ADDENDUM #5
for
NEW REQUESTS FOR PROPOSALS
TO DEVELOP AND OVERSEE COMMERCIAL ADVERTISING CONCESSION
at
CHARLOTTE DOUGLAS INTERNATIONAL AIRPORT
for the
CITY OF CHARLOTTE, NORTH CAROLINA
Dated March 8, 2013
Charlotte Douglas International Airport
Non-Exclusive Advertising Concession Agreement
with
Company Name
Table of Contents
I.
II.
III.
IV.
Advertising Concession
1.1
Privileges Granted
1.2
Express Restrictions
Agreement Term
2.1
Effective Date and Term
2.2
Holding Over
Advertising Locations and Premises
3.1
Assigned Locations
3.2
Use of Assigned Locations
3.3
Ingress and Egress
3.4
Recovery or Relocation of Premises
3.5
Storage Space
3.6
Quiet Enjoyment
3.7
Damage and Destruction
Compensation to the Airport and Other Fees
4.1
Minimum Annual Guarantee
4.2
Percentage of Revenue Payment
4.3
Payment for Fixed Space Rental
4.4
Additional Rents and Fees
4.5
Utilities
4.6
Licenses, Fees and Taxes
4.7
Proration of Rentals
1
V.
VI.
VII.
VIII.
IX.
X.
XI.
4.8
Late Payments
Records and Audit
5.1
Certified Annual Revenue Statement
5.2
Monthly Revenue Statement
5.3
Late Statements
5.4
Audit of Records
5.5
Audit Request
5.6
Understated Revenues
5.7
U.S. Government Access
Installation, Maintenance and Repair
6.1
Furnish and Install Advertising
6.2
Maintenance of Assigned Locations
6.3
Repairs
6.4
Sanitation, Hygiene and Cleanliness
6.5
Noise, Odor, Vibrations and Annoyances
6.6
Deliveries
6.7
Right to Inspect
6.8
Failure to Maintain or Repair
Method of Operation
7.1
Management
7.2
Unsold/Vacant Spaces
7.3
Rates
7.4
Advertising Policy
Capital Investment and Construction Standards
8.1
Capital Investment
8.2
Construction Standards
8.3
Title to Improvements
Termination
9.1
Non-Compliance and Violation
9.2
Cumulative or Continuous Violations
9.3
Default
9.4
Remedies
9.5
Remedies Non-Exclusive
9.6
Remedies Cumulative
9.7
Termination for Cause
Indemnification and Insurance
10.1 Indemnification
10.2 Insurance
Equal Employment, Non-Discrimination, Public Use and Federal Grants
11.1 Equal Employment
11.2 Non-Discrimination
11.3 Americans with Disabilities Act
11.4 Federal Grants and Public Use
11.5 Recapture by the United States Government
11.6 Concessionaire’s Non-Compliance
11.7 Modification to Comply with Federal Laws, Regulations or Agreements
2
XII.
XIII.
XIV.
Assignment, Transfer and Subleasing
Airport Concession Disadvantage Business Enterprise
13.1. Participation
13.2. Goals
13.3. Certification
13.4. Assistance
13.5. Fees
13.6. Termination
13.7. Non-Compliance
Miscellaneous
14.1 Intention of Parties
14.2 Relationship of the Parties
14.3 Successors and Assigns
14.4 Suspension and Abatement
14.5 Broker’s Commission
14.6 Cooperation with Successor Concessionaires
14.7 Airport Rules and Regulations
14.8 Airport Security
14.9 Grant Assurances
14.10 Amendment
14.11 Performance Bond
14.12 Independent Contractor
14.13 Drug-Free Workplace
14.14 Concessionaire’s Dealings with the City
14.15 No Warranties or Inducements
14.16 Waiver of Claims
14.17 Non-Waivers
14.18 Time of Essence
14.19 Force Majeure
14.20 Severability
14.21 Entire Agreement
14.22 Interpretation
14.23 Choice of Law
14.24 Compliance with the Laws
14.25 Attorney’s Fees
14.26 Situs and Service of Process
14.27 Notices
Exhibits
A. Relevant Portions of the RFP
B. Relevant Portions of Concessionaire’s Proposal
C. Assigned Locations
3
CITY OF CHARLOTTE, NORTH CAROLINA
CHARLOTTE DOUGLAS INTERNATIONAL AIRPORT
ADVERTISING CONCESSION AGREEMENT
This ADVERTISING CONCESSION 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
(“Concessionaire”)(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 February 8, 2013, the
City solicited proposals from firms qualified to and interested in operating the
commercial advertising concessions at the Airport (the “Concession”) and Concessionaire
made a qualifying proposal; and
WHEREAS, the City wishes to award the Concession to Concessionaire and agrees;
NOW, THEREFORE, for and in consideration of the mutual promises contained in
this Agreement, the City and Concessionaire agree as follows:
Article I
Advertising Concession
1.1
1.2
Privileges Granted. The City grants the Concessionaire the non-exclusive right
and obligation to design, develop, operate and manage a first-class, high-quality,
state of the art advertising program and install and maintain advertising in
specified locations throughout Airport property.
Express Restrictions. Concessionaire shall not have the right to design,
develop, maintain, operate or manage the public WiFi advertising program at the
Airport. Further, certain aspects of the Concession will be limited as outlined in
the relevant portions of the RFP, attached as Exhibit A.
Article II
Effective Date and Term
The initial term of the Agreement shall be five (5) years, beginning on July 1,
2013 (“Effective Date”) and expiring on June 30, 2018. Each contract year will
coincide with the Airport’s fiscal year and run from July 1st through June 30th the
following year (“Concession Year”).
4
Article III
Advertising Locations and Premises
3.1
Assigned Locations. City grants the Concessionaire the right to exclusively
operate the Concession at the initial locations listed in Exhibit C (“Assigned
Locations”). Such locations may be added to or subtracted from, and Exhibit C
appropriately updated, by the written agreement of the Parties without formal
amendment to this Agreement.
3.2
Use of Assigned Locations. City grants Concessionaire the right to design,
develop, maintain, operate and manage the Concession at the Assigned Locations
subject to the terms of this Agreement and the Airport’s Advertising Policy.
Further, the Concessionaire has the right to enter into contracts with advertising
companies for the use of the Assigned Locations.
3.3
Ingress and Egress. Concessionaire will have the non-exclusive right, in
common with other Airport tenants and the general public, for ingress and egress
to the Airport.
3.4
Recovery or Relocation of Assigned Locations. The Aviation Director, or his
designee, in his sole discretion may, at any time during the Term or any
extensions, relocate or remove any of the Assigned Locations. Prior to the
exercise of such right, the Airport shall strive to give the Concessionaire thirty
(30) days written notice.
3.5
Storage Space. If available, City shall rent to Concessionaire requested space to
be used for storage (“Storage Space”) based on the Storage Space Rent rate
outlined in Section 3.5.1. Such space shall not exceed a total of XXX SQUARE
FEET without prior written agreement between the Parties.
3.5.1 Payment for Storage Space. Concessionaire shall pay to City each year an
annual rental (“Storage Space Rent”) for any space utilized by Concessionaire
other than the Assigned Locations. The Storage Space Rent will be leased to
Concessionaire at a rate of INSERT PRICE PER SQUARE FEET and will be
payable in twelve (12) monthly installments. Such payments will be due on
the 10th day of each month for the Term.
3.5.2 Quiet Enjoyment. City agrees that, on payment of the rentals and fees and
performance of the promises within the Agreement, Concessionaire will have
the right to peaceably occupy and enjoy the Assigned Locations.
3.5.3 Proration of Rentals. In the event possession, use and occupancy of the
Storage Space should fall on a date other than the first day of the a calendar
month, then the Storage Space Rent will be prorated to reflect the actual
number of days during which Concessionaire will have enjoyed the
possession, use and occupancy.
3.5.4 Holding Over. If Concessionaire holds over after the expiration date, any
extension thereof, or earlier termination of this Agreement as herein
provided, and the Parties have not otherwise agreed in a written amendment
to the terms and provision of such holding over, Concessionaire’s occupancy
shall be deemed by the City to be a tenancy at will and at a rental to be fixed
by the City, payable upon demand, but otherwise pursuant to all restrictions
and obligations of Concessionaire to City under this Agreement.
5
3.6
Damage and Destruction.
3.6.1 Repair and Rebuilding. In the event of damage or casualty to any part of
the Assigned Locations, unless City determines that the terminal will not
continue to be used as a passenger terminal by scheduled airlines, any such
damage or destruction shall be repaired with reasonable dispatch by the
parties in cooperation with each other, but with City in charge. Both parties
shall apply all insurance proceeds received by them as a result of any damage
or destruction under the provisions of Section 10.2 to such repair and
rebuilding. Should the cost of such repair or rebuilding exceed the amount of
such insurance proceeds, City and Concessionaire shall attempt to agree on a
program to finance the excess cost. If agreement is not reached within a
reasonable timeframe, City shall reduce the scope of repairs and rebuilding so
that the same may be accomplished with the proceeds. Should City decide
that the terminal will no longer be used as a passenger terminal by scheduled
airlines, all insurance proceeds paid to City under Section 10.2 with respect to
property or improvements originally provided or paid for by Concessionaire
shall belong to Concessionaire.
3.6.2 Abatement of Storage Space Rent. During any period that one or more of
the Storage Spaces are unusable by reason of damage or destruction such
rents shall abate until the damaged premises are restored and returned to
Concessionaire for its occupancy and use for the Concession.
3.6.3 Exception for Fault of the Concessionaire. Notwithstanding the
provisions of Section 3.6.1, if the Storage Space or any part thereof is
damaged by the intentional or negligent act or omission of Concessionaire, its
sub-contractors, their agents or employees, there shall be no rent abatement.
Article IV
Compensation to the Airport and Other Fees
4.1
4.2
Minimum Annual Guarantee. The Minimum Annual Guarantee (“MAG”) for
year one is AMOUNT. The second and third Concession Year MAGs will be
calculated by multiplying the Airport’s fiscal year enplanements (as provided by
the Airport) first by the Concessionaire’s proposed Revenue Per Enplanement
(“RPE”) and then that total by the Percentage of Revenue (“Fee”) as listed in
Section 4.2. Concessionaire’s proposed and accepted RPE is AMOUNT. MAG is
an annual obligation that will be paid in twelve equal installments, due no later
than ten (10) days after the end of each calendar month during the term of this
Agreement and payable to the City at the address set forth below.
Fee. Concessionaire agrees to pay City PERCENTAGE (XX%) of gross revenues
through the end of the Term of this Agreement. Gross Revenues means the total
sum of money received by Concessionaire for or in connection with advertising at
the Airport, regardless of where payment is made or received, excluding only the
amounts of federal, state, or municipal sales taxes or other similar taxes, if any,
collected from customers. In the event the Fee is in excess of the MAG, the
Concessionaire will pay to the City the higher of the two.
6
4.3
4.4
4.5
4.6
4.7
Payment of MAG and Fee. MAG is an annual obligation that will be paid in
twelve equal installments, due no later than ten (10) days after the end of each
calendar month during the term of this Agreement and payable to the City at the
address set forth below. Where, the end of the Concession Year, the Fee is higher
than the MAG, the Concessionaire shall pay the difference to the City upon
submission of its Certified Annual Revenue Statement, as defined in Section 5.1
below.
Additional Rents and Fees. If City has paid any sum or sums or has incurred
any obligation or expense for which Concessionaire 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
Concessionaire to perform or fulfill any one or more of the conditions, covenants
or undertakings contained in this Agreement, Concessionaire agrees to pay such
sums or expenses, including all interest, costs, damages and penalties, and
agrees that the same shall be added to the next installment of revenue due
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. Concessionaire shall be responsible for any cost for utilities associated
with the use of Storage Space. The Airport shall be responsible for the cost of
any utilities associated with the operation of the advertising display equipment.
Licenses, Fees and Taxes. Concessionaire agrees to pay, when due, all
licenses, fees, taxes and assessments charged, assessed or levied by any
governmental authority by reason of the operation of the Concession at the
Assigned Locations. No such payment shall be considered a payment of rent
entitling Concessionaire to a credit under any provisions of this Agreement. 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.
Late Payments. In the event any required payment made by Concessionaire is
unpaid for a period of thirty (30) days or more, City will be entitled to, and
Concessionaire shall pay, interest at the rate of eighteen percent (18%) per
annum on all amounts unpaid.
Article V
Records and Audit
5.1
Certified Annual Revenue Statement. Each year during the term of this
Agreement Concessionaire shall employee an independent Certified Public
Accountant who shall provide a written statement to the City within one hundred
and twenty (120) days after the end of each Concession Year, stating whether, in
its opinion, the Fee and the Storage Space Rent, if any, paid to by the
Concessionaire to City during the preceding year pursuant to this Agreement
were or were not made in accordance with the terms of this Agreement. Such
statement shall also contain a certified statement of Gross Revenues as shown on
7
5.2
5.3
5.4
5.5
5.6
5.7
the books and records of Concessionaire and which were used to help compute
the Fee payments made to the City during the period covered by said statement.
Monthly Revenue Statement. Each month Concessionaire shall provide to the
City a true and accurate verified statement of Concessionaire’s gross sales and
Gross Revenues for the preceding month. Such statement must be in a form
approved by the Aviation Director and delivered no later than ten (10) days after
the end of the previous calendar month.
Late Statements. Statements will be considered late if, for monthly
statements, they are more than five (5) days past due or for annual certified
statements they are more than thirty (30) days past due.
Audit of Records. The City shall have access to any books, documents, papers
and records of the Concessionaire, which are directly related to this Agreement
for the purpose of making audit, examination, excerpts and transcripts.
Audit Request. Concessionaire, 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
Concessionaire has understated the Gross Revenues by one percent (1%) or
more, Concessionaire 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 fees became due 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 Concessionaire which are directly related
to this Agreement for the purpose of audit, examination, excerpts and
transcriptions.
Article VI
Installation, Maintenance and Repair
6.1
Furnish and Install Advertising. Concessionaire, at its sole expense, shall
furnish and install advertising displays at the Assigned Location. Further,
Concessionaire will be responsible for installing new advertising material per the
terms of the contract between the advertiser and the Concessionaire.
6.2
Maintenance of Assigned Locations.
6.2.1 City shall be responsible for the structural maintenance, repair and upkeep of
the Assigned Locations.
6.2.2 Concessionaire shall be responsible for the cost and expense to maintain the
Assigned Locations, including but not limited to all mechanical equipment,
display equipment or personal property, in good repair and in a clean, orderly
and safe condition with a first-class appearance, ordinary wear and tear
excepted, and shall keep the areas adjacent free of obstructions.
8
6.2.3 To accomplish this requirement, Concessionaire shall establish, and shall
require sub-contractors to establish, an adequate preventive maintenance
program and the provisions of same shall be subject to periodic review by the
City. Maintenance of the Assigned Locations shall include, without limitation,
cleaning of all surfaces contained in the Assigned Locations, lighting installed
by Concessionaire or part of the advertising display and equipment.
6.2.4 The Aviation Director or his designee shall be the sole judge of the quality of
maintenance in exercise of his or her reasonable discretion.
6.3
Repairs. Concessionaire agrees to make any and all necessary repairs to
Assigned Locations and will maintain and keep the Assigned Locations in good
condition and repair, and will surrender and deliver up the same at the
termination of this Agreement in as good order and condition as the same exists
at the commencement of the term of this Agreement, reasonable wear and tear
excepted.
6.4
Sanitation, Hygiene and Cleanliness. Concessionaire shall keep the Assigned
Locations free of debris, trash and hazardous conditions and shall keep public
areas around the Assigned Locations free of hazardous conditions originating
from Concessionaire’s operations and shall notify the Airport promptly of other
hazardous conditions in the public areas outside of the Assigned Locations.
Concessionaire shall also be responsible for the adequate and sanitary handling
of all trash and other waste caused as a result of the operation of the Assigned
Locations and shall provide for its timely removal to the central collection point
provided by the City.
6.5
Noise, Odor, Vibrations and Annoyances. Concessionaire shall conduct, and
shall cause its employees and subcontractors to conducts its operations in an
orderly and proper manner so as not to commit any nuisance or waste in and
around the Assigned Locations or annoy, disturb or be offensive to others in the
terminal. Concessionaire, and its employees and subcontractors, as applicable,
shall take all reasonable measures, using the latest known and most practicable
devices and means, to eliminate any unusual, nauseous or objectionable smoke,
gases, vapors, odors or any vibrations tending to damage the area around the
Assigned Locations, and to maintain a low sound level in its operations whenever
possible.
6.6
Right to Inspect. The City shall have the right to inspect the Assigned
Locations at any time without notice throughout the term of the Agreement,
provided that City shall not interfere unduly with Concessionaire’s operations,
however this right shall not impose an obligation on the City to inspect the
Assigned Locations. If maintenance, installation or repair is not satisfactory then
Concessionaire shall be liable to the City as set forth below in Section 6.8.
6.7
Failure to Maintain or Repair. Concessionaire shall maintain and repair all
Assigned Locations. Failure to cure such issues within the time frame provided in
any written notice from the City to the Concessionaire will result in penalties to
be paid to the City. A list of these penalties is included below:
Breach or Default
Inoperable equipment or equipment in need of repair
9
Penalty
$100.00 a day
Failure to remove expired advertising
Advertising violating the Advertising Policy or in need of repair
Failure to keep Assigned Locations in a first-class condition
$50.00 a day
$150.00 a day
$150.00 a day
Article VII
Method of Operation
7.1
Management. Concessionaire shall select and appoint a general manager to
oversee the Concession. Such person must be an outstanding, highly qualified
and experienced manger or supervisor of comparable airport advertising
operations, vested with the power to accept service of all written notices and
control the conduct of Concessionaire’s personnel, subcontracts and agents. Such
person must be located in the Charlotte region and be available to show potential
advertisers available space at the Airport. This person or their 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 both the advertising
and the Assigned Locations meet the requirements set forth in this Agreement.
7.1.1 Advertising Contracts Concessionaire must enter into advertising contracts
with each person or entity seeking to advertise in the Airport under this
Agreement. Such advertising contracts must be expressly subordinate to
and subject to the terms of this Agreement and its effectiveness is
contingent on the City’s approval. If, at the expiration date of this
Agreement, the Concessionaire fails to secure a new advertising concession
agreement with the City, any advertising contract that is set to expire after
the expiration date of this Agreement will expire on the expiration date of
this Agreement, unless otherwise expressly agreed to by the Parties in
writing.
7.1.2 Reporting. Concessionaire will provide to the City monthly reporting
containing the information and in the format as provided in Exhibit B.
7.1.3 Airport Personal Identification. 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.
7.1.4 Employee Parking. City, in the sole discretion of the Aviation Director, or
his designee, will provide to Concessionaire a reasonable number of vehicular
parking spaces for the use of Concessionaire’s employees to be provided in
the City’s employee parking facility or business valet deck.
7.2
Unsold/Vacant Spaces. Concessionaire shall exercise good faith and sound
business practices to keep all Assigned Locations filled with revenue-producing
advertising. Assigned Locations not sold shall be offered to the City at no cost.
Such unsold space shall not include advertisement space provided at no cost
under either the terms of the Bank of America exclusive ATM agreement or for
the use by the Airport as reflected in Exhibit A.
7.3
Rates. Concessionaire shall determine rates, terms and conditions under which
advertising is to be sold and these shall be competitive with comparable facilities
10
7.4
and exposures. Before implementation, the rate schedule, and any subsequent
changes to it, shall be approved in writing by the City. Except as provided
otherwise herein, Concessionaire shall not permit free or discounted advertising
without prior written approval by the City. Nothing in this section should be
construed as to allow advertising that is not in compliance with the Airport’s
Advertising Policy.
Advertising Policy. All advertising displayed at the Airport must meet the
standards set out in the Airport’s Advertising Policy included in Exhibit A. Final
determination on if an advertisement meets the standards of the Advertising
Policy rest with the Aviation Director or his designee and Concessionaire will bear
the risk of any potential profit lost due to an advertisement’s non-compliance.
However, if approval is received by the Aviation Director and later recanted, the
Concessionaire may subtract any actual profit lost from their next MAG
installment as long as such loss is documented in writing and approved by the
City prior to repayment.
Article VIII
Capital Investment and Construction Standards
8.1
Capital Investment
8.1.1 “As Is” Condition of Assigned Locations. Concessionaire accepts
Assigned Locations in “as is” and “where is” condition with absolutely no
warranties as to condition or suitability for use being given by the City.
Concessionaire is required to demolish and remodel or replace the Assigned
Locations as provided in the portions of Concessionaire’s proposal attached
here to as Exhibit B.
8.1.2 Required Minimum Investment. Concessionaire shall make a minimum
initial capital investment of not less than AMOUNT, to include, but not limited
to, those improvements listed in Exhibit B. Any improvements outside of
those listed in the proposal must first receive approval the Aviation Director
or his designee.
8.1.3 Cost Included. Cost included in the total Capital Investment include any
incurred by Concessionaire for installation of new technology at the Assigned
Locations, any necessary building permits, utilities to the displays and other
construction costs, any fees or costs payable to Concessionaire’s architects,
contractors and subcontractors, cost of removal of existing advertising
displays and where necessary the cost of refurbishing the current Assigned
Locations. Upon completion of each Capital Improvement a certificate of
actual cost of such shall be provided to the Aviation Director or his designee.
8.1.4 Cost Excluded. Concessionaire shall not include in the Capital Investment
total any cost incurred for internal design, review, management and
oversight of Assigned Location construction, any licensing, franchising or
permitting costs or any other future renovation or remodeling of Assigned
Locations which Concessionaire may request to make during the term.
8.1.5 Refurbishment or Replacement of Existing Signage. Throughout the
term of this Agreement it will be the responsibility of the Concessionaire to
11
refurbish or replace existing displays at the Assigned Locations on an as
needed basis. However, any improvements must first receive the approval of
the Aviation Director or his designee and such costs will not be included in the
Gross Revenues.
8.1.6 Encumbrances on Assigned Locations. The Assigned Locations shall be
accepted by Concessionaire subject to any and all then existing easements or
other encumbrances, and Concessionaire shall not have the right to encumber
any improvements provided by the Concessionaire throughout the term of
this Agreement.
8.2
Construction Standards. All construction performed by Concessionaire,
including construction and installation of all improvements, shall conform in all
material respect to the Airport’s construction guidelines, attached hereto in
Exhibit F.
8.2.1 Design Plans Due in Advance. For each refurbishment or replacement of
the Assigned Locations required by this Agreement, Concessionaire shall
provide proposed design plans and specifications to the Aviation Director, or
his designee, for approval no later than eight (8) weeks prior to the expected
start date for construction or installation. Construction on such design plans
cannot proceed without prior written approval by the Aviation Director.
8.2.2 Completion of Design and Placement. Parties agree that time is of the
essence for the completion of the design, construction and placement of
refurbished or replaced Assigned Locations.
8.2.3 Compliance with Environmental Regulations. In the performance of the
construction activities under the term of this Agreement, Concessionaire is
responsible for compliance, by itself and its contractors, with all federal, state
and local environmental requirements.
8.2.4 Coordination of Construction. Concessionaire shall cooperate with City
and its planners, designers, architects and engineers in the construction and
installation of the improvements of the Assigned Locations, and shall comply
with all approved plans and building code. Concessionaire agrees to meet
with the City on a periodic basis, at the request of the Aviation Director or his
designee, to review the construction process. Further, Concessionaire
recognizes that during the term of this Agreement construction may also
occur in adjacent areas surrounding its Assigned Locations, and
Concessionaire agrees to cooperate with and grant to the contractors access
to the Assigned Locations when necessary to accommodate construction in
those areas.
8.2.5 Building Permits. In addition to approvals required by the Airport,
Concessionaire and its contractors are solely responsible for applying for,
obtaining, and paying for all required building permits, licenses and other
required approvals.
8.3
Title to Improvements. Concessionaire agrees that all improvements to the
Assigned Locations, including approved changes and renovations, shall become
the property of the City upon either the natural expiration or the termination of
this Agreement.
12
Article IX
Termination
9.1
Non-Compliance and Violation. The City shall have the right to make
reasonable objections to Concessionaire’s failure to create and maintain a firstclass Concession at the Airport and operate its business in a manner satisfactory
to the City. Should Concessionaire violate the provisions of this Agreement, the
City shall give the Concessionaire notice and a reasonable opportunity to cure
said violation or violations. Concessionaire 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 Concessionaire promptly commences to cure the same
and thereafter diligently prosecutes the cure of such breach or violation.
9.2
Cumulative or Continuous Violations. Should Concessionaire 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 contract year, the
City may treat any subsequent violation or violations as a Default and, in
addition, collect liquidated damages, if applicable, as described in Exhibit E.
9.3
Default. The occurrence of any of the following shall constitute a “Default:”
9.3.1
Default in Compensation. Concessionaire’s failure to pay timely any
compensation as stated in Article IV of this Agreement when due 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.
9.3.2
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 Concessionaire.
9.3.3
Bankruptcy. The filing by or against the Concessionaire of any petition in
bankruptcy.
9.3.4
Unapproved Transfers. Concessionaire’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.
9.3.5
Illegal Use. Use or permission to use the Assigned Locations or other
portion of the Airport made available under this Agreement by
Concessionaire for any illegal purpose.
9.3.6
Abandonment. Discovery by the City that Concessionaire has abandoned,
deserted or vacated the Assigned Locations. Such Default will not require
notice or an opportunity to cure.
9.3.7
Liens against City Property. Concessionaire’s sufferance of any lien or
attachment adverse to the interest of the City, including but not limited to
mechanic’s or materialman’s liens to be filed against the Assigned Locations,
or any lien or attachment to be filed against the Airport or the City’s
property because of any act or omission of Concessionaire. Such Default
shall occur if such lien is not discharged or contested by Concessionaire in
13
good faith by proper legal proceeding within twenty (20) days of the
Concessionaire receiving notice of such lien or attachment.
9.3.8
Material Misrepresentation. City discovers that Concessionaire 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.
9.3.9
Default in Other Covenants. Concessionaire’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 9.3, 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.
9.4
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:
9.4.1
Right to Draw on Performance Bond. In the event of a Default, in the
case of failure to pay compensation under Article V or in the case of breach
or violation of any other provision, including Concessionaire’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 Concessionaire an opportunity to cure, the City may
immediately, and without further notice to Concessionaire, draw upon the
Performance Bond in any amount necessary to satisfy the damages
sustained or reasonably expected to be sustained.
9.4.2
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, including without
limitation the right to collect compensation as it become due together with
any past due interest.
9.4.3
Termination of this Agreement. City may terminate this agreement as
stated in Section 9.7 of this Agreement.
9.4.4
Damages upon Termination. If the City elects to terminate,
Concessionaire shall be liable to City for all amounts owed at the time of
termination, including but not limited to compensation, past due interest,
any amount necessary to fully compensation the City for all loss of
compensation, damages, and costs, including attorney’s fees, caused by
Concessionaire’s failure to perform its obligations under this Agreement.
9.4.5
Re-entry. Without accepting surrender and without prejudice to any
remedies for damages or breach, the City may elect to re-enter and take
possession of the Assigned Locations or any part thereof, by suitable action
or proceeding at law, or by force or otherwise, without being liable for
indictment, prosecution or damages therefore, and may expel
14
Concessionaire or any person claiming under Concessionaire, and remove all
effects as may be necessary, to the end that the City may have, hold and
enjoy the Assigned Locations. Such re-entry shall not be construed as
termination of this Agreement unless a written notice specifically so states;
however, the City reserves the right to terminate the Agreement at any
time after re-entry. Notwithstanding re-entry by the City, Concessionaire
shall continue to be liable for all amounts dues as compensation under this
Agreement.
9.4.6
Re-letting. Following re-entry, the City may elect re-let the whole or any
part of the Assigned Locations from time to time, either in the name of the
City or otherwise, to such tenants, for such terms ending before, on or after
the expiration date of this Agreement, at such rentals and upon such
conditions as the City may determine to be appropriate. To the extent
allowed under North Carolina law, the City shall not be liable for refusal to
re-let the Assigned Locations, or in the event of such re-letting, for failure to
collect any compensation due upon such re-letting; and no such failure shall
operate to relieve Concessionaire of any liability under this Agreement or
otherwise affect any such liability. If the City has re-let all or any part of
the Assigned Locations for the period which otherwise would have
constituted all, or any part, of the unexpired term of this Agreement, the
amount of compensation reserved on such re-letting shall be deemed prima
facie, to be the fair and reasonable rental value for the part, or the whole,
of the Assigned Locations so re-let during that period. Acts of maintenance,
or preservation, or efforts to re-let the Assigned Locations, or the
appointment of a receiver upon initiative of the City to protect the City’s
interest under this Agreement, shall not constitute a termination of this
Agreement or an acceptance of surrender of this Agreement.
9.4.7
Damages upon Re-entry. Whether or not the City re-enters or re-lets the
Assigned Locations, the City shall have the right to recover damages
immediately, without waiting until the due date of any future compensation
or until the date fixed for expiration of this Agreement, which damages,
shall include, but not be limited to, the following: (a) all compensation lost,
calculated through the expiration date and based on the prorated amount of
the MAG or Fixed Space Rental rate, subject only to any duty to mitigate, if
any; (b) all legal expenses and other related costs incurred by the City as a
result of Concessionaire’s Default; (c) all costs incurred by the City in
restoring the Assigned Locations (or other damaged City property where
damaged was caused by Concessionaire) to good order and condition; (d)
all taxes due or to become due under this Agreement; and, (e) all costs
incurred by the City in re-letting the Assigned Locations, including, without
limitation, any advertising costs, brokerage commissions and the value of
the City’s staff time expended as a result of the Default.
9.5
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
15
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.
9.6
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 be construed to require the City to accept delinquent compensation
or constitute a waiver of any of the City’s other rights and remedies under this
Article.
9.7
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 Concessionaire upon written
notice to Concessionaire. Such reasons for termination for cause include, but are
not limited to, the following:
9.7.1
Concessionaire’s failure to timely pay any required compensation as stated
in Article IV when due and such failure is not cured within ten (10) days
after written notice by the City describing the failure to pay.
9.7.2
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.
9.7.3
Insurance or Performance Bond cancelled without City consent and not
reestablished promptly after written notice by City to Concessionaire.
9.7.4
The filing by or against the Concessionaire of any petition in bankruptcy.
9.7.5
A transfer of Concessionaire’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.
9.7.6
Using or giving permission to any person to use, for any illegal purpose, any
portion of the Airport made available to Concessionaire for use under the
terms of this Agreement.
9.8
Concessionaire’s Responsibilities Upon Termination. Upon the natural
expiration or termination of this Agreement, Concessionaire shall be responsible
for removing all advertisements from the Assigned Locations and cleaning out
any Storage Space currently used by the Concessionaire. Concessionaire shall be
liable to the City for holding over in the Storage Space as described above in
Section 3.5.4. Concessionaire will be liable to the City for advertising not
removed from the Assigned Locations in an amount equal to the daily rate for
that specific location for the number of days the advertising stays in place after
the expiration or termination of this Agreement.
9.9
Capital Investment Upon Termination. Upon termination of this Agreement
under Section 9.7.4, the unamortized portion of any Capital Improvements made
by the Concessionaire will be paid by the City. The amount of such
16
reimbursement shall be the amount determined by multiplying the cost of each
Capital Improvement by a fraction, the numerator of which shall be sixty (60)
less the number of months which have expired as of the termination date, and
the denominator of which shall be sixty (60). The final amount shall be agreed to
in writing and calculated based upon the certificate of actual cost provided by the
Concessionaire to the City as required under Section 8.1.3. Upon the natural
termination of this Agreement or for termination under any other section of this
Agreement, Concessionaire will be responsible for paying for any remaining
unamortized portion of the Capital Improvements prior to transferring ownership
of them to the City.
Article X
Indemnification and Insurance
10.1
Indemnification – City Held Harmless. Concessionaire 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 and/or the use or occupancy of the Assigned Locations, or
allegations thereof, unless such claims are caused by the sole negligence of the
City or its officers, agents, and employees. Concessionaire shall purchase
insurance as described in Section 10.2 which shall provide coverage for this
contractual liability. In any case in which the Concessionaire 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.
10.2 Insurance.
10.2.1 Liability Insurance. Concessionaire shall maintain in force during the term
of this Agreement comprehensive general commercial liability insurance, and
automobile liability insurance, each in the amounts acceptable to the City.
Such insurance policies shall include contractual liability coverage covering
Concessionaire’s obligations to the City under this Agreement. 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,
Concessionaire 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. On all polices the City of Charlotte shall be named an additional
insured.
17
10.2.2 Property Insurance.
10.2.2.1 City agrees to maintain in force during the terms of this Agreement
property insurance covering, at a minimum, fire, extended coverage
and vandalism/malicious mischief insurance on the terminal and any
additions, alterations, or modifications thereto, and on all contents
owned by the City and incidental to the terminal for an amount not
less than ninety percent (90%) of the full replacement cost thereof
(“City Insurance”).
10.2.2.2 Concessionaire shall purchase similar insurance on al contents,
furnishings, trade fixtures, and on any and all improvements which
have not assumed the nature of real estate improvements
(“Concessionaire Insurance”).
10.2.2.3 To the extend covered by insurance City and Concessionaire hereby
mutually release and discharge each other from all claims or liabilities
arising from or caused by fire or other casualty covered by the
aforementioned City Insurance and Concessionaire Insurance. All such
policies shall include a waiver of subrogation clause with respect to the
provisions in this Agreement.
10.2.2.4 Concessionaire shall furnish a certificate of its Concessionaire
Insurance to the City certifying that the City will be given thirty (30)
days’ written notice of non-renewal, cancellation or other material
change and that the City of Charlotte is listed as an additional insured.
10.2.3 Workers’ Compensation and Employer’s Liability Insurance.
Concessionaire 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 hundred
thousand ($100,000) per accident limit, a five hundred thousand disease limit
per policy and a hundred thousand ($100,000) disease limit per employee.
Concessionaire shall furnish, and shall cause each of its sub-contractors to
furnish, a certificate of said insurance to the City certifying that City will be
given thirty (30) days’ written notice of non-renewal, cancellation or other
material change.
Article XI
Equal Employment, Non-Discrimination, Public Use and Federal Grants
11.1
Equal Employment. Concessionaire assures that it will undertake, and shall
cause its sub-contractors to undertake, an affirmative action program as required
by 14 CFR Part 152, Subpart E, to the extent applicable, and take all action that
may be required of Concessionaire, or any sub-contractor, in order to ensure that
the City is in compliance with federal law and regulations and that no person shall
on the grounds of race, creed, color, national origin or sex be excluded from
participating in any employment activities covered by 14 CFR Part 153, Subpart
E. Concessionaire assures that no person shall be excluded on these grounds
from participating in or receiving the services or benefits of any program or
activity covered by Subpart E. Concessionaire assures that it will required that
18
its sub-contractors provide assurances to Concessionaire that they will similarly
undertake affirmative action programs and that they will require assurances from
their sub-organizations, to the extent required by 14 CFR Part 152, Subpart E., to
the same effect.
11.2 Non-Discrimination. Concessionaire 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:
11.2.1 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.
11.2.2 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.
11.2.3 Concessionaire 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.
11.3 Non-Discrimination Provision for All City Contracts. The City is committed
to promoting equal opportunities for all and to eliminating prohibited
discrimination in all forms. As a condition of entering into this agreement, the
Company represents and warrants that it will fully comply with the City's
commercial non-discrimination policy, as described in Section 2, Article V of the
City Code, and consents to be bound by the award of any arbitration conducted
thereunder. As part of such compliance, the Company shall not discriminate on
the basis of race, gender, religion, national origin, ethnicity, age, or disability in
the solicitation, selection, hiring, or treatment of subcontractors, vendors,
suppliers, or commercial customers in connection with a City contract or contract
solicitation process, nor shall the Company retaliate against any person or entity
for reporting instances of such discrimination. The Company shall provide equal
opportunity for subcontractors, vendors and suppliers to participate in all of its
subcontracting and supply opportunities on City contracts, provided that nothing
contained in this clause shall prohibit or limit otherwise lawful efforts to remedy
the effects of marketplace discrimination that has occurred or is occurring in the
marketplace. The Company understands and agrees that a violation of this clause
shall be considered a material breach of this agreement and may result in
termination of this agreement, disqualification of the Company from participating
in City contracts or other sanctions. As a condition of entering into this
agreement, the Company agrees to:
11.3.1 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
11.3.2 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
19
11.4
11.5
11.6
11.7
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. Concessionaire 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 Concessionaire 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 Concessionaire, and its subcontractors, as applicable, in and to the Assigned Locations and improvements
thereon.
Concessionaire’s Non-Compliance. Concessionaire’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 Concessionaire’s and/or such sub-contractors’ failure to cure said
breach within thirty (30) days of written notice thereof, terminate this Agreement
20
11.8
upon ten (10) days written notice; provided, however, if Concessionaire and/or
such sub-contractors, as applicable, is making a good faith effort to cure any
such breach with as little delay as practicable, City shall not terminate this
Agreement unless it is necessary to do so in order to avoid loss of benefits under
any federal grant or prosecution for violation of any federal regulation.
Modification to Comply with Federal Laws, Regulations or Agreements.
Should the United States, or any instrumentality thereof having authority to do
so, require that any provision of this Agreement that is in violation of any federal
law or regulation or any provision of an existing grant agreement between City
and the United States or any instrumentality thereof be changed or deleted or
should any such change or deletion be required in order for the Airport either to
continue as part of the National Airport Plan or to retain its eligibility to
participate in Airport Improvement Program and similar successor federal
financial assistance programs, City may give Concessionaire notice that it elects
that any such change or deletion be made. Concessionaire 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 Concessionaire notice of its election that
any such change or deletion be made.
Article XII
Assignment, Transfer and Subleasing
Concessionaire 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.
Concessionaire shall not sublease the Assigned Locations or any portion thereof, nor
shall Concessionaire sublease any privileges granted with respect to the operation of the
Concession at said Assigned Locations or any portion thereof, without the prior written
consent of City. No assignment, transfer or sublease shall serve to release
Concessionaire 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 Concessionaire shall be permitted to
sublease the Assigned Locations and Concession rights hereunder to a subconcessionaire shall be supplied to the Aviation Director along with Concessionaire’s
request for approval thereof and shall contain provisions similar to the provisions hereof
with respect to such sub-concessionaire’s obligations to comply with all laws and
regulations applicable to the Assigned Locations and the concession rights granted
herein.
Article XIII
Airport Concession Disadvantaged Business Enterprise
13.1
Participation. This Agreement is subject to the requirements of the U.S.
Department of Transportation’s regulations, 49 CFR Part 23. Concessionaire
21
13.2
13.3
13.4
agrees to abide by the regulation and the City’s Airport Concession
Disadvantaged Business Enterprise (“ACDBE”) Program. Concessionaire 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 Concessionaire agrees to include the above statements in any subsequent
concession 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. Concessionaire’s ACDBE participation goal is hereby established at
twenty-three and a half percent (23.5%) of the Gross Revenues for the
Concession. Concessionaire agrees shall use its best efforts to utilize certified
ACDBEs in performance of this Agreement and to achieve the goal. The
obligations of both City and Concessionaire under this Agreement shall be subject
to the provision of all federal regulations relating to ACDBEs.
Termination. Should any ACDBE’s relationship with Concessionaire be
terminated and overall participation is below the goals set forth in Section 13.2
above, Concessionaire 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 Concessionaire 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 Concessionaire 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 Concessionaire notice or an opportunity to cure.
Article XIV
Miscellaneous
14.1
14.2
14.3
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.
Suspension and Abatement. In the event the City’s operation of the Airport or
Concessionaire’s operation of the Concession 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.
Broker’s Commission. Concessionaire 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 Concessionaire shall
indemnify and hold the City harmless against and from all liabilities arising from
any such claims caused or incurred by it.
22
14.4
Cooperation with Successor Concessionaires. Upon the expiration or early
termination or cancellation of this Agreement, Concessionaire agrees to
cooperate fully with City and with all successor concessionaires to ensure a
smooth transition from Concessionaire to such successor concessionaires to
ensure continuity of first-class Concession to the public, provided, however, that
Concessionaire shall not be required pursuant to this Section to vacate the
Assigned Locations prior to the termination of this Agreement, whether by normal
expiration or otherwise, unless mutually agreed to in writing by Concessionaire
and City or to incur any expense in fulfilling its obligations under this Section
except as Concessionaire would otherwise be liable to incur under any and all
other applicable provisions of this Agreement.
14.5 Airport Rules and Regulations. Concessionaire 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.
14.6 Airport Security. Concessionaire acknowledges and agrees that:
14.6.1 Many of the Assigned Locations are in the secured area of the terminal,
access to which is subject to security measures imposed by the United
States (“Security Plan”) and enforced by the Transportation Security
Administration (“TSA”);
14.6.2 Access to the secured areas by Concessionaire’s officers, employees,
agents, invitees, suppliers, and customers shall be limited to and
conditioned upon compliance with the Security Plan as it exists upon the
effective date of this Agreement, and as may be modified from time to time;
14.6.3 Concessionaire’s officers and employees who require regular access to the
secured areas will have to apply for an qualify for security identification
badges (“Security Badges”) issued by the Aviation Director;
14.6.4 Concessionaire 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
14.6.5 City shall not be liable to Concessionaire for any diminution or deprivation of
Concessionaire’s rights hereunder on account of the Security Plan
requirements.
14.7 Amendment. This Agreement may only be modified or amended by a written
instrument executed by City and Concessionaire.
14.8 Performance Bond. On or before the Effective Date, Concessionaire shall
provide to the City a Performance Bond in a form acceptable to the City, and in
an amount equal to the first year’s MAG.
14.9 Independent Contractor. Nothing contained in this Agreement shall be
deemed or construed by the City or Concessionaire, 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 Concessionaire 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.
23
14.10 Drug-Free Workplace. Concessionaire will provide, and shall cause its subcontractors to so provide, a Drug-Free Workplace by:
14.10.1 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.
14.10.2 Notifying the employee in the statement that, as a condition of
employment, the employee will:
14.10.2.1 Abide by the terms of the statement; and
14.10.2.2 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.
14.10.3 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.
14.10.4 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:
14.10.4.1 Taking appropriate personnel action against such employee up to
and including termination; or
14.10.4.2 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.
14.10.5 Making a good faith effort to continue to maintain a Drug-Free Workplace
through implementation of subparagraphs 15.13.1 through 15.13.4.
14.11 Concessionaire’s Dealings with the City. Whenever in the Agreement,
Concessionaire is required or permitted to obtain the approval of, consult with,
give notice to, or otherwise deal with City, Concessionaire shall deal with City’s
authorized representative; and unless or until City shall give Concessionaire
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 Concessionaire is required each party agrees not to
unreasonably withhold or delay the granting of such consent.
14.12 No Warranties or Inducements. By executing this Agreement, Concessionaire
acknowledges that City does not warrant the validity of any information that may
have been furnished to Concessionaire concerning the volume of passengers who
have traveled through the Airport in the pat or amount of past concession
revenues, and that City has not intended to provide or warrant any forecast of
future passenger volumes or concession revenues; that such information as City
has furnished with respect to these and other matters has been intended merely
as one source of information available for consideration by Concessionaire, which
Concessionaire has been encouraged to certify through its own investigation; that
Concessionaire 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.
24
14.13 Waiver of Claims. Concessionaire 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.
14.14 Non-Waivers. Every provision herein imposing an obligation upon City or
Concessionaire is a material inducement and consideration for the execution of
this Agreement. No waiver by City or Concessionaire 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-renter the
Assigned Locations or to exercise any right, power, privilege or option arising
from any Default, or subsequent acceptance of fees then or thereafter accrued
shall impair any such right, power, privilege or option or be construed to be a
waiver of any such Default or acquiescence therein. No notice by City shall be
required to restore or revive time as being of the essence hereof after waiver by
City of Default in one or more instances.
14.15 Time of Essence. Time is expressly agreed to be of the essence of this
agreement.
14.16 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 Concessionaire’s performance, but Concessionaire shall not be relieved
of its obligation to pay for the Fixed Space Rental except as expressly provided in
Section 3.7.2.
14.17 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.
14.18 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.
14.19 Interpretation. The language of the Agreement shall be construed according to
its fair meaning, and not strictly for or against either City or Concessionaire. 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.
25
14.20 Choice of Law. This Agreement will be interpreted under and governed by the
Law of the State of North Carolina.
14.21 Compliance with the Laws. Concessionaire will not use or permit the use of
the Assigned Locations or any other portion of the Airport for any purpose or use
other than authorized by this Agreement. Concessionaire, 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 Assigned Locations as may from time to time be
promulgated by Federal, State or local governments and their authorized
agencies.
14.22 Attorney’s Fees. In the event of litigation between the City and Concessionaire
to enforce the rights or obligations provided by this Agreement, the nonprevailing party shall pay for the prevailing party’s reasonable attorney’s fees and
costs of litigation as may be determined by the court.
14.23 Situs and Service of Process. Concessionaire 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 Concessionaire 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
Concessionaire herein, and consents that all such service or process shall be
made by certified mail, return receipt requested, directed to Concessionaire at
the address states in Section 14.27. Service so made shall be complete three (3)
business days after the same shall have been posted as aforesaid.
14.24 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
Administration- Terminal Building
P.O. Box 19066
Charlotte, NC 2219
If intended for the Company, the addressed used shall be:
_______________________________
_______________________________
_______________________________
_______________________________
Exhibits:
Exhibit A: Relevant Portions of the RFP
Exhibit B: Relevant Portions of Concessionaire’s Proposal
26
Exhibit C: Assigned Locations
27