
approval; no expense will be reimbursed where the total monthly expenses exceed the annual
budget amount for that month by more than five percent (5%). All monies provided under this
Agreement must be paid to the allocated expense as noted in the approved budget. Where the
Airport becomes aware of expenses under the Agreement not being paid, Company will be
considered in default, however the Company will be given five (5) days to cure such default.
Prompt Payments. Company shall make prompt and timely payment of all its obligations arising
out of this Agreement. Failure to do so will result in default under this Agreement, however the
Company will be given five (5) days to cure such default.
Payments for Recyclables and Compost. The Company shall require all vendors who purchase
recyclables or compost originating from the Airport to issue payment to the City. However, such
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4.7
4.8
4.9
4.10
4.11
4.12
payments shall be mailed to the Company and then provided to the City as part of the Monthly
Expenses and Revenue Statement as required in Section 5.2 below.
Annual Budget. No later than [TBD], prior to the start of each Service Year, the Company shall
provide to the City an annual budget in a form substantially similar to Exhibit A outlining the
upcoming Service Year’s Reimbursable Expenses. The approved annual budget may be increased
or decreased by the City from time to time, but only if and to extent the City, in its sole discretion,
deems such revisions necessary and appropriate under this Agreement.
Annual True-Up. Within thirty (30) days of the end of each Service Year the Company shall pay the
City the amount, if any, by which the actual Reimbursable Expenses were less than the amount of
Reimbursable Expenses stated in the annual budget. In the sole discretion of the City, such
payment may be made by either a credit to the next Service Year’s Reimbursable Expenses or by
direct payment by the Company.
Revenue Shortages. Company shall be responsible for any revenue shortages that occur due a
deduction based on light loads or moisture as indicated by the payments received from the
vendors purchasing recyclables. The City shall deduct any monies owed due to light loads from the
Company’s portion of the performance incentive.
Additional Rents and Fees. If City has paid any sum or sums or has incurred any obligation or
expense for which Company has agreed in writing to pay or reimburse City, or if City is required or
elects to pay any sum or sums or insure any obligations or expenses by reason of the failure,
neglect, or refusal of Company to perform or fulfill any one or more of the conditions, covenants
or undertakings contained in this Agreement, Company agrees to pay such sums or expenses,
including all interest, costs, damages and penalties, and agrees that the same shall be subtracted
from the next monthly installment of the Management Fee as required under the terms of this
Agreement, and each and every part of the same shall be and become additional fees and charges,
recoverable by the City in the same manner and with like remedies as if originally a part of this
Agreement.
Utilities, Maintenance and Janitorial. The Airport shall be responsible for the provision and cost
of building maintenance and utilities for electrical power and water. The Company shall be
responsible for janitorial services associated with the operation of the Services and utilities for
telephone, cable television and internet, if applicable.
Licenses, Fees and Taxes. Company agrees to pay, when due, all licenses, fees, taxes and
assessments charged, assessed or levied by any governmental authority by reason of the
operation and provision of the Services. The failure to pay any tax, license, fee or assessment, the
validity of which shall be contested in good faith and with reasonable promptness, shall not be
interpreted as a violation of this covenant until such contest shall have been abandoned or the
time for objection or appeal has expired.
Article V
Records and Audit
5.1
Certified Annual Revenue Statement. Within one hundred and twenty (120) days of the end of
each Service Year the Company shall employee an independent Certified Public Accountant,
approved by the City, who shall provide a written statement to the City stating whether, in its
opinion, the Reimbursable Expenses paid by the City to the Company and the Services revenues
collected by the Company and delivered to the City during the preceding year pursuant to this
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Contract No.
5.2
5.3
5.4
5.5
5.6
5.7
Agreement were or were not the accurate monies due in accordance with the terms of this
Agreement.
Monthly Expense and Revenue Statement. [TBD]
Audit of Records. The City shall have access to any books, documents, papers and records of the
Company, which are directly related to this Agreement for the purpose of making audit,
examination, excerpts and transcripts. Such records shall be kept for three years upon the
termination or natural expiration of this Agreement.
Audit Request. Company, upon written request by the City, shall make all the necessary records
for audit available at the Airport or shall pay in advance for the full cost of any travel or related
expense in order for a representative of the City to audit the records in another location up until
three years after the termination or natural expiration of this Agreement. The documents must
be available within fourteen (14) days of receipt of the written request.
Overstated Expenses. If, as a result of an audit, it is established that Company has overstated the
Reimbursable Expenses by five percent (5%) or more, Company shall be liable to the City for the
monies owed to the City, including eighteen percent (18%) per annum interest from the date such
expenses were paid and the entire expense of said audit.
U.S. Government Access. Subject to compliance with all applicable laws, the Federal Aviation
Administration (FAA), the Controller General of the United States and any of their duly authorized
representatives shall have access to any books, documents, papers and records of the Company
which are directly related to this Agreement for the purpose of audit, examination, excerpts and
transcriptions.
Non-Compliance Fines. In the event the City determines that any fine or penalty has been
imposed on the City as a result of the failure of the Company or any of its subcontractors to
comply with applicable laws or directives from the Transportation Security Administration
(“TSA”), Company shall pay such fine or penalty or reimburse the City therefor upon demand by
the City.
Article VI
Method of Operation
6.1
6.2
6.3
Management. Company shall select and appoint a general manager and assistant general
manager where required, to oversee the Services. Such person must be an outstanding, highly
qualified and experienced manager or supervisor of comparable operations, vested with the
power to accept service of all written notices and control the conduct of Company’s personnel,
subcontracts and agents. Such person must be located in the Charlotte region. The general
manager or assistant general manager must be reachable by phone or email twenty-four (24)
hours a day, seven (7) days a week. Further, this person will be responsible for ensuring the
Services meet the requirements set forth in this Agreement. The Airport shall have the right to
reject or request a change of the Company’s choice; however, no such approval will be
unreasonably withheld and no such request will be unreasonably made.
Quarterly Meetings. Company shall attend quarterly face-to-face meetings between Company
and Airport leadership to address successes and concerns in relation to the provision of the
Services.
Equipment Maintenance. The Company shall perform the regular maintenance and repairs of the
City owned equipment and keep repair logs for each piece of equipment A list of the required
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Contract No.
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
maintenance is included in Exhibit B. If equipment becomes unserviceable it must be brought to
the attention of the Aviation Director, or his designee, who will work in consultation with the
Company to determine the best resolution.
Dumpsters. The Company will be required to provide dumpsters in the amount, locations and
sizes as listed in Exhibit B and any additional dumpsters requested as the prices set forth in
Exhibit A. The Company shall be responsible for all associated maintenance, repair, regular
exterior cleaning and monthly interior sanitation of all provided dumpsters. No labels are
permitted on the dumpsters unless written permission is given by the Aviation Director, or his
designee.
Composting. The Company shall be responsible for the management of the composting
operation, including, without limitation, the safe operation of the in-vessel digester and
maintaining a growing environment for the worms. The Company shall be held financial
responsible for the loss of any worms due to its, or its agent or employees wilful or negligent acts.
The compost produced by these worm beds may be sold as long as the terms and conditions of
the composting permit are followed, however, upon request, the Airport will be provided with
any compost requested at no cost. The Company shall complete all required testing under the
composting permit and submit the findings to the Airport who will submit them to DENR.
Staffing. The Company shall provide staffing for all aspects of the Services. This includes a
manager (or assistant manager) on-site during all hours of operation, truck drivers holding a CLT
issued security badge, staff to operate the ARC and forklift and skidsteer drivers that have been
trained and possess an operator’s certificate.
Reporting. Company will provide to the City reporting containing the information and in the
frequency as provided in Exhibit B.
Badging. All personnel requiring access to the Airport will be required to obtain identification and
clearance issued pursuant to 49 CFR 1542. Further, all personnel will be expected to participate in
any necessary training to obtain the identification as well as abide by any associated rules or
regulations. This includes any additional requirements in order for the employee to be authorized
to drive on the airfield. Such clearance must be received prior to any Company employee
beginning work at the Airport. Employees driving on the airfield must also possess a valid driver’s
license.
Employee Parking. In the sole discretion of the Aviation Director, or his designee, the City will
provide to the Company a reasonable number of vehicular parking spaces at designated locations
for the use of Company’s employees to be provided on Airport property.
Company Policies and Procedures. The Company shall provide operational policies and
procedures including, but not limited to, a safety manual (including at a minimum training,
equipment safety and new employee safety), employee handbook and compost procedures. At a
minimum a procedure to immediately notify and hand over to the Airport any valuables found at
the ARC and a policy notifying employees that they shall not take articles out of the ARC for their
own personal use or resale must be included. The Company shall also provide to the Airport a
plan to handle solid waste disposal in the event of a catastrophic failure of the ARC. Such must be
provided prior to the Effective Date and within thirty (30) days of any changes implemented by
the Company.
Uniforms. Company’s employees shall wear at least one piece of clothing with the Company’s
logo on it at all times.
Training. TBD
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6.13
6.14
6.15
6.16
6.17
6.18
6.19
Background Checks. Company shall conduct employee background checks, separate and apart
from any investigation conducted in relation to receiving an Airport badge, in compliance with the
details set forth in Exhibit A.
Employee Bond. All Company employees shall be bonded against theft, embezzlement and other
losses to customer and City property.
Facility Inspection. The City shall have the right to perform periodic facility and equipment
inspections to ensure all are in working order and operating in compliance with the terms of this
Agreement.
Marketing. TBD
Advertising, Trademarks and Logos. The City has the sole right to manage the advertising in the
locations where the Services are provided, including, without limitation, advertising on dumpsters
provided by the Company. Further, any use of the Airport’s trademarks or logos is forbidden
absent prior written approval.
Loss, Theft or Damage to City Property. Where Airport property is damaged, lost or stolen by the
actions of the Company’s employees, the Company shall be responsible for reimbursing the
Airport for the costs associated with correcting such act. This cost will not be a Reimbursable
Expense.
Cost Due to Operational Inefficiency. Where the City incurs any cost due to the Company’s failure
to meet the operational requirements of this Agreement, including, without limitation, failure to
pressure wash the yard, failure to complete equipment maintenance or failure to provide
sufficient janitorial services, the City shall subtract the actual cost incurred in fulfilling these duties
from the Company’s portion of the performance incentive.
Article XII
Termination
7.1
Non-Compliance and Violation. The City shall have the right to make reasonable objections to
Company’s failure to provide first-class Services at the Airport and/ or to operate its business in a
manner satisfactory to the City. Should Company violate the provisions of this Agreement, the
City shall give the Company notice and a reasonable opportunity to cure said violation or
violations. Company agrees to promptly discontinue or remedy any objectionable practice or
condition within the cure period stated in any notice issued by the City, or within such additional
time as the Parties agree is reasonably necessary if Company promptly commences to cure the
same and thereafter diligently prosecutes the cure of such breach or violation.
7.2
Cumulative or Continuous Violations. Should Company violate the provisions of this Agreement
or fail to cure an issue within the allotted time more than three (3) separate times within the
course of one Service Year, the City may treat any subsequent violation or violations as a Default.
7.3
Default. The occurrence of any of the following shall constitute a “Default:”
7.3.1
Default in Revenue. Company’s failure to properly provide to the City any revenue collected
in the provision of the Services and such failure or violation is not cured within ten (10) days
after written notice by the City describing the nature of the breach or Default.
7.3.2
Insurance or Performance Bond. The cancellation of insurance or Performance Bond
without City consent and where it is not reestablished promptly after written notice by City
to Company.
7.3.3
Bankruptcy. The filing by or against the Company of any petition in bankruptcy.
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Contract No.
7.3.4
Unapproved Transfers. Company’s transfer of its interest under this Agreement, without
the prior written approval of the City, by reason of death, operation of law, assignment,
sublease or otherwise, to any other person, entity or corporation.
7.3.5
Illegal Use. Use or permission to use the Services or portion of the Airport made available
under this Agreement by Company for any illegal purpose.
7.3.6
Abandonment. Discovery by the City that Company has abandoned, deserted or vacated
the areas provided for the provision of the Services. Such Default will not require notice or
an opportunity to cure.
7.3.7
Liens against City Property. Company’s sufferance of any lien or attachment adverse to the
interest of the City or any lien or attachment to be filed against the Airport or the City’s
property because of any act or omission of Company. Such Default shall occur if such lien is
not discharged or contested by Company in good faith by proper legal proceeding within
twenty (20) days of the Company receiving notice of such lien or attachment.
7.3.8
Material Misrepresentation. City discovers that Company made a material
misrepresentation to the City that induced the City to enter into this Agreement or continue
with enforcement of this Agreement where City had the option to terminate. Such Default
will not require notice or an opportunity to cure.
7.3.9
Default in Other Covenants. Company’s failure to keep, perform and observe any other
promise or violates any term, covenant or condition of this Agreement, other than those in
Section 7.3, described above, and such failure or violation is not cured within thirty (30)
days after written notice by the City describing the nature of the failure or violation. Such
notice and opportunity to cure shall not be given, at the City’s option, where there have
been three (3) previous separate issues within a twelve (12) month period.
7.4
Remedies. Immediately upon the occurrence of a Default, the City may, at its option, exercise any
of the following rights and remedies in addition to any other rights and remedies provided
elsewhere in this Agreement, or otherwise at law or in equity:
7.4.1
Right to Draw on Performance Bond. In the event of a Default or in the case of breach or
violation of any other provision, including Company’s obligation and duties under all general
rules and regulations adopted by the Airport, after written notice by the City describing the
default, failure, breach or violation and giving Company an opportunity to cure, the City
may immediately, and without further notice to Company, draw upon the Performance
Bond in any amount necessary to satisfy the damages sustained or reasonably expected to
be sustained.
7.4.2
Elect to Continue and Enforce Agreement. The City may elect to allow this Agreement to
continue in full force and effect without termination and enforce all of City’s rights and
remedies hereunder.
7.4.3
Termination of this Agreement. City may terminate this agreement as stated in Section 7.7
and 7.8 of this Agreement.
7.4.4
Damages upon Termination. If the City elects to terminate, Company shall be liable to City
for any amount necessary to fully compensation the City for all damages and costs,
including attorney’s fees, caused by Company’s failure to perform its obligations under this
Agreement.
7.5
Remedies Non-Exclusive. The remedies provided in this Article are in addition to all other rights
and remedies that the City may have for breach or violation of this Agreement. Nothing in this
shall be deemed to be a waiver by the City of any breach or violation of this Agreement, nor shall
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Contract No.
7.6
7.7
7.8
7.9
imposition of any of these sanctions be deemed to stop the City from terminating this Agreement,
or from asserting any of its other rights or remedies under this Agreement, or at law or in equity.
Remedies Cumulative. Each right and remedy in this Agreement shall be deemed cumulative and
will be in addition to every other right or remedy in this Agreement, or existing at law or in equity,
including, without limitation, suits for injunctive relief and specific performance. Such rights and
remedies shall not be in lieu of or exclusive of each other and shall in no way affect any other
remedy available at law or in equity. The exercise or beginning of the exercise, by the City of any
such rights or remedies will not preclude the simultaneous or later exercise by the City of any
other such rights or remedies. Nothing contained herein shall constitute a waiver of any of the
City’s other rights and remedies under this Article.
Termination without Cause. The City has the right to terminate the agreement without cause on
a thirty (30) day written notice to the Company.
Termination for Cause. Subject to any cure period as may be stated in any written notice given by
the City, if any, the City may terminate this Agreement for cause due to the actions or inactions of
the Company upon written notice to Company. Such reasons for termination for cause include,
but are not limited to, the following:
7.8.1
The occurrence of an uncured breach or violation of this Agreement that is not cured within
such period as may be stated in a written notice by the City describing the breach or
violation.
7.8.2
Insurance or Performance Bond cancelled without City consent and not reestablished
promptly after written notice by City to Company.
7.8.3
The filing by or against the Company of any petition in bankruptcy.
7.8.4
A transfer of Company’s interest under this Agreement, without prior written approval by
the City, by reason of death, operation of law, assignment, sublease or otherwise to any
person, entity or corporation.
7.8.5
Using or giving permission to any person to use, for any illegal purpose, any portion of the
Airport made available to Company for use under the terms of this Agreement.
7.8.6
Violating the Airport Concession Disadvantaged Business Enterprise (“ACDBE”) policy.
Liability Upon Termination. Upon termination or expiration of the Agreement, the Company shall
remain liable for all obligations and liabilities that have accrued prior to the date of termination or
expiration.
Article VIII
Indemnification and Insurance
8.1
8.2
Indemnification – City Held Harmless. Company shall indemnify, defend and hold harmless the
City and the City’s officers, employees and agents from and against any and all losses, damages,
costs, expenses (including reasonable attorneys’ fees), arising out of or resulting from the
performance of this Agreement or allegations thereof, unless such claims are caused by the sole
negligence of the City or its officers, agents, and employees. Company shall purchase insurance as
described in Section 8.2 which shall provide coverage for this contractual liability. In any case in
which the Company provides a defense to the City pursuant to this indemnity, the defense will be
provided by attorneys reasonably acceptable to the City. The provisions of this Section shall
survive the expiration or early termination of this Agreement.
Insurance. Throughout the term of the Agreement, the Company, or any subcontractor, shall
comply with the insurance requirements described herein. In the event the Company fails to
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Contract No.
procure and maintain each type of insurance required by this Agreement, or in the event the
Company fails to provide the City with the required certificate of insurance, the City shall be
entitled to terminate. Company shall provide and maintain the term of this Agreement the
following programs of insurance covering its operations. Such insurance shall be provided by
insurer(s) satisfactory to the City as approved by the City's Risk Management Division and
evidence of such programs satisfactory to the City shall be delivered to the City on or before the
effective date of this Agreement. Such evidence shall specifically identify this Agreement and
shall contain the express condition that the City is to be given written notice of at least ten (10)
days in advance of any modification or termination of any program of insurance.
8.2.1
General Requirements
8.2.1.1
Neither the Company nor any subcontract shall begin the provision of the Services
prior to obtaining and providing the applicable certificates of insurance to the City.
8.2.1.2
All insurance must be obtained through insurers qualified and doing business in
North Carolina and recognized by the Secretary of State and the insurance
Commissioner’s Office. If any of the coverage conditions are met by a program of
self-insurance, the Company must submit evidence of the right to self-insure as
provided by the State of North Carolina.
8.2.1.3
Company shall be solely responsible for any sums of money that may represent a
deductible in any insurance policy.
8.2.1.4
A certificate or certificates evidencing such insurance coverage shall be filed with
City prior to the Effective Date or at such other time as may be required by the City,
and said certificate or certificates shall provide that such insurance coverage will not
be cancelled, reduced or be materially changed without at least thirty (30) days’
prior written notice to the City. At least thirty (30) days prior to the expiration of any
such policy, a certificate showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled, reduced, or
materially changed, Company shall, within fifteen (15) days after receipt of written
notice from the City of such cancellation, reduction or adverse material change of
coverage, file with City a certificate showing that the required insurance has been
reinstated or provided through another insurance company or companies.
8.2.1.5
Should any or all of the required insurance coverage by self-funded/self-insured, the
Company shall furnish to the City a copy of the Certificate of Self-Insurance or other
documentation from the North Carolina Department of Insurance.
8.2.1.6
The Company and each of its subcontractors, if any, shall and does waive all rights of
subrogation against the City and each of its indemnitees.
8.2.2
Types of Insurance.
8.2.2.1
Commercial General Liability Insurance. The Company shall provide insurance with
a limit not less than $5,000,000 per occurrence/aggregate including coverage for
bodily injury, property damage, products and completed operations,
personal/advertising injury liability and contractual liability. “City of Charlotte, 600
East Fourth St. Charlotte, NC 28202” shall be named as an additional insured under
the commercial general liability insurance for operations or services rendered under
this Agreement.
8.2.2.2
Automobile Liability Insurance. Automobile Liability shall be provided by the
Company at a limit of not less than $5,000,000 per accident, combined single limit,
each occurrence, for bodily injury and property damage liability covering all owned,
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Contract No.
8.2.2.3
8.2.2.4
non-owned, and hired vehicles. The automobile liability coverage shall be
broadened to include pollution coverage on covered autos, and a copy of
endorsement CA 99 48 shall be provided to the City. Company must also supply the
City with evidence of motor carrier endorsement MCS-90 as required by the Federal
Motor Carrier Safety Administration’s Motor Carrier Act.
Pollution Liability Insurance. The Company shall provide and maintain Contractors’
Pollution Liability coverage at a limit of not less than $5,000,000 per occurrence or
claim, in response to pollution losses arising out of the Company’s operations and
completed operations associated with work performed under this Agreement. Such
insurance shall include coverage for “all” work performed for the City under the
Agreement and include coverage for third party bodily injury, property damage
(including loss of use and diminution of value), remediation, defense, Natural
Resources Damages, transportation and non-owned disposal sites. If the policy is on
a claims made basis, coverage shall be maintained for at least two years. If
subcontractors are used, all subcontractors must be covered either under the
Company’s policy or carry the same limit as the Company.
Workers’ Compensation and Employer’s Liability Insurance. Company shall
maintain Workers’ Compensation insurance in the amounts and form required by
the laws of the State of North Carolina and any applicable Federal laws; and,
Employer’s Liability insurance with a $100,000 per accident limit, a $500,000 disease
per policy limit and a $100,000 disease limit per employee.
Article IX
Non-Discrimination, Public Use and Federal Grants
9.1
Non-Discrimination. Company for itself, its successors and assigns, as part of the consideration
hereof, does hereby covenant and agree, and shall cause each of its sub-contractors to so agree,
that:
9.1.1
No person shall be excluded from participating 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,
creed, color, sex or national origin.
9.1.2
In the construction of any improvements on, over or under the Airport and the furnishing of
services thereof, 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, creed, color, sex or national origin.
9.1.3
Company shall use the premises in compliance with all other requirements imposed by or
pursuant to 49 CFR Part 21, as said regulations now or hereafter provide.
9.2
Non-Discrimination Provision for 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
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Contract No.
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 condition of entering into this agreement, the Company agrees to:
9.2.1
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
9.2.2
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.
9.3
Americans with Disabilities Act. Company will throughout the term of this Agreement be in
compliance with all applicable provision of the Americans with Disabilities Act, 42 U.S.C 12101 et
seq.
9.4
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 of 1958 and grant agreements
between the City and the federal government containing assurances guaranteeing the public use
of the Airport, 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. City reserves the right to further develop or improve, as it sees fit, the
Airport, its terminal, 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
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.
9.5
Recapture by the United States Government. It is understood and agreed between the Parties
that this Agreement shall be terminated if the United States of America, in exercising its rights to
recapture under the terms of the instrument conveying the premises to City, requires such
termination, and further, that this Agreement shall be subject and subordinate 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; provided, however, that City will endeavor to cause any
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Contract No.
9.6
9.7
such agreement to include provisions protecting and preserving the rights of Company, and its
sub-contractors, as applicable, in and to the Assigned Locations and improvements thereon.
Company’s Non-Compliance. Company’s and its sub-contractors’, as applicable, non-compliance
with any provision of this Article shall constitute a material breach of this Agreement, for which
City may, in its reasonable discretion, upon Company’s and/or such sub-contractors’ failure to cure
said breach within thirty (30) days of written notice thereof, terminate this Agreement upon ten
(10) days written notice; provided, however, if Company and/or such sub-contractors, as
applicable, is making a good faith effort to cure any such breach with as little delay as practicable,
City shall not terminate this Agreement unless it is necessary to do so in order to avoid loss of
benefits under any federal grant or prosecution for violation of any federal regulation.
Modification 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 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 part of the National Airport Plan or to retain its eligibility to participate in Airport
Improvement Program and similar successor federal financial assistance programs, City may give
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 cancel the remaining term of this
Agreement. Such election shall be made in writing and delivered to City within thirty (30) days of
the date City gave Company notice of its election that any such change or deletion be made.
Article X
Assignment, Transfer and Subleasing
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 City. Company shall not sublease any
privileges granted with respect to the operation of the Services or any portion thereof, without
the prior written consent of City. No assignment, transfer or sublease shall serve to release
Company from any of its obligations, duties or responsibilities under this Agreement unless City
agrees thereto in writing. Any assignment, transfer or sublease shall be in writing, and the form of
which shall be furnished to the City for approval prior to any execution thereof. Any instrument
by which Company shall be permitted to sublease the rights hereunder to a sub-Company shall be
supplied to the Aviation Director along with Company’s request for approval thereof and shall
contain provisions similar to the provisions hereof with respect to such sub-Company’s obligations
to comply with all laws and regulations applicable to the rights granted herein.
Article XI
Miscellaneous
11.1
Successors and Assigns. All covenants and conditions of this Agreement will extend to and bind
the legal representatives, successors and assigns of the Parties hereto.
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Contract No.
11.2
Suspension and Abatement. In the event the City’s operation of the Airport or Company’s
operation of the Services should be restricted substantially by action of the Federal government
or agency thereof or the actions of any other governmental entity or agency thereof or by any
judicial or legislative body, then either party hereto will have the right, upon written notice to the
other, to a suspension of this Agreement and an abatement of an equitable proportion of the
payments to become due hereunder, from the time of such notice until such restrictions have
been remedied and normal operations restored.
11.3
Broker’s Commission. Company represents and warrants that it has not caused nor incurred any
claims for brokerage commissions or finder’s fees in connection with the execution of this
Agreement, and Company shall indemnify and hold the City harmless against and from all liabilities
arising from any such claims caused or incurred by it.
11.4
Cooperation with Successor Company. Upon the expiration or early termination or cancellation
of this Agreement, Company agrees to cooperate fully with City and with any successor Company
to ensure a smooth transition and continuity of first-class Services to the public.
11.5
Environmental Provisions. [TBD]
11.6
Airport Rules and Regulations. Company by accepting this Agreement agrees for itself, its
successor and assigns, that it will at all times be in compliance with any applicable Airport rules
and regulations as provided by the Aviation Director and may be changed from time to time.
11.7
Airport Security. Company acknowledges and agrees that:
11.7.1
Company’s officers and employees will have to apply for an qualify for security identification
badges (“Security Badges”) issued by the Aviation Director;
11.7.2 Company shall familiarize itself with the standards adopted by the TSA for the issuance of
Security Badges and shall not sponsor those individuals for Security Badges that do not meet
the standards; and that
11.7.3 City shall not be liable to Company for any diminution or deprivation of Company’s rights
hereunder on account of the Security Plan requirements.
11.8
Amendment. This Agreement may only be modified or amended by a written instrument
executed by City and Company.
11.9
Performance Bond. On or before the Effective Date, Company shall provide to the City a
Performance Bond in a form acceptable to the City, valid for the first Service Year and in an
amount equal to fifty percent (50%) of the first Service Year’s total value including the
Management Fee and the Reimbursable Expenses. Each Service Year the Performance Bond will
renew and increase to reflect fifty percent (50%) of the current Service Year’s total value .
11.10
Independent Contractor. Nothing contained in this Agreement shall be deemed or construed by
the City or Company, or by any third party, as creating the relationship of principal and agent,
partners, joint ventures, or any other similar such relationship between the Parties. The Parties
further agree that Company is an independent contractor and not subject to direction or control
of the City, except as specified in the Agreement, and except by general rules and regulations
adopted for the control and regulation of the Airport and its facilities.
11.11
Drug-Free Workplace. Company will provide, and shall cause its sub-contractors to so provide, a
Drug-Free Workplace by:
11.11.1 Publishing a statement notifying employees that the unlawful manufacture, distribution,
dispending, 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.
11.11.1.1 Notifying the employee in the statement that, as a condition of employment, the
employee will:
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Contract No.
11.11.1.2 Abide by the terms of the statement; and
11.11.1.3 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.
11.11.2 Notifying the City within ten (10) days after receiving notice under subparagraph 12.10.2.2
from any employee or otherwise receiving actual notice of such conviction.
11.11.3 Taking one of the following actions within thirty (30) days of receiving notice under
subparagraph 12.10.2.2 with respect to any employee who is convicted:
11.11.3.1 Taking appropriate personnel action against such employee up to and including
termination; or
11.11.3.2 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.
11.11.4 Making a good faith effort to continue to maintain a Drug-Free Workplace through
implementation of subparagraphs 12.10.1 through 12.10.4.
11.12
E-Verify. As a condition for payment under this Contract, Company shall (ii) comply with the EVerify requirements set forth in Article 2 of Chapter 64 of the North Carolina General Statutes (the
“E-Verify Requirements); and (ii) cause each subcontractor under this Contract to comply with
such E-Verify Requirements as well. Company will indemnify and save harmless the City from all
losses, damages, costs, expenses (including reasonable attorneys’ fees), obligations, duties, fines,
penalties, interest changes and other liabilities (including settlement amounts) incurred on
account of any failure by Company or any subcontractor to comply with the E-Verify
Requirements.
11.13
Company’s Dealings with the City. Whenever in the Agreement, Company is required or
permitted to obtain the approval of, consult with, give notice to, or otherwise deal with City,
Company shall deal with City’s authorized representative; and unless or until City shall give
Company written notice to the contrary, City’s authorized representative shall be the Aviation
Director or his designee. Whenever in the Agreement, the consent or approval of City or
Company is required each party agrees not to unreasonably withhold or delay the granting of such
consent.
11.14
No Warranties or Inducements. By executing this Agreement, Company acknowledges that 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 or
amount of past operational revenues or transactions for the Services; that such information 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 certify through its own investigation; that 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.
11.15
Waiver of Claims. Company 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
directly or indirectly 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.
11.16
Non-Waivers. Every provision herein imposing an obligation upon City or Company is a material
inducement and consideration for the execution of this Agreement. No waiver by City or
Company of any of the terms, covenants or conditions of this Agreement, or noncompliance
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Contract No.
11.17
11.18
11.19
11.20
11.21
11.22
11.23
11.24
11.25
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 City to exercise any right, power, privilege or option arising from
any Default, 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.
Time of Essence. Time is expressly agreed to be of the essence of this agreement.
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 the Agreement
due to causes beyond the control of that party, including, without limitation, 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, for so long as such condition exists and reasonably prevents
Company’s performance.
Severability. If any part, portion or provision of this Agreement or attachments thereof shall be
found or declared null, void or unenforceable for any reason whatsoever by any court of
competent jurisdiction or any governmental agency having applicable authority, only such part,
portion or provision shall be affected. The validity of the remaining Agreement will not be called
into questions and will remain in full force and effect.
Entire Agreement. This document and the exhibits attached hereto represents the entire
Agreement between the Parties and will not be modified or canceled by mutual Agreement or in
any manner except by written instrument, executed by the Parties or their respective successors
in interest.
Interpretation. The language of the 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.
Choice of Law. This Agreement will be interpreted under and governed by the Law of the State of
North Carolina.
Compliance with the Laws. Company will not use or permit the use of any other portion of the
Airport for any purpose or use other than authorized by this Agreement. Company, its employees,
representatives and agents will comply with all present or future laws, rules and regulations and
amendments or supplements thereto governing or related to the use of the Airport or the
provision of the Services as may from time to time be promulgated by Federal, State or local
governments and their authorized agencies.
Attorney’s Fees. In the event of litigation between the City and Company to enforce the rights or
obligations provided by this Agreement, the non-prevailing party shall pay for the prevailing
party’s reasonable attorney’s fees and costs of litigation as may be determined by the court.
Situs and Service of Process. Company agrees all actions or proceedings arising directly or
indirectly from the 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 the State of North Carolina, waives personal service of any and all process upon
Company herein, and consents that all such service or process shall be made by certified mail,
return receipt requested, directed to Company at the address states in Section 12.25. Service so
made shall be complete three (3) business days after the same shall have been posted as
aforesaid.
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Contract No.
11.26
Notices. Whenever required by the terms of this Agreement, notice shall be in writing and shall be
sent by certified mail, postage prepaid. The address of the City shall be:
Attn: Aviation Director
Charlotte Douglas International Airport
5601 Wilkinson Blvd.
Charlotte, NC 28208
If intended for the Company, the addressed used shall be:
Company Name
Attn:
Address
City, State Zip Code
In Witness Whereof, and in acknowledgement that the Parties hereto have read and understood each and
every provision hereof, the Parties have caused this Agreement to be executed on the date written below.
City of Charlotte
Company Name
____________________________
____________________________
Brent Cagle, Aviation Director
Name, Title
Date: ______________________
Date: _______________________
19