BAGGAGE CART CONCESSION AGREEMENT
BETWEEN
CITY OF FRESNO
(A Municipal Corporation)
AND
SMARTE CARTE, INC.
A MINNESOTA CORPORATION
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 2 BAGGAGE CART CONCESSION AGREEMENT
THIS CONCESSION AGREEMENT, made and ent ered into the 1st day of December, 2022, by and between the CITY OF FRESNO, CALIFORNIA, a munici pal corporation, hereinafter referred to as “ City” and SMARTE CARTE, INC. a Minnesota Corporation, admitted in good standing to do business in California, hereinafte r referred to as “Concessionaire”.
WITNESSETH
WHEREAS, City is the owner and operator of the Fresno-Yosemite International Airport located in the City of Fresno, County of Fresno, St ate of California, hereinafter referred to as “Airport”; and
WHEREAS, Concessionaire desires to operat e a self-service baggage cart management business and massage chairs as serv ices to the trave ling public in the Terminal/Concourse Building at Airport ; and
WHEREAS, on May 1, 2022, acting by and through t he City’s Director of Aviation, the City of Fresno, a municipal corporation, entered into a 6 month Temporary Use Lease effective May 1, 2022 and expires November 30, 2022; and
WHEREAS, City desires to grant the Concessiona ire the right to continue to operate said business from areas within locations as described and depicted on Exhibit “A”, attached hereto and incorporated herein, upon the terms and conditions herein.
NOW THEREFORE, in consideration of the above recitals which recitals are contractual in nature, mutual covenants, agreements, and conditions contained herein and for other valuable consideration the receipt and sufficiency of which are hereby acknowledged the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
The following words and phrases shall have the following meanings when used elsewhere in this Agreement.
A. “Agreement” means this Baggage Cart Concessi on Agreement between City and Concessionaire, as the sa me may be amended or supplemented from time to time pursuant to the terms hereof.
B. “Assigned Area” means the public area or areas designated and depicted on Exhibit “A” attached hereto as the place or places within the Airport where the baggage cart dispensing ma chines, including associated equipment, wiring and enclosures may be located.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 3 C. “Concession” means the Section 3. 1 grant of rights to operate a self- service baggage cart management system at the Airport.
D. “Concession Fees” mean the total Article 5 compensation, fees and charges due to the City from the Concessionaire.
E. “Director” shall mean the City of Fresno’s Director of Aviation, or the designee of the Director of Aviation.
F. “Minimum Monthly Guarantee” means 1/12th of the Section 5.1 Minimum Annual Guarantee.
G. “Percentage Concession Fees” m eans 10% of Gross Receipts due and payable as provided in Section 5.1 of this Agreement.
H. “Terminal Building” means the Pa ssenger Terminal/Concourse Building at the Airport as it exists on the date hereof, and any additions made thereto during the term of this Agreement.
I. “The life of this Agr eement” (and any and all readily identifiable variations thereof), when used herein, means the full term of this Agreement, as specified within Article 2 of this Ag reement, including any extension(s) of said term, UNLESS this Agreement shall be terminated earlier as herein elsewhere provided, in which event, said phrase and said variations thereof, shall mean the lesser period during which this Agreement shall be in full force and effect.
ARTICLE 2 - TERM
Section 2.1 Term
The term of this Agreement shall become effective upon the date set forth above and shall continue for five (5) y ears, until 11:59 p. P.S.T., No vember 30, 2027, subject to prior termination as provided herein.
Section 2.2 Automatic Extension
In the event that this Agreement shall re main in full force and effect throughout the entire term specified in Article 2, Section 2. 1, above, at the end of said term, City at its sole discretion shall have the option to renew this Agreement for an additional five (5) year period, upon the terms and conditions herein, provided that in no event shall this Agreement remain in force beyond November 30, 2032.
ARTICLE 3 - RIGHTS OF CONCESSIONAIRE
Section 3.1 Grant of Concession and Use Rights
City hereby grants to Concessi onaire the exclusive right to operate a self-service baggage cart management system and massage chairs at Airport including a revocable DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 4 (as provided herein) right to use the Assi gned Area solely for the purposes of this Agreement. Concessionaire agrees to provide a minimum of one (1) full time employee to act as a location manager. This indivi dual’s responsibility shall include but not be limited to equipment maintenance and retrieval of stray carts. All costs incurred by Concessionaire in pursuit hereof, includ ing costs arising from maintenance and ownership of all equipment and carts shall rest solely with Concessionaire.
Section 3.2 Installation of Improvements and Equipment
Concessionaire has installed three (3) cart management units and three (3) return units in the Assigned Area(s) and pr ovide carts inside Federal Inspection Station for international passengers. At any time duri ng the life hereof, City ma y by written notice reasonably require Concessionaire to in stall additional equipment and/or provide additional carts at Airport if public demand so indicates. Any additional baggage cart dispensing units and carts placed in the Airport will be subject to the terms and conditions of this Agreement. The City may require relocation of any baggage cart dispensing units upon seven (7) days written notic e. Concessionaire shall not install or affix any signs or advertisements in or to any portion of the Air port without the prior written consent of City.
Section 3.3 Concessionair e’s Rental Charge
Concessionaire is granted the right to charge customers utiliz ing Concessionaire’s baggage cart concession Five dollars ($5.00) for each baggage cart during years 1 & 2 of this Agreement and Six dollars ($6.00) at start of year 3, with a twenty-five cent ($.25) refund for returned baggage carts. Any adjustment s of Concessionaire’s rental charge as provided in this Section 3.3 must be approved in writing by the Director.
Section 3.4 Concessionaire’s Al terations and Improvements
Concessionaire shall not install or erec t any alterations or improvements in the Assigned Area, unless and until plans and specificatio ns for such alterations or improvements shall have been submitted to and approved in writing by City. Any such alterations or improvements shall be without cost to City. All alterations, improvements, equipment and interior design and decor construc ted or installed by Concessionaire, its agents, or contractors, including the plan s and specifications, shall conform to all applicable statutes, ordinances, building codes, and rules and regulations.
Full and complete plans and specifications fo r all work, facilities, improvements, and finishes, and the time required to complete same, shall be submitted to and receive the written approval of City befor e any work or construction is commenced. First-class standards of design and construction shall be complied with in connection with all such work, facilities, and improvements; and all construction shall conform with the general architectural requirements of City
Two copies of the as-built plans for all improvements or subsequent changes therein or alterations thereof to the Assigned Area sha ll be given to City for review prior to DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 5 commencement of construction; after final approval by City, City will return one approved copy for Concessionaire’s records and shall retain one approved copy as an official record thereof. These plans, and any subsequent modifications or alterations, shall also be furnished to City on computer discs as electroni c files in a format compatible with the CADD system used by City.
Section 3.5 City’s Alterations and Improvements to Airport
Concessionaire acknowledges that from time to time City may under take construction, repair, or other activities related to the operation, maintenance and repair of the Terminal Building, which may temporarily affect Concessionaire’s operations hereunder.
Concessionaire agrees to accommodate City in such matters, even though Concessionaire’s own activities may be in convenienced, and Concessionaire agrees that no liability shall attach to City, it s members, employees, or agents by reason of such inconvenience or impairment. It is agreed that in the ev ent such activities of City substantially impair the operations of C oncessionaire under this Agreement, the Minimum Monthly Guarantee shall be reduced or waived during such period of substantial impairment in r easonable proportion to the degr ee of impairment, with what constitutes “substantial impairment” being determined at the sole discr etion of City after consultation with Concessionaire.
Section 3.6 Title, Removal, a nd Demolition of Improvements
Any permanent improvements, a dditions and alterations made to the Assigned Area by Concessionaire shall upon installation become the property of City free and clear of liens or encumbrances; provided, howev er, that any trade fixtures, baggage carts, baggage cart dispensing machines, associ ated equipment, signs and other personal property of Concessionaire not permanently affixed to Assigned Area shall remain the property of Concessionaire. Should Conce ssionaire fail within twenty (20) business days following the termination of this Agreem ent to remove its trade fixtures, baggage carts, baggage cart dispensing machines , signs and other personal property of Concessionaire not permanently affixed to Assigned Area, then at the option of City, title to same shall vest in City at no cost to City.
Concessionaire shall not remove or demolish, in whole or in part, any improvements upon Assigned Area without the prio r written consent of the Dir ector. Concessionaire understands and agrees that consent may be conditioned upon the obligation of Concessionaire to replace the same by an improvement specified in such consent at Concessionaire’s sole expense.
ARTICLE 4 – MAINTENANCE
Section 4.1 City’s Obligations
A. City shall provide structural maint enance and maintenance of water, sewer, electrical, heating, ventilating and air conditioning systems to main Terminal Building.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 6 B. City agrees that it will at all times ma intain, operate, and keep in good repair the Terminal Building, and all appurtenances, facilities, and services now or hereafter connected thereto.
Section 4.2 Concessiona ire’s Obligations
A. Except for structural maintenance of the Terminal Building, as provided in Subsection 4.1, Concessionaire shall be obligated, without cost to City, to maintain the baggage carts and baggage ca rt dispensing machines in good appearance, repair, and safe condition and in compliance with all requirements of the law and the City.
B. Concessionaire shall also maintain all of the Assigned Area and baggage cart dispensing machines in a neat and clean c ondition, free from all litter, trash, scrap paper and similar debris, and perform a ll such painting and repair work as is necessary to maintain said area in an attractive condition. Floor maintenance, sweeping, and waxing shall remain the responsibility of the City.
C. Concessionaire shall observe and comp ly with any and all requirements of all federal, state or local st atutes, ordinances, regulatio ns and standards applicable to Concessionaire or its use of the Airport, including, but not limited to, rules and regulations promulgated from time to time by the City and other authorities having jurisdiction over operations in and about the Airport.
D. Upon execution of this Agreement, C oncessionaire shall establish a preventive and routine maintenance program, the provisions of which shall be subject to the approval of and periodic review by the Dir ector or designee. Concessionaire shall from time to time, upon request, pr ovide the Director or designee a written schedule of Concessionaire’s cleaning and maintenance program.
E. If City determines that maintenanc e of the baggage carts or baggage cart dispensing machines is not satisfactory, City shall so notify Concessionaire in writing. If appropr iate maintenance is not perfo rmed by Concessionaire within fifteen (15) days after receipt of writt en notice, City or its agent shall have the right to perform the maintenance and Conc essionaire agrees to reimburse City promptly for the cost thereof, plus ten percent (10%) for administrative overhead.
F. Prior to making any repairs to the Assigned Area other than to its own equipment, Concessionaire shall discuss with the Director or designee to determine whether City elects to make the repairs with its own personnel and charge Concessionaire its standard rate s for such service including any overhead charges. All work performed by C oncessionaire must be inspected and approved by the Director.
G. All repairs done by Concessionaire or by others on its behalf shall be of professional quality in both materials and workmanship. All repairs shall be made DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 7 in conformity with the rules and regulatio ns prescribed from time to time by federal, state, county or loca l authority having jurisdicti on over the work in the Assigned Area.
H. Upon discovery, Concessionaire shall i mmediately give written notice to City of any hazardous or potentially hazardous condi tions in the Terminal Building. Any hazardous or potentially haz ardous condition in the baggage carts and baggage cart dispensing machines shall be corre cted immediately upon receipt of written notice from the Director. At the direction of Director or designee, Concessionaire shall cease to operate defective baggage carts and baggage cart dispensing machines until such hazardous or potentially hazardous condition is removed.
ARTICLE 5 - COMPENSATION, BOOKKEEPING, AND AUDIT
In consideration of the rights granted by City to Concessionaire pursuant to this Agreement, Concessionaire shall pay to Cit y Percentage Concession Fee, or the Minimum Monthly Guarantee, whichever is greater payable in accordance with provisions of this Article 5.
Section 5.1 Compensation
A. Each month of the term of this Agreement, Concessionaire shall pay a Percentage Concession Fee, or the Mini mum Monthly Guarantee, whichever is greater. Concessionaire shall also su bmit to City, in a form and with detail satisfactory to City, a statement of Gross Receipts collected during the preceding month from its operati ons at the Assigned Area upon which the monthly concession fee is computed.
B. The first year Minimum Annual Guar antee shall be the sum of Twenty One Hundred Dollars ($2,100), subject, however , to the following adjustments:
Commencing at the end of the first twelve-month period after the commencement of this Agreement (and at the end of each twelve-m onth period thereafter), the Minimum Annual Guarantee shall be adjust ed (i.e. increased only) for the next ensuing twelve-month period to a sum of money representing 85% of the total Concession Fees paid to City under this Agreement for th e previous twelve- month period; provided, however, that in no event shall the Minimum Annual Guarantee ever be reduced.
Said Minimum Annual Guarantee shall be payable in twelve equal monthly installments, as a Minimum Monthly Guarantee, in advance and without demand, on the first day of each calendar month throughout the term of this Agreement.
For any period less than one calendar mont h that this Agreement shall be in effect, said Minimum Monthly Guarantee shall be calculated on a prorata basis.
C. The Percentage Concession Fee to be applied to the Gross Receipts as hereinafter defined, shall be Ten percent (10%) of said Gross Receipts.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 8 The Percentage Concession Fee shall be payable within twenty (20) calendar days after following the month within which due. Concessionaire shall pay to City a sum of money that r epresents the excess of t he difference between the Percentage Concession Fee and the Mini mum Monthly Guarantee Fee for the previous month.
D. The City will pay Permittee an annual am ount of $50,000 for baggage carts used by international passengers. This am ount shall be subject to annual CPI adjustment. Amount will be paid in 12 equal monthly installments and will be paid in arrears. Invoice to be provided by Concessionaire to City on the 1 st of each
month for the prior month.
Section 5.2 Definition of Gross Receipts
The term "Gross Receipts," as used herein and upon which the Percentage Concession Fee is based/computed/paid, s hall mean the total amount of all revenues generated by or accruing to Concessionaire in pursuit of this Agreement and all gains/accruals thereon less refunds, cart return rewa rds and sales/excise taxes paid by Concessionaire in its operat ions hereunder, consistent wit h Fresno Municipal Code Section 5-302.1, a copy of which is attached hereto as Exhibit “D” and incorporated by reference herein.
Except as herein above specif ied, if any charge for any of the products or services provided hereunder is not assess ed, charged, or collected, i rrespective of the reason therefore, the proper amount of such charge shall, nevertheless, be included in the term “Gross Receipts” as the same is used in th is section. Further, no deduction shall be made from Gross Receipts by reason of any credit loss, charge, or deduction that may be incurred by reason of the acceptance or use of credit cards or other credit or charge arrangements.
Section 5.3 Late Payment Charge
Should any installment of Concession Fees or other sums accruing to City under the provisions of this Agreement, not be paid as and when due, there shall be due a late payment charge equal to the lesser of the maximum rate allowable by law or one and one-half percent (1.5%) per month on t he total amount overdue for each month thereafter until such delinquent installment or other payment amount(s) shall be received by City. It is expressly stipul ated that the amount of the above said late payment charge may, at any time and from time to time duri ng the life of this Agreement, be changed by action of the City C ouncil of City when, in said Council’s opinion, economic conditions an d/or other relevant fact s and/or circumstances may reasonable warrant such action. Nothing herein contained shall be deemed, in any way whatsoever, to relieve Concessionaire from payment of fees, and/or other sums at the time and in the manner herein provided.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 9 Section 5.4 Maintenance of Books and Records
Concessionaire shall prepare and keep for a period of not less than three (3) years following the end of each year during the lif e hereof, full, complete and proper books, records and accounts of transactions occu rring in connection wit h Concessionaire’s operation at Airport and shal l make these documents available for inspections and audits by City or its designa ted representatives during such times provided that any such inspection and audit shall be made by City during Concessionaire’s regular business hours. Concessionaire shall keep and maintain complete and adequate books and records of all its gross sales and shall file and maintain all invoices and records in such a manner that provides easy and accurate accountability by City of all gross sales generated by Concessionaire pursuant to this Agreement and in accordance with generally accepted accounting principles.
Section 5.5 Written Reports
Concessionaire shall submit to City, on or before the twentieth (20th) day of each month during the life of this Agr eement (and the twentieth (20th) day of the month following the expiration or termination of the life of this Agreement), a writt en statement signed by Concessionaire and certified to be true and correct, showing in reasonable detail the amount Concessionaire’s Gross Receipts during the preceding month.
Section 5.6 Annual Report
Concessionaire shall submit to City, within ninety (90) days following the end of each twelve (12) month period dur ing the life of this Agre ement and the ninetieth (90 th) day following the expiration or termination of the life of this Agreemen t, an annual report of Concessionaire’s Gross Receipts for the year then ended or portion of year completed prior to earlier termination (including a break down of monthly gross sales), certified by Concessionaire’s chief financial officer to be a true and accurate reporting of all Gross Receipts. Within thirty (30) calendar days Concessionaire shall pay any deficiency or shall receive a refund of any excess in Percentage Concession Fee payments made by Concessionaire which are determined to be due to or from City as a result of said report.
Section 5.7 Cash and Reco rd Handling Requirements
Internal Controls. Concessionaire shall ma intain an internal control structure designed to provide reasonable assurance that assets are safeguarded from loss or unauthorized uses, that transactions are executed in accordance with management’s authority and that the financial records are re liable. The internal contro l structure shall be supported by the selection, training and developmen t of qualified person nel by an appropriate segregation of duties, and by the dissemination of written policies and procedures.
Section 5.8 Property and Regulator y Taxes, Assessments and Fees
Concessionaire shall pay promptly when due all taxes, assessments, license and permit fees, and any penalties thereon, impos ed upon Concessionaire or City by any DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 10 governmental agency having the direct or indire ct power to tax, assess or impose such and arising out of, resulting from or relating to Concessionaire’s operations at Airport including, without limitation, the payment of all taxes and assessments on the improvements, alterations, machines, equipm ent, furniture and other personal property of Concessionaire installed by Concessi onaire at Airport, whether assessed to Concessionaire or assessed to City with the real property . At all times hereunder Concessionaire shall keep the Assigned Area from all liens, encumbrances and security interest.1
Concessionaire acknowledges and agrees that any interest in real property which exists as a result of possession, exclusive use, or a right to possession or exclusive use of any real property (land and/or improvements located therein or thereon) which is owned by the City of Fresno is a taxable possessory in terest, unless the possessor of interest in such property is exempt from taxation. With regard to any possessory interest to be acquired by Concessionaire, Concessionai re, by its signature(s) hereunto affixed, warrants, stipulates, confirms, acknowledges and agrees that, pr ior to its executing this Agreement, Concessionaire either took a copy hereof to the office of the Fresno County Tax Assessor or by some other appropr iate means, independent of City or any employee, agent or representat ive of City determined, to Concessionaire's full and complete satisfaction, how much Concessionaire shall be taxed, if at all.
Section 5.9 Place of Payment
All fees shall be paid to City at the address shown below or at such place or places at which City may be in writing di rect the payment ther eof from time to time during the life hereof.
City of Fresno, Airports Division
Accounting Department
4995 E. Clinton Way
Fresno, CA 93727
ARTICLE 6 - STANDARDS OF SERVICE
Section 6.1 Purpose
Concessionaire shall use the Assigned Area only for the purpose of operating a self- service baggage claim cart management system as more completely described in Exhibit “B” attached to this Agreement and incorporated herein.
1 Any interest in real property which exists as a result of po ssession, exclusive use, or a right to possession or exclusive use of any real property (land and/or improvements loca ted therein or thereon) which is owned by the City of Fresno (City) is a taxable possessory interest unless the possessor of in terest in such property is exempt from taxation. With regard to any possessory interest to be acquired by Concessionaire under this Agreement , Concessionaire, by its signatur es hereunto affixed, warrants, stipulates, confirms, acknowledges and agrees that, prior to executing this Agreem ent, Concessionaire either took a copy of thi s Agreement to the office of the Fresno County Tax Assessors or by some other appropriate means independent of City or any employee, agent, or representative of Ci ty determined, to Concessionaire’s full and complete satisfaction, how much Concessionaire will be taxed, if at all.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 11 Section 6.2 Standards of Operation
In its use of the Assigned Ar ea, Concessionaire shall maintain the highest degree and standards of service to meet the needs of the traveling public and will ensure courteous, polite and inoffensive conduct and demeanor on the part of all employees.
Concessionaire shall at all times during the life of this Agreement strictly comply with the following conditions and requirements;
A. Conduct and Appearance of Employees. Concessionaire shall control the conduct, demeanor and appearance of each of it s employees at Airport, and, upon objection from City concerning t he conduct, demeanor or appearance of any employee, Concessionaire shall forthwit h take all steps necessary to correct or to remove the cause of the objection.
B. Clothing of Employees. Concessionaire s hall require all employees to wear clean and neat clothing.
C. Interference With Utilities or Emergency Procedures. Concessionaire shall not do or permit to be done anything which may interfere with the effectiveness or accessibility of utility, heati ng, ventilating or air conditioning systems or portions thereof, nor do or permit to be done anything which may interfere with free access and passage or hinder police, fire fightin g or other emergency personnel in the discharge of their duties at Airport or the public areas or the streets and sidewalks adjacent thereto.
D. Interference With Exits. Conce ssionaire shall not do or permit to be done anything which may interfere with the effectiv eness or accessibility of fire exits, or other exits, adjacent to t he leased premises or elsew here at Airport, including lines, pipes, wires, conduits and equip ment connected with or appurtenant thereto.
E. Equipment Maintenance. Concessi onaire shall maintain any and all Concessionaire’s equipment, including bu t not limited to carts, and the cart dispensing unit, in a neat, clean, orderly and operable condition at all times during the life of this Agreement.
F. Pricing. Subject to Section 3.3, at a ll times during the life of this Agreement, Concessionaire shall charge fair and reas onable prices to the traveling public for services provided pursuant to this Agreement.
Section 6.3 Compatible Use
Concessionaire hereby acknowledges that the principal use of Airport consists of the operation of a public airport and that all ot her operations and businesses which are now or hereafter permitted by City, including Conce ssionaire’s use of the Assigned Area for DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 12 the activities authorized hereunder, must be at all times compatible with such principal use, as City shall determine, in its sole discretion.
ARTICLE 7 - INDEMNIFICATION, EXEMPTION OF CITY, AND INSURANCE
Section 7.1 Indemnification
To the furthest extent allowed by law, Concessionaire shall indemnify, hold harmless and defend City, and its officers, offi cials, employees, agents, and volunteers (hereinafter referred to collectively as “Cit y”) from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal inju ry, death at any time and property damage, including damage by fire or other casualty ) incurred by City, Concessionaire or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expens es), arising or alleged to have arisen directly or indirectly out of Concessionair e’s: (i) occupancy, maintenance and/or use of the Premises; (ii) use of all or any part of the Airport, in cluding use of any public airport facilities and improvements, upon which the Premises is located; or (iii) performance of, or failure to perform, this Agreement. CONCESSIONAIRE’s obligations under the preceding sentence shall apply to any negli gence of CITY, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or by the willful misconduct, of CITY.
If Concessionaire should contract any wo rk on the Premises or subcontract any of its obligations under this Agreement, Concessionaire shall require each consultant, contractor and subcontractor to enter into a Side Agreement, at the discretion of the City’s Risk Manager or designee, to indemni fy, hold harmless and defend City, and its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph.
Concessionaire’s occupancy, maintenance and use of the Premises shall be at Concessionaire’s sole risk and expense. Concessionaire accepts all risk relating to Concessionaire’s: (i) occupancy, maintenance and/or use of the Premises; (ii) use of all or any part of that Pr emises, including use of any public facilities and improvements, upon which the Premises is loca ted; and (iii) the performance of, or failure to perform, this Agreement. City shall not be liable to Concessionaire or Concessionaire’s insurer(s) for, and Concessionaire and its insurer(s) hereby waives and releases City from, any and all loss, liability, fines, penalties , forfeitures, costs or damages resulting from or attributable to an occurrence on or about the Premises including any public facilities and improvements, upon which the Prem ises is located, in any way related to the Concessionaire’s operations and activities. Concessionaire shall immediately notify CITY of any occurrence on the Premises including any public facilities and improvements, upon which the Premises are located, result ing in injury or death to any person or damage to property of any person.
This section shall survive termination or expiration of this Agreement.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 13 Section 7.2 Exemption Of City
City shall not be liable for, and is hereby released fr om, any and all liability to Concessionaire, Concessionaire's insurance ca rrier(s), or to any person claiming under or through Concessionaire, for any loss or damage to Concessionaire's business or any loss of income therefrom or for damage to the goods, wares, merchandise, or other property located in, upon, or about Airpor t under authority hereof, wh ether belonging to Concessionaire, or any employee, agent, cont ractor, subcontractor of Concessionaire, or any other person whomsoever ; nor shall City be liable for any injury to the person of Concessionaire or Concessionaire's employ ees, agents, contractor s, subcontractors, customers, or invitees, whether or not such loss, damage, or injury is caused by or results from fire, steam, elec tricity, gas, water, or rain, or from the leakage, breakage, obstruction, or other defects of pipes, sp rinklers, wires, appliances, plumbing, air conditioning, or lighting fixtur es, or from any other cause, whether or not such loss, damage or injury results from conditions arisi ng in or on any part or all of the Premises utilized by Concessionaire, or in or on any of the improv ements and facilities appurtenant thereto, or from other sources or places, and regardless of whether or not the cause of such damage or in jury or the means of repairi ng the same is inaccessible to Concessionaire. Further, Concessionaire shall be solely responsible for the safety and security of each and every area within t he Premises utilized by Concessionaire and the safety and security of all equipment, s upplies, and commodities used or sold by Concessionaire (City shall have no liability or responsibility whatsoever in this regard and Concessionaire shall make no claim agains t City with respect to such matters).
Concessionaire also covenants and agrees that City shall not be liable for any damages arising from any act or neglect on the part of any third parties.
Section 7.3 Insurance
(a) Throughout the life of this Agreem ent, Concessionaire shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City's Risk Manager or designee at any time and in his/her so le discretion. The City of Fr esno and each of its officers, officials, employees, agents, and volunteers (hereinafter referred to collectively as “City”) requires policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the in surance limits available to City, shall be the greater of t he minimum limits specified ther ein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, Concessionaire or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payment s due or that become due to Concessionaire shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiu ms therefore have been paid for a period DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 14 satisfactory to City. any fa ilure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Concessi onaire of its responsib ilities under this Agreement. The phrase “fail to maintain an y required insurance” shall include, without limitation, notification rece ived by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obt ained by Concessionaire shall not be deemed to release or diminish the liability of Concessionaire, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regar dless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Concessionaire. Approval or purchase of any in surance contracts or policies shall in no way relieve from liability nor limit the liability of Concessionaire, vendors, suppliers, invitees, cont ractors, subcontractors, or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providin g liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage fo r “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owne d equipment), products and completed operations, and contractual liability (includi ng, without limitation, indemnity obligations under the Agreement) with limits of liability not less t han those set forth under “Minimum Limits of Insurance.”
2. The most current version of ISO *C ommercial Auto Coverage Form CA 00 01, providing liability coverage ar ising out of the ownershi p, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provi de coverage for all owned, hired, and non- owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, t he City, its officers, official s, employees, agents, and volunteers are to be listed as additional insureds.
3. Workers’ Compensation insurance as required by the Stat e of California and Employer’s Liability Insurance.
MINIMUM LIMITS OF INSURANCE CONCESSIONAIRE
CONCESSIONAIRE, or any party the Concessi onaire subcontracts with, shall maintain limits of liability of not le ss than those set forth below. However, insurance limits available to The City of Fresno and each of its officers, offi cials, employees, agents and volunteers as additional insureds, shall be t he greater of the mini mum limits specified herein or the full limit of any insurance proceeds available to the named insured:
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 15 1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence fo r personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggr egate applying separately to the work performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS’ COMPENSATION INSURA NCE as required by the State of California with statutory lim its and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 diseas e each employee; and,
(iii) $1,000,000 disease policy limit.
4. PROPERTY: Limits of insurance in an amount equal to the full (100%) replacement cost (without deduction for depr eciation) of Concessionaire’s business property.
UMBRELLA OR EXCESS INSURANCE
In the event Concessionaire purchases an Umbr ella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” th is insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ie s) shall also apply on a primary and non- contributory basis for the benefit of the City of Fr esno and each of its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Concessionaire shall be responsible for pay ment of any deductibles contained in any insurance policy(ies) requir ed herein and Concessionaire s hall also be responsible for payment of any self-insured retentions. At no time shall the City be responsible for the payment of any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
All policies of insurance required herein shal l be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to City, except ten (10) days for nonpayment of premium. Concessionaire is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal , or reduction in cove rage or in limits, Concessionaire shall furnish City with a new certificate and applicable endorsements for DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 16 such policy(ies). In the event any polic y is due to expire during the work to be performed for City, Concessionaire shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
The Commercial General and Automobile Liab ility policies of insurance shall be endorsed to name The City of Fresno and each of its office rs, officials, employees, agents and volunteers as additional insureds. Concessionaire shall establish additional insured status for the City and for all operations by use of ISO Form CG 20 12 04 13 or CG 20 26 04 13 or by an executed manuscr ipt insurance company endorsement providing additional insured status as broad as that contained in the ISO Forms noted.
The Commercial General and Automobile Liab ility policies of insurance shall be endorsed so Concessionaire’s insurance shall be primary and no contribution shall be required of CITY. The coverage shall c ontain no special limitations on the scope of protection afforded to The City of Fresno and each of its offi cers, officials, employees, agents and volunteers.
If Concessionaire maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by Concessionaire.
Should any of the required po licies provide that the def ense costs are paid within the Limits of Liability, thereby reducing the avai lable limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
The Workers’ Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to The City of Fresno and each of its officers, officials, employees, agents and volunteers.
The property insurance policy is to contain, or be endorsed to c ontain, the following provisions:
1. Full replacement value of any perm anent improvements on the Premises, with the CITY named as a Loss Payee.
2. The coverage shall contain:
(i) No coinsurance penalty.
(ii) No limitations or exclusions fo r vacancy of any part of the Premises. (iii) No special limitations on the scope of protection afforded to City.
PROVIDING OF DOCUMENTS - C oncessionaire shall furnish City with all certificate(s) and applicable endorsements effecting cover age required herein to the address noted below. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s ex ecution of the Agreement and before work commences. All non-ISO endor sements amending policy coverage shall DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 17 be executed by a licensed and authorized agent or broker. Upon request of City, Concessionaire shall immediately furnish Cit y with a complete copy of any insurance policy required under this Agreement, incl uding all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of Cshall also be required to provide all documents noted herein.
SUBCONTRACTORS - If CONCESSIONAIRE shoul d subcontract all or any portion of the services to be performed under this Agreem ent, Concessionaire shall require, at the discretion of the City, their subcontractor to enter into a separate Side Agreement in order to provide indemnification and insurance protection to City. Concessionaire shall verify that all subcontractors maintain in surance meeting all t he requirements stated herein and Concessionaire shall ensure that City and each of their officers , officials, agents, employees and volunteer s are additional insureds. The subcontractors' certificates and endorsements sh all be on file with Concessiona ire and City prior to the commencement of any work by the subcontractor.
Address for submission of Certificates of Insurance:
City of Fresno, Airports Department
4995 E. Clinton Way
Fresno, CA 93727-1525
Any failure to maintain the required insur ance, or to provide City with the required Certificates of Insurance, shall constitu te a material default and breach of this Agreement by Concessionaire.
The limits of insurance obtained by Concessionaire pursuant to any of the provisions of this Section of this Article shall not, in any way whatsoever, be deemed to limit the liability of Concessionaire hereunder.
If Concessionaire fails to obtain, pay for and maintain insurance as required under this Section, then City may, at its option, respond to any and all claims, demands for damages or suits arising out of Concessiona ire's uses of Airport premises and/or Concessionaire's operations/activities under authority of th is Agreement, without waiving any of City's rights hereunder.
Concessionaire shall provide such additional insurance as may from time to time be reasonably prescribed by City.
ARTICLE 8 - ASSIGNMENT
Section 8.1 City’s Consent
Concessionaire shall not voluntar ily or by operation of law, assign or transfer all or any part of Concessionaire’s rights under this Agreement, without prior written consent of City, which consent shall not be unreasonably withheld or delayed. Any attempted DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 18 assignment or transfer without such consent sha ll be wholly void. Without limiting the foregoing, for the purposes of this Section, if Concessiona ire is a corporation, any transfer or other event which results in t he reduction of the inte rest of the present stockholders of record to less than a majority of the voting stock of Concessionaire, or if Concessionaire is a partnership, any transfer of partnership interest (s) or other event which results in the reduction of the interest (s) of the present partners to less than a majority of interest in the partnership, shall be deemed an assignment for which City’s consent is required.
Section 8.2 No Release of Concessionaire
No approved assignment or transfer by Concessionaire of it s rights under this Agreement shall release Conces sionaire or relieve Concession aire of its obligations to pay the Concession Fees or any other consideration which Concessionaire is obligated to pay pursuant to this Agreement or to perform any of its ot her obligations hereunder except as agreed by the City in writing. The acceptance by City of any payment from or performance by any other person shall not be deemed to be a waiver by City of any provision of this Agreement, or consent to any assignment.
Section 8.3 Liability of Assignees
Each approved assignee or tran sferee of Concessionaire’s rights under this Agreement shall assume and be deemed to have assumed C oncessionaire’s obligations hereunder and shall be and remain liable jointly and severally with Concessionaire throughout the life of this Agreement for (a) the payment of the C oncession Fee and all other consideration with Concessionaires is ob ligated to pay hereunder and (b) the full and timely performance of all of the obligations required to be performed by Concessionaire hereunder.
Section 8.4 Sub-Uses of Assigned Area
Concessionaire shall not allow subuses of any portion of and/or all of the Assigned Area, such is expressly prohibited.
ARTICLE 9 - LICENCES AND AGREEMENTS
Concessionaire shall, at Concessionaire’s cost and expense, obtain and maintain all licenses, permits, certificates or other aut horizations of any governmental authority having jurisdiction including, but not limited to, the FAA, which may be necessary for the lawful conduct of the activities authorized hereunder.
ARTICLE 10 - SUBORDINATE TO RIGHTS OF AND AGREEMENTS WITH UNITED STATES
This Agreement shall be subordi nate to the provisions and r equirements of the existing or future agreement between City and the Un ited States relative to the development, operation or maintenance of Airport. This Ag reement and all the provisions hereof shall be subject to whatever right the United Stat es Government now has, or in the future DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 19 may have or acquire, affecting the control, operation or regulation of Airport, or the exclusive or non-exclusive use of Airport, by t he United States during the time of war or national emergency.
ARTICLE 11 - FEDERAL AVIATION AGENCY RESTRICTIONS
It is understood and agreed t hat nothing herein contained shall be construed to grant or authorize the granting of any exclusive right within the meaning of Section 308 (a) of the Federal Aviation Act of 1958. Concessionai re shall use reasonable precautions to prevent unauthorized persons from gaining access through the Assigned Area to restricted flight and aircraft operational area s. Concessionaire shall comply with Part 107 of the Federal Aviation Regulations and successor provisions set out at 49 C.F.R.
Ch. XII, Subchapter A, Section 1542.1 et seq ., as they exist as of the commencement date of the term hereof or may exist at any time during the lif e hereof, as they relate to Concessionaire’s operations at Airport.
ARTICLE 12 - DEFAULTS AND REMEDIES
Section 12.1 Defaults By Concessionaire
Any of the following shall constitute an event of default under this Agreement:
A. The filing of any petiti on, proceeding or action by, fo r or against Concessionaire under any insolvency, bankrupt cy or reorganization act or law, where such filing continues undismissed for a period of thirty (30) days;
B. An assignment by Concessionaire for the benefit of creditor, or the appointment of a receiver, guardian, conservator, trus tee, assignee or any similar person to take charge of all or any part of Concessionaire’s property, when such assignment or appointment is not vacated within thirty (30) days;
C. Failure to pay any monthly installment of the Concession Fee payments pursuant to this Agreement, when due and payable, when such failure to pay continues for a ten (10) day after written notice thereof;
D. Failure to remedy any default in t he performance of any other obligations required to be performed by Concessionaire pursuant to this Agreement, within a period of thirty (30) days after written notic e of such default (or, in the event the default is of such a nature as to reasonably require more than thirty (30) days to cure, if Concessionaire shall fail to commence said cure within said time and thereafter diligently prosecute the same to completion).
Section 12.2 City’s Remedies
A. Termination of Agreement. Upon the occurrence of any event of default, City, at its option and election, and without further demand or not ice, shall have the right to declare this Agreement ended and te rminated by providing written notice thereof to Concessionaire at any time after the expi ration of any notice and cure DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 20 periods provided hereunder. No delay in providing such notice of termination shall be deemed a waiver of City’s right to terminate this Agreement.
B. Possession of Concessionaire’s Property. In the event of default, all furniture, equipment, carts, machines and other personal property of Concessionaire shall remain at the Assigned Area, and City shall have the right, but not the obligation, to take exclusive possession of same and to use same, without cost to the City, until all defaults are cured or to require Concessionaire to remove same.
C. Performance of Covenants by City. In the event Concessionaire defaults hereunder City may, but shall not be obligated to, immediately or at any time thereafter, without further notice or demand and without waiver or releasing Concessionaire from any obl igation of a concessionaire, make such payment or perform such other act for the account of Concessionaire, to the extent City may deem desirable. In connection therewit h, City may pay expenses and employ counsel in instituting, prosecuting or defending any action or proceeding under this Agreement. All sums so paid by City and all expenses incurred in connection therewith sha ll be deemed additional co nsideration hereunder and shall be paid by Concessionaire to City upon demand. In the event such additional amounts remain unpaid, City shall have the same rights and remedies as for the nonpayment of any Concession Fee payment or other consideration required to be paid by Concessionaire pursuant to this Agreement.
D. Cumulative Remedies. The various ri ghts, option, elections, powers, and remedies reserved to City herein shall be cumulative, and, except as otherwise provided by statute, Cit y may pursue any or all such rights and remedies, whether at the same time or otherwise, and no single right shall be deemed to be exclusive of any of the others or of any right or priority a llowed by law or in equity. No delay or omission of City to exercise any right or remedy shall be construed as a waiver of any such right or remedy or waiver of any default by Concessionaire. In addition to the fo regoing, City may exercise any other remedy now or hereafter available under the laws of the State of California.
E. Subsequent Obligations. City shall be under no obligation to observe or perform any covenant of this Agreement on its part to be observed or performed for the benefit of Concessionaire which ac crues after the date of any default by Concessionaire.
Section 12.3 Default of City
City shall not be deemed to be in default in t he performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation within thirty (30) days after written notice by Concessionaire to City specifying wherein City has failed to perform such obligation; provided, however, in the event that the nature of City’s obligation is su ch that more than thirty (30) days are required for its performance, City shall not be deemed to be in default if it shall commence such DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 21 performance within such thirty (30) day per iod and thereafter shall diligently prosecute the same to completion.
Section 12.4 Concessionaire’s Remedies
A. Termination of Agreement. Upon the occurrence of any event of default, Concessionaire, at its option and electi on, and without further demand or notice, shall have the right to declare this Agreement ended and terminated by providing written notice thereof to City at any time after the expiration of any notice and cure periods provided hereunder. No del ay in providing such notice of termination shall be deemed a waiver of Conc essionaire’s right to terminate this Agreement.
B. Cumulative Remedies. The various rights, option, elections, powers, and remedies reserved to Concessionaire her ein shall be cumulative, and, except as otherwise provided by stat ute, City may pursue any or all such rights and remedies, whether at the same time or otherwise, and no single right shall be deemed to be exclusive of any of the others or of any right or priority allowed by law or in equity. No delay or omission of Concessionaire to exercise any right or remedy shall be construed as a waiver of any such right or remedy or waiver of any default by Concessionaire. In additi on to the foregoing, Concessionaire may exercise any other remedy now or hereafter available under the laws of the State of California.
C. Subsequent Obligations. Concessionair e shall be under no obligation to observe or perform any covenant of this Ag reement on its part to be observed or performed for the benefit of City, which accrues after the date of any default by City.
ARTICLE 13 - REMOVAL OF CONCESSIONAIRE’S PROPERTY AT END OF TERM
Subject to the provisions of Section 3.6, upon the expiration or other termination of this Agreement, Concessionaire shall remove all of its equipment and other personal property from the Assigned Area and shall promptly repair any damages to the Assigned Area caused by such removal. Conc essionaire’s obligation to perform this covenant shall survive the expiration or other termination of this Agreement.
ARTICLE 14 - TRANSFER OF CITY’S INTEREST
In the event of any transfer of City’s inte rest in Airport, the transferor shall be automatically relieved of any and all obligat ions and liabilities accruing from and after the date of such transfer.
ARTICLE 15 - MISCELLANEOUS
Section 15.1 FAA Grant Agreement Assurances
Those certain sixteen (16) numbered prov isions set forth within Section “B”, ”Assurances” of Exhibit “B”, “Assuranc es Required by the Federal Aviation DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 22 Administration”, attached hereto and made a part hereof, are specific provisions required by the FAA to be appropriately in cluded within all agr eements (including, without limitations, leases, licenses, permits , and contracts) between City and any and all persons and/or entities who use or perform work or c onduct activities on City-owned airport premises for aeronautic al or non-aeronautical purposes . Concessionaire, by its signature (s) hereunto affixed, acknowledges that is has reviewed the aforesaid Exhibit, in its entirety, and fully understands t he meaning, purpose, and intent thereof.
Concessionaire expressly agrees that, th roughout the life hereof, it shall fully and faithfully comply with, abide by and/or adhere to, as applicable and appropriate, each and every one of the numbered provisions contained within Section ”B”, “Assurance”, of said Exhibit (as said numbered provisions are reflected t herein or as same may be amended, from time to time, during the lif e hereof, by City, as and when the FAA’s requirements thereon imposed may so dictat e), which, pursuant to the guidelines established within paragraphs 2 th rough 4 of Section “A” of said Exhibit, shall either be applicable to Concessionaire on the start date of the term hereof or which, as a result of changing facts and/or circumstances, shall subsequently become applicable to Concessionaire, hereunder, during the life hereof.
Section 15.2 Required Accessibility Disclosure
A Certified Access Specialist (CASp) can in spect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Al though state law does not require a CASp inspection of the subject premises, the co mmercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee fo r the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.
Section 15.3 Incorporation of Prior Agreement, Amendments
This Agreement contains the entire agreem ent between the parties hereto with respect to the subject matter hereof, and no prior ag reement or understanding shall be effective for any purpose. No provision of this Agreement may be amended or added to, except by an agreement in writing signed by the parties hereto or their respective successors in interest.
Section 15.4 No Representations by City
Concessionaire acknowledges that neither City nor any employee of City has made any representations or promises with respect to the Concession and Assigned Area or the other areas of Airport, except as herei n expressly set forth. Concessionaire acknowledges that it has not execut ed this Agreement in reliance upon any DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 23 representations or promises of City or any employee of City with respect thereto, and that Concessionaire has made its own independent examination thereof.
Section 15.5 Examination of Agreement
Submission of this Agreement for examination or signature by Concessionaire does not constitute a reservation of or option for a concession agreement, and this Agreement is not effective as an agreement or otherwise until execution and delivery by both City and Concessionaire.
Section 15.6 Relationship Between Parties
Nothing contained in this Agreement shall be construed to create the relationship of principal and agent, partnership , joint venture or any other relationship between the parties hereto, other than the relationship of City and independent contractor.
Section 15.7 Waivers
The waiver by either party of any provision of this Agreement shall not be deemed to be a waiver of any other provision hereof or of any subsequent breach of any other provision hereof or of any subsequent breach of the same of any other provision. City’s consent to any act by Concessionaire r equiring City’s consent shall not be deemed to render unnecessary the obtaining of City’ s consent to any subsequent act by Concessionaire, whether or not similar to the act so consented. The subsequent acceptance by City of any Concession Fee pay ment or other consi deration required to be paid by Concessionaire under this Agreem ent shall not be deemed to be a waiver of any preceding breach by Conces sionaire of any provision of this Agreement, other than the failure of Concessionaire to pay the particular fee so accepted, regardless of City’s knowledge of such preceding breach at the time of acceptance of such payment.
Section 15.8 Successors and Assigns
The provisions contained in th is Agreement shall bind and in ure to the benefit of City and Concessionaire and, except as otherwis e provided in this Agreement, their respective successors and assigns.
Section 15.9 Rules and Regulations
Concessionaire shall comply with all uniform rules and regulations established by City for use of the Assigned Area or the other areas of the Airport as the same may be amended from time to time by City. City sha ll not be responsible to Concessionaire for the nonperformance by any tenant, permittee, in vitee or other concessionaire of City of any of said rules and regulations.
Section 15.10 Notices
All notices required to be served by City and Concessionaire; one upon the other, under the terms of this Agreement shall be in writing.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 24 A. Concessionaire’s Address for Notices. All notices or demands of any kind of which City shall have cause to serve upon Concessionaire under the terms of this Agreement shall be served upon Conc essionaire by mailing a copy thereof by certified or registered mail, return re ceipt requested, to C oncessionaire at the address shown below or to such other address as Concessionaire may, from time to time, specify to City in writing.
Smarte Carte, Inc.
4455 White Bear Parkway
St. Paul, MN 55110-7641
B. City’s Address for Notices. All not ices or demands of any kind which Concessionaire shall have cause to serve upon City under the terms of this Agreement shall be served upon City by mailin g a copy thereof by certified or registered mail, return receipt requested, to City at the address shown below or to such other address as City may, from ti me to time, specify to Concessionaire in writing.
City of Fresno – Airports Department
Attn: “Properties Manager”
4995 E. Clinton Way
Fresno, CA 93727
C. Time and Date of Service. In the event of any service of notice or demand by mail, as aforesaid, such notice or demand shall be deemed to have been sufficiently served as of 12: 00:01 A.M., on the fourth (4 th) calendar day following the date of deposit in the Un ited States mail of such ce rtified or registered mail properly addressed and postage prepaid.
Section 15.11 Headings
The Section headings contained in this Agr eement are for convenience only and shall have no effect in the construction or interpretation of any provision hereof.
Section 15.12 Governing Law
This Agreement shall be construed, interpre ted and applied pursuant to the laws of the State of California, and e xclusive venue in any and all actions arising under this Agreement shall be laid in the Judicial District of Fresno County, California.
Section 15.13 Time of Essence
Time is of the essence of this Agreement.
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 25 Section 15.14 Attorney’s Fees and Costs
In the event of any action or proceeding to construe or enforce any provision of this Agreement, the prevailing party in such acti on or proceeding shall be entitled to recover its costs, and reasonable attorneys’ fees.
Section 15.15 Holding Over
In the event Concessionaire sh all remain in possession of the Assigned Area or any part thereof following the end of the life of this Agreement, and thus hold over the term hereof with or without t he express written consent of Cit y, such holding-over occupancy shall be a tenancy from month to month only, terminable by either party hereto upon service of a minimum of thirty (30) days advance written notice upon the other party.
During any holding-over-month-to-month tenan cy period, Concessiona ire shall pay to City all fees required by this Agreement at the rates in effe ct as of the date immediately preceding the date on which su ch month-to-month tenancy commences. Unless herein elsewhere provided, any holding over by C oncessionaire shall be subject to all the terms and conditions of this Agreement.
Section 15.16 Redelivery
Upon the expiration of the term of this Agreement, or upon earlier termination as provided in this Agreement, Concessionaire shall have no further interest in the Assigned Area or the rights granted herein, and Concession aire shall deliver up the Assigned Area to City in as good order and condition as when received, except for reasonable wear and tear.
Section 15.17 Disadvantaged Business Enterprise Plan (DBE)
City's DBE Plan: City has developed a nd maintains a "Disadvantaged Business Enterprise Concession Plan" for Airport in accordance with U.S. Department of Transportation regulations 49 CFR Part 23, Subpart F, and Part 26, which plan establishes policies and procedures designed to promote City's interest in establishing Airport concession opportunities for Dis advantaged Business Enterprises and sets lawful, realistic, and reasonable goals therefore.
Non-Discrimination by Concessionaire
(1) This Agreement is subject to th e requirements of t he U.S. Department of Transportation's regulations 49 CFR Part 23, Subpart F, and Part 26.
Concessionaire agrees that it will not discriminate against any business owner because of the owner's race, co lor, national origin, or gender in connection with the awar d or performance of any agreement covered by 49 CFR Part 23, Subpart F, and Part 26.
(2) Concessionaire agrees to in clude the above statements in any agreement between Concessionaire and its subcontractors which is in DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 26 any way related to, subsequent to, or derived from this Agreement; and to cause the other parties to such agreement to similarly include the statements in further agreements.
Definitions: The definitions set forth in 49 United States Code Section 2204(d) and in 49 Code of Federal Regulation s, Subtitle A, Part 23 and Part 26, as such Code and Regulations existed on the commencement date hereof or as they may be amended from time to time during the life hereof, are incorporated herein by reference.
Section 15.18 Signs and Displays
Concessionaire may place such signs and displays within the Assigned Area as are deemed appropriate to the busine ss, providing that all such signs and displays shall be in good taste and be compatible with the dec or of the Terminal Building, and further provided that all such sign or display in stallations shall be approved in advance by Director. In the event of any complaint about any sign or display, Director shall have the authority to decide whether such sign or display is acceptabl e, and to require that such sign or display be removed, and Concessionaire agrees that Director's decision shall be binding, subject to any available appeal pursuant to the provisions of Chapter 1, Article 4, of the Fresno Municipal Co de, or any other available recourse. Concessionaire agrees to abide by Director's decision pending any such appeal.
Section 15.19 Interpretation of Provisions
Nothing herein contained shall be construed or interpreted, in any manner whatsoever, as limiting, relinquishing or waiving any of the rights of ownership enjoyed by City in and to Airport property, or in any manner waiving or limiting City’s control over the operation, maintenance, etc., of Airport property or in derogation of such governmental rights as City possesses, except as is specifically set forth herein.
Section 15.20 Invalid Provisions
In the event any term, covenant, condition or provision of this Agreement, or the application thereof to any person, entity, or circumstance, shall to any extent be held by a court of competent jurisdiction to be inva lid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person, entity, or circumstance, shall rema in in full force and effect and shall in no way be affected, impaired or invalidated, provided that such invalidity, voiding or unenforceability of such covenant, condi tion or provision does not materially prejudice either party in its respective rights and obligations c ontained in the then remaining valid covenants, conditions or provisions of this Agreement.
Section 15.21 Precedence of Documents
In the event of any conflic t between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 27 and take precedence over the terms and condi tions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
Section 15.22 Provision of Keys to City
Concessionaire shall ensure t hat City is in possession of a functional key for each cart management unit installed at Airport at all ti mes. Such key shall be used by the City and in the City’s discretion to unlock a ma lfunctioning unit and manually release a cart in the event it does not release a cart automat ically after payment of the rental fee, and Concessionaire’s on-Airport employee is not available to immediately respond.
Section 15.23 Counterparts
This Agreement may be executed in any number of counterpar ts and any party may execute any counterpart, each of which when executed and delivered will be deemed to be an original and all of which counterparts taken together will be deemed to be but one and the same instrument. The execution of this Agreement by any party hereto will not become effective until counterparts hereof have been executed by all parties hereto.
[Signatures follow on the next page.]
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A 28 ARTICLE IX – SIGNATURES
IN WITNESS WHEREOF, City has caused this Lease to be executed and issued by its Director of Aviation, and Lessee, by the signat ure(s) of its duly authorized officer(s) hereunto below affixed, has accepted this Lease and acknowledged and/or agreed to all of the terms, covenants, conditions, warr anties, agreements, and provisions herein contained, as of the day and year first above written.
CITY OF FRESNO
A Municipal Corporation
By:
Henry Thomps on, A.A.E., C.A.E.,
IAP
Director of Aviation
APPROVED AS TO FORM:
Rina M. Gonzales
Interim City Attorney
By:
Brandon M. Collet Date
Senior Deputy City Attorney
ATTEST:
Todd Stermer, CMC
City Clerk
By:
Deputy
Address for Notice:
City of Fresno
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
SMARTE CARTE, INC.
A Minnesota Corporation
By:
Name:
Title:
(If corporation or LLC., must be
CEO/President of Board/Vice President
of Board)
By:
Name:
Title:
(If corporation or LLC., must be
CFO/Treasurer/Secretary
Address for Notice:
4 Attachments -
Exhibit A - Description of Leased Premises
Exhibit B - Assurances Required by The Federal Aviation Administration Exhibit C – Gross Receipts Report
Exhibit D - Conflict of Interest Form
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A Drew Niemeyer
12/7/2022
White Bear Lake, MN 55110
CEO
4455 White Bear Pkwy
Greg Schultz
12/7/2022
CLO
12/7/2022
EXHIBIT
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EXHIBIT
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FAA
Airports
ASSURANCES
AIRPORT SPONSORS
A. General.
1. These assurances shall be complied with in the performance of grant agreements for airport development, airport planning, and noise compatibility program grants for airport sponsors.
2. These assurances are required to be submitted as part of the project application by sponsors requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as amended. As used herein, the term "public agency sponsor" means a public agency with control of a public-use airport; the term "private sponsor" means a private owner of a public-use airport; and the term "sponsor" includes both public agency sponsors and private sponsors.
3. Upon acceptance of this grant offer by the sponsor, these assurances are incorporated in and become part of this Grant Agreement.
B. Duration and Applicability.
1. Airport development or Noise Compatibility Program Projects Undertaken by a Public Agency Sponsor.
The terms, conditions and assurances of this Grant Agreement shall remain in full force and effect throughout the useful life of the facilities developed or equipment acquired for an airport development or noise compatibility program project, or throughout the useful life of the project items installed within a facility under a noise compatibility program project, but in any event not to exceed twenty (20) years from the date of acceptance of a grant offer of Federal funds for the project. However, there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport. There shall be no limit on the duration of the terms, conditions, and assurances with respect to real property acquired with federal funds. Furthermore, the duration of the Civil Rights assurance shall be specified in the assurances.
2. Airport Development or Noise Compatibility Projects Undertaken by a Private Sponsor.
The preceding paragraph (1) also applies to a private sponsor except that the useful life of project items installed within a facility or the useful life of the facilities developed or equipment acquired under an airport development or noise compatibility program project shall be no less than ten (10) years from the date of acceptance of Federal aid for the project.
3. Airport Planning Undertaken by a Sponsor.
Unless otherwise specified in this Grant Agreement, only Assurances 1, 2, 3, 5, 6, 13, 18, 23, 25, 30, 32, 33, 34, and 37 in Section C apply to planning projects. The terms, conditions, and DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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assurances of this Grant Agreement shall remain in full force and effect during the life of the project; there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport.
C. Sponsor Certification.
The sponsor hereby assures and certifies, with respect to this grant that:
1. General Federal Requirements
It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and requirements as they relate to the application, acceptance, and use of Federal funds for this Grant including but not limited to the following:
FEDERAL LEGISLATION
a. 49 U.S.C. subtitle VII, as amended.
b. Davis-Bacon Act, as amended — 40 U.S.C. §§ 3141-3144, 3146, and 3147, et seq.1 c. Federal Fair Labor Standards Act – 29 U.S.C. § 201, et seq. d. Hatch Act – 5 U.S.C. § 1501, et seq.2
e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601, et seq.1, 2
f. National Historic Preservation Act of 1966 – Section 106 – 54 U.S.C. § 306108.1 g. Archeological and Historic Preservation Act of 1974 – 54 U.S.C. § 312501, et seq.1 h. Native Americans Grave Repatriation Act – 25 U.S.C. § 3001, et seq. i. Clean Air Act, P.L. 90-148, as amended – 42 U.S.C. § 7401, et seq. j. Coastal Zone Management Act, P.L. 92-583, as amended – 16 U.S.C. § 1451, et seq. k. Flood Disaster Protection Act of 1973 – Section 102(a) - 42 U.S.C. § 4012a.1 l. 49 U.S.C. § 303, (formerly known as Section 4(f)).
m. Rehabilitation Act of 1973 – 29 U.S.C. § 794.
n. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin). o. Americans with Disabilities Act of 1990, as amended, (42 U.S.C. § 12101 et seq.) (prohibits discrimination on the basis of disability).
p. Age Discrimination Act of 1975 – 42 U.S.C. § 6101, et seq. q. American Indian Religious Freedom Act, P.L. 95-341, as amended. r. Architectural Barriers Act of 1968, as amended – 42 U.S.C. § 4151, et seq.1 s. Powerplant and Industrial Fuel Use Act of 1978 – Section 403 – 42 U.S.C. § 8373.1 t. Contract Work Hours and Safety Standards Act – 40 U.S.C. § 3701, et seq.1 u. Copeland Anti-kickback Act – 18 U.S.C. § 874.1
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v. National Environmental Policy Act of 1969 – 42 U.S.C. § 4321, et seq.1 w. Wild and Scenic Rivers Act, P.L. 90-542, as amended – 16 U.S.C. § 1271, et seq. x. Single Audit Act of 1984 – 31 U.S.C. § 7501, et seq.2 y. Drug-Free Workplace Act of 1988 – 41 U.S.C. §§ 8101 through 8105. z. The Federal Funding Accountability and Transparency Act of 2006, as amended (P.L. 109-282, as amended by section 6202 of P.L. 110-252).
aa. Civil Rights Restoration Act of 1987, P.L. 100-259. bb. Build America, Buy America Act, P.L. 117-58, Title IX.
EXECUTIVE ORDERS
a. Executive Order 11246 – Equal Employment Opportunity1 b. Executive Order 11990 – Protection of Wetlands
c. Executive Order 11998 – Flood Plain Management
d. Executive Order 12372 – Intergovernmental Review of Federal Programs e. Executive Order 12699 – Seismic Safety of Federal and Federally Assisted New Building Construction1
f. Executive Order 12898 – Environmental Justice
g. Executive Order 13166 – Improving Access to Services for Persons with Limited English Proficiency
h. Executive Order 13985 – Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
i. Executive Order 13988 – Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
j. Executive Order 14005 – Ensuring the Future is Made in all of America by All of America’s Workers
k. Executive Order 14008 – Tackling the Climate Crisis at Home and Abroad
FEDERAL REGULATIONS
a. 2 CFR Part 180 – OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement).
b. 2 CFR Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 4, 5
c. 2 CFR Part 1200 – Nonprocurement Suspension and Debarment. d. 14 CFR Part 13 – Investigative and Enforcement Procedures. e. 14 CFR Part 16 – Rules of Practice for Federally-Assisted Airport Enforcement Proceedings. f. 14 CFR Part 150 – Airport Noise Compatibility Planning.
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g. 28 CFR Part 35 – Nondiscrimination on the Basis of Disability in State and Local Government Services.
h. 28 CFR § 50.3 – U.S. Department of Justice Guidelines for the Enforcement of Title VI of the Civil Rights Act of 1964.
i. 29 CFR Part 1 – Procedures for Predetermination of Wage Rates.1 j. 29 CFR Part 3 – Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States.1 k. 29 CFR Part 5 – Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (Also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act).1 l. 41 CFR Part 60 – Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor (Federal and Federally-assisted contracting requirements).1 m. 49 CFR Part 20 – New Restrictions on Lobbying.
n. 49 CFR Part 21 – Nondiscrimination in Federally-Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964. o. 49 CFR Part 23 – Participation by Disadvantage Business Enterprise in Airport Concessions. p. 49 CFR Part 24 – Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs.1, 2
q. 49 CFR Part 26 – Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.
r. 49 CFR Part 27 – Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance.1
s. 49 CFR Part 28 – Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Transportation. t. 49 CFR Part 30 – Denial of Public Works Contracts to Suppliers of Goods and Services of Countries That Deny Procurement Market Access to U.S. Contractors. u. 49 CFR Part 32 – Governmentwide Requirements for Drug-Free Workplace (Financial Assistance).
v. 49 CFR Part 37 – Transportation Services for Individuals with Disabilities (ADA). w. 49 CFR Part 38 – Americans with Disabilities Act (ADA) Accessibility Specifications for Transportation Vehicles.
x. 49 CFR Part 41 – Seismic Safety.
FOOTNOTES TO ASSURANCE (C)(1)
1 These laws do not apply to airport planning sponsors. 2 These laws do not apply to private sponsors.
3 2 CFR Part 200 contains requirements for State and Local Governments receiving Federal assistance. Any requirement levied upon State and Local Governments by this regulation shall DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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apply where applicable to private sponsors receiving Federal assistance under Title 49, United States Code.
4 Cost principles established in 2 CFR part 200 subpart E must be used as guidelines for determining the eligibility of specific types of expenses. 5 Audit requirements established in 2 CFR part 200 subpart F are the guidelines for audits.
SPECIFIC ASSURANCES
Specific assurances required to be included in grant agreements by any of the above laws, regulations or circulars are incorporated by reference in this Grant Agreement.
2. Responsibility and Authority of the Sponsor.
a. Public Agency Sponsor:
It has legal authority to apply for this Grant, and to finance and carry out the proposed project; that a resolution, motion or similar action has been duly adopted or passed as an official act of the applicant's governing body authorizing the filing of the application, including all understandings and assurances contained therein, and directing and authorizing the person identified as the official representative of the applicant to act in connection with the application and to provide such additional information as may be required. b. Private Sponsor:
It has legal authority to apply for this Grant and to finance and carry out the proposed project and comply with all terms, conditions, and assurances of this Grant Agreement. It shall designate an official representative and shall in writing direct and authorize that person to file this application, including all understandings and assurances contained therein; to act in connection with this application; and to provide such additional information as may be required.
3. Sponsor Fund Availability.
It has sufficient funds available for that portion of the project costs which are not to be paid by the United States. It has sufficient funds available to assure operation and maintenance of items funded under this Grant Agreement which it will own or control.
4. Good Title.
a. It, a public agency or the Federal government, holds good title, satisfactory to the Secretary, to the landing area of the airport or site thereof, or will give assurance satisfactory to the Secretary that good title will be acquired.
b. For noise compatibility program projects to be carried out on the property of the sponsor, it holds good title satisfactory to the Secretary to that portion of the property upon which Federal funds will be expended or will give assurance to the Secretary that good title will be obtained.
5. Preserving Rights and Powers.
a. It will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in this Grant Agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary.
b. Subject to the FAA Act of 2018, Public Law 115-254, Section 163, it will not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property shown on Exhibit A to this application or, for a noise compatibility program project, that portion of the property upon which Federal funds have been expended, for the duration of the terms, conditions, and assurances in this Grant Agreement without approval by the Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States Code, to assume the obligations of this Grant Agreement and to have the power, authority, and financial resources to carry out all such obligations, the sponsor shall insert in the contract or document transferring or disposing of the sponsor's interest, and make binding upon the transferee all of the terms, conditions, and assurances contained in this Grant Agreement. c. For all noise compatibility program projects which are to be carried out by another unit of local government or are on property owned by a unit of local government other than the sponsor, it will enter into an agreement with that government. Except as otherwise specified by the Secretary, that agreement shall obligate that government to the same terms, conditions, and assurances that would be applicable to it if it applied directly to the FAA for a grant to undertake the noise compatibility program project. That agreement and changes thereto must be satisfactory to the Secretary. It will take steps to enforce this agreement against the local government if there is substantial non-compliance with the terms of the agreement. d. For noise compatibility program projects to be carried out on privately owned property, it will enter into an agreement with the owner of that property which includes provisions specified by the Secretary. It will take steps to enforce this agreement against the property owner whenever there is substantial non-compliance with the terms of the agreement. e. If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure that the airport will continue to function as a public-use airport in accordance with these assurances for the duration of these assurances.
f. If an arrangement is made for management and operation of the airport by any agency or person other than the sponsor or an employee of the sponsor, the sponsor will reserve sufficient rights and authority to ensure that the airport will be operated and maintained in accordance with Title 49, United States Code, the regulations and the terms, conditions and assurances in this Grant Agreement and shall ensure that such arrangement also requires compliance therewith.
g. Sponsors of commercial service airports will not permit or enter into any arrangement that results in permission for the owner or tenant of a property used as a residence, or zoned for residential use, to taxi an aircraft between that property and any location on airport. Sponsors of general aviation airports entering into any arrangement that results in permission for the owner of residential real property adjacent to or near the airport must comply with the requirements of Sec. 136 of Public Law 112-95 and the sponsor assurances.
6. Consistency with Local Plans.
The project is reasonably consistent with plans (existing at the time of submission of this application) of public agencies that are authorized by the State in which the project is located to plan for the development of the area surrounding the airport.
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7. Consideration of Local Interest.
It has given fair consideration to the interest of communities in or near where the project may be located.
8. Consultation with Users.
In making a decision to undertake any airport development project under Title 49, United States Code, it has undertaken reasonable consultations with affected parties using the airport at which project is proposed.
9. Public Hearings.
In projects involving the location of an airport, an airport runway, or a major runway extension, it has afforded the opportunity for public hearings for the purpose of considering the economic, social, and environmental effects of the airport or runway location and its consistency with goals and objectives of such planning as has been carried out by the community and it shall, when requested by the Secretary, submit a copy of the transcript of such hearings to the Secretary.
Further, for such projects, it has on its management board either voting representation from the communities where the project is located or has advised the communities that they have the right to petition the Secretary concerning a proposed project.
10. Metropolitan Planning Organization.
In projects involving the location of an airport, an airport runway, or a major runway extension at a medium or large hub airport, the sponsor has made available to and has provided upon request to the metropolitan planning organization in the area in which the airport is located, if any, a copy of the proposed amendment to the airport layout plan to depict the project and a copy of any airport master plan in which the project is described or depicted.
11. Pavement Preventive Maintenance-Management.
With respect to a project approved after January 1, 1995, for the replacement or reconstruction of pavement at the airport, it assures or certifies that it has implemented an effective airport pavement maintenance-management program and it assures that it will use such program for the useful life of any pavement constructed, reconstructed or repaired with Federal financial assistance at the airport. It will provide such reports on pavement condition and pavement management programs as the Secretary determines may be useful.
12. Terminal Development Prerequisites.
For projects which include terminal development at a public use airport, as defined in Title 49, it has, on the date of submittal of the project grant application, all the safety equipment required for certification of such airport under 49 U.S.C. § 44706, and all the security equipment required by rule or regulation, and has provided for access to the passenger enplaning and deplaning area of such airport to passengers enplaning and deplaning from aircraft other than air carrier aircraft.
13. Accounting System, Audit, and Record Keeping Requirements. a. It shall keep all project accounts and records which fully disclose the amount and disposition by the recipient of the proceeds of this Grant, the total cost of the project in connection with which this Grant is given or used, and the amount or nature of that portion of the cost of the project supplied by other sources, and such other financial records pertinent to the project. The DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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accounts and records shall be kept in accordance with an accounting system that will facilitate an effective audit in accordance with the Single Audit Act of 1984. b. It shall make available to the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, for the purpose of audit and examination, any books, documents, papers, and records of the recipient that are pertinent to this Grant. The Secretary may require that an appropriate audit be conducted by a recipient. In any case in which an independent audit is made of the accounts of a sponsor relating to the disposition of the proceeds of a grant or relating to the project in connection with which this Grant was given or used, it shall file a certified copy of such audit with the Comptroller General of the United States not later than six (6) months following the close of the fiscal year for which the audit was made.
14. Minimum Wage Rates.
It shall include, in all contracts in excess of $2,000 for work on any projects funded under this Grant Agreement which involve labor, provisions establishing minimum rates of wages, to be predetermined by the Secretary of Labor under 40 U.S.C. §§ 3141-3144, 3146, and 3147, Public Building, Property, and Works), which contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work.
15. Veteran's Preference.
It shall include in all contracts for work on any project funded under this Grant Agreement which involve labor, such provisions as are necessary to insure that, in the employment of labor (except in executive, administrative, and supervisory positions), preference shall be given to Vietnam era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small business concerns owned and controlled by disabled veterans as defined in 49 U.S.C. § 47112.
However, this preference shall apply only where the individuals are available and qualified to perform the work to which the employment relates.
16. Conformity to Plans and Specifications.
It will execute the project subject to plans, specifications, and schedules approved by the Secretary.
Such plans, specifications, and schedules shall be submitted to the Secretary prior to commencement of site preparation, construction, or other performance under this Grant Agreement, and, upon approval of the Secretary, shall be incorporated into this Grant Agreement.
Any modification to the approved plans, specifications, and schedules shall also be subject to approval of the Secretary, and incorporated into this Grant Agreement.
17. Construction Inspection and Approval.
It will provide and maintain competent technical supervision at the construction site throughout the project to assure that the work conforms to the plans, specifications, and schedules approved by the Secretary for the project. It shall subject the construction work on any project contained in an approved project application to inspection and approval by the Secretary and such work shall be in accordance with regulations and procedures prescribed by the Secretary. Such regulations and procedures shall require such cost and progress reporting by the sponsor or sponsors of such project as the Secretary shall deem necessary.
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18. Planning Projects.
In carrying out planning projects:
a. It will execute the project in accordance with the approved program narrative contained in the project application or with the modifications similarly approved. b. It will furnish the Secretary with such periodic reports as required pertaining to the planning project and planning work activities.
c. It will include in all published material prepared in connection with the planning project a notice that the material was prepared under a grant provided by the United States. d. It will make such material available for examination by the public, and agrees that no material prepared with funds under this project shall be subject to copyright in the United States or any other country.
e. It will give the Secretary unrestricted authority to publish, disclose, distribute, and otherwise use any of the material prepared in connection with this grant. f. It will grant the Secretary the right to disapprove the sponsor's employment of specific consultants and their subcontractors to do all or any part of this project as well as the right to disapprove the proposed scope and cost of professional services. g. It will grant the Secretary the right to disapprove the use of the sponsor's employees to do all or any part of the project.
h. It understands and agrees that the Secretary's approval of this project grant or the Secretary's approval of any planning material developed as part of this grant does not constitute or imply any assurance or commitment on the part of the Secretary to approve any pending or future application for a Federal airport grant.
19. Operation and Maintenance.
a. The airport and all facilities which are necessary to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, state, and local agencies for maintenance and operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. It will suitably operate and maintain the airport and all facilities thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal to temporarily close the airport for non-aeronautical purposes must first be approved by the Secretary. In furtherance of this assurance, the sponsor will have in effect arrangements for:
1. Operating the airport's aeronautical facilities whenever required;
2. Promptly marking and lighting hazards resulting from airport conditions, including temporary conditions; and
3. Promptly notifying pilots of any condition affecting aeronautical use of the airport. Nothing contained herein shall be construed to require that the airport be operated for aeronautical use during temporary periods when snow, flood, or other climatic conditions interfere with such operation and maintenance. Further, nothing herein shall be construed as requiring the maintenance, repair, restoration, or replacement of any structure or DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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facility which is substantially damaged or destroyed due to an act of God or other condition or circumstance beyond the control of the sponsor. b. It will suitably operate and maintain noise compatibility program items that it owns or controls upon which Federal funds have been expended.
20. Hazard Removal and Mitigation.
It will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards.
21. Compatible Land Use.
It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for noise compatibility program implementation, it will not cause or permit any change in land use, within its jurisdiction, that will reduce its compatibility, with respect to the airport, of the noise compatibility program measures upon which Federal funds have been expended.
22. Economic Nondiscrimination.
a. It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. b. In any agreement, contract, lease, or other arrangement under which a right or privilege at the airport is granted to any person, firm, or corporation to conduct or to engage in any aeronautical activity for furnishing services to the public at the airport, the sponsor will insert and enforce provisions requiring the contractor to:
1. Furnish said services on a reasonable, and not unjustly discriminatory, basis to all users thereof, and
2. Charge reasonable, and not unjustly discriminatory, prices for each unit or service, provided that the contractor may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. c. Each fixed-based operator at the airport shall be subject to the same rates, fees, rentals, and other charges as are uniformly applicable to all other fixed-based operators making the same or similar uses of such airport and utilizing the same or similar facilities. d. Each air carrier using such airport shall have the right to service itself or to use any fixed-based operator that is authorized or permitted by the airport to serve any air carrier at such airport. e. Each air carrier using such airport (whether as a tenant, non-tenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and utilize similar facilities, subject to reasonable DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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classifications such as tenants or non-tenants and signatory carriers and non-signatory carriers.
Classification or status as tenant or signatory shall not be unreasonably withheld by any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status.
f. It will not exercise or grant any right or privilege which operates to prevent any person, firm, or corporation operating aircraft on the airport from performing any services on its own aircraft with its own employees (including, but not limited to maintenance, repair, and fueling) that it may choose to perform.
g. In the event the sponsor itself exercises any of the rights and privileges referred to in this assurance, the services involved will be provided on the same conditions as would apply to the furnishing of such services by commercial aeronautical service providers authorized by the sponsor under these provisions.
h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport.
i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public.
23. Exclusive Rights.
It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph, the providing of the services at an airport by a single fixed-based operator shall not be construed as an exclusive right if both of the following apply:
a. It would be unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide such services, and
b. If allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed-based operator and such airport. It further agrees that it will not, either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can be regarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, United States Code.
24. Fee and Rental Structure.
It will maintain a fee and rental structure for the facilities and services at the airport which will make the airport as self-sustaining as possible under the circumstances existing at the particular airport, taking into account such factors as the volume of traffic and economy of collection. No part of the Federal share of an airport development, airport planning or noise compatibility project for DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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which a Grant is made under Title 49, United States Code, the Airport and Airway Improvement Act of 1982, the Federal Airport Act or the Airport and Airway Development Act of 1970 shall be included in the rate basis in establishing fees, rates, and charges for users of that airport.
25. Airport Revenues.
a. All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other local facilities which are owned or operated by the owner or operator of the airport and which are directly and substantially related to the actual air transportation of passengers or property; or for noise mitigation purposes on or off the airport.
The following exceptions apply to this paragraph:
1. If covenants or assurances in debt obligations issued before September 3, 1982, by the owner or operator of the airport, or provisions enacted before September 3, 1982, in governing statutes controlling the owner or operator's financing, provide for the use of the revenues from any of the airport owner or operator's facilities, including the airport, to support not only the airport but also the airport owner or operator's general debt obligations or other facilities, then this limitation on the use of all revenues generated by the airport (and, in the case of a public airport, local taxes on aviation fuel) shall not apply.
2. If the Secretary approves the sale of a privately owned airport to a public sponsor and provides funding for any portion of the public sponsor’s acquisition of land, this limitation on the use of all revenues generated by the sale shall not apply to certain proceeds from the sale. This is conditioned on repayment to the Secretary by the private owner of an amount equal to the remaining unamortized portion (amortized over a 20-year period) of any airport improvement grant made to the private owner for any purpose other than land acquisition on or after October 1, 1996, plus an amount equal to the federal share of the current fair market value of any land acquired with an airport improvement grant made to that airport on or after October 1, 1996.
3. Certain revenue derived from or generated by mineral extraction, production, lease, or other means at a general aviation airport (as defined at 49 U.S.C. § 47102), if the FAA determines the airport sponsor meets the requirements set forth in Section 813 of Public Law 112-95.
b. As part of the annual audit required under the Single Audit Act of 1984, the sponsor will direct that the audit will review, and the resulting audit report will provide an opinion concerning, the use of airport revenue and taxes in paragraph (a), and indicating whether funds paid or transferred to the owner or operator are paid or transferred in a manner consistent with Title 49, United States Code and any other applicable provision of law, including any regulation promulgated by the Secretary or Administrator.
c. Any civil penalties or other sanctions will be imposed for violation of this assurance in accordance with the provisions of 49 U.S.C. § 47107.
26. Reports and Inspections.
It will:
a. submit to the Secretary such annual or special financial and operations reports as the Secretary may reasonably request and make such reports available to the public; make available to the DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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public at reasonable times and places a report of the airport budget in a format prescribed by the Secretary;
b. for airport development projects, make the airport and all airport records and documents affecting the airport, including deeds, leases, operation and use agreements, regulations and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request;
c. for noise compatibility program projects, make records and documents relating to the project and continued compliance with the terms, conditions, and assurances of this Grant Agreement including deeds, leases, agreements, regulations, and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request; and d. in a format and time prescribed by the Secretary, provide to the Secretary and make available to the public following each of its fiscal years, an annual report listing in detail:
1. all amounts paid by the airport to any other unit of government and the purposes for which each such payment was made; and
2. all services and property provided by the airport to other units of government and the amount of compensation received for provision of each such service and property.
27. Use by Government Aircraft.
It will make available all of the facilities of the airport developed with Federal financial assistance and all those usable for landing and takeoff of aircraft to the United States for use by Government aircraft in common with other aircraft at all times without charge, except, if the use by Government aircraft is substantial, charge may be made for a reasonable share, proportional to such use, for the cost of operating and maintaining the facilities used. Unless otherwise determined by the Secretary, or otherwise agreed to by the sponsor and the using agency, substantial use of an airport by Government aircraft will be considered to exist when operations of such aircraft are in excess of those which, in the opinion of the Secretary, would unduly interfere with use of the landing areas by other authorized aircraft, or during any calendar month that:
a. Five (5) or more Government aircraft are regularly based at the airport or on land adjacent thereto; or
b. The total number of movements (counting each landing as a movement) of Government aircraft is 300 or more, or the gross accumulative weight of Government aircraft using the airport (the total movement of Government aircraft multiplied by gross weights of such aircraft) is in excess of five million pounds.
28. Land for Federal Facilities.
It will furnish without cost to the Federal Government for use in connection with any air traffic control or air navigation activities, or weather-reporting and communication activities related to air traffic control, any areas of land or water, or estate therein as the Secretary considers necessary or desirable for construction, operation, and maintenance at Federal expense of space or facilities for such purposes. Such areas or any portion thereof will be made available as provided herein within four months after receipt of a written request from the Secretary.
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29. Airport Layout Plan.
a. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, it will keep up to date at all times an airport layout plan of the airport showing:
1. boundaries of the airport and all proposed additions thereto, together with the boundaries of all offsite areas owned or controlled by the sponsor for airport purposes and proposed additions thereto;
2. the location and nature of all existing and proposed airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars and roads), including all proposed extensions and reductions of existing airport facilities;
3. the location of all existing and proposed non-aviation areas and of all existing improvements thereon; and
4. all proposed and existing access points used to taxi aircraft across the airport’s property boundary.
Such airport layout plans and each amendment, revision, or modification thereof, shall be subject to the approval of the Secretary which approval shall be evidenced by the signature of a duly authorized representative of the Secretary on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities which are not in conformity with the airport layout plan as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport.
b. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, if a change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plan as approved by the Secretary, the owner or operator will, if requested, by the Secretary:
1. eliminate such adverse effect in a manner approved by the Secretary; or
2. bear all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretary and all costs of restoring such property (or replacement thereof) to the level of safety, utility, efficiency, and cost of operation existing before the unapproved change in the airport or its facilities except in the case of a relocation or replacement of an existing airport facility due to a change in the Secretary’s design standards beyond the control of the airport sponsor.
30. Civil Rights.
It will promptly take any measures necessary to ensure that no person in the United States shall, on the grounds of race, color, and national origin (including limited English proficiency) in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4); creed and sex (including sexual orientation and gender identity) per 49 U.S.C. § 47123 and related requirements; age per the Age Discrimination Act of 1975 and related requirements; or disability per the Americans with Disabilities Act of 1990 and related requirements, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any program and activity conducted with, or benefiting from, funds received from this Grant.
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a. Using the definitions of activity, facility, and program as found and defined in 49 CFR §§ 21.23(b) and 21.23(e), the sponsor will facilitate all programs, operate all facilities, or conduct all programs in compliance with all non-discrimination requirements imposed by or pursuant to these assurances.
b. Applicability
1. Programs and Activities. If the sponsor has received a grant (or other federal assistance) for any of the sponsor’s program or activities, these requirements extend to all of the sponsor’s programs and activities.
2. Facilities. Where it receives a grant or other federal financial assistance to construct, expand, renovate, remodel, alter, or acquire a facility, or part of a facility, the assurance extends to the entire facility and facilities operated in connection therewith.
3. Real Property. Where the sponsor receives a grant or other Federal financial assistance in the form of, or for the acquisition of real property or an interest in real property, the assurance will extend to rights to space on, over, or under such property. c. Duration.
The sponsor agrees that it is obligated to this assurance for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the assurance obligates the sponsor, or any transferee for the longer of the following periods:
1. So long as the airport is used as an airport, or for another purpose involving the provision of similar services or benefits; or
2. So long as the sponsor retains ownership or possession of the property. d. Required Solicitation Language. It will include the following notification in all solicitations for bids, Requests For Proposals for work, or material under this Grant Agreement and in all proposals for agreements, including airport concessions, regardless of funding source:
“The ([Selection Criteria: Sponsor Name]), in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders or offerors that it will affirmatively ensure that for any contract entered into pursuant to this advertisement, [select businesses, or disadvantaged business enterprises or airport concession disadvantaged business enterprises] will be afforded full and fair opportunity to submit bids in response to this invitation and no businesses will be discriminated against on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in consideration for an award.”
e. Required Contract Provisions.
1. It will insert the non-discrimination contract clauses requiring compliance with the acts and regulations relative to non-discrimination in Federally-assisted programs of the Department of Transportation (DOT), and incorporating the acts and regulations into the contracts by reference in every contract or agreement subject to the non-discrimination in Federally-assisted programs of the DOT acts and regulations.
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2. It will include a list of the pertinent non-discrimination authorities in every contract that is subject to the non-discrimination acts and regulations.
3. It will insert non-discrimination contract clauses as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a sponsor.
4. It will insert non-discrimination contract clauses prohibiting discrimination on the basis of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability as a covenant running with the land, in any future deeds, leases, license, permits, or similar instruments entered into by the sponsor with other parties:
a. For the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and
b. For the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program. f. It will provide for such methods of administration for the program as are found by the Secretary to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the acts, the regulations, and this assurance. g. It agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the acts, the regulations, and this assurance.
31. Disposal of Land.
a. For land purchased under a grant for airport noise compatibility purposes, including land serving as a noise buffer, it will dispose of the land, when the land is no longer needed for such purposes, at fair market value, at the earliest practicable time. That portion of the proceeds of such disposition which is proportionate to the United States' share of acquisition of such land will be, at the discretion of the Secretary, (1) reinvested in another project at the airport, or (2) transferred to another eligible airport as prescribed by the Secretary. The Secretary shall give preference to the following, in descending order:
1. Reinvestment in an approved noise compatibility project;
2. Reinvestment in an approved project that is eligible for grant funding under 49 U.S.C. § 47117(e);
3. Reinvestment in an approved airport development project that is eligible for grant funding under 49 U.S.C. §§ 47114, 47115, or 47117;
4. Transfer to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport; or
5. Payment to the Secretary for deposit in the Airport and Airway Trust Fund.
If land acquired under a grant for noise compatibility purposes is leased at fair market value and consistent with noise buffering purposes, the lease will not be considered a disposal of the land. Revenues derived from such a lease may be used for an approved airport development DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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project that would otherwise be eligible for grant funding or any permitted use of airport revenue.
b. For land purchased under a grant for airport development purposes (other than noise compatibility), it will, when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary an amount equal to the United States' proportionate share of the fair market value of the land. That portion of the proceeds of such disposition which is proportionate to the United States' share of the cost of acquisition of such land will, upon application to the Secretary, be reinvested or transferred to another eligible airport as prescribed by the Secretary. The Secretary shall give preference to the following, in descending order:
1. Reinvestment in an approved noise compatibility project;
2. Reinvestment in an approved project that is eligible for grant funding under 49 U.S.C. § 47117(e);
3. Reinvestment in an approved airport development project that is eligible for grant funding under 49 U.S.C. §§ 47114, 47115, or 47117;
4. Transfer to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport; or
5. Payment to the Secretary for deposit in the Airport and Airway Trust Fund. c. Land shall be considered to be needed for airport purposes under this assurance if (1) it may be needed for aeronautical purposes (including runway protection zones) or serve as noise buffer land, and (2) the revenue from interim uses of such land contributes to the financial self- sufficiency of the airport. Further, land purchased with a grant received by an airport operator or owner before December 31, 1987, will be considered to be needed for airport purposes if the Secretary or Federal agency making such grant before December 31, 1987, was notified by the operator or owner of the uses of such land, did not object to such use, and the land continues to be used for that purpose, such use having commenced no later than December 15, 1989.
d. Disposition of such land under (a), (b), or (c) will be subject to the retention or reservation of any interest or right therein necessary to ensure that such land will only be used for purposes which are compatible with noise levels associated with operation of the airport.
32. Engineering and Design Services.
If any phase of such project has received Federal funds under Chapter 471 subchapter 1 of Title 49 U.S.C., it will award each contract, or sub-contract for program management, construction management, planning studies, feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping or related services in the same manner as a contract for architectural and engineering services is negotiated under Chapter 11 of Title 40 U S.C., or an equivalent qualifications-based requirement prescribed for or by the sponsor of the airport.
33. Foreign Market Restrictions.
It will not allow funds provided under this Grant to be used to fund any project which uses any product or service of a foreign country during the period in which such foreign country is listed by DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
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the United States Trade Representative as denying fair and equitable market opportunities for products and suppliers of the United States in procurement and construction.
34. Policies, Standards, and Specifications.
It will carry out any project funded under an Airport Improvement Program Grant in accordance with policies, standards, and specifications approved by the Secretary including, but not limited to, current FAA Advisory Circulars (https://www.faa.gov/airports/aip/media/aip-pfc-checklist.pdf) for AIP projects as of [Selection Criteria: Project Application Date].
35. Relocation and Real Property Acquisition.
a. It will be guided in acquiring real property, to the greatest extent practicable under State law, by the land acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse property owners for necessary expenses as specified in Subpart B. b. It will provide a relocation assistance program offering the services described in Subpart C of 49 CFR Part 24 and fair and reasonable relocation payments and assistance to displaced persons as required in Subpart D and E of 49 CFR Part 24.
c. It will make available within a reasonable period of time prior to displacement, comparable replacement dwellings to displaced persons in accordance with Subpart E of 49 CFR Part 24.
36. Access By Intercity Buses.
The airport owner or operator will permit, to the maximum extent practicable, intercity buses or other modes of transportation to have access to the airport; however, it has no obligation to fund special facilities for intercity buses or for other modes of transportation.
37. Disadvantaged Business Enterprises.
The sponsor shall not discriminate on the basis of race, color, national origin, or sex, in the award and performance of any DOT-assisted contract covered by 49 CFR Part 26, or in the award and performance of any concession activity contract covered by 49 CFR Part 23. In addition, the sponsor shall not discriminate on the basis of race, color, national origin or sex in the administration of its Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business Enterprise (ACDBE) programs or the requirements of 49 CFR Parts 23 and 26. The sponsor shall take all necessary and reasonable steps under 49 CFR Parts 23 and 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts, and/or concession contracts. The sponsor’s DBE and ACDBE programs, as required by 49 CFR Parts 26 and 23, and as approved by DOT, are incorporated by reference in this agreement. Implementation of these programs is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the sponsor of its failure to carry out its approved program, the Department may impose sanctions as provided for under Parts 26 and 23 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. § 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. §§ 3801-3809, 3812).
38. Hangar Construction.
If the airport owner or operator and a person who owns an aircraft agree that a hangar is to be constructed at the airport for the aircraft at the aircraft owner’s expense, the airport owner or operator will grant to the aircraft owner for the hangar a long term lease that is subject to such terms and conditions on the hangar as the airport owner or operator may impose.
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39. Competitive Access.
a. If the airport owner or operator of a medium or large hub airport (as defined in 49 U.S.C. § 47102) has been unable to accommodate one or more requests by an air carrier for access to gates or other facilities at that airport in order to allow the air carrier to provide service to the airport or to expand service at the airport, the airport owner or operator shall transmit a report to the Secretary that:
1. Describes the requests;
2. Provides an explanation as to why the requests could not be accommodated; and
3. Provides a time frame within which, if any, the airport will be able to accommodate the requests.
b. Such report shall be due on either February 1 or August 1 of each year if the airport has been unable to accommodate the request(s) in the six month period prior to the applicable due date.
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EXHIBIT
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A Fresno Yosemite International AirportSMARTE CARTE INC. GROSS RECEIPTS REPORT Exhibit "E"
For Period:Airport GeneratedGross Receiptsfor the Month (AllIncome)Fee RateCurrent Month Fees Duex10% =- =$0.00Prepared By:Date:Instructions:Attn: Airport Properties Through:ReturnsTotal Receipts Airports Gross Reported$0.00Monthly MAG FeesTotal Cash ReceiptsTotal Credit Card ReceiptsSignature of Preparer:yTitle:I, _____________________________, do hereby certify that I am the ________________________________, of 4995 E. Clinton WayFresno, CA 93727Phone (559) 621-4500Fax (559) 251-4825Phone:IF CURRENT MONTH FEES DUE IS LESS THAN ZERO NO ADDITIONAL PAYMENT IS NECESSARY.3: Submit report and fees by the 20th day of the month, for the prior month. *Note: An originally signed copy of your report must be remitted to the address above in accordance with the terms of your concession agreement1: Complete report, leaving no space blank.2: Please make check payable to City of Fresno, and remit with this originally signed report to:City of FresnoAirport Department DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
EXHIBIT
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A
Exhibit “D”
DISCLOSURE OF CONFLICT OF INTEREST
between City of Fresno (“Fresno”)
(“ ”)
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?
2 Do you represent any firm, organization or person who is in litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do business with the City of Fresno?
4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno?
5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
(name)
(company)
(address)
Additional page(s) attached.
(city state zip)
DocuSign Envelope ID: 8C181682-B8BD-4A66-B220-0451FF43E48A Drew Niemeyer
12/7/2022
Smarte Carte, Inc.
X
X
Smarte Carte, Inc.
BAGGAGE CART CONCESSION AGREEMENT
X
Smarte Carte, Inc.
N/A
White Bear Lake, MN 55110
X
X
4455 White Bear Pkwy
X