Addendum #1
for
Request for Proposals
For Parking and Valet Services
at
Charlotte Douglas International Airport
for the
City of Charlotte, North Carolina
Dated January 14, 2014
1. Current Contracts & Amendments. The current contracts for both the staffing and valet
services were requested by a potential proposer. If any potential proposer would also like to
receive copies of the contracts and amendments, please contact Elizabeth Smithers at
aesmithers@cltairport.com.
2. CBI Program Change. After further consideration, the contract resulting from this RFP
will be subject to the Airport Concession Disadvantaged Business Enterprise program instead
of the Charlotte Business INClusion program. In response to this change, Section II (d)
Charlotte Business INClusion (“CBI”) (Package B & C Only) should be removed and
replaced with the following language:
Airport Concession Disadvantaged Business Enterprise (Package B & C Only)
The Service Agreement is subject to the requirements of the 49 CFR Part 23 Participation of
Disadvantage Business Enterprise in Airport Concessions (ACDBE). The ACDBE
participation for the Service Agreement will be negotiated with the selected proposer and the
negotiated goal will be made part of your Service Agreement. As part of the proposal, the
proposer should provide the areas of the Services and the certified ACDBEs who will
provide each under the Service Agreement. A directory of the North Carolina Department of
Transportation (NCDOT) certified ACDBEs can be found at www.ncdot.gov.
Further, as part of this change the CBI form 3 is no longer required as part of the proposal
and the proposed CBI participation will not be part of the selection criteria.
3. Reimbursable Expenses. Uniforms will now be considered a reimbursable expense, instead
of a non-reimbursable expense. Please add this to the Reimbursable Expense form attached to
the RFP in Exhibit A and complete the relevant information.
4. Service Agreement. The Service Agreement for Package C will be in a form substantially
similar to the attached agreement. Package A and B will contain similar terms with those
aspects related to the Services provided under the other Package removed.
Charlotte Douglas International Airport
Parking and Valet Services Agreement
with
Company Name
Table of Contents
I.
II.
III.
IV.
V.
VI.
Parking and Valet Services
1.1
Privileges Granted
Effective Date and Term
Premises
3.1
Ingress and Egress
3.2
Office and Storage Space
Compensation
4.1
Management Fee
4.2
Management Fee Adjustment
4.3
Reimbursable Expenses
4.4
Payments to the Company
4.5
Annual Budget
4.6
Annual True-Up
4.7
Performance Incentive
4.8
Monetary 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
Understated Revenues
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
Staffing Services
6.7
Staffing Level Adjustments
6.8
Employee and Operational Handbook
6.9
Uniforms
VII.
VIII.
IX.
X.
XI.
6.10
Training
6.11
Customer Complaints
6.12
Customer Claims
6.13
Incident Report
6.14
Background Checks
6.15
Employee Bond
6.16
Valet Drop-Off and Pick-Up Procedure
6.17
Valet Runners
6.18
Vehicle Curbside Inspections
6.19
Claim Tickets
6.20
Vehicle Inventory
6.21
Facility Inspections
6.22
Vehicle Removal
6.23
Customer Amenities
6.24
Promotions and Marketing
6.25
Revenue Control System
6.26
Rates
6.27
Advertising, Trademarks and Logos
6.28
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
7.10
Fines
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
Airport Concession Disadvantage Business Enterprise
11.1
Participation
11.2
Goals
11.3
Termination
XII.
11.4
Non-Compliance
Miscellaneous
12.1
Successors and Assigns
12.2
Suspension and Abatement
12.3
Broker’s Commission
12.4
Cooperation with Successor Company
12.5
Airport Rules and Regulations
12.6
Airport Security
12.7
Amendment
12.8
Performance Bond
12.9
Independent Contractor
12.10
Drug-Free Workplace
12.11
E-Verify
12.12
Company’s Dealings with the City
12.13
No Warranties or Inducements
12.14
Waiver of Claims
12.15
Non-Waivers
12.16
Time of Essence
12.17
Force Majeure
12.18
Severability
12.19
Entire Agreement
12.20
Interpretation
12.21
Choice of Law
12.22
Compliance with the Laws
12.23
Attorney’s Fees
12.24
Situs and Service of Process
12.25
Notices
Exhibits
A. TBD
B. TBD
C. TBD
CITY OF CHARLOTTE, NORTH CAROLINA
CHARLOTTE DOUGLAS INTERNATIONAL AIRPORT
PARKING AND VALET SERVICES AGREEMENT
This PARKING AND VALET SERVICES AGREEMENT (“Agreement”) by and between the CITY OF
CHARLOTTE, a municipal corporation of the State of North Carolina (“City”), and COMPANY, a COMPANY
TYPE 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;
and
WHEREAS, pursuant to Request for Proposals (“RFP”) dated January 6, 2014, the City solicited
proposals from firms qualified to and interested in operating the parking and valet services at the Airport
(the “Services”) and Company made a qualifying proposal; and
WHEREAS, the City wishes to award the right and the Company wishes to accept the right 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
Parking and Valet Services
1.1
Privileges Granted. The City grants the Company the right, privilege and obligation to manage
and operate the Parking and Valet Services (the “Services”) 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, while providing the highest
level of professional and courteous customer service. However, the City shall have the right from
time-to-time to not offer or reduce any aspect of the Services without any liability to the Company
for any costs incurred due to such reduction.
Article II
Effective Date and Term
The initial term of the Agreement shall be five (5) years (“Term”), beginning on July 1, 2014
(“Effective Date”) and expiring on June 30, 2019. Each contract year will coincide with the
Airport’s fiscal year and run from July 1st through June 30th the following year (“Service Year”).
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.
Office and Storage Space. TBD – based on proposal.
Article IV
Compensation
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
Management Fee. The Management Fee for the provision of the Services will be as follows:
First Service Year:
Second Service Year
Third Service Year
Fourth Service Year
Fifth Service Year:
The Management Fee is an annual obligation that will be paid in twelve equal installments, as
stated in Section 4.4 below.
Management Fee Adjustment. TBD – based on proposal.
Reimbursable Expenses. The City shall reimburse the Company for approved expenses as set
forth in Exhibit X. 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.
Payments to the Company. The City shall pay the Company the estimated Reimbursable Expenses
for the month as stated in the annual budget and one twelfth the management fee prior to the 1st
of each month at the address stated in Section X 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 $500. Where at any time the City exercises its option
to reduce or not offer any aspect of the Services, the City shall not reimburse expenses directly
associated with those aspects of the Services for the time they were not offered. (A detailed
description of included and excluded reimbursable expense will be added during negotiation).
Annual Budget. No later than April 1st, 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 X to the City
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 extend 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.
Performance Incentive. TBD – based on proposal.
Monetary Shortages. Company shall be responsible for any monetary shortages as determined by
the difference between the revenues collected and deposited and the revenues earned based on
the number of transactions recorded in the Airport’s revenue control systems. These shortages
4.9
4.10
4.11
include but are not limited to any shortages due to vouchers or discounts given to customers due
to issues arising from the provision of the Services. Each month the Company shall provide to the
City a report of the previous month’s monetary shortages. Upon receipt of this report, the City
shall invoice for the Company for any monies owed. Payment is due within thirty (30) days of
receipt of the invoice.
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 any utilities, maintenance or janitorial services associated with the operation of the Services.
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
5.2
5.3
Certified Annual Revenue Statement. Each year during the term of this Agreement Company
shall employee an independent Certified Public Accountant, approved by the City, who shall
provide a written statement to the City within one hundred and twenty (120) days after the end of
each Service Year, 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 Agreement were or were not the accurate monies due
in accordance with the terms of this Agreement.
Monthly Expense and Revenue Statement. Each month Company shall provide to the City a true
and accurate verified statement of Company’s actual Reimbursable Expenses and revenue
collected for the Services during the preceding month. Such statement must be in a form
approved by the Aviation Director and include copies of invoices stamped paid, indicating the date
and check numbers and signed by the Company. Where in any given month the reimbursable
expenses results in a variance of five percent (5%) over the budgeted amount, the statement must
include a detailed explanation of the cause of the increase. The statement shall be delivered no
later than twenty (20) days after the end of the previous calendar month.
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.
5.4
5.5
5.6
5.7
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. The
documents must be available within fourteen (14) days of receipt of the written request.
Understated Revenues. 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 additional 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, including without limitation Payment Card Industry (“PCI”)
compliance and laws and 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
6.4
6.5
6.6
Management. Company shall select and appoint a general manager to oversee the Services. Such
person must be an outstanding, highly qualified and experienced manger or supervisor of
comparable airport 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. This person or his/her designee 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.
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.
Reporting. Company will provide to the City reporting containing the information and in the
frequency as provided in Exhibit X.
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. Such clearance must be received prior to any Company employee beginning work at
the Airport.
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.
Staffing Services. TBD – based on proposal.
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.14
6.15
6.16
6.17
6.18
6.19
6.20
Staffing Level Adjustments. TBD – based on proposal. Where the Services are short staffed the
Company shall be responsible for reimbursing the City any costs it incurs in covering the
responsibilities of the Company during such times.
Employee and Operational Handbook. Company shall provide to the City copies of its employee
and operational handbooks. Such must be provided prior to the Effective Date and within thirty
(30) days of any changes implemented by the Company.
Uniforms. TBD – based on proposal.
Training. The City shall provide “Train the Trainer” for the specified Company employees on all
computer equipment as well as any minor repairs to be completed by the Company. After
completion of the “Train the Trainer” the Company shall be responsible for providing this and any
other necessary training to Company employees. A copy of the employee training program shall
be provided to the City.
Customer Complaints. The Company shall be responsible for handling and responding to all
customer complaints in writing. The complaint and the applicable response shall be provided to
the City.
Customer Claims. The Company shall be responsible for any customer claims for loss or damage to
property where such loss was related to or alleged to be related the Company’s provision of the
Services. All such claims and their resolution shall be reported to the City. Outside of any
applicable insurance premiums, the City shall not reimburse the Company for costs associated
with such claims, including without limitation any related deductible.
Incident Report. In the event an occurrence of theft, fraud or embezzlement or suspicion of the
same occurs, the Company must immediately notify the City of the incident or suspected incident.
The Company also agrees to provide full disclosure, including, but not limited to, copies of police
reports of investigation, reports to bonding company, bonding company findings and reports of
any action taken against its employee.
Background Checks. TBD – based on proposal. The background checks must at the least include a
diver’s records check.
Employee Bond. All Company employees shall be bonded against theft, embezzlement and other
losses to customer and City property.
Valet Drop-Off and Pick-Up Procedure. TBD – based on proposal.
Valet Runners. TBD – based on proposal. City shall provide one van to the Company to transport
valet drivers to and from the Curbside Valet. The Company shall be responsible for providing
drivers and fuel for the operation of the van.
Vehicle Curbside Inspections. Company shall be responsible for assisting the City in completing
Curbside Valet vehicle inspections as required under the Airport Security Plan.
Claim Tickets. Company shall be responsible for providing customer claim tickets, however such
expense is considered reimbursable under this Agreement. The City shall have the right to
advertise on any claim ticket provided by the Company and review and approve any disclaimer
language included on such tickets.
Vehicle Inventory. The Company shall be responsible for conducting a nightly license plate
inventory in both the self-park lots and valet parking decks. Further, the Company shall also be
responsible for conducting manual available space counts. These counts must be conducted no
less than four (4) times daily for the self-park lots and once nightly for the valet decks. The city
shall have the right to request an increase in the available space counts on an as needed basis.
6.21
6.22
6.23
6.24
6.25
6.26
6.27
6.28
Facility Inspection. The Company shall perform periodic facility inspections to ensure all revenue
control equipment, elevators, lighting fixtures and other infrastructures are in working order. Any
deficiencies must be noted and reported to the City as soon as possible.
Vehicle Removal. The Company shall remove from the Airport’s premises any parked vehicle at
the direction of the City. The towing service company used to perform such service shall be
approved by the City.
Customer Amenities. TBD – based on proposal.
Promotions and Marketing. TBD – based on proposal.
Revenue Control System. City shall furnish and be responsible for maintaining the necessary
revenue control systems for the operation of the Services, with the exception of minor repairs as
required under Section 6.6 above. The City shall be the merchant of record for all credit card
parking transactions. The Company shall be compliant with PCI Data Security Standards to the
extent applicable to the Services provided by the Company under this Agreement, and shall be
responsible for the security of the payment cardholder data in its possession.
Rates. The City shall determine the rates and terms and conditions under which the Services are
to be sold with the exception of the rates for the Amenities which will be set by the Company
subject to written approval by the City. The City may request recommendations from the
Company on appropriate rates and terms and conditions for the Services. Cash and credit cards
are the only acceptable forms of payment for the Services.
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 customer
claim tickets. Further, any use of the Airport’s trademarks or logos is forbidden absent prior
written approval.
Damage to City Property. Where Airport property is damaged by the actions of the Company’s
employees, the Company shall be responsible for reimbursing the Airport for the costs associated
with correcting such damage. This cost will not be a Reimbursable Expense.
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.
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
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.
7.6
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.
7.7
Termination without Cause. The City has the right to terminate the agreement without cause on
a sixty (60) day written notice to the Company.
7.8
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.
7.9
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.
7.10
Fines. Company recognizes that its obligation to provide the public with first-class Services and
customer service as described herein. The City has established fines set forth in Exhibit X for
various violations of this Agreement. The Parties agree that the fines are reasonable and the
Company agrees to pay the City such fines in accordance with this Section. The Company
acknowledges that the assessment and demand of payment for such fines does not waive, limit or
otherwise affect any other right the City may have regarding enforcing this Agreement.
Article VIII
Indemnification and Insurance
8.1
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.
8.2
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
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.
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. Further, the insurer must be rated not less than “A” by A.M.
Best.
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 at least thirty (30) days 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 field 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
On all polices the City of Charlotte shall be named an additional insured.
8.2.1.7
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
Garage Operations Liability Insurance. The Company shall obtain Garage
Operations Liability as shall protect from bodily injury and property damage arising
out of garage operations. Coverage should include Broadened Coverage Garage
endorsement, from CA 25 1 4. The amounts of such insurance shall not be less than
$2,000,000 combined single limit, and be designated by symbol 21 (any auto) and
symbol 30 (auto left with) on the policy.
8.2.2.2
8.2.2.3
8.2.2.4
Garage Keepers Legal Liability. The Company shall obtain Garage Keepers Legal
Liability as shall protect for loss to an auto left in the Company’s care for service,
repair and storage or during operations. The amount of such insurance shall not be
less than, $2,000.000 per occurrence/aggregate. Coverage shall be written on a
direct primary basis.
Fidelity Bond (Crime). The Company shall provide employee dishonesty coverage
on all Company employees at a limit of not less than $250,000 each claim, with the
addition of Loss Payable endorsement (CR 20 14 08 07), the City names as loss
payee.
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
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
9.3
9.4
9.5
9.6
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.
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.
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.
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
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
9.7
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
Airport Concession Disadvantaged Business Enterprise
11.1
11.2
Participation. This Agreement is subject to the requirements of the U.S. Department of
Transportation’s regulations, 49 CFR Part 23. Concessionaire agrees to abide by the regulation and
the City’s ACDBE Program. The Company 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. The Company
agrees to include the above statements in any subsequent management agreement or contract
covered by 49 CFR Part 23, that it enters and cause those businesses to similarly include the
statements in future agreements.
Goals. The Company’s ACDBE participation goal is hereby established at XX percent (XX%) of the
revenues collected as part of the provision of the Services. The Company agrees it shall use its
11.3
11.4
best efforts to utilize certified ACDBEs in performance of this Agreement and to achieve the goal.
The obligations of both City and the Company under this Agreement shall be subject to the
provision of all federal regulations relating to ACDBEs.
Termination. Should any ACDBE’s relationship with the Company be terminated and overall
participation is below the goals set forth in Section 13.2 above, the Company 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 Company 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.
Non-Compliance. In the event the Company 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
Company notice or an opportunity to cure.
Article XII
Miscellaneous
12.1
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.
12.2
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.
12.3
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.
12.4
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.
12.5
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.
12.6
Airport Security. Company acknowledges and agrees that:
12.6.1 Company’s officers and employees will have to apply for an qualify for security identification
badges (“Security Badges”) issued by the Aviation Director;
12.6.2 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
12.6.3 City shall not be liable to Company for any diminution or deprivation of Company’s rights
hereunder on account of the Security Plan requirements.
12.7
Amendment. This Agreement may only be modified or amended by a written instrument
executed by City and Company.
12.8
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 Management Fee. Each Service Year
the Performance Bond will renew and increase to reflect fifty percent (50%) of the current Service
Year’s Management Fee.
12.9
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.
12.10
Drug-Free Workplace. Company will provide, and shall cause its sub-contractors to so provide, a
Drug-Free Workplace by:
12.10.1
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.
12.10.2 Notifying the employee in the statement that, as a condition of employment, the employee
will:
12.10.2.1 Abide by the terms of the statement; and
12.10.2.2 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.
12.10.3
Notifying the City within ten (10) days after receiving notice under subparagraph 15.13.2.2
from any employee or otherwise receiving actual notice of such conviction.
12.10.4
Taking one of the following actions within thirty (30) days of receiving notice under
subparagraph 15.13.2.2 with respect to any employee who is convicted:
12.10.4.1 Taking appropriate personnel action against such employee up to and including
termination; or
12.10.4.2 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.
12.10.4.3 Making a good faith effort to continue to maintain a Drug-Free Workplace through
implementation of subparagraphs 15.13.1 through 15.13.4.
12.11
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.
12.12
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
12.13
12.14
12.15
12.16
12.17
12.18
12.19
12.20
Company is required each party agrees not to unreasonably withhold or delay the granting of such
consent.
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.
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.
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
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.
12.21
12.22
12.23
12.24
12.25
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 or 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.
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:
_______________________________
_______________________________
_______________________________
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