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This is the First Addendum (“Addendum No. 1”) to the Request for Proposals for the
Consolidated Rental Car Facility Management Agreement dated February 20, 2014 published by the Charlotte Douglas International Airport, City of Charlotte, North Carolina. Addendum No. 1 describes certain revisions to the requirements set forth in the RFP and provides answers to all questions submitted on or before Friday, March 7, 2014. Capitalized terms have the same meaning assigned to them in the RFP.
AMENDMENTS TO THE RFP
1.
A draft copy of the CONRAC Management Agreement is attached hereto and shall constitute Exhibit B to the RFP.
2.
Section II.A. – Schedule is amended as follows (changes are highlighted in yellow):
DATE EVENT
February 20, 2014 RFP Issuance.
March 2, 2014
March 3, 2013
Deadline for Submission of Written Questions Before the Pre-
Proposal Conference. Questions are due by 5:00 p.m. EST on
March 2, 2014.
Deadline for Submission of RFP Acknowledgement.
March 4, 2014
March 14, 2014
March 25, 2013
April 3, 2014
April 4, 2014
Mandatory Pre-Proposal Conference, 1:00 p.m. EST.
Deadline for Submission of Written Questions After the Pre-
Proposal Conference. Questions are due by 1:00 p.m. EST on
March 14, 2014.
Proposal Due Date. Proposals are due by 5:00 p.m. EST on
March 25, 2014; all Proposals will be time-stamped upon receipt and held in a secure place until this date.
Interviews (If Applicable).
Notice of Intent to Award.
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DATE EVENT
April 28, 2014 Contract Award by Charlotte City Council.
3.
The Operations and Maintenance Plan described in Section C of Attachment 3 –
Qualifications and Proposer Requirements requires Proposers to submit a proposed operating schedule detailing staffing levels for each facility comprising the CONRAC.
This operating schedule must include the following information: a.
Organizational chart b.
Descriptions of each job category; c.
Number of staff, by job category, needed to perform the CONRAC Management
Services; d.
Experience requirements e.
f.
Pay ranges by job category (non-binding, fully burdened); and
Proposed staffing budget for Agreement Year 1 (payroll, equipment and supplies, accounting, G&A).
RESPONSES TO PROPOSER QUESTIONS
1.
Please identify the anticipated start date for Administration Services and Maintenance
Services for the CONRAC Management Services?
The Installation Administration Services shall commence on or about July 2014 and shall extend through February 2015, the projected date of beneficial occupancy for the
CONRAC. For the purposes of this RFP, this period shall be referred to as the “Start-Up
Period.”
2.
Please clarity that Agreement Year One, shall consist of the fiscal year July 1 through
June 30) in addition to any partial year from the anticipated start date
Agreement Year 1 shall include any partial year from the commencement date of the
CONRAC Management Agreement through June 30 and the first full fiscal year July 1 through June 30. For example, if the commencement date is June 1, 2014, Agreement
Year 1 shall be June 1, 2014 through June 30, 2015. Subsequent Agreement Years shall correspond to the City’s fiscal year.
3.
Please clarify that services to be provided under this RFP are intended to include individual leasehold space along with the common areas?
The CONRAC Management Services to be provided under this RFP shall include common areas and the Assigned Premises for each RAC (as described in the individual
RAC concession agreements).
4.
Please identity the Manufacturer and Company that installed the following:
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Equipment Category
Car Wash Equipment
Fuel Dispensers
Fuel Management System
Fuel Submersible Turbine
Pumps
Tank Management System
Car Vacuum Equipment
HVAC
**Elevators
**Escalators
Generators
Fire Alarm System
Electrical Vehicle Charging
Stations
Manufacturer
NS Wash
Gasboy
Gasboy
FE PETRO
INCON
National Turbine
Various
Schindler
Schindler
Cummins
Johnson Controls
Not Selected
NS Wash
Installer
First Petroleum
First Petroleum
First Petroleum
First Petroleum
National Turbine
Cam-Ful Industries, Inc.
Schindler
Schindler
Griffin Electric
Griffin Electric
Not Selected
Hydraulic Lifts
Plate Glass
Fire Sprinkler System
Not Selected
PPG Industry
VSC
Not Selected
First Choice
VSC
Foam Suppression System VSC VSC
**Elevators and escalators will be maintained under a separate maintenance contract between
CLT and Schindler and will not be part of the CONRAC Management Services. However,
Proposer shall promptly notify CLT any observed damage or malfunctioning items in connection with the elevators and/or escalators to ensure timely repairs.
5.
Please identify the subcontractors responsible for the following trades – (i) Plumbing; and
(ii) Electrical.
Plumbing – Cam-Ful Industries, Inc., 704.556.0301
Electrical – Wayne J. Griffin Electric, 704.522.3851
6.
Based on the RFP Selection Process Schedule, should all proposers plan to be in
Charlotte for interviews starting on March 21st, or will the selected respondents be notified for a scheduled interview?
Interviews are scheduled for April 3, 2014 at the Charlotte Douglas International
Airport. Proposers selected for interviews will be notified on or about April 1, 2014.
7.
Section I.A. – Introduction a.
Will proposals that include the alternate proposal for the parking facility be evaluated higher than those that do not?
The City intends to select the proposal that best meets the selection criteria and proposer qualifications and requirements set forth in the RFP. The inclusion of
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the Hourly Parking Alternate will be one factor considered in the overall review of the Proposals. b.
When will Exhibit B to the RFP (the “CONRAC Management Agreement”) be provided
See attached.
8.
Section I.C.1 – CONRAC Facility Description – There are two entirely separate fuel storage and dispensing systems, correct? One at CONRAC and one at the Remote
Service Facility? What size and configuration is the fuel storage and dispensing system at the Remote Service Facility?
There are separate fuel storage and dispensing systems for the On-Airport Rental Car
Facility and the Remote Service Facility. The On-Airport Rental Car Facility system consists of two 20,000 gallon in-ground storage tanks and one 20,000 gallon in-ground transfer tank. The Remote Service Facility fuel storage and dispensing system has not yet been selected.
9.
Section I. D.1. – CONRAC Management Services a.
Pg. 4. - c. (iii). What has been the process to get RAC input on design and configuration? What is the process going forward when the maintenance contractor is in place?
CLT and the RAC’s have been involved in monthly design and configuration meetings for the last four years, and will continue meeting monthly for the foreseeable future. b.
Pg. 6. - j. Are the trash and recycling services the only service where the maintenance contractor is required to provide the equipment?
CLT will provide the dumpsters and compactor at the trash pick-up location.
Proposer shall be responsible for providing any equipment necessary to transport the trash to the trash pick-up location.
Pg. 6. - l. Is the temporary signage provided by the airport? c.
Temporary Signage will be provided by the RAC’s in the CONRAC and CLT will provide the temporary signage for the Hourly Parking Facility. d.
Pg. 6. - m. Since the successful proposer is a sole source to the RAC's for fuel purchases, what mechanism is in place to ensure the RAC's interests are protected and they do not over pay for fuel? Are RAC's obligated to purchase their fuel from the CONRAC in their concession agreements?
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The selected Proposer will be responsible for managing and maintaining the fuel storage and delivery systems at the CONRAC. Each RAC will enter into a fuel purchase agreement with the selected Proposer that will govern the terms and conditions of all fuel purchases at the CONRAC. CLT intends that all fuel consumed by the RACs at the CONRAC will be exclusively through the
CONRAC’s fuel storage and delivery systems as managed and maintained by the selected Proposer.
10.
Section I.D.2. – Hourly Parking Alternate – Will CLT or a contractor be operating the
Hourly Parking facility (i.e., cashiering, valet, etc.)?
CLT has entered into an agreement with SP Plus to provide customer-oriented staffing in the Hourly Parking Facility. CLT has entered into a separate agreement with Scheidt &
Bachmann to maintain the parking revenue control systems and equipment installed in the Hourly Parking Facility.
11.
Section II F. – Selection Criteria and Minimum Requirements – What is the relative weighting of the selection criteria and minimum requirements (i) through (viii)?
The selection criteria identified in the RFP are not weighted in the manner described.
Each Proposer’s compliance with the selection criteria will be evaluated on a case-bycase basis.
12.
Section II.H. – ACDBE Participation – ACDBE Participation is not called out specifically as selection criteria. Who will it be evaluated relative to the rest of the proposal/selection criteria?
ACDBE Participation is not part of the selection criteria, but rather will be negotiated with the selected Proposer.
13.
Section III.A. – Executive Summary – Is there a page limit on this section?
The Executive Summary should be no longer than 5 pages.
14.
Will the winning bidder be required to provide 24-hour security services for the
CONRAC and the Hourly Parking Facility?
CLT will provide limited CCTV and emergency phones within the deck. These phones and TV will be monitored and/or ring back to the Airport operations control center.
Also, for the CONRAC, the rental car companies will have additional/redundant CCTV and security/loss prevention measures in place. Airport/CMPD personnel will intermittently patrol the facilities as required.
15.
What are the hours of operation for the facility? 24 hours?
The CONRAC and Hourly Parking Facility are 24/7/365 facilities.
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16.
Are there restricted delivery times for fuel transport to deliver?
Fuel deliveries must occur between 10:00pm and 5:00am.
17.
Will windshield washer fluid be part of the O and M budget or part of the fuel contract?
Windshield washer fluid will be provided by the selected Proposer as part of an Annual
Operating Budget.
18.
Please clarify what will be included in the management fee, and how you would like for the management fee to be presented?
The Management Fee represents the fee charged by the selected Proposer to CLT to operate and manage the CONRAC (i.e. profit). All expenses related to the operation and management of the CONRAC will be paid by CLT pursuant to an approved annual budget negotiated by CLT and the selected Proposer.
19.
Can we get a cleaner copy of Design Document and Drawings?
CLT will provide each Proposer with all the design documents and drawings necessary to submit a complete and accurate Proposal. Please specify the design documents and drawings that you require and we will provide any such design documents and drawings through a separate addendum.
20.
Will lighting be LED or traditional Halide lighting?
Primarily Induction Fluorescent lights will be used; however there will be some LED and
Halide Lighting.
21.
Will there be any landscaping to maintain? If so do you have the drawings?
CLT will maintain the landscaping.
22.
Are the tanks a shared fueling system, or are their different tanks for each allocated space?
There are separate fuel storage and delivery systems for the On-Airport Rental Car
Facility and the Remote Service Facility. Each system will be used by all RACs.
23.
Will windshield washing fluid be shared?
24.
Is there oil within the CONRAC Facility?
Windshield Wiper Fluid will be shared by the RACs.
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No.
25.
What will delineate the allocated space of each RAC?
The allocated space of each RAC will be delineated by concrete barriers.
26.
Do we know which type of release detection system will be used for the fuel tanks?
The INCON release detection system will be used for the fuel tanks.
27.
How long is the piping run from the tanks to the farthest dispenser?
Approximately 1,100 feet.
28.
Have hours of operation been established for the customer service?
We have not yet set specific operating hours; however the air carrier operation at CLT runs from 5:00am till 12:00pm and we believe that the hours of operation for the
CONRAC would mirror this schedule.
29.
Will there be any management offices in the main building and is there any storage attached to that?
30.
Could an estimate of how large the office and storage space that will be provided to the manager be provided?
Please specify in your Proposal the amount/size of office and storage space you will require.
31.
How large will the dumpsters provide be?
CLT intends to locate two 30-yard open-top dumpsters near the fuel storage area
32.
Clarify contractors and subcontractors requirement on page 26 of the RFP. It will be very difficult to provide this list without first knowing the installing contractor, and then the equipment will then be under warranty for a given amount of time?
Proposers are required to identify the subcontractors that they anticipate using to provide the CONRAC Management Services if awarded a contract under this RFP. CLT acknowledges that this list may change as additional information regarding the RFP is made available and will work with Proposers accordingly.
33.
Please clarify performance bond requirement?
The performance bond is intended to protect CLT and the RACs in the event the selected
Proposer ceases to perform its obligations as described in this RFP and negotiated in the
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CONRAC Management Agreement.
34.
Should staffing be included in the management fee?
No. Staffing expenses will be part of an approved annual operating budget.
35.
When will notice to proceed be provided?
The CONRAC Management Agreement will establish the commencement date for the operation and management of the CONRAC.
36.
Please clarify the requirements for a transition integration budget?
The Scope of Services described in Section I.D.1.c. of the RFP described the Installation
Administration Services that CLT will require the successful Proposer to provide as part of the CONRAC Management Services. These services will be provided during the Start-
Up Period leading up to the commencement of rental car operations in the CONRAC.
While CLT does not require Proposers to include a transition integration budget in their
Proposals, Proposers should include a transition plan in the Operations and
Management Plan (as described in Section C of Attachment 3 – Qualifications and
Proposer Requirements) that addresses the manner in which the Proposer intends to provide the Installation Administration Services. The transition plan should include proposed staffing levels for the Start-Up Period, job descriptions wage rates and any other information Proposer considers pertinent to the performance of the Installation
Administration Services.
Upon selection of the successful Proposer, CLT and Proposer will negotiate an operating budget for Agreement Year 1 will include specific line item(s) for the provision of
Installation Administration Services during the Start-Up Period.
37.
Please briefly describe how a customer will enter the CONRAC facility to return a vehicle, and then how the vehicle will then be returned to the correct level?
All rental car customers return their car via an entrance to the West Helix, which is reserved for this express purpose (i.e. no hourly parking access). The West Helix is a twisted pair design with both strands connecting with all floors. Once a rental car customer enters the West Helix on Level One, the car can be returned to the ready/return area for the appropriate rental car brand on either Level Two or Level Three.
The East Helix is used by rental car runners to deliver the vehicle to the QTA on level one that is again accessed off a common road in the deck for all brand families.
Once serviced, the West helix is once again used to deliver the car to the Ready/Return area of the brand family on levels two or three.
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1.
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THIS AGREEMENT is made and entered into as of this _____ day of _____,
2014 by and between the CITY OF CHARLOTTE, NORTH CAROLINA, a North
Carolina municipal corporation (the “City”), and____________ (the “Manager”).
WITNESSETH
THAT, WHEREAS , City is the owner and operator of the Charlotte Douglas
International Airport (the “Airport”);
WHEREAS , City is constructing a consolidated rental car facility and remote service facility (collectively, the “CONRAC”) at the Airport;
WHEREAS , the City published a Request for Proposals for a Consolidated
Rental Car Facility Management Agreement on February 20, 2014 (“RFP”) seeking proposals from qualified facility management companies to manage the CONRAC;
WHEREAS , the Manager submitted a proposal in response to the RFP, and on the basis of this proposal, a proposer interview and subsequent negotiations, Manager was selected to provide the management services for the CONRAC;
WHEREAS , City and Manager have mutually agreed to the terms and conditions of the Manager’s employment by City and wish to set forth such terms and conditions in this Agreement;
WHEREAS , in consideration of the terms and conditions set forth herein, which both parties acknowledge are good and sufficient consideration , the City and Manager hereby mutually agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
1.1
Definitions.
The following words, terms and phrases whenever used in this Agreement shall have the meanings respectively ascribed to them below: a.
“Agreement” shall mean this CONRAC Management Agreement. b.
“Agreement Year”
shall mean any twelve consecutive months commencing July
1 and ending on June 30 of the following calendar year during the Initial or any Extended
Term hereof; provided, however, that the first Agreement Year hereunder shall commence on the Commencement Date hereof and end on June 30, _____. c.
“Airport” shall mean the Charlotte Douglas International Airport. d.
“Allowable Operating Expenses”
shall mean those approved expenses arising from the management and operation of the CONRAC as more particularly defined in
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Section 6.01. Allowable Operating Expenses shall be segregated into those amounts approved for automatic reimbursement by City (“Regularly Recurring Expenses”) and those amounts requiring requisition by Manager (“Non-recurring Expenses”). Both
Regularly Recurring Expenses and Non-Recurring Expenses shall be identified in the
Annual Operating Budget. e.
“Annual Operating Budget”
shall mean the annual budget for operating and managing the CONRAC submitted by the Manager to the Aviation Director for a
Contract Year. The Budget shall include a detailed projection of Allowable Operating
Expenses for such Agreement Year accompanied by the assumptions used to develop the
Annual Operating Budget. f.
“Aviation Director” shall mean the City’s Aviation Director, or his duly authorized designee, acting on behalf of the City under this Agreement. g.
“Capital Request” shall mean the list of capital expenditures proposed by the
Manager to the Aviation Director for the next subsequent Contract Year. The Capital
Request shall contain Manager’s requirements for CONRAC and equipment costing over
$1,000 per item. h.
“City” shall mean the City of Charlotte, North Carolina. i.
“City’s Investment” shall mean the cost to the City for the construction, purchase and installation of the finishes, furnishings and equipment required to complete and outfit any improvement to or enlargement of the Facilities made by the City. j.
“Commencement Date” shall mean the date Manager actually commences operating and managing the CONRAC and by mutual acknowledgment thereof by
Manager and Aviation Director. k.
“CONRAC” shall mean the (i) On-Airport Rental Car Facility; (ii) Remote
Service Facility; and (iii) Hourly Parking Facility (if proposed) as more particularly described in Section I.C. of the Request for Proposals for Consolidated Rental Car
Facility Management Agreement dated February 20, 2014. l.
“CONRAC Management Services” shall man all duties, obligations and responsibilities imposed or assumed by Manager pursuant to this Agreement. m.
“Effective Date”
shall mean the date this Agreement is last executed by the parties hereto at which time this Agreement shall be effective for all purposes. n.
“Financial Summary” shall mean financial summary report prepared monthly by Manager detailing the prior month’s financial performance from managing the
CONRAC. In addition to performance for the current month, the Financial Summary will also include the year-to-date information.
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o.
“Fiscal Year”
shall mean the City’s twelve month Contract Year which upon the
Commencement Date begins each July 1 and ends on June 30 of the next successive calendar year. p.
“General Manager”
shall mean the employee of the Manager as it may designate from time to time, approved by the Aviation Director, which shall not be unreasonably withheld, assigned to exercise the duties and responsibilities of Manager under this
Agreement. q.
“Major Repair”
shall mean any repair or replacement in, of or to the any of the facilities comprising the CONRAC that exceed the scope of the CONRAC Management
Services and shall be the responsibility of City. r.
“Manager” shall mean _______________________. s.
“Manager’s Equipment” shall mean the supplies and equipment needed to operate the CONRAC supplied, paid for and installed by the Manager. t.
“Manager Offices” shall mean the facilities made available to the Manager for its use in managing and operating the CONRAC. The Manager Offices upon the
Effective Date are described in Exhibit ____ hereto, title to which is and shall remain in
City. u.
“Non-reimbursable Expenses” shall mean those expenses normally considered as general, administrative and other similar expenses of Manager as more particularly detailed in Section 6.05 for which Manager shall not receive reimbursement by City. v.
“Procedures Manual” shall mean the Financial Procedures Manual required pursuant to Section 5.7, the Employment Procedures Manual required pursuant to Section
7.5 and the Policy and Procedures Manual required pursuant to Section 8.1. Such manuals shall be submitted to the Aviation Director for approval prior to the
Commencement Date. Such manuals shall be amended upon the reasonable direction of the Aviation Director and may be amended upon the request of Manager with the approval of the Aviation Director, which shall not be unreasonably withheld. Manager will supply the Aviation Director with any such revisions or modifications of the
Procedures Manual as soon as practicable once updates are made. w.
“Quarterly Review” shall mean the meeting held at least quarterly between
Aviation Director and Manager to discuss Manager’s operating and financial performance hereunder. Quarterly Reviews will be used as a forum to discuss matters which may include, but are not limited to, changes in operating procedures and conditions, capital, equipment needs, customer service, and other subjects pertaining to
Manager’s performance hereunder. x.
“RAC”
shall mean a company engaged in the business of renting motor vehicles at the Airport pursuant to an Automobile Rental Concession Agreement with the City.
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y.
“Terminal” shall mean the passenger terminal building at the Airport. z.
“Termination Date”
shall mean the date upon which the Agreement is terminated by scheduled expiration or otherwise. aa.
“Uncontrollable Expenses” shall mean the amount of the expenditures incurred by Manager for or in connection with the CONRAC and the operation thereof by
Manager, agreed to by the Aviation Director, which are not Allowable Operating
Expenses included in the Final Budget.
1.2
Incorporation of Exhibits. The following Exhibits are attached to this
Agreement and incorporated into and made a part of this Agreement by reference:
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Each reference to the Agreement shall be deemed to include all Exhibits. Any conflict between language in an Exhibit to this Agreement and the main body of this Agreement shall be resolved in favor of the main body of this Agreement. Each reference to
_______________________ in the Exhibits shall be deemed to mean the Manager.
ARTICLE II
TERM
2.1
Initial Term. The Initial Term of this Agreement shall commence on the
Commencement Date and expire at 11:59 p.m on _____________, unless terminated prior to such date in accordance with the terms and conditions of this Agreement.
2.2
Extension Term.
City reserves the option to extend the Initial Term of this Agreement upon the same, or other mutually acceptable terms and conditions as agreed upon by the Parties in writing, for up to two (2) additional one (1) year terms upon giving Manager written notice thereof no later than ninety (90) days prior to the expiration of the Initial Term or first Extension
Term. Manager shall have the right to accept or decline same by giving City written notice no later than thirty (30) days following receipt of City’s written notice to Manager to extend the
Initial Term or first Extension Term.
ARTICLE III
MANAGEMENT FEE; CONRAC MANAGEMENT SERVICES
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3.1
Management Fee.
In consideration of Manager’s performance of the CONRAC
Management Services, City shall pay Manager a Management Fee as set forth in Exhibit _____.
3.2
Reimbursement for Expenses.
City shall not be required to reimburse or pay for any expenses incurred by Manager in its performance of the CONRAC Management Services except as expressly provided in this Agreement.
3.3
CONRAC Management Services. The CONRAC Management Services shall include the specific duties and obligations of Manager with respect to the operation, management and maintenance of the CONRAC and Hourly Parking Facility as set forth in Exhibit___ hereto.
Manager will be responsible for providing proper staffing for the operation, management and maintenance of the CONRAC, including, without limitation, hiring and directing the activities of the employees it will use in its operations; disbursing Allowable Operating Expenses; controlling costs and expenditures; and collection stewardship and accounting for all its receipts, cash or otherwise, from its management and operation of the CONRAC at the Airport. Manager shall execute and perform its duties as manager and Manager of the CONRAC for City in accordance with the terms and conditions of this Agreement.
3.4
Operations of Manager. Manager shall provide adequate personnel to perform the
CONRAC Management Services at all times, and Manager shall provide additional or reduced staffing as requested from time to time by the Aviation Director. Manager shall also provide, in accordance with the Annual Operating Budget approved by the Aviation Director as described in
Section ___ below, all personnel, maintenance service, equipment, machinery and related office equipment and supplies necessary for the uninterrupted and safe operation, management and maintenance of the CONRAC and Hourly Parking Facility in compliance with the terms and conditions of this Agreement.
3.5
Modifications to CONRAC Management Services. City may, at its sole option, increase or reduce the CONRAC Management Services described in Exhibit _____ by providing written notice of such increase or reduction to Manager.
Within fifteen (15) days of its receipt of a notice of an increase or reduction in the CONRAC Management Services, Manager shall respond to City in writing with proposed fee and/or reimbursement adjustments resulting from the increase or reduction as well as well as the timeframe for implementation. Modifications to the CONRAC Management Services as well as corresponding adjustments to fees and/or reimbursements shall be incorporated into this Agreement and the applicable Annual Operating
Budget by written amendment.
ARTICLE IV
ANNUAL OPERATING BUDGET
4.1
Annual Operating Budget. Each year during the term hereof, and no later than March
15 of such year, Manager shall submit for Aviation Director’s approval a recommended Annual
Operating Budget for the next subsequent Agreement Year. Within thirty (30) days of receipt of the Annual Operating Budget from Manager, Aviation Director will either accept or reject the
Annual Operating Budget, or propose modifications. Prior to the commencement of each
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Agreement Year, the Annual Operating Budget for such Agreement Year must have been approved by the Aviation Director in writing. In the event that the Aviation Director has not approved the Annual Operating Budget for an Agreement Year, the Annual Operating Budget for the immediately preceding Agreement Year will remain in effect until such time as a new
Annual Operating Budget is approved by the Aviation Director. Upon the Aviation Director’s approval of an Annual Operating Budget, such Annual Operating Budget shall be binding upon
Manager. During Quarterly and Annual Reviews conducted by the Aviation Director, Manager will have the opportunity to discuss and propose amendments to an approved Annual Operating
Budget; such amendments, if any, may only be made following the written approval of Aviation
Director, which shall not be unreasonably conditioned, withheld or delayed. a.
The Annual Operating Budget for Agreement Year 1 shall be prepared as part of and during the negotiation of this Agreement. Once completed and approved, the Annual
Operating Budget for Agreement Year 1 will be attached to this Agreement as Exhibit
_____. Annual Operating Budgets for subsequent Agreement Years will supersede and replace the prior year’s Annual Operating Budget as Exhibit _____ once they are approved and take effect.
4.2
Quarterly and Annual Review. Manager shall measure and report its performance and the results of its operations of the CONRAC for each Agreement Year during the term of this
Agreement. Manager shall give its report on such performance, including its statement of
Allowable Operating Expenses for the periods being reported on, no less frequently than
Quarterly ("Quarterly Review") with the last such Quarterly Review after the close of each
Contract Year covering the entire Agreement Year (the "Annual Review"). The Annual Review shall set forth the Allowable Operating Expenses and Uncontrollable Expenses for the operations of the CONRAC for the entire Agreement Year.
4.3
Financial Summary Reports. As soon as practical but no later than fifteen (15) days following the end of each month, Manager shall prepare a Financial Summary which details the prior month’s financial performance in terms of Allowable Operating Expenses and
Uncontrollable Expenses. The Financial Summary shall be in a format reasonably acceptable to the Aviation Director. Manager and Aviation Director will discuss Manager’s financial and operational performance as reflected in the Financial Summary Reports during Quarterly
Reviews and the Annual Accountings.
4.4
Annual Audit. Upon reasonable prior written notice to Manager, the Aviation Director shall have the discretion to conduct a full audit of Manager’s books by a firm of qualified independent Certified Public Accountants at City’s expense, relative to Manager’s management and operation of the CONRAC, and in a manner so as not to unreasonably interfere with
Manager’s management of the CONRAC.
4.5
City’s Right to Audit.
In addition to the Annual Audit provided for under Section 4.4,
City’s auditors (internal and external) shall have the right during the term of this Agreement, without limitation, at all reasonable times during normal business hours, to audit, check, inspect and review all operating procedures of Manager and all books of account, records, financial reports, financial statements, operating statements, inventory records, copies of federal income
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and state sales tax returns, work papers and supporting documents relating solely to operations of
Manager relative to the CONRAC, and other pertinent information as may be determined to be needed or desirable by City. Any such audit shall be solely at City’s expense, following reasonable advance written notice to Manager, and carried out in such manner as shall not unreasonably interfere with Manager’s normal business and operations under this Agreement.
Provided, however, Manager shall pay the costs of any such audit if the audit discloses a billing error in favor of Manager in an amount greater than $10,000. The Parties shall pay or reimburse one another any amounts determined to be owed, as applicable, as a result of any such audit.
4.6
Other Reports. Manager shall also provide any additional information and reports regarding its operations hereunder that the Aviation Director may reasonably require.
4.7
Record Retention. Manager shall retain and maintain all records and documents relating to this Agreement as required by the laws of the state of North Carolina relating to public records and the retention and destruction of such documents.
ARTICLE V
ALLOWABLE OPERATING EXPENSES
5.1
Allowable Operating Expenses. Manager, on behalf of the City, shall pay all Allowable
Operating Expenses pursuant to Section 5.1 of this Agreement. Allowable Operating Expenses shall mean those expenses arising from operation of the CONRAC, including but not limited to, material costs, inventory costs, payroll and related expenses, uncollectable items, utilities, bonds, insurance as required in Article X of this Agreement, maintenance, repair, sales taxes and any other taxes on purchases, and such other operating expenses approved by Aviation Director or described in the approved Annual Operating Budget. Allowable Operating Expenses, notwithstanding anything contained in this Agreement to the contrary, shall be the net of any and all discounts and allowances earned and/or realized by Manager as a result of doing business at the Airport. Expenses incurred by Manager that are not approved by the Aviation Director as part of an approved Annual Operating Budget or as Uncontrollable Expenses, as defined in
Section 5.3, shall not be an obligation of City.
5.2
Payment of Allowable Operating Expenses. Manager shall establish and maintain a bank account in its own name (“Operating Account”) for the purpose of disbursing payments on behalf of the City for Allowable Operating Expenses. On or before Commencement Date, City shall cause to be deposited to the Operating Account an initial advance to Manager of an amount equal to two months of Allowable Operating Expenses provided for in the approved Annual
Operating Budget for the first Contract Year. On or before the first day of each and every consecutive month following the Commencement Date during the Term hereof, City shall cause to be deposited in the Operating Account (i) an amount equal to the monthly pro rata amount of the Allowable Operating Expenses of the approved Annual Operating Budget for the Contract
Year for which such deposit is made, (ii) an amount equal to all sales taxes and other taxes deposited in the Operating Account for the previous month to be remitted to the proper taxing authority on behalf of the City, and (iii) advances requested by Manager from time to time to
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ensure that there is an adequate balance in the Operating Account to pay invoices as they become due.
5.3
Reimbursement for Uncontrollable Expenses. City acknowledges that Manager may incur Uncontrollable Expenses during one or more Contract Years. Should Manager anticipate or incur any Uncontrollable Expenses, it will promptly notify and meet with the Aviation
Director as soon as reasonably possible to explore means to avoid or mitigate the amount of such
Uncontrollable Expenses. The Aviation Director shall in good faith promptly consider the circumstances causative of the Uncontrollable Expenses and to the extent the Manager reasonably establishes that said Uncontrollable Expenses were not the result of willful, wanton, intentional acts (excepting intentional acts deemed necessary by the Manager to prevent danger to life or damage to property), gross negligence of Manager or matters beyond Manager’s control, Aviation Director shall authorize and make the prompt payment thereof, or reimbursement of such Uncontrollable Expenses to Operating Account, as the case may be.
5.4
Non-Reimbursable Expenses. Unless otherwise approved as part of the Annual
Operating Budget for a given Contract Year, or specifically authorized in writing by Aviation
Director, Manager shall not be reimbursed for Non-Reimbursable Expenses of the following like and kind: a.
Corporate overhead and cost allocations; b.
Legal fees not incurred in the course of Manager’s management and operational duties or obligations hereunder; c.
Charitable and political contributions; d.
Travel and entertainment except where required as a part of approved operating and marketing costs; e.
Corporate public relations, gifts, dues and memberships; f.
Any penalties, assessments or fines issued by any court or authorized government entity or agency, unless such results from the direct action or inaction of City or incurred in the course of Manager’s management and operational duties and obligations hereunder.
5.5
Cash Losses. Manager shall act as custodian of and safeguard until deposited with City all cash and other receipts of City with respect to the CONRAC. All cash losses, including cash losses arising out of the criminal acts of officers, employees or agents of Manager, shall be the responsibility of Manager. Any cash losses caused by a criminal act must be supported by copies of filed police reports.
5.6
Prompt Payment. Provided there has been no delay or default by City in making necessary funds available to it, Manager shall make prompt and timely payment of all its obligations arising out of this Manager shall pay from its own funds any penalty, fine or like
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assessment resulting from any intentional or grossly negligent late payment of any such obligation hereunder; provided Manager has not been delayed in receipt of authorization to pay such obligation by action, breach or inaction of City.
5.7
Financial Procedures Manual. Manager shall prepare and provide the Aviation
Director with a Financial Procedures Manual which sets forth, among other things, internal accounting procedures and auditing controls reasonably requested by the Aviation Director.
ARTICLE VI
FACILITIES
6.1
CONRAC. City has caused the CONRAC to be constructed and equipped as described in Exhibit _____ hereto. Manager shall be responsible (pursuant to a City-approved Annual
Operating Budget) for budgeting and providing for all operating requirements and all equipment and furnishings necessary to operate and maintain the CONRAC, whether requested by Manager or City. The City owns all equipment and furnishings and will retain ownership of all equipment and furnishings that are to be obtained and, if applicable, installed at the CONRAC. Manager shall not sell or dispose of City-owned equipment, furnishings or other items without the express approval of City.
6.2
Alterations to CONRAC by Manager. Without the prior written consent of City,
Manager shall not (a) make any improvements additions, alterations, or modifications to any portion of the Airport premises including the CONRAC; or (b) remove or demolish, in whole or in part, any improvements upon the Airport premises including the CONRAC.
6.3
Major Repairs to CONRAC. Subject to the provisions of this Agreement, and except for damage caused by, or replacement or repairs required as a result of, any act or omission of the Manager or any RAC, City shall be responsible at its sole cost and expense for Major Repairs to the CONRAC which are required during the Term of this Agreement. If City is required to repair any damage to the CONRAC caused by the Manager or of its subcontractors, vendors, agents or other representatives, Manager shall reimburse City for the costs and expenses of such repairs immediately upon receipt of from City of the amount of such repairs. Manager shall promptly report in writing to City any defective condition known to Manager which may require a Major Repair pursuant to Section 6.1 above. In the event of any dispute as to whether a specific maintenance matter is properly classified as part of the CONRAC Management Services to be performed by Manager or a Major Repair to be performed by City, the decision of the City as to the classification thereof shall be final and controlling.
6.4
Damage or Destruction to the Facilities.
If the CONRAC is destroyed or so damaged as to be rendered unfit or unusable for the use and purpose for which this Agreement is granted, without fault on the part of Manager or its employees or agents, either party shall have the option without further liability to the other party, upon five (5) days notice in writing, to terminate the remainder of this Agreement.
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6.5
Manager Offices.
In connection with the Manager’s performance of the CONRAC
Management Services under this Agreement, the City shall provide office space to the Manager as may be reasonably necessary for Manager’s performance of the CONRAC Management
Services during the Term of this Agreement. Manager shall pay the reasonable and customary charges for the Manager Offices, which charges shall be an Allowable Operating Expense. The location and layout of the Manager Offices is depicted on Exhibit ____ attached hereto.
ARTICLE VII
PERSONNEL
7.1
CONRAC Staffing. Manager shall furnish sufficiently trained personnel, including qualified, competent and experienced supervisory and clerical staff, necessary to operate and manage the CONRAC in compliance with the terms of this Agreement and all applicable federal, state and local laws, statutes, regulations and ordinances. Manager shall add or reduce personnel as required by the City and City shall endeavor to provide Manager reasonable notice of any conditions, circumstances or operational fluctuations that may require changes to staffing levels.
Manager shall ensure that in the performance of any of the CONRAC Management Services that
Manager’s employees, subcontractors, agents and other representatives shall (a) comply all of the
City’s and Airport’s applicable rules and regulations regarding security and confidentiality; and
(b) be trained and licensed (if applicable) to operate any equipment or vehicles in connection with the performance of Manager’s responsibilities hereunder.
7.2
Personnel Standards. Manager shall instruct its employees to appear clean, neat, wellgroomed and professional on the job at all times and discharge their duties in a cooperative, courteous and efficient manner. Upon receipt of notice from City, Manager shall immediately remove, reassign or relocate any employee, subcontractor, agent or other representative who violate any federal, state or local laws, rules or regulations; Airport policies and procedures as may be amended from time to time; or otherwise engages in conduct that is, in the opinion of the Aviation Director, deemed to not be in the best interest of the Airport.
7.3
Uniforms and Badges. Manager shall provide all employees, subcontractors, agents and other representatives with uniforms and identification badges of a type and style that is subject to the approval of the Aviation Director. Manager’s employees, subcontractors, agents and other representatives shall wear the approved uniform and identification badges at all times while engaged in the performance of the CONRAC Management Services. The cost of providing uniforms and identification badges shall be an expense of the Manager and shall not be a part of
Allowable Operating Expenses.
7.4
General Manager and Supervisors.
Manager shall select and employee a general manager and such supervisors as are necessary to operate, manage and maintain the CONRAC and whose only responsibility shall be to ensure the proper operation of the CONRAC in compliance with the terms and conditions of this Agreement and all applicable federal, state and local laws, regulations, rules and ordinances. Manager shall designate qualified and experienced general manager to oversee Manager’s operations at the CONRAC who shall have a minimum of three (3) years of experience in a supervisory position in managing the operations of a facility
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substantially similar to the CONRAC. During the Term, Manager shall maintain an office at the
Manager’s Office furnished by the Airport, where the general manager shall ordinarily be available during regular business hours. When the general manager is absent from the Airport, a qualified and experienced supervisor will serve in the general manager’s stead and shall be in charge and available at the Manager’s Office. The general manager or the supervisor shall be on duty at the CONRAC from at least 6:00 am through 10:00 pm each day, seven (7) days per week,
365 days per year, and the general manager or supervisor shall be available by telephone at all other times. If Manager desires to terminate or reassign its general manager or a supervisor during the Term, it may do so only after providing the Aviation Director with notice of the proposed termination or reassignment as well as the complete contact information for the replacement general manager or supervisor.
7.5
Employee Procedures Manual. Manager will provide the Aviation Director with a copy of its Employee Procedures Manual, which Manager shall adopt and apply to its performance under this Agreement. Manager shall also take the necessary steps to ensure that its employment practices are consistently enforced and comply with all applicable federal, state, and local laws, rules and regulations.
7.6
Compliance with Airport Security Requirements. Manager acknowledges that City is subject to various and changing requirements imposed by the United States Department of
Homeland Security, the United States Department of Transportation and various federal and state laws. Manager agrees that it will cooperate with Aviation Director and regulatory and law enforcement agencies and authorities to develop and implement a security program for the
CONRAC that is acceptable to the Aviation Director and such agencies and authorities.
Manager further agrees that it will adhere to and consistently enforce the approved security program(s) at the CONRAC to the best of its ability.
7.7
Relationship of Parties. Officers, agents and employees of Manager shall not be deemed to be employees of City for any purpose whatsoever. The parties hereto agree that
Manager is an independent contractor and not subject to direction and control of 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.
7.8
Employee Relations Expenses. Manager shall not be reimbursed by City for any legal or other expenses with respect to employee relations matters attributable solely to employees of
Manager and resulting solely from its actions, unless prior written approval is granted by
Aviation Director. For the purposes of this Agreement, employee relations shall include, without limitation, workers compensation disputes, conflict and grievance resolution and other disputes or issues that may arise between Manager and its employees.
7.9
Employee Parking.
Aviation Director shall provide identification for use of the
Employee Parking Lot on the Airport for all authorized employees of Manager. A list of current employees will be furnished by Manager to Aviation Director on a monthly basis.
7.10
Subcontractors. Manager shall manage the delivery of the CONRAC Management
Services by skilled and qualified subcontractors and vendors in sufficient number to render the
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CONRAC Management Services property in the manner required by this Agreement. All subcontracts shall confirm to the terms and conditions of this Agreement and shall be executed by Manager upon the Aviation Director’s prior written approval, which approval shall not be unreasonably conditions, withheld or delayed. Manager shall consistently employ effective methods of subcontractor/vendor qualification, selection, work quality control, contracting, invoicing, development and evaluation and shall be reasonable and liable to the City for the performance of any CONRAC Management Services subcontracted. All subcontractors and vendors must be properly licensed as required by applicable law and have all necessary permits and insurance required for the work to be performed under this Agreement.
ARTICLE VIII
OPERATIONAL REQUIREMENTS
8.1
Policy and Procedures Manual. In addition to the Financial Procedures Manual and the
Employment Procedures Manual required pursuant to Sections 5.7 and 7.5 respectively, Manager shall develop, subject to the approval of Aviation Director, a Policy and Procedures Manual(s) describing its policies and procedures for operating the CONRAC. Aviation Director intends that this manual will at least cover the following: a.
Employee Training; b.
Operational procedures; c.
Facilities maintenance and cleanliness programs; d.
Quality control programs and procedures.
8.2
Commodities and Equipment. Manager shall provide and maintain a sufficient supply of expendable commodities and supplies and provide all furnishings, fixtures and equipment authorized in the Annual Operating Budget or authorized in writing by Aviation Director with title to same being vested in City upon delivery to the Airport or installation at the CONRAC.
8.3
Injury or Damage.
In the event of any injury to any person or loss or damage to any property on the CONRAC, Manager shall promptly notify Aviation Director and as reasonably soon as available, furnish copies of relevant reports in connection therewith.
8.4
Property and Equipment Record-Keeping. On or before (1) the Effective Date; (2) the last day of each Fiscal Year (if requested by the Aviation Director); and (3) the termination of this Agreement, Aviation Director and Manager will cause an inventory to be taken listing all items of property and equipment belonging to City and having a normal useful life in excess of one (1) year made available by City to Manager to be used in the operation of the CONRAC or otherwise purchased with City funds for use at the CONRAC. Manager shall establish appropriate controls, subject to review and approval by Aviation Director, to prevent pilferage, thefts, disappearances or other losses of property from inventory. Manager throughout the term of this Agreement shall maintain a current and up-to-date capital inventory, which shall be
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regularly submitted to the Aviation Director, listing, in writing, all additions to or deletion from the inventory.
8.5
Complaints. Manager shall respond promptly and professionally to all complaints made to it relative to the CONRAC. All such complaints and the corresponding responses shall be made available to the Aviation Director upon request. In the event a complaint involves public health or injury, the Aviation Director must be given notice and a description of the complaint as soon as possible under the circumstances. Decisions regarding final resolution to complaints shall be made only by the Manager through its general manager and/or supervisors.
ARTICLE IX
INDEMNIFICATION
The Manager shall indemnify, defend and hold harmless the City and the City’s officers, directors, employees, contractors, agents and other representatives from and against any and all losses, damages, costs, expenses (including reasonable attorneys’ fees), obligations and other liabilities (including settlement amounts) that arise directly or indirectly from: a.
Any infringement of any copyright, trademark, patent, or other proprietary rights, or any misappropriation of any trade secrets, in connection with any software, documentation, services or other products supplied directly or indirectly by the Manager in connection with the Agreement, or any allegation of any of the foregoing (collectively referred to as “Infringement Claims”); b.
Any act(s) of gross negligence or willful misconduct by the Manager or any of its officers, directors, employees, contractors, agents or other representatives (or any allegations of any of the foregoing), including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal; c.
Any acts or omissions of the Manager with respect to any of the CONRAC
Management Services provided by the Manager under the Agreement (or any allegations of any of the foregoing); d.
The City’s refusal to produce any item of “Confidential Information” (as defined in the Confidentiality Requirements set forth in Exhibit _____ ) of the Manager after receiving a request for such item and after being instructed by the Manager not to produce it; or e.
Any claims by any persons or entities supplying labor or material to the Manager in connection with the performance of the Manager’s obligations under the Agreement.
Manager shall purchase insurance, as described in Article X of this Agreement, which insurance shall provide coverage for the contractual liability described herein. In any case in which
Manager provides a defense to the City pursuant to this indemnity, the defense will be provided
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by attorneys reasonably acceptable to the City. The provisions of this Article on indemnification shall survive the expiration or early termination of this Agreement.
If an Infringement Claim occurs, the Manager shall either: (i) procure for the City the right to continue using the affected product or service; or (ii) repair or replace the infringing product or service so that it becomes non-infringing, provided that the performance of the CONRAC Management Services or any component thereof shall not be adversely affected by such replacement or modification. If the Manager is unable to do
(i) or (ii) within thirty (30) days after receiving legal ruling confirming the validity of the
Infringement Claim, the City shall have the right to terminate the Agreement.
ARTICLE X
INSURANCE
10.1
Insurance Coverage . Throughout the term of this Agreement, the Manager and any of its subcontractors will comply with the insurance requirements described in this Article. The
Manager shall also provide any other insurance specifically recommended in writing by the City of Charlotte Risk Management Department. In the event that the Manager fails to maintain required insurance, the City shall be entitled to terminate or suspend the Agreement immediately.
The Manager agrees to purchase and maintain the following forms of insurance coverage during the Term of this Agreement: a.
Commercial General Liability Insurance with a limit not less than $2,000,000 per occurrence/aggregate including coverage for bodily injury, property damage, products and completed operations, personal/advertising, injury liability and contractual liability. b.
Commercial Automobile Liability Insurance with a limit of not less than $2,000,000 per accident combined single limit each occurrence for bodily injury and property damage liability covering all owned, non-owned, and hired vehicles. This coverage shall be expanded to include pollution coverage on covered automobiles for Manager (if applicable) any contractor trucking fuel to the CONRAC and such contractor(s) shall provide the City with copies of
Endorsement CA 99-44 and Endorsement MCS-90 as required by the Federal Motor Carrier
Safety Administration’s Motor Carrier Act.
c.
Workers’ Compensation and Employer’s Liability Insurance
meeting the statutory requirements of the State of North Carolina and any applicable Federal laws; and, Employers’
Liability - $100,000 per accident limit, $500,000 disease per policy limit, $100,000 disease each employee limit.
d.
Pollution Liability Insurance of not less than $2,000,000 per occurrence or claim, including third party bodily injury, third party property damage-including loss of use, natural resources damages, cleanup coverage for pollution migration, and legal defense costs.
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e.
Fidelity Bond Coverage providing employee dishonesty coverage on all Manager employees at a limit of not less than $100,000 each claim, with the addition of a Loss
Payable endorsement (CR 20 14 08 07) naming the City of Charlotte as loss payee.
10.2
City Insurance Requirements.
The City shall be listed as an additional insured under the commercial general liability insurance for operations or services rendered under this
Agreement. The Manager shall not commence any work in connection with this Agreement until it has obtained all of the types of insurance set forth in this section and furnished the City with proof of insurance coverage by certificates of insurance accompanying the Agreement. The
Manager shall be responsible for notifying the City of any material changes (including renewals) to or cancellation of the insurance coverages required above. The Manager must give notice in writing to the City within 48 hours of the changes. The Manager shall not allow any subcontractor to commence work until all such subcontractors have obtained the same insurance coverages as described above. All insurance policies shall be written by insurers qualified to do business in the State of North Carolina. If any of the coverage conditions are met by a program of self-insurance, the Manager must submit evidence of the right to self-insure as provided by the
State of North Carolina. The City shall be exempt from, and in no way liable for any sums of money that may represent a deductible or self-insured retention in any insurance policy. The payment of the deductible/retention shall be the sole responsibility of the Manager and/or subcontractor. The Manager’s insurance shall be primary of any self-funding and/or insurance otherwise carried by the City for all loss or damages arising from the Manager’s operations under this Agreement. The Manager and each of its subcontractors shall and does waive all rights of subrogation against the City and its officers, employees, agents and other representatives.
ARTICLE XI
ASSIGNMENT
Manager shall not assign, transfer, pledge or otherwise encumber this Agreement or any of the rights, privileges and obligations of Manager hereunder without the specific written, prior approval of Aviation Director, which approval may be granted or denied at the sole discretion of the Aviation Director.
Since the experience and key managerial personnel of Manager were material considerations to City in the entering into of this Agreement, Manager shall not take any action to materially transfer or change the ownership of Manager without the prior written approval of Aviation Director, which approval may be granted or denied at the sole discretion of the Aviation Director.
ARTICLE XII
REMEDIES
12.1
Right to Cover . If the Manager fails to provide the CONRAC Management Services in accordance with the terms and conditions set forth in this Agreement (including the Exhibits),
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the City may take any of the following actions with or without terminating this Agreement, and in addition to and without limiting any other remedies it may have: a.
Employ such means as it may deem advisable and appropriate to perform itself or obtain the CONRAC Management Services from a third party until the matter is resolved and the Manager is again able to resume performance under this Agreement; and b.
Deduct any and all expenses incurred by the City in obtaining or performing the
CONRAC Management from any money then due or to become due to the Manager and, should the City’s cost of obtaining or performing the CONRAC Management Services exceed the amount due to the Manager, collect the amount due from the Manager.
However, if after receipt of written notice from City of Manager’s failure to comply with terms and conditions of this Agreement, Manager has commenced a cure within a reasonable period of time following such notice and is diligently prosecuting the cure, then City shall allow Manager an additional reasonable period to time to complete the cure before exercising its rights and remedies under this provision.
12.2
Right to Withhold Payment . If the Manager breaches any provision of this Agreement and fails to cure that breach within fifteen (15) days of written notice of said breach, the City shall have a right to withhold all payments due to the Manager until such breach has been fully cured. However, if the Manager has commenced an acceptable cure within the fifteen (15) day notice period and is diligently prosecuting that cure, then City shall allow Manager an additional reasonable period of time to complete the cure before exercising its rights and remedies under this provision.
12.3
Setoff . Each party shall be entitled to set off and deduct from any amounts owed to the other party pursuant to this Agreement all damages and expenses incurred as a result of the other party’s breach of this Agreement.
12.4
Other Remedies . Upon breach of this Agreement, each party may seek all legal and equitable remedies to which it is entitled. The remedies set forth herein shall be deemed cumulative and not exclusive and may be exercised successively or concurrently, in addition to any other available remedy.
ARTICLE XIII
TERMINATION
13.1
Termination by City . The City may terminate the Contract at any time without cause by giving ninety (90) days prior written notice to the Contractor. As soon as practicable after receipt of a written notice of termination without cause, Contractor shall submit a statement to the City showing in detail the CONRAC Management Services performed under this Agreement through the date of termination. City shall pay Manager for CONRAC Management Services rendered to the effective date of termination and no amount shall be allowed for anticipated profit on unperformed services.
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13.2
Termination for Default by Either Party . By giving written notice, either Party may terminate this Agreement upon the occurrence of one or more of the following, exclusive Events of Default: a.
The other party violates or fails to perform any covenant, provision, obligation, term, or condition contained in this Agreement, provided that, unless otherwise stated in this Agreement, such failure or violation shall not be cause for termination if both of the following conditions are satisfied: (i) such default is reasonably susceptible to cure; and
(ii) the other party fails to proceed to cure or to provide a reasonable cure plan within thirty (30) days of written notice of default from the non-defaulting party; or b.
The other Party attempts to assign, terminate or cancel the Agreement contrary to the terms and conditions of the Agreement; or c.
The other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has an involuntary bankruptcy petition filed against it (except in connection with a reorganization under which the business of such party is continued and performance of all its obligations under the Agreement shall continue), or if a receiver, trustee or liquidator is appointed for it or any substantial part of other party’s assets or properties.
Any notice of default shall identify this Article and shall state the party’s intent to terminate the Agreement if the defaulting Party does not proceed with a reasonably acceptable cure within the specified period as set forth in the defaulting Party’s cure plan.
Notwithstanding anything contained herein to the contrary, upon termination of this
Agreement by the Manager for default by the City, the Manager, upon City’s written request, shall continue to perform the CONRAC Management Services required by this
Agreement for the lesser of: (i) six (6) months after the date the City receives the
Manager’s written termination notice; or (ii) the date on which the City completes its transition to a new contractor, which occurs first. City shall continue to pay Manager the
Management Fee for any work performed under this provision and Manager shall continue to operate and maintain the CONRAC pursuant to the Annual Operating Budget approved for the then current Agreement Year.
13.3
Additional Grounds for Termination for Default by the City . The City may terminate this Agreement upon written notice to the Manager upon the occurrence of one or more of the following events, each of which shall also constitute a non-exclusive Event of Default (which shall each constitute grounds for termination without a cure period and without the occurrence of any of the other Events of Default previously listed): a.
The Manager makes or allows to be made any material written misrepresentation or provides any materially misleading written information in connection with this
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Agreement, the Manager’s proposal, or any covenant, agreement, obligation, term, or condition contained in the Agreement; or b.
The Manager takes or fails to obtain or maintain the insurance policies and endorsements required by the Agreement, or persistently fails after notice to provide the proof of insurance as required by the Agreement. c.
Abandonment by Manager of the CONRAC for a period of twenty-four (24) hours or longer except for a reason beyond the control of Manager.
13.4
No Suspension . In the event the City disputes in good faith an allegation of default by the Manager, notwithstanding anything to the contrary in the Agreement, the Manager agrees that it will not terminate the Agreement or suspend or limit the CONRAC Management Services unless (i) the Parties agree in writing, or (ii) an order of a court of competent jurisdiction authorizes such action.
13.5
Obligations upon Expiration or Termination . Upon expiration or termination of the
Agreement, the Manager shall promptly (i) provide or return to the City all computer programs, files, documentation, data, media, related material and any other material and equipment that is owned by the City; (ii) deliver to the City all work product; and (iii) allow the City access to the systems, software, infrastructure, files or processes of Manager that are necessary to transfer the
CONRAC Management Services to a substitute contractor.
13.6
No Effect on Taxes, Fees, Charges or Reports . Any termination of this Agreement shall not relieve the Manager of the obligation to pay any fees, taxes, or other charges then due, nor relieve the Manager of the obligation to file any daily, monthly, quarterly, or annual reports covering the period to termination nor relieve the Manager from any claim for damages previously accrued or then accruing against the Manager.
13.7
Other Remedies . Upon termination of this Agreement, each Party may seek all legal and equitable remedies to which it is entitled. The remedies set forth herein shall be deemed cumulative and not exclusive and may be exercised successively or concurrently, and in addition to any other available remedies.
13.8
Authority to Terminate . The Aviation Director is authorized to terminate this
Agreement on behalf of the City in accordance with the terms and conditions of this Article XIII.
ARTICLE XIV
TRANSITION SERVICES UPON TERMINATION/EXPIRATION
Upon termination or expiration of this Agreement, the Manager shall cooperate with the
City to assist with the orderly transfer of the CONRAC Management Services provided by the Manager to the City or substitute provider identified by City. Prior to termination or expiration of this Agreement, the City may require the Manager to perform and, if so required, the Manager shall perform certain transition services, necessary to shift the
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CONRAC Management Services to another provider or to the City itself as described below (the “Transition Services”). Transition Services may include but shall not be limited to the following: a.
Working with the City to jointly develop a mutually agreed upon Transition
Services Plan to facilitate the transfer of the CONRAC Management Services; b.
Notifying all affected service providers and subcontractors of the Manager; c.
Performing the Transition Services Plan action items; d.
Answering questions regarding the Transition Services or Transition Services
Plan on an as-needed basis; and e.
Providing such other reasonable services needed to effectuate an orderly transition to a new service provider.
Upon the request of the City, the Manager agrees to cooperate in providing information known to the Manager regarding the CONRAC Management Services to the City and
City contractors for a period of up to twelve (12) months after expiration or termination of this Agreement at Manager’s then-current rates.
ARTICLE XV
COMPLIANCE WITH LAWS
15.1
Compliance with Laws.
Notwithstanding anything to the contrary contained herein,
Manager shall comply with the Ordinances and the Rules of Regulations of City with respect to the Airport, as the same may be amended from time to time, all additional laws, ordinances, regulations and rules of the federal, state and county governments, and any and all plans and programs developed in compliance therewith which are applicable to its operations or activities under this Agreement.
15.2
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 City and the federal government containing assurances guaranteeing the public use of the Airport so that this Agreement shall be not construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958, 49 U.S.C.A. Section 1349 (a). City reserves the right to further develop or improve, as it sees fit, the Terminal, the Airport, its landing area and taxiways, and to construct other airports in its sole discretion. 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.
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15.3
Modifications to Comply with Federal Laws, Regulations, or Agreements. Should the United States of America or any instrumentality thereof having City 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 of America 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 plan or to retain its eligibility to participate in federal financial assistance programs, City may give Manager notice that it elects that any such change or deletion be made. Manager 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 Aviation Director within thirty (30) days of the date Aviation Director gave notice to Manager of its election that any such change or deletion be made.
15.4
Subordination to Federal Statute. It is understood and agreed between the parties hereto that this Agreement shall be subject and subordinate to the provisions of any existing or future agreement between the City and the United States of America relative to the ownership, 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 use its best efforts to cause any such agreement to include provisions protecting and preserving the rights of Manager in and to the GA Facilities and improvements thereof.
15.5
Permits and Licenses. Manager shall obtain, pay for, and maintain on a current basis, all permits and licenses as required for its operation under this Agreement. The cost of such permits and licenses shall be an Allowable Operating Expense.
ARTICLE XVI
HAZARDOUS SUBSTANCES AND OIL SPILLS
The Manager will be responsible for any costs (direct or indirect) associated with damage and/or cleanup of a hazardous substance and/or oil spill caused by the Manager or its subcontractors, vendors, agents or other representatives. This responsibility shall extend to freight carriers who were hired by the Manager to deliver the commodity or service to the City. While on Airport premises, the Manager shall comply with all federal, state and local laws, rules, regulations and ordinances and Airport policies and procedures governing the proper handling of hazardous substances and/or oil.
For the purpose of this section, hazardous substances shall be defined as any substance, other than oil, which when discharged in any quantity may present an imminent and substantial danger to the public health, welfare and/or environment. Oil shall be defined as any oil of any kind and in any form, including but specifically not limited to petroleum, crude oil, diesel oil, fuel oil, gasoline, lubrication oil, oil refuse, oil mixed with other waste, oil sludge, petroleum related products or by-products, and all other liquid hydrocarbons, regardless of specific gravity, whether singly or in combination with other substances.
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In addition, the Contractor agrees to indemnify, defend and hold the City harmless against all suits, losses, claims, costs, damages, demands, penalties, fines, liabilities and expenses, including attorney’s fees, claimed or incurred by reason of any bodily injury, death and/or property damage resulting from the placement of any such hazardous substances or oil spills at the Airport.
All spillages must be corrected on an immediate basis to the satisfaction of the City. All associated cost including materials and labor shall be borne by the Manager. Damage resulting from a spillage shall be the responsibility of the Manager. The Manager shall immediately notify the City of all spillages.
ARTICLE XVII
CITY SPECIFIC PROVISIONS
17.1
Publicity and Statements to the Press . Advertising, sales promotions or other materials of the Manager or its subcontractors, vendors, agents or other representatives shall limit the identification or reference to this Agreement to the general physical description and location of the CONRAC and the CONRAC Management Services. As a condition of entering into this
Agreement, the Manager further agrees to refrain from the following, absent the City’s prior written approval: (i) making any statement to the media or public regarding the subject matter of this Agreement or the City’s position on any issue relating to this Agreement; or (ii) making any statement to the media or public on any issue which, in the City’s judgment, is likely to cast doubt on the competence or integrity of the City or the Manager. Failure to comply with this
Article by the Manager shall constitute a material breach and, without limiting any other remedies the City may have, shall entitle the City to terminate this Agreement for default.
17.2
Drug-Free Workplace Requirement.
The Manager shall provide a drug-free workplace during the performance of this Agreement. This obligation is met by: a.
Notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the Manager’s workplace and specifying the actions that will be taken against employees for violations of such prohibition; b.
Establishing a drug-free awareness program to inform employees about (i) the dangers of drug abuse in the workplace, (ii) the Manager’s policy of maintaining a drugfree workplace, (iii) any available drug counseling, rehabilitation, and employee assistance programs and (iv) the penalties that may be imposed upon employees for drug abuse violations; c.
Notifying each employee that as a condition of employment, the employee will (i) abide by the terms of the prohibition outlined in this Article 23 and (ii) notify the
Manager of any criminal drug statute conviction for a violation occurring in the workplace not later than five (5) days after such conviction;
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d.
Notifying the City within ten (10) days after receiving from an employee a notice of a criminal drug statute conviction or after otherwise receiving actual notice of such conviction, unless otherwise forbidden to communicate such information to third parties under the Manager’s drug-free awareness program or other restrictions; e.
Imposing a sanction on, or requiring the satisfactory participation in a drug counseling, rehabilitation or abuse program by an employee convicted of drug crime; f.
Making a good faith effort to continue to maintain a drug-free workplace for employees; and g.
Requiring any party to which it subcontracts any portion of the work under the
Agreement to comply with the provisions above.
Failure to comply with the above drug-free workplace requirements during the performance of the Agreement shall be grounds for suspension, termination or debarment.
17.3
Non-Discrimination Provision for all City Contracts.
As a condition of entering into this Agreement, the Manager 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 Manager 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 Manager retaliate against any person or entity for reporting instances of such discrimination. The Manager 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 Manager 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 Manager from participating in City contracts or other sanctions.
As a condition of entering into this Agreement, the Manager further 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 (60) days after the request a truthful and complete list of the names of all subcontractors, vendors, and suppliers that Manager has used on City contracts in the past five (5) years, including the total dollar amount paid by contractor on each subcontract or supply contract. The Manager further agrees to fully cooperate in any investigation conducted by the City pursuant to the City’s
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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
Manager 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 Manager from participating in City contracts and/or other sanctions.
17.4
Confidentiality Requirements. Manager shall comply with the Confidentiality
Requirements set forth in Exhibit _____ at all times during the Term of this Agreement.
ARTICLE XVIII
PERFORMANCE BOND
Concurrent with the execution and delivery of this Agreement, Manager shall furnish the
City with a Performance Bond insurance Manager’s performance of this Agreement in an amount equal to ______ of the Allowable Operating Expenses as set forth in the approved Annual Operating Budget for Agreement Year 1. Manager shall renew such
Performance Bond at least thirty (30) days prior to each subsequent Agreement Year in an amount equal to _____ of the Allowable Operating Expenses as set forth in the approved Annual Operating Budget for that Agreement Year. Each Performance Bond shall be issued by a surety company licensed to do such business in the State of North
Carolina and reasonably acceptable to the City, and shall be maintained in full force and effect throughout the Term of this Agreement. The Performance Bond shall be conditioned to ensure the full performance by the Manager of all the terms and conditions of this Agreement and to stand as security for the payment by Manager of any valid claim by City against Manager. This provision shall survive the termination or expiration of this Agreement.
ARTICLE XIX
ACDBE PARTICIPATION
19.1
Participation.
This Agreement is subject to the requirements of the U.S. Department of
Transportation’s regulations, 49 CFR Part 23. Manager agrees to abide by the regulation and the
City’s ACDBE Program. Manager agrees that it will not discriminate against any business owner because of the owner’s race, creed, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. Manager agrees to include the above statements in any subsequent agreement or contract covered by 49 CFR Part
23, that it enters and cause those businesses to similarly include the statements in future agreements.
19.2
Goals.
The Manger’s ACDBE participation goal is hereby established at _____ percent
(_____%) of the Allowable Operating Expenses as set forth in the approved Annual Operating
Budget attached hereto as Exhibit _____. The Manager agrees it shall use its best efforts to
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utilize certified ACDBEs in performance of this Agreement and to achieve the goal. The obligations of both City and the Manager under this Agreement shall be subject to the provision of all federal regulations relating to ACDBEs.
19.3
Termination.
Should any ACDBE’s relationship with the Manager be terminated causing overall participation to fall below the goals set forth in Section 19.2 above, the Manager shall make good faith efforts to replace such ACBDE with another certified and qualified
ACDBE (subject to approval by City) within a reasonable period of time. All agreements between the Manager and ACDBEs shall provide that the ACDBE’s status as such throughout the term of any such agreement is a condition to the ACDBE’s right to operate at the Airport.
In the event the Manager shall fail to use its best efforts to comply with the terms of this Article,
City shall have the right to terminate this Agreement without giving the Manager notice or an opportunity to cure.
ARTICLE XX
GENERAL PROVISIONS
20.1
Waiver of Claims. City and Manager, respectively, hereby waive any claim either may have against the other, their respective officials, officers, agents or employees for loss of anticipated profits caused by any suit or proceeding directly or indirectly attaching 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 thereof.
20.2
Non-Waivers. Every provision herein imposing an obligation upon City or Manager is a material inducement and consideration for the execution of this Agreement. No waiver by City or Manager 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 City to re-enter Facilities 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 of acquiescence therein. No notice by City or Manager shall be required to restore or revive time as being of the essence hereof after waiver by City or Manager of default in one or more instances.
20.3
Situs and Service of Process. Manager 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. Manager hereby consents to the jurisdiction of any local, state or federal court located within Mecklenburg County, North Carolina and further consents that all such service or process shall be personally made by service or process in accordance with the terms set forth in
Section 19.10C of this Agreement..
20.4
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 either party, including, but not limited to, strikes, boycotts,
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labor disputes, shortages of materials, acts of God, acts of the public enemy, acts of superior government 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.
20.5
Agreement Binding Upon Successors. Subject to the limitation on assignment of
Manager’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.
20.6
Time of Essence. Time is expressly agreed to be of the essence for this Agreement.
20.7
Applicable Law. This Agreement and every question arising hereunder shall be construed or determined according to the laws of the State of North Carolina.
20.8
Manager’s Dealings with City.
Whenever in this Agreement Manager is required or permitted to obtain the approval of, consult with, give notice to, or otherwise deal with City,
Manager shall deal with City’s authorized representative and, unless or until City shall give
Manager written notice to the contrary, City’s authorized representative shall be the Aviation
Director.
20.9
Notices, Consents and Approvals.
a.
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 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. to: b.
Notice to City shall be addressed to and delivered to City at the address set forth below either by registered or certified mail, postage prepaid, or at such other office as it may hereafter designate by notice to Manager in writing:
Aviation Director
Charlotte Douglas International Airport
P.O. Box 19066
Charlotte, NC 28219 c.
Notice to Manager shall be addressed to and delivered either by hand or by registered or certified mail, postage prepaid, to Manager at Manager’s offices with a copy
__________________________
__________________________
__________________________
__________________________
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20.10
Interpretation. The language of this Agreement shall be construed according to its fair meaning and not strictly for or against either City or Manager. The section headings contained 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 the 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 provision valid, then the provision shall have the meaning which renders it valid.
20.11
Entire Agreement. The provisions of this Agreement contain the entire understanding between the parties hereto with respect to the subject matter hereof and said Agreement may not be changed, altered or modified in any manner except by written amendment executed by both
City and Manager.
20.12
Amendments. This Agreement may only be modified or amended by a written instrument executed by City and Manager.
[SIGNATURE BLOCK APPEARS ON FOLLOWING PAGE]
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IN WITNESS WHEREOF , and in acknowledgment that the parties hereto have read and understood each and every provision hereof, the parties have caused this Agreement to be executed as of the date first written above.
_________________________________________________________
Federal Tax I.D. No. ________________________________________
By: ______________________________________________________
Printed Name: _____________________________________________
Title: ____________________________________________________
Date: ____________________________________________________
CITY OF CHARLOTTE
By: ______________________________________________________
Printed Name: Brent D. Cagle
Title: Interim Aviation Director
Date: ____________________________________________________
This instrument has been preaudited in the manner required by the "Local Government
Budget and Fiscal Control Act".
Officer:________________________________ Deputy Finance
Date:__________________
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