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ON.AIRPORT NON.EXCLUSIVE RENTAL CAR CONCESSIONS AGREEMENT
BETWEEN
CITY OF FRESNO
AND
THE HERTZ CORPORATION,
a Delaware Gorporation
Page 1 of51
Table of Contents
Page
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ARTICLE II - CONCESSIONAIRE'S RIGHTS, PRIVILEGES AND OBLIGATIONS.............1O
Section 2.01: Representations and Covenants by the Concessionaire's Parent
Entity and Brands (the Concessionaire). ........ ..... .10
Section 2.02: Customer Facility Charge (CFC). ....... ...... .10
Section 2.03: Concessionaire's Rights, Privileges and Ob|i9ations..........................12
Section 2.04: Restrictions on Concessionaire's Operations .. ... ... .. ..17
Section 2.05: City's Covenant Regarding More Favorable Terms............... .......... ..17
Section 2.06: City's Covenant Regarding Concessionaire Allowance and
Renewal and Replacement Account. ........18
ARTTCLE ilt - TERM. .....18
Section 3.01: Term .............'18
Section 3.02: Option to Extend Term. ...... . .....18
Section 3.03: Cessation of Operation. .................. 18
ARTICLE IV - RENTAL, CONCESSION FEES AND OTHER CH4RGES...........................18
Section 4.01: Annual Rent, Paid Month|y............... ...............18
Section 4.02:Annual Concession Fees. ...............19
Section 4.03: Adjustments. .. .. ... ..... 19
Section 4.04: Monthly Statement and Payment of Fees and Charges. .............. ......20
Section 4.05: Certified Statement of Gross Revenues and CFC Collections Due
within Ninety (90) Days of Close of each Agreement Year. ........ ..................21
Section 4.06: Right to Conduct Business on Credit Basis. .....22
Section 4.97.Unpaid Rents. ................22
Section 4.08: Additional Fees and Charges............. ..............22
Section 4.09: Security Deposit .............22
Section 4.10: Place and Manner of Payments. ........... ...........23
Section 4.11: Retention of Records. ....................23
Section 4.12: lndependent Certified Public Accountants. ............. ...........23
Section 4.13: City's Right to Audit Statements and Reports............... ...23
Section 4.14:Taxes and Assessments.............. ..........23
ARTICLE V - CONCESSIONAIRE'S OPERATIONS .......,24
Section 5.01:Operational Rights. ........24
Section 5.02: Standards of Operation............... ....................24
Section 5.03: Multiple Brands owned by Parent Company.. ...................25
ARTICLE VI - INDEMNIFICATION, EXCEPTION OF CITY, AND INSURANCE .................26
Section 6.01: lndemnification... . . .....26
Section 6.02: Exemption of City........... .................27
Section 6.03: lnsurance......... ..............27
Section 6.04: Delivery to Director of Evidence of lnsurance............ . ...28
Section 6.05: Expiration of lnsurance Policy. ........29
Section 6.06:Adjustment of Claims. .....................29
Section 6.07: Conditions of Default. .....29
ARTICLE VII - HYPOTHECATION, SUB-LEASE, AND 4SSIGNMENT..............................29
Section 7.01: Genera1............. .............29
Section 7.Q2. Hypothecation. ...............29
Section 7.03: Sub-1ease.......... .............30
Page 2 of 51
Section 7.04:Assignment. .......30
Section 7.05: Transfer by Operation of Law. .........31
Section 7.06: Modification....... ............31
ARTICLE VIII - CONCESSIONAIRE AND JOINT PARTY IMPROVEMENTS........ .............32
Section 8.01: lmprovements by Concessionaire. ..... ............32
Section 8.02: Preparation of Plans and Specifications. ..........32
Section 8.03: Design Control. .... .........32
Section 8.05: Certificates of Completion............ .. . ........32
Section 8.06: Title to Exclusive Use Premises, lmprovements and Equipment........33
Section 8.07: Joint Party lmprovements Program. .................33
Section 8.08: Performance and Payment Bonds. ..................33
ARTICLE IX - DEFAULTS AND REMEDIES .................34
Section 9.01: Default by City. ..............34
Section 9.02: Default by Concessionaire. ................34ARTTCLEX-REDEL|VERY....... "....................38
Section 1 0.01 : General. ...... 38
ARTICLE XI - DESTRUCTION OF IMPROVEMENTS .....38
Section 11.01 General. ...........38
Section 11.02 Partial Destruction ........39
Section 11.03: Total Destruction. .........39
Section 11.04: Limitation on City's Obligations .....39
Section 11.05: Concessionaire's Obligations. .......39
Section 11.06: Use Of Temporary Facilities. .........40
Section 11.07 . Waiver By Concessionaire. ...........40
ARTTCLE Xil - S|GNS . .................40
Section 12.01. Standard Signs. ..........40
Section 12.02. Non-Standard Signs. ......40
Section 12.03. Conditions Applicable To Signs... ...................41
ARTTCLE Xilr - HOLDTNG OVER ....................42
Section 13.01: General. ...........42
Section 13.02 Rentals/Fees/Charges ..................42
Section 13.03: Agreement Controls Computations. ............ ....................42
Section 13.04. Agreement Controls Holdover Tenancy. ........42
ARTICLE XIV - NON-DISCRIMINATION.... ,..........42
Section 14.01: Non-Discrimination....... .................42
Section 14.02. Airpod Concession Disadvantaged Business Enterprise (ACDBE)
Program.
Section 14.03. Federal lmmigration Reform and ControlAct. ......... .......43
ARTICLE XV - OFF AIRPORT PROVIDERS.............. .......44
Section 15.01: Governmental Compliance............ .................44
ARTICLE XVI - MISCELLANEOUS PROVISIONS ................44
Section 16.01: No Personal Liability. ....................44
Section 16.02: Agreements with the United States. ...............44
Section 16.03: Modifications for Granting FAA Funds/Bond Reimbursement...........44
Section 16.04'. Notices. .......44
Section 16.05: Amendments.............. .................45
Section 16.06: Headings; Construction of Agreement; Gender................ ................45
Section 16.07: Force Majeure. .............45
Section16.08:ExclusivenessofConcessionaire'sRights............... .......45
Section 16.09:Withholding Required Approvals. ...................45
Section 16.10: lnspection of City Records. ...........46
Section 16.11 Successors and Assigns. ........ ...46
43
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Section 16.12: Accord and Satisfaction. ........ .......46
Section 16.13: Observation of Governmental Regulations........,,..... .......46
Section 16.14: Governing Law and Venue. ...........47
Section 16.15:Waiver. .......47
Section 16.16: Modification............... ....................47
Section 16.17: Severability of Provisions. .............. ................47
Section 16.18: Conflicts of lnterest. .....48
Section 16.19: Public Address System. ................48
Section 16.20: Employee Parking. .......48
Section 16.21: Special Provisions. ......48
Section 16.22: EntireAgreement ........50
ARTICLE XVll: SIGNATURE ........51
Page 4 of 51
This ON-AIRPORT NON-EXCLUSIVE RENTAL CAR CONCESSIONS AGREEMENT
("Concession Agreement" or "Agreement") is dated as of August 15, 2014, by and between the
CITY OF FRESNO, DEPARTMENT OF AIRPORTS ("City"), a municipal corporation of the State
of California, and The Hertz Corporation, a Delaware Corporation ("Concessionaire"),
(collectively, the "Parties").
REC¡TALS
WHEREAS, City owns, controls, operates and maintains a municipal airport known as FRESNO
YOSEMITE INTERNATIONAL AIRPORT, in the City and County of Fresno, California
("Airport"), with the power to grant rights and privileges with respect thereto; and
WHEREAS, Rental Car services at the AirpoÉ are essential for proper accommodation of
passengers arriving at and depading from the Airport; and
WHEREAS, Concessionaire is fully qualified to conduct a Rental Car concession and currently
offers passenger automobile rental services under the provisions of a Restated Concession
Agreement ("Existing Agreement") between Concessionaire and City, dated September 1, 2009
which expires on August 31,2014, incorporated herein; and
WHEREAS, City advertised a Request For Proposals ("RFP") for a new On-Airport Non-
Exclusive Rental Car Concession Agreement and elected to cancel the RFP and initiate direct
negotiations with the incumbent Concessionaires as a class, due to lack of interest from other
non-incumbent rental car operators, and the results of a subsequent Request for Letters of
lnterest advedisement, which confirmed that the incumbent Concessionaires were the only
rental car companies that expressed interest in the concession opportunity; and
WHEREAS, over the last five years a number of mergers and acquisitions have occurred
resulting in 95% of the industry represented by three major rental car companies, all of which
currently operate at the Airport; and
WHEREAS, the Parties have agreed through negotiation of a term sheet that, among other
provisions: 1) a business model change in the concession contract from single-brand
concessions to multi-brand concessions would provide a greater selection of brands; 2) the
City's current revenue levels would be protected through increased Minimum Annual Guarantee
(MAG) and the rental of all available space; and 3) capital improvements would be jointly made
to reconfigure and remodel counter space and Ready Return Area; and
WHEREAS, the Parties have previously entered into a Service Facility Lease Agreement, in
2009; and
WHEREAS, the Concessionaire and the other Concessionaires intend to fund Common Area
operating and maintenance costs.
NOW, THEREFORE, for and in consideration of the privileges, premises, mutual covenants and
agreements herein contained, City and Concessionaire agree, for themselves, their successors
and assigns, as follows:
Page 5 of 51
ART¡CLE I. DEFINITIONS
The following terms and phrases shall have the following meanings for purposes of this
Agreement:
A. ACDBE. Means Airport Concessions Disadvantaged Business Enterprise as
defined by the FAA.
B. Aqreement. Means this On-Airport Rental Car Concession Agreement between
Concessionaire and City.
C. Aqreement Year. Means a period during the Term beginning on September 1st
and ending 12 months thereafter, for each year of the term of the agreement.
D. Airport. Means the Fresno Yosemite lnternational Airport, as it currently exists or
as it may exist in the future throughout the Term of this Agreement.
E. Airport Patron. Means any person or party who arrives at the Concession Facility
for the purpose of renting a Rental Car from the Concessionaire.
F. Annual Concession Fee. Means the concession fee as described and defined in
this Agreement, including the Minimum Annual Guarantee andior the Percentage
Fee.
G.Authorized Concessionaire Representative. Means the person at the time
designated to act on behalf of the Concessionaire by a written statement furnished
to the Director signed by an officer of the Concessionaire.
Bonds. Means the City of Fresno Airport Revenue Bonds, Taxable Series 2007,
issued pursuant to the lndenture, and any bonds issued to refund such bonds.
Brand, Affiliated Brands. Means a brand which owned by a Parent Entity._.
City. Means the City of Fresno, California.
Common Area. Means that portion of the Concession Facility as depicted on
Exhibit "4" attached hereto and designated in accordance with this Agreement for
the common use by the Concessionaires.
Concessionaire. Means the Parent Entity On-Airport Concessionaire that enters
into and operates at the Consolidated Facility pursuant to a Concession
Agreement.
Concessionaire Continqent Rent Pavment. Means, in any year, an amount that
represents Concessionaire's prorated share (on the basis of size of the
Concession Facility relative to the other Concessionaires' concession facilities) of
fifty percent (50%) of the Contingent Rent Amount which shall be payable by all
Concessionaires to City within thirty (30) days of written notice from the City that
there is a Contingent Rent Payment.
Concessionaire Propertv. Means Concessionaire's vehicles, equipment, trade
fixtures, and personal property that are not part of the Concession Facility or
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Page 6 of 51
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owned by City or financed with Bond proceeds and do not constitute replacement,
repair, or substitution for the Concession Facility.
Concession Recovery Fees. Means any amount that Concessionaire charges its
customers to recover the amount of Annual Concession Fee paid by the
Concessionaire under this Agreement, which charge should be clearly and
separately stated on a customer's invoice and shall not be referred to as a tax.
Concession Recovery Fees shall be no more than 11.11o/o.
Concession Facilitv. Means the Rental Car facilities made available to
Concessionaire under this Agreement, including the Exclusive Use Premises, The
Ready Return Area, and the Common Area. lt includes those areas available to
Concessionaire under this Agreement. Areas may include the following
components: (i) counter space located in baggage claim, (ii) ready return Rental
Car parking areas; (iii) cedain infrastructure improvements to propeÉy, such as
roadway improvements related to the construction and operation of such facilities.
Consolidated Rental Car Facilitv or CRCF. Means the consolidated rental car
facility that the City leases to the on-Airport Concessionaires for the service,
maintenance, and storage of their Rental Cars.
Consumer Price lndex For All Urban Consumers or CPI-U lndex. Means the
Consumer Price lndex for [San Francisco All Urban Consumer, All ltems, Base
Year 2014] index or the successor of that index calculated on a calendar year
basis and as published by the Bureau of Labor Statistics, U.S. Department of
Labor.
Continoent Rent Amount. Means, in any year, the amount by which Debt Service
exceeds the sum of (i) CFC fees collected in such years, and (ii) funds in the
Excess CFC Revenue Account.
Customer Facility Charqe or CFC. Means a fee imposed by the City from time to
time pursuant to California Civil Code Section 1936, including any amendment,
successor, or replacement thereto.
Debt Service. Means the principal and interest payments due in any one year on
the Bonds.
Depadment. Means Gity's Depadment of Airports.
Director. Means the Director of City's Department of Airpods or his/her designated
representative.
Effective Date. Means the date on which both 1) this Agreement is duly signed by
both parties; and 2) any City Council action/resolution approving this Agreement is
effective.
Exclusive Use Premises. Means the Terminal Counter Space Areas and Ready
Return Area as depicted on Exhibit "B" for the exclusive use of the Concessionaire.
Concessionaire has the right to make tenant improvements to its Exclusive Use
Premises, as permitted hereunder the Agreement.
Y
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Z. FAA. Means the FederalAviation Administration.
AA. Fiscal Year. Means the City's fiscal year beginning July 1 and ending June 30
each year.
BB. Gross Revenues. Means all revenues, excluding CFC revenues, which the
Concessionaire receives in cash or credit under Rental Transactions it secures
through its operations at the Concession Facility or derives from the rental of
Rental Cars to Airport Patrons. Except insofar as a tax is separately stated as a
tax and collected from the Concessionaire's Airport Patrons, and only insofar as
the tax represents the amount actually levied by and paid to the taxing authority,
there must be no deductions made to "Gross Revenues" for the payment of
franchise taxes, sales and excise taxes, or taxes levied on concession activities,
facilities, equipment, or real or personal property of Concessionaire.
"Gross Revenues" does not include:
1. Sums recovered by Concessionaire from insurance or otherwise
for personal accidents, for damage to Rental Cars or other
property or for theft, conversion or abandonment of its Rental
Cars;
2. Any tax or surcharge separately stated as a tax or surcharge and
collected from Concessionaire's Airpod Patrons, in an amount that
actually has been levied or charged by and paid to any competent
governmental authority;
3. CFCs collected by the Concessionaire;
4. Discounts to Airport Patrons taken at the time of the rental only
and clearly noted on the rental contract or agreement; or
5. Concessionaire Contingent Rent Payments.
CC. lndenture. Means the lndenture of Trust, dated as of June 15,2000, by and
between the City and The Bank of New York Trust Company, as successor trustee,
as supplemented by the First Supplemental lndenture, dated as of May 1, 2007,
and as it may be further supplemented from time to time.
DD. lndustry. Means all On-Airport Non-Exclusive Rental Car Concessionaires that
have executed an agreement in substantially the same form as this Agreement.
EE. Joint Part)r lmprovements Prooram. Means an improvements program developed
jointly by City, Concessionaire and lndustry to reconfigure and remodel the area
within which Concessionaire's and lndustry counter spaces are located.
FF. Minimum Annual Guarantee. Means the minimum concession fee amount as
described and defined in this Agreement; sometimes referred to as the MAG.
GG. Off-Airport Rental Car Companies. Means those rental car companies which do
not have an On-Airport Rental Car Concession or Service Facility Lease
Agreement with the City.
Page I of 5'l
HH. Parent Entity. Means the Concessionaire and owner of the brands operating
under this Agreement.
ll. Past Due lnterest.
allowable by law,
hundred sixty-five
after the date such
paid to the City.
Means interest accruing at the lesser of (a) the maximum rate
or (b) eighteen percent (18o/o) per annum based on a three
(365) day year, commencing on the tenth (1Oth¡ business day
amount is due and owing and continuing until such amount is
JJ. Percentaqe Fee. Means the pad of the Annual Concession Fee based on a
percentage of Gross Revenues as set forth in this Agreement.
KK. Ready Return Areas. Means that poÉion of the Consolidated Facility designated
for Concessionaire's ready vehicles, return vehicles, and vehicle circulation lanes;
but excluding from and reserving to the City, its contractors, successors, and
assigns, any and all rights (including, without limitation, ingress and egress for
persons and equipment). The Ready Return Areas are as depicted on Exhibit "8"
for the exclusive use of the Concessionarre.
LL. Rent. Means the rental payments to be made by the Concessionaire pursuant to
this Agreement.
MM. Rental Car(s). Means motor vehicles designed primarily for the carriage of
passengers and commonly classified as sedans, coupes, convertibles, station
wagons, sport utility vehicles, passenger vans, "Suburban"-type vehicles or pick-up
trucks rated one-ton or less that the Concessionaire owns, leases, rents, or intends
to rent and are properly available, or will become available for rental as provided
herein.
NN. Rental Car Business. Means the common practices and proprietary means and
methods of promoting, marketing, supplying, and serving the demand and needs of
Airport Patrons for the rental of cars and the generation of gross revenues for the
Concessionaire.
OO. Rental Dav. Means each twenty-four (24)-hour period or fraction thereof within a
rental period resulting from a Rental Transaction.
PP. Rental Transaction. Means either (i) the execution of a contract for the rental of a
Rental Car at the Concession Facility; (ii) the payment of funds or completion of a
credit transaction for payment of a Rental Car, or; (iii) delivery of a Rental Car from
the Concession Facility to an Airport Patron for rental use.
QQ. Security Deposit. Means the deposit as defined and described in this Agreement.
RR. Service Facility. Means the exclusive use premises and related common area
leased to Concessionaire under the Service Facility Lease Agreement.
SS. Service Facility Lease. Means the Service Facility Lease Agreement between the
City and the Concessionaire, required to be held concurrently with this agreement,
and any permitted amendments thereto.
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TT. Term. Means the term of this Agreement, being September 1, 2014 through
August 31,2019.
UU. Terminal Buildinq. Means the passenger terminal building at the Airport and any
additional buildings that may be constructed, serving the airlines, together with the
adjacent curbs and roadways, as now exist or as may hereafter be reconstructed,
modified, changed or developed.
W. Terminal Space. Means the counter space allocated to the Concessionaire in the
baggage claim area as depicted in Exhibit "B".
WW. Termination Date. Means August 31 ,2019, the date that this Agreement expires.
XX. TSA.Means the Transportation Security Administration.
ARTICLE II . CONCESSIONAIRE'S RIGHTS, PRIVILEGES AND OBLIGATIONS
Section 2.01: Representations and Covenants by the Concessionaire's Parent Entity
and Brands (the Concessionaire).
The Concessionaire hereby makes the following representations and covenants:
The Concessionaire is a Corporation in good standing in the State of Delaware, is duly qualified
in good standing to do business in/under the laws of the State of California, is not in violation of
any provision of its governing documents (e.9., articles of incorporation, by-laws, partnership
agreement, etc.), has full power to own its properties and conduct its business, has full legal
right, power and authority to enter into this Agreement and to consummate all transactions
contemplated hereby and by proper action has duly authorized the execution and delivery of this
Agreement.
Section 2.02: Gustomer Facility Gharge (CFC).
A. The Concessionaire acknowledges that the City may impose a CFC and establish a
collection rate in accordance with applicable laws. lf such a CFC is imposed, the
Concessionaire agrees to collect such fee from each Airport Patron entering into a
Rental Transaction with the Concessionaire and remit such fee to the City. The City
agrees that the CFC rate shall be the same for all Airport Patrons, regardless of which
Concessionaire is used by the Airport Patron. The City shall notify the Concessionaire
of any change in the CFC rate at least 30 days prior to the effective date of the
change.
B. As of the Effective Date, the CFC rate shall be $4.50 per Rental Day, up to a maximum
of five (5) Rental Days per Rental Transaction.
C. On the first but not later than the twentieth (20rh¡ day of each calendar month during
the Term, the Concessionaire must remit to the City the total CFCs collected by the
Concessionaire during the immediately preceding calendar month. The
Concessionaire also agrees to furnish to the Director on the first but not later than the
twentieth day of each calendar month during the Term, two copies of a true and
correct statement of the CFCs collected by the Concessionaire for the preceding
calendar month signed by an Authorized Concessionaire Representative together with
all supporting documents and information reasonably requested by the City. At a
Page 10 of51
D
minimum, the statement will list the CFCs collected by each brand that the
Concessionaire operates at the Airport. The amount remitted must equal the sum of
the CFCs listed by brand on the statement. One of the copies shall be transmitted in
an electronic format. The required format is attached hereto and incorporated herein
as Exhibit "F". The Concessionaire must maintain such books and records for at least
a three (3) year period. The Concessionaire agrees to give the City access during
reasonable hours to such books and records. The Concessionaire also agrees to
provide, in writing, to the City within 90 days following the close of each agreement
year, the following information:
1. The Concessionaire's Rental Transactions per calendar month for the preceding
12-calendar month period beginning on each September 1 and ending on each
subsequent August 31 ("Concessionaire Repoding Period") and;
2. The total amount of the CFCs collected by the Concessionaire per each calendar
month and remitted by the Concessionaire to the City during the Concessionaire
Reporting Period.
3. Such information must be provided by the Concessionaire to the City with the
following ceftification by an Authorized Concessionaire Representative:
"To the best of my knowledge, the information contained herein provided
by the Concessionaire to the City is complete and accurate."
The CFCs collected by the Concessionaire must be accounted for in total and by
Brand, separately on the Concessionaire's books of account. The Concessionaire
agrees to maintain a separate account on its books or records in which it will hold all
CFCs owed under this section. The CFC collected by the Concessionaire will be
regarded as trust funds held by the Concessionaire as an agent, for the beneficial
interest of the City. All CFCs collected and held by the Concessionaire are property in
which the Concessionaire holds only a possessory interest and not an equitable
interest. The Concessionaire agrees that in the event of a bankruptcy filing, any CFC
remittance made by the Concessionaire is deemed a remittance made out of a trust
fund, and the Concessionaire will not attempt to collect the remittances as
preferences, fraudulent transfers, etc.
Once remitted to the City, all CFC collections shall be deposited by the City into the
Revenue Fund established under the lndenture and subsequently disbursed according
to provisions defined therein. Any CFCs deposited into the Surplus Fund established
under the lndenture shall be restricted to use for any lawful purpose in the sole
discretion of the Director provided that, without contradicting any other requirements of
the lndenture, payment of Debt Service shall be the priority use. Any funds remaining
in the Surplus Fund at Termination shall be the propedy of the City and shall be used
in accordance with permitted statutory purposes.
The Concessionaire is obligated to collect the CFCs in accordance with this
Agreement. The Concessionaire covenants and agrees that it will not be entitled to
any rights of offset or other reduction in the requirements herein. The City
acknowledges and agrees that, notwithstanding anything else to the contrary herein,
the Concessionaire does not guarantee the payment of principal or interest on the
Bonds except to the extent of its CFC obligations, Concessionaire Contingent Rent
Payments and any other relevant fees and payments expressly provided hereunder.
E
F.
Page 11 of51
Section 2.03: Goncessionaire's Rights, Privileges and Obligations.
A. The non-exclusive right, privilege and obligation to conduct a Rental Car business at
the Airport for the benefit and convenience of Airport Patrons in accordance with this
Agreement and the Service Facility Lease Agreement. Concessionaire understands
and agrees that it shall not engage in any other business at the Concession Facility
under this Agreement or the Service Facility under the Service Facility Lease
Agreement.
B. The right, for itself, its agents, employees, patrons, suppliers and other persons doing
business with Concessionaire, of ingress and egress to and from the Concession
Facilities over Airpod roadways, including the use of roadways, subject only to law and
to such reasonable rules and regulations governing the use of the Airport as the
Director may establish.
C. The obligation, where required, to hold a license, franchise, agency agreement or
other form of consent from Concessionaire and to do business at the Airport under the
trade name and style of that Concessionaire.
D. The obligation to collect and remit CFCs, as more fully described herein.
E. The Concessionaire agrees that there will be two phases to the allocation of the
Concessionaire's Concession Facility: (1) The allocation for the counter space and
ready return areas shall be determined by September 1, 2014, based on the monthly
operations reports submitted July 1 , 2013 through June 30, 2014, and implemented
upon completion of the respective construction projects. (2) On the fifth (sth)
anniversary of the Effective Date, all parties to this contract shall have a one-time
option to reallocation based on 'leapfrogg¡ng' criteria defined as follows: (i) market
share statistics must be collected by the City for the period following September 1,
2017 for two years, (ii) reallocation will only be permitted on a "leapfrogging basis", i.e.,
one or more the Concessionaires may displace (a) any of the other Concessionaires
with a three percent (3%) market share disadvantage relative to the leapfrogging
Concessionaires, (iii) in order to trigger the leapfrog provision the Concessionaire
requesting the move must have a three percent (3%) market share advantage (as
determined by such Concessionaire's proportionate share of the total gross revenues
of all the Concessionaires) over any competitor Concessionaires at the end of the fifth
(5th) year, (iv) during the Term leapfrogging will be permitted only once, (v) all costs
associated with leapfrogging for any affected Concessionaire will be borne entirely by
the Concessionaire requesting to leapfrog, (vi) the request to leapfrog must be
conveyed in writing to the Director within sixty (60) days of close of the fifth (5th) year.
The Director will not unreasonably withhold permission, provided leapfrogging cannot
impair the business operations of the Concessionaire being displaced and fuñher
provided that the move must be completed within the timeframe approved by the
Director.
ln the event of reallocation as above, the City shall prepare, pay for and promptly
distribute preliminary Exhibits "4" and "8" to each of the Concessionaires setting forth
the revised Ready Return Area of the Concessionaires within their respective
Exclusive Use Premises. Within thirty (30) days of receipt of such revised Exhibits, if
the Concessionaire has obtained additional Ready Return Area due to such
reallocation, it shall notify, in writing, the City as to whether it desires to rent or lease
Page 12 of 51
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such additional area. lmmediately upon receipt of all such notices from any of the
Concessionaires, the City shall notify, in writing, all of the other Concessionaires of the
ready return not desired by each of the Concessionaires and provide the other
Concessionaires with the opporlunity to lease such areas. Priority among the other
Concessionaires for the lease of such unwanted area shall be based on market share
as measured by Gross Revenues during the preceding twelve (12) months
("Allocation Market Share"), so that (i) the rank order in selecting the lessee of
unwanted area shall be with the Concessionaire having the greatest amount of
Allocation Market Share selecting first, and the Concessionaire with the least amount
of Allocation Market Share selecting last, and (ii) unless othenryise provided in the
immediately succeeding sentence, the maximum percentage amount of the unwanted
area leased by any one of the other Concessionaires shall not exceed its Allocation
Market Share. Any one of the Concessionaires may lease more than its Allocation
Market Share of the unwanted area if fewer than all of the other Concessionaires
express the written desire to lease such unwanted area, in which event the priority
order of selection for the remaining unwanted area shall be as set fodh in the
immediately preceding sentence. lf any portion of the Concessionaire's unwanted
Ready Return Area is not leased to one or more of the other Concessionaires, then the
Concessionaire shall be obligated to lease such unwanted additional area. The City
shall thereafter prepare, pay for and distribute revised Exhibits "4" and "8" showing the
final Ready Return Area to be leased by the Concessionaire.
Subject to the other terms of this Agreement, Concessionaire shall assume the
responsibility, cost and expense, for the operation and all repair and maintenance
whatsoever of its Exclusive Use Premises, whether such repair or maintenance be
ordinary or extraordinary, structural or othenruise, as set forth in this Agreement.
However if the repair or maintenance is covered by a manufacturer's warranty,
contractor's warranty or other such warranty the Concessionaire shall contact the
Director and warrantor to arrange for the required repair or maintenance to be
completed. Without limiting the generality of the foregoing, the Concessionaire shall
be obligated as to the following, at its expense and without cost or expense to the City:
1. Maintenance including janitorial services and any necessary repair or
replacement of the Exclusive Use Premises shall be borne by the
Concessionaire;
2. The Concessionaire shall keep the Exclusive Use Premises in good order and
condition and will make all necessary and appropriate repairs and replacements
thereof promptly and in a good and workmanlike fashion without diminishing the
original quality of such improvements;
3. The Concessionaire shall not permit rubbish, debris, waste materials or anything
unsightly or detrimental to health, or likely to create afire hazard, or conducive to
deterioration, to remain on any part of the Exclusive Use Premises or to be
disposed of improperly;
4. The Concessionaire shall appropriately light, maintain and repair all sudace
areas for the parking of vehicles on the Exclusive Use Premises, including repair
of any damage to paving or other surfaces caused by any oil, gasoline, grease,
lubricants or other flammable liquids and substances having a corrosive or
detrimental effect thereon;
Page 13 of 51
5
6
7.
o
10
The Concessionaire agrees that the Director or his authorized representative
shall have the right to make reasonable objections regarding the maintenance
and appearance of the Exclusive Use Premises. The Concessionaire agrees to
promptly begin remediation of any objectionable condition within thirty (30) days
after written notice by the Director or his authorized representative.
The Concessionaire shall provide and maintain all obstruction lights and similar
devices, fire protection and safety equipment and all other equipment of every
kind and nature required by laws, rule, order, ordinance, resolution or regulation
of any competent authority, including the City and Director;
The Concessionaire shall be responsible for the maintenance and repair of all
utility services lines placed on the Exclusive Use Premises and used by the
Concessionaire exclusively, including, but not limited to, water lines, gas lines,
electrical power and telephone and data conduits and lines, sanitary sewers, and
storm sewers;
The Concessionaire shall take all reasonable measures not to produce on the
Airport through the operation of machinery or equipment any electrical, electronic
or other disturbance that intederes with the operation by the City, the Federal
Aviation Administration or the scheduled airlines, of air navigational,
communication or flight equipment on the Airpoft or on aircraft using the Airport,
or with ground transportation communications;
The Concessionaire shall within reason, control the conduct, demeanor and
appearance of its employees and, upon reasonable objection from Director
concerning the conduct, demeanor or appearance of any such person,
immediately take all reasonable steps necessary to remove the cause of the
objection;
The Concessionaire shall commit no nuisance, waste or injury, and shall not do,
or permit to be done, anything which may result in the creation, commission or
maintenance of such nuisance, waste or injury on the Exclusive Use Premises;
The Concessionaire shall comply with the requirements of all generally
applicable air pollution and nuisance statutes and ordinances;
Subject to the Concessionaire's rights to use City services on the same basis as
other customers of the City, the Concessionaire shall not do, nor permit to be
done, anything which may interfere with the effectiveness or accessibility of the
drainage system, sewerage system, fire protection system, sprinkler system,
alarm system and fire hydrants and hoses, if any, installed or located at the
Exclusive Use Premises;
The Concessionaire shall collect all garbage, debris and waste material (whether
solid or liquid) arising out of its occupancy hereunder, store same pending
disposal in covered metal or other rigidly and sturdily constructed receptacles
and dispose of same off the Airport at regular intervals, except for sewage which
may be disposed of in the City's sewer system, all at Concessionaire's expense,
in the manner reasonably required by the Director;
11
12
13
Page 14 of 51
14. The Concessionaire shall apply and be governed by the Hazardous Substances
provisions in this Agreement whether the Concession Facility is expressly
mentioned or not.
G. Subject to the other terms of this Agreement, Concessionaire shall assume the
responsibility, cost and expense, for the operation and all repair and maintenance
whatsoever of its Common Area, whether such repair or maintenance be ordinary or
extraordinary, structural or otheruvise, as set forth in this Agreement. However if the
repair or maintenance is covered by a manufacturer's warranty, contractor's warranty or
other such warranty the Concessionaire shall contact the Director and warrantor to
arrange for the required repair or maintenance to be completed. Without limiting the
generality of the foregoing, the Concessionaire shall be obligated as to the following, at
its expense and without cost or expense to the City:
1. The cost of maintenance including janitorial services and any necessary repair or
replacement of the Common Areas of the Ready Return Area;
2. Maintain at all times the Common Areas of the Concession Facility in as good a
state of repair and preservation as the public terminal areas at the Airport,
excepting ordinary wear and tear and obsolescence in spite of repair;
3. Keep at all times, in a clean and orderly condition and appearance, the Common
Areas of the Concession Facility, which are open to or visible by the general
public;
4. Provide and maintain all obstruction lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature required by
laws, rule, order, ordinance, resolution or regulation of any competent authority,
including the City and Director;
5. Repair any damage to paving or other surfaces of the Common Areas of the
Concession Facility caused by any oil, gasoline, grease, lubricants or other
flammable liquids and substances having a corrosive or detrimental effect
thereon;
6. Take reasonable measures to prevent erosion, including but not limited to,
mowing, the planting and replanting of grass or other appropriate landscape
material with respect to all portions of the Common Areas of the Ready Return
area not paved or built upon, and in padicular, plant, mow, maintain and replant
any landscaped areas;
7. Be responsible for the maintenance and repair of all utility services lines placed
on the Common Areas of the Ready Return Area including, but not limited to,
water lines, gas lines, electrical power and telephone and data conduits and
lines, sanitary sewers, and storm sewers;
8. Take all reasonable measures not to produce on the Airport through the
operation of machinery or equipment any electrical, electronic or other
disturbance that intederes with the Airport operations by the City, the Federal
Aviation Administration or the scheduled airlines, of air navigational,
communication or flight equipment on the Airport or on aircraft using the Airport,
or with ground transportation communications;
Page 15 of 51
9. Within reason, control the conduct, demeanor and appearance of its employees
and, upon reasonable objection from Director concerning the conduct, demeanor
or appearance of any such person, immediately take all reasonable steps
necessary to remove the cause of the objection;
10. Commit no nuisance, waste or injury, and not do, or permit to be done, anything
which may result in the creation, commission or maintenance of such nuisance,
waste or injury on the Common Areas;
11. Comply with the requirements of all generally applicable air pollution and
nuisance statutes and ordinances;
12. Subject to the Concessionaire's rights to use City services on the same basis as
other customers of the City, the Concessionaire shall not do, nor permit to be
done, anything which may interfere with the effectiveness or accessibility of the
drainage system, sewerage system, fire protection system, sprinkler system,
alarm system and fire hydrants and hoses, if any, installed or located at the
Common Areas;
13. Collect all garbage, debris and waste material (whether solid or liquid) arising out
of its use and occupancy hereunder, store same pending disposal in covered
metal or other rigidly and sturdily constructed receptacles and dispose of same
off the Airpod at regular intervals, except for sewage which may be disposed of
in the City's sewer system, all at Concessionaire's expense, in the manner
reasonably required by the Director;
14. Apply and be governed by the Hazardous Substances provisions in this
Agreement whether the Concession Facility is expressly mentioned or not.
15. All Companies agree that the Airport shall be the contract administrator for all
repairs and maintenance to the Common Use areas of the Concession Facility.
Airport shall prepare an annual Concession Facility budget and submit it to all
Companies for review.
16. Companies shall be billed on a monthly basis for their percentage of the
Concession Facility budget based on their percentage (%) allocation of the
Common Use facility based on market share.
H. Subject to the provisions of this Agreement, the Concessionaire may construct on the
Concession Facility such additional facilities and install such additional equipment as
may be required by its operations, subject to the prior written approval of the Director.
The Concessionaire must develop detailed drawings, plans and specifications for any
improvements it intends to make to the Concession Facility. Prior to commencement
of working drawings and specifications for any construction, modifications, and/or
improvements made by the Concessionaire, the Concessionaire must submit to the
Director, all proposed design concepts, including architectural renderings showing
appearance, types of materials and colors proposed for all improvements and
equipment to be constructed or installed. All design, construction and installation work
must meet City standards and as applicable and receive prior approval from the
Director.
Page 16 of 51
1. Final plans and specifications for the construction and installation of the
improvements and the equipment must be submitted to the Director for his
written approval prior to commencement of construction or installation of said
improvements and equipment.
2. The Concessionaire must deliver to the City duplicate copies of 'as-built' plans
and specifications of completed improvements on the Concession Facility within
thirty (30) days after the date on which the Concessionaire has certified
completion thereof. At the same time, the Concessionaire must submit to the
Director an itemized statement prepared and certified by the architect and
engineer for the design and construction of the facilities and certified by an officer
of the Concessionaire, showing the actual cost of such improvements, and must,
if so requested by the City in writing, produce copies of all invoices and other
records in connection therewith. Said itemized statement must, unless disputed
in writing by the City within sixty (60) days next following receipt thereof from the
Concessionaire, constitute prima facle evidence of the costs shown therein.
Section 2.04: Restrictions on Goncessionaire's Operations.
The following restrictions shall apply to the conduct of Concessionaire's operations on the
Airport:
A. The rights granted to Concessionaire hereunder shall be expressly limited to
maintaining and operating a Rental Car business at the Airport and functions incidental
and related thereto.
B. Unless the Director gives prior written approval in each instance, Concessionaire shall
not engage in the maintenance, servicing or storage of Rental Cars which are not
intended to be rented or returned to the Concessionaire at the Airport, or which are
intended for retail sale to the public, excepting only, where a rental car otherwise
prohibited under this Paragraph B breaks down in route to or from another location and
the Concessionaire's Exclusive Use Premises at the Airport is nearest facility from
which the required repairs can be made.
C. Except where authorized by the Director in writing, Concessionaire is prohibited from
selling fuel to any other person/entity not renting a Rental Car, and is prohibited from
servicing, parking or storing any vehicles other than those Rental Cars used by
Concessionaire in its business at the Airport. Should the Director approve any such
activities, and the Concessionaire conduct such activities, the gross receipts therefrom
shall be included in the Gross Revenues defined in this Agreement, and be subject to
payment by Concessionaire of the same Percentage Fee as other Gross Revenues, or
such other fee as the parties may agree upon by written amendment to this
Agreement.
D. City reserves the right to adopt, amend and enforce reasonable rules and regulations
and minimum standards governing the Airport and the accommodations granted to
Concessionaire.
Section 2.05: Gity's Govenant Regarding More Favorable Terms.
During the Term, or during any period of holding over by Concessionaire pursuant to the
provisions hereof, City shall neither enter into any rental car Concession Agreement with any
Page 17 of 51
other of the Concessionaires, nor amend, change, supplement, or othenvise modify, in writing or
othenruise, any such agreement in any manner whatsoever, so as to result in any such agree-
ment's containing any terms, conditions, agreements, or provisions which shall be more
favorable to such Concessionaire than those herein set forth, including the modification of the
term of any such agreement so as to have it end other than concurrently with the Termination
Date hereof.
Concessionaire agrees that, in the event any of the Concessionaires discontinue(s) operations
at the Airport, the City reserves to itself the right to enter an interim concession agreement with
or without a solicitation and/or first refusal by the remaining Concessionaires.
Section 2.06: City's Covenant Regarding Concessionaire Allowance and Renewal and
Replacement Account.
City shall, upon Concessionaire's reasonable request and within thirty (30) days thereof, fund
the Concessionaire Allowance and Renewal and Replacement Account, upon the terms and
condition in this Agreement, provided Concessionaire cooperates with City in City's perfection of
any security interesVUCC filings/fixture filings and liens.
ARTICLE III . TERM
Section 3.01: Term.
This Agreement shall begin on September 1 , 2Q14 and will terminate on August 31 , 2019.
Section 3.02: Option to Extend Term.
At the end of the Term in Section 3.01, either pady may exercise its option to renew this
Agreement for an additional five (5) year period, all parties must mutually agree to the terms and
conditions before this Agreement can be renewed for the additional five (5) years, provided that
in no event shall this Agreement remain in force beyond August 31,2024. Written notice of
either party's intent shall be provided no later than September 1 ,2018.
Section 3.03: Cessation of Operation.
No notice to cease operation at the Termination date of the Term of this Agreement shall be
necessary. Concessionaire covenants and agrees that at the Termination Date of the Term or at
the earlier termination thereof, Concessionaire, of its own accord, will peaceably cease its
operations at the Concession Facility in accordance with Article X herein.
ARTICLE IV - RENTAL, CONCESSION FEES AND OTHER GHARGES
Section 4.01: Annual Rent, Paid Monthly.
A. Commencing on the Effective Date, Concessionaire covenants and agrees for each
year of the term of this Agreement to pay to City rents set forth in sub-paragraphs
"(1) - (4)" of this paragraph, below.
1. Terminal Space rent which shall consist of a an annual sum calculated every July
1't on the basis of Forty-Three Dollars ($43.00) per square foot, or whatever
amount is specified in the City's Master Fee Schedule, and payable in 12 equal
installments on the first day of each month, for the area of Concessionaire's
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Exclusive-Use Premises in the main passenger Terminal Building, as more
specifically set forth in Exhibit "8".
2. Ready Return rent which shall consist of a sum calculated each Agreement Year
on the basis of eighty seven and seventy-six ten-thousandths of a cent ($0.8776)
per square foot and be payable in 12 equal installments on the first day of each
month, for the land area of Concessionaire's Ready Return Area, as more
specifically set forth in Exhibit "8", subject to adjustment per Section 4.03 below,
plus
3. Prorata (on the basis of size of the Concessionaire's Concession Facility relative
to the concession facilities of other Concessionaires) Common Area rent which
shall consist of a sum calculated each Agreement Year on the basis of eighty
seven and seventy-six ten{housandths of a cent ($0.8776) per square foot per
square foot, and payable in 12 equal installments on the first day of each month,
for the area, as more specifically set forth in Exhibit "4", subject to adjustment per
Section 4.03 below, plus
4. The Concessionaire Contingent Rent Payment, if any.
B. The City hereby acknowledges that in the event a Contingent Rent Amount is due, the
lndenture requires that the City apply Revenues (as defined in the lndenture) to the
payment of Debt Service in an amount, which will equal the difference between the
Contingent Rent Amount and the Concessionaire Contingent Rent Payment received
by the City.
C. lt is mutually understood and expressly agreed that City shall have the right by
authorized action to change the rent specified in this Section of this Article. Rents are
published in the Master Fee Schedule of the City of Fresno.
Section 4.02: Annual Goncession Fees.
ln addition to the above rents and commencing on the Effective Date, Concessionaire
covenants and agrees for each Agreement Year to pay Annual Concession Fees. The Annual
Concession Fees in the first Agreement Year shall be the greater of (i) the Percentage Fee, a
sum equal to ten percent (10%o) of the Concessionaire's Gross Revenues, or (b) the Minimum
Annual Guarantee (MAG).
The Minimum Annual Guarantee for the first Agreement Year shall be 95% of the actual
Percentage Fee for most recent audited annual periods. This is determined to be Eight Hundred
Fifty Nine Thousand Four Hundred Eighty Eight Dollars and Forty Seven cents ($859,488.47)
and will take effect on the September 1,2014. The annual MAG shall be payable in advance in
12 equal installments. The MAG for each subsequent Agreement Year shall be the greater of:
(a) the MAG for the prior Agreement Year or (b) eighty-five percent (85%) of the Concession
Fees due from the Concessionaire for the prior Agreement Year, but never less than the prior
Agreement Year MAG.
Section 4.03: Adjustments.
A. Payments due for any parlial calendar month payable during the Term will be prorated.
Pro-rata payments will be calculated by dividing the total annual Rent by three hundred
Page 19 of 51
sixty-five (365) and multiplying that daily amount by the number of days in the partial
month period.
B. The Concessionaire agrees to promptly pay (prorata with the other On-Airport
Goncessionaires) all charges and assessments imposed by the City for maintenance
costs associated with the Common Areas. The Concessionaire will carry out or have
carried out all of the Concessionaire's obligations to maintain and/or pay the City to
maintain the Common Areas.
C. The rent under Section 4.01(A) (for Ready Return and Common Area) will be adjusted
stading on the first annual anniversary of the Agreement Year, and on the annual
anniversary of the Agreement Year each year thereafter, based on the annual
percentage change in the CPI-U lndex. However, in no event will the annual
adjustment result in rents being less than the amount charged during the prior year or
more than two percenl (2%o) above the amount charged during the prior year.
D. lf, at any time during the Term, any one or more of the events and/or conditions listed
below, shall continuously occur/exist during a period in excess of three full consecutive
calendar months, then, beginning with the fourth consecutive calendar month of the
period during which any such event/condition shall have continuously
occurred/existed, and continuing monthly thereafter so long as such an event/condition
shall continue to occur/exist, Concessionaire shall pay ten percent (1OTo) of
Concessionaire's Gross Revenues during the month for which such fees shall be due,
whether such sum shall be less than, equal to, or greater than one-twelfth (1/12th) of
Concessionaire's MAG. ln any Agreement Year during which such monthly
Percentage Fees are due pursuant to this provision in lieu of any MAG,
Concessionaire's total due at the end of the Agreement Year shall be reduced by an
amount equal to the monthly MAG payments that would have othenruise been
payable.
1. The total number of scheduled passenger deplanements from scheduled airline
flights at Airpoft for any full calendar month shall be less than seventy-five
percent (75o/o) of the total number of such passengers for the same period during
the preceding Agreement Year. Passenger traffic shall be determined by
deplaned passenger statistics supplied to the City on a monthly basis by the
Scheduled Airlines operating at the Airpoft; or
2. Where, in the opinion of the Director, fuel shortages, government mandated
gasoline rationing, or strikes by employees of automobile manufacturers or within
any transportation industry affecting the manufacture, transport, andior delivery
of automobiles directly causes the total, combined Gross Revenues of all
Concessionaires for any full calendar month to be less than seventy-five percent
(75yo) of the total combined Gross Revenues for the same period in the
preceding Agreement Year. The Director shall have complete discretion in
determining whether the downturn in the rental car market was directly caused by
the events enumerated above.
Section 4.04: Monthly Statement and Payment of Fees and Charges.
A. All rents and fees are due on the first day of each calendar month and late if not paid
before the fifth (5th) calendar day of each calendar month during the Term except that
(i) the Concessionaire Contingent Rent Payments shall be due and payable by
Page 20 of 51
Concessionaire to City within 30 days of written notice from the City that there is a
Concessionaire Contingent Rent Payment, and (ii) the Minimum Annual Guarantee is
due and payable in advance on the first day of each calendar month. Concessionaire
shall submit to City two copies of a detailed statement of Gross Revenues
("Statement"), in the form attached hereto as Exhibit "D" orìe of which shall be in an
electronic format acceptable to the Airport. The Statement shall be for the preceding
calendar month and shall show such reasonable details and breakdown as the
Director may require. At a minimum, the Statement shall identify the following by
separate line item:
1. Gross Revenues for the preceding calendar month itemized to identify revenues
earned in each of the categories specified in the Gross Revenues definition;
2. Calculation of the Percentage Fee owed to City for the preceding calendar
month. An Authorized Concessionaire Representative must cedify all
Statements. lf the twentieth (20th¡ Oay of the month is a Saturday, Sunday or
Airport holiday, the Statement shall be due on the next succeeding business day.
B. On or before the 20th day of each calendar month during the Term, Concessionaire
must pay to City, without demand or invoice therefore the Percentage Fee due in
accordance with this Arlicle, if any, for the previous month.
C. All reporting shall be completed by both brand and in total for the Parent Entity on a
monthly and annual basis.
Section 4.05: Gertified Statement of Gross Revenues and GFG Collections Due within
Ninety (90) Days of Glose of each Agreement Year.
Within ninety (90) days following the close of each Agreement Year, Concessionaire shall
furnish to City a sworn statement certified by an independent certified public accountant or firm
of certified public accountants showing the total of Gross Revenues and CFC collections at the
Airport for said Agreement Year and stating that Gross Revenues and CFC collections have
been correctly reported in accordance with the terms of this Agreement.
Within ninety days following the termination of any other agreement or permit with the City,
Concessionaire must provide, at its sole cost and expense, an audit by an independent certified
public accountant or firm of certified public accountants, of monthly gross revenues, as defined
in any other agreement or permit with the City for the period beginning at the last audited month
and ending at the commencement date of this Agreement.
lf the aggregate payments made for any Agreement Year exceed the greater of: (1) the
Minimum Annual Guarantee if applicable to such year, or (2) Percentage Fee, the excess
balance shall be credited to Concessionaire's account and applied against one or more of the
next succeeding monthly payments during the next ensuing Agreement Year, if there is one, as
the City may elect. lf the Agreement is terminated, City shall repay such excess Annual
Concession Fees to Concessionaire in lawfultender of the United States.
lf the cedified statement provided by the Concessionaire to the City indicates that the aggregate
payments made for any Agreement Year was less than the aggregate payments due for any
Agreement Year under the terms of this Agreement, then Concessionaire shall pay the
difference to the City at the same time it provides the certified statement to the City. ln the
Page 21 of 51
event the underpayment is greater than five percent (5%) then the Concessionaire shall pay
Past Due lnterest on the amount of such difference.
Section 4.06: Right to Gonduct Business on Gredit Basis.
Concessionaire shall have the right to conduct its Rental Car business at the Airport as
authorized under this Agreement on a credit basis; provided, however, that the risk of such
operation shall be borne solely by Concessionaire. Concessionaire shall report all income, both
cash and credit, in its monthly statements of Gross Revenues.
Section 4.07: Unpaid Rents.
All rents to City hereunder will bear a reasonable service charge per month equal to the Past
Due lnterest if not paid to and received by City within ten business days following the due date.
Concessionaire shall pay and discharge all reasonable costs and expenses, including
reasonable attorneys' fees, incurred or expended by City in the collection of delinquent amounts
due.
Section 4.08: Additional Fees and Charges.
Concessionaire shall pay additional fees and charges only under the following conditions:
A. lf City has paid any sum or sums, or has incurred any obligation or expense, which
Concessionaire has agreed to pay to, or to reimburse the City; or
B. lf City is required or elects to pay any sum or sums, or incur any obligation or expense,
because of Concessionaire's failure, neglect or refusal to perform or fulfill any
condition of this Agreement.
Any payment of the above-described additional fees and charges shall include all interest,
costs, damages and penalties incurred in connection with said fees and charges and may be
added to any installment of future fees and charges due hereunder. Each and every part of such
payment shall be recoverable by City in the same manner and with like remedies as if it were
originally a pad of the rents and fees or other charge set forth herein.
Section 4.09: Security Deposit.
A. ln order to guarantee the timely payment of the Annual Concession Fee,
Concessionaire must remit to the City within ten business days prior to the Effective
Date, a Security Deposit equal to one-fourlh (114) of the Concessionaire's Minimum
Annual Guarantee Fee, pursuant to this Agreement. The Security Deposit must be in
the form of (i) a payment bond or an irrevocable letter of credit, renewable annually,
from an insurer or bank reasonably acceptable to the City, (ii) cash or (iii) such other
form of security as the City may deem reasonably acceptable.
B. At any time that any of Concessionaire's Annual Concession Fees, or any other
amounts due hereunder are more than thirty (30) days past due, the City, upon written
notice to Concessionaire, will be entitled to apply all or any portion of the Security
Deposit to the payment of such unpaid amounts including any reasonable costs the
City incurs in collecting the amounts it is owed. ln any such event, Concessionaire
must again meet the Security Deposit requirements set forth above within seven
business days from its receipt of such written notice.
Page 22 of 51
Section 4.10: Place and Manner of Payments.
Concessionaire shall make payment in legal tender of the United States of America at the office
of the City's Department of Airports: 4995 E. Clinton Way, Fresno, CA 93727. Attn. Accounts
Receivable or at such other place within the City of Fresno, California as City may direct in
writing to Concessionaire.
Section 4.11: Retention of Records.
Upon commencement of the Term, Concessionaire agrees that it will make available to the City
within thirty (30) business days of written notice, the books and records of accounts of
Concessionaire for the last three twelve-month periods completed operations and the current
Agreement Year, showing the information required under this Article lV or other similar Article(s)
contained in any previous agreement(s), relating to business conducted at the Airport, the
deductions there from, and other pertinent information required by the provisions of this Article
or other similar Articles contained in such previous agreement. Concessionaire's obligation to
retain such books and records is limited to the extent required under this Agreement, and/or
previous agreement(s), until the Concessionaire retains sufficient books and records to meet the
retention requirements stated above. Upon the City's prior written notice such books and
records of accounts must be accessible to City or its duly authorized agents or auditors, during
regular business hours only for the purpose of verifying compliance by Concessionaire with the
terms of this Agreement, and/or previous agreement. At the City's request, Concessionaire will
pay for the copying and delivery of all records and books requested by the City. ln the event the
City determines that the auditors need to travel to the Concessionaire's location where the
books and records are kept, Concessionaire will pay for the reasonable and customary travel
and other incidental costs incurred by the City's auditors.
Section 4.12: Independent Gertified Public Accountants.
Wherever the statement of an lndependent Certified Public Accountant is required, the padies
agree that said CPA must not be an employee or agent of Concessionaire.
Section 4.13: Gity's Right to Audit Statements and Reports.
City shall have the right to audit the statements and reports provided by Concessionaire in
accordance with Article lV herein. Except as provided in Section 4.09 above, the cost of audit
shall be borne by City; unless the audit reveals an underpayment of Annual Concession Fees
by Concessionaire of five percent (5%) or greater, or if the audit reveals that the condition of the
Concessionaire's records is such that the revenue due City cannot reasonably be properly
determined. ln the event of either condition described above, the reasonable cost of the audit
including any applicable travel costs, must be borne by the Concessionaire and must be paid
within five business days of receipt of an invoice.
Section 4.14: Taxes and Assessments.
ln addition to the rents, Annual Concession Fees, and charges herein set for1h, Concessionaire
shall pay, as and when due, but not later than fifteen (15) days prior to the delinquency date
thereof any and all taxes and general and special assessments of any and all types or
descriptions whatsoever which, at any time and from time to time during the life hereof, may be
levied upon or assessed against Concessionaire, the Concession Facility and/or any one or
more of the improvements located therein or thereon and appurlenances thereto, other property
located therein or thereon belonging to City or Concessionaire, and/or upon or against
Page 23 of 51
Concessionaire's interest(s) in and to the Concession Facility, improvements and/or other
property, including possessory interest as and when such be applicable to Concessionaire
hereunder (See footnote 1 below).
Concessionaire agrees to protect and hold harmless City, the Concession Facility and any and
all improvements located therein or thereon and any and all facilities appurtenant thereto and
any and all other property(ies) located therein or thereon and any and all of City's interest(s) in
and/or to the Concession Facility, improvements, appurtenant facilities, and/or other proper-
ty(ies), from any and all such taxes and assessments, including any and all interest, penalties
and other expenses which may be imposed thereby or result therefrom, and from any lien
therefore or sale or other proceedings to enforce payment thereof.
Nothing within this Section of This Adicle shall be deemed to limit any of Concessionaire's rights
to appeal any such levies and/or assessments in accordance with the rules, regulations, laws,
statutes, or ordinances governing the appeal process of the taxing authority(ies) making such
levies and/or assessments.l
ARTICLE V - CONCESSIONAIRE'S OPERATIONS
Section 5.01: Operational Rights.
The operational rights granted herein must be used by the Concessionaire for the purpose of
providing Rental Car service and incidental and related services at the Airport, and for the
purposes of arranging for such services for the public using the Airport, at destinations where
Rental Car services are furnished by the Concessionaire.
Section 5.02: Standards of Operation.
The principal purpose, for which the City is entering into this Agreement, is to make the Rental
Car services which the Concessionaire is permitted to render hereunder available to the
travelers and other Airport Patrons. The services herein stipulated to be in effect at the outset
of the Term and any other incidental and related services which the City reserves the right to
require the Concessionaire to establish during the Term are not intended to create equal
competitive forces between the Concessionaire and the other Concessionaires. Rather, the
minimum services stipulated or reserved for stipulation are established for the purpose of
providing rental car services which are generally equal in quality for all Airport Patrons and air
travelers without regard to which Terminal Buildings the individual may be seeking service from
or to.
Therefore, the Concessionaire covenants and agrees that it will pedorm the permitted services
by adhering to high standards of operations including but not limited to the following:
A. The Concessionaire will be open for and will conduct business and furnish services
seven days per week, from a time each day thirty (30) minutes before the first
t 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 (Lessor) is a taxable possessory interest, unless the possessor of interest in such propefty is exempt from
taxation. With regard to any possessory interest to be acquired by Concessionaire, Concessionaire, by its
signature(s) hereunto affixed, warrants, stipulates, confirms, acknowledges and agrees that, priorto its executing this
agreement, the company either took a copy hereof to the offìce of the Fresno County Tax Assessor or by some other
appropriate means, independent of city or any employee, agent or representative of city determined, to company's full
and complete satisfaction, how much company shall be taxed, if at all.
Page 24 of 51
scheduled airline departure or the time of the first scheduled airline arrival, whichever
occurs earlier; to a time thirty (30) minutes after the actual time of the last airline arrival
or the time of the last airline departure, whichever occurs later. The schedule of
business hours so established shall be subject to periodic review upon written request
of Concessionaire to Director or Director to Concessionaire. As a result of such
review, Director may require an expansion or allow reduction of the hours of operation
as public demand requires. ln no event shall the hours of operation be cuñailed to an
extent that the service contemplated herein shall be diminished.
B. The Concessionaire will select and appoint a manager of the Concessionaire's
operation at the Airport who must be a qualified and experienced manager or
supervisor vested with full power and authority with respect to the conduct of Rental
Car operations at the Airport. Such manager or supervisor will be assigned to a duty
station or office at the Airport where he/she will ordinarily be available during regular
business hours; and, at all times during his/her absence, a responsible subordinate
must be in charge and available at such duty station or office.
C. The Concessionaire must furnish high quality, prompt and efficient service hereunder,
adequate to meet all reasonable demands therefore at the Airport and must furnish
said services on a fair, equal and non-discriminatory basis to all categories of users.
D. The Concessionaire must provide and maintain Rental Cars made available hereunder
at the Concessionaire's sole elpense, in good operative order, free from known
mechanical defects, and in a clean, and neat condition inside and outside
G. The Concessionaire must make available at the Airport only new and late model
Rental Cars in such number as is required by the demand for same.
H. The Concessionaire shall maintain a rental car fleet which shall meet or exceed the
Corporate Average Fuel Economy (CAFE) fuel efficiency standard published by the
United States Environmental Protection Agency in each Agreement Year.
l. A current copy of the Rental Car agreement form covering the use of the
Concessionaire's Rental Cars must at all times be available to the office of the
Director.
J. The Concessionaire covenants that it will take all reasonable measures in every proper
manner to maintain, develop and increase the business conducted by it hereunder,
and the Concessionaire must not intentionally divert or cause or allow any such
business to be diverted from the Airport by referral or any other method. Any action
taken by the Concessionaire intentionally to induce its patrons to rent or receive Rental
Cars in such a manner and at such places so as to diminish the Gross Revenue of the
Concessionaire under this Agreement will constitute a material breach hereof and be
cause for the termination of this Agreement by the City.
K. The Concessionaire's personnel peforming services hereunder to the Airport Patrons
must be distinctively uniformed, neat, clean and courteous.
Section 5.03: Multiple Brands owned by Parent Gompany.
A. Parent Entity identifies they are doing business as: Hertz Car Rental, Dollar Car
Rentals, and Thrifty Car Rental.
Page 25 of 51
B. Each Parent Entity may operate as many Brands within their company as desired.
C. The minimum term of each Brand listed in this Agreement is two (2) years.
1. Terminatinq a Brand. A Parent Entity may terminate a specific Brand after a term
of two (2) years, upon ninety (90) days written notice.
2. Adding a Brand. A Parent Entity may add a Brand in the mid-term of this
Agreement. The term for added Brand will be a two (2) year minimum or through
the term of the Concession Agreement, whichever is less.
i. Parent Entity shall be solely responsible for all costs associated with
adding the Brand, such as rebranding and signage.
ARTICLE VI .INDEMNIFICATION, EXCEPTION OF CITY, AND INSURANCE
Section 6.01: lndemnification.
Concessionaire shall hold City completely harmless and indemnify, protect and defend City and
each of its officers, officials, employees, agents and volunteers against any and all claims,
judgments, fines, penalties, forfeitures, damages, demands, liabilities, suits, notices, costs and
expenses [including all reasonable costs and expenses for investigation and defense thereof
(including, but not limited to attorney fees, court costs and expert fees)1, or any one, more or all
of these, of any nature whatsoever, arising or allegedly arising, directly or indirectly, out of, as a
result of, or incident to, or in any way connected with: (1) Concessionaire's occupancy(ies)
and/or use(s) of any part or all of the Concession Facility; (2) Concessionaire's exercise of any
one, more or all of the rights and privileges herein granted; (3) any breach or default in the
performance of any obligation on Concessionaire's parl to be pedormed under the terms of this
Agreement; and/or (4) any act(s) or omission(s) on the part of Concessionaire and/or any of-
ficer(s), agent(s), employee(s), contractor(s), sub-contractor(s), servant(s), or representative(s)
of Concessionaire during the Term, except for any claims, judgments, fines, penalties,
fodeitures, damages, demands, liabilities, suits, notices, costs and expenses, or any of these,
caused solely by the gross negligence or by the willful misconduct of City or any of its officials,
officers, or employees acting within the scope of their duties for City.
Concessionaire shall conduct all defenses at no cost or expense to the City. City shall be
reimbursed for all costs and attorney's fees incurred by City in enforcing this obligation. This
indemnity shall apply to all claims and liability regardless 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 insurance contracts or policies shall
in no way relieve from liability nor limit the liability of Concessionaire and its officials, officers,
employees, agents and volunteers.
City shall give to Concessionaire reasonable notice of any such claims or actions.
The provisions of this section of this article shall survive the expiration or early termination of
this Agreement.
ilt
Page 26 of 51
Section 6.02: Exemption of City.
Concessionaire hereby specifically warrants, covenants and agrees that City shall not be liable
for injury 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 the Concession Facility
or elsewhere on Airpoft under authority hereof, whether belonging to Concessionaire, or any
employee, agent, contractor, sub-contractor, tenant, sub-lessee of Concessionaire, or any other
person whomsoever. The City shall not be liable for any injury to the person of Concessionaire
or Concessionaire's employees, agents, contractors, subcontractors, tenants, sub-lessees,
customers, or invitees, whether or not said damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, orfrom the leakage, breakage, obstruction or other defects
of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any
other cause, whether or not the said damage or injury results from conditions arising in or on
any pad or all of the Concession Facility or in or on any of the improvements/ facilities
appurtenant thereto located therein or thereon, or from other sources or places, and regardless
of whether or not the cause of such damage or injury or the means of repairing the same is
inaccessible to Concessionaire. Concessionaire also covenants and agrees that City shall not
be liable for any damages arising from any act or neglect on the pad of any third padies.
Section 6.03: lnsurance.
Concessionaire shall, at Concessionaire's expense, obtain and, throughout the Term, maintain
in full force and effect all policies of insurance required hereunder, with an insurance
company(ies) either (i) admitted by the California lnsurance Commissioner to do business in
the State of California and rated not less than "A-A/ll" in Bests lnsurance Rating Guide, or (ii)
authorized by City's Risk Manager or his/her designee. The following policies of insurance are
required:
A. Commercial General Liability insurance which shall be at least as broad as the
most current version of lnsurance Services Office (lSO) form CG 00 01 and shall
include insurance for "bodily injury", "property damage" and "personal and
adveftising injury", including premises and operation, products and completed
operations and contractual liability (including, without limitation, indemnity
obligations under the Agreement) with limits of liability of not less than
$2,000,000 per occurrence and $3,000,000 general aggregate for bodily injury
and property damage, $2,000,000 per occurrence for personal and adveñising
injury and $3,000,000 aggregate for products and completed operations.
B. Commercial Automobile Liability insurance which shall be at least as broad as
the most current version of lnsurance Services Office (lSO) form CA 00 01 and
shall include coverage for "any auto" with limits of liability of not less than
$3,000,000 per accident for bodily and property damage.
C. Workers' Compensation insurance as required under the California Labor Code.
D. Employers' Liability insurance with limits of liability of not less than $2,000,000
each accident, $2,000,000 disease each employee and $2,000,000 disease
policy limit.
Defense costs shall be provided as an additional benefit and not included within the above limits
of liability. Concessionaire shall be responsible for payment of any deductibles contained in any
Page27 of 51
insurance policies required hereunder and Concessionaire shall also be responsible for
payment of any self-insured retentions.
The above-described policies of insurance shall be endorsed to provide an unrestricted thirty
(30) day written notice in favor of City, of policy cancellation, change or reduction of coverage,
except for the Workers' Compensation policy, which shall provide a ten (10) day written notice of
such cancellation, change or reduction of coverage. Upon issuance by the insurer, broker, or
agent of a notice of cancellation, change or reduction in coverage, Concessionaire shall file with
City a certified copy of the new or renewal policy and certificates for such policy.
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form and shall name the City of Fresno, its officers, officials, employees, agents and
volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so
Concessionaire's insurance shall be primary and no contribution shall be required of City. Any
Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its
officers, officials, agents, employees and volunteers. Concessionaire shall furnish City with the
certificate(s) and applicable endorsements for ALL required insurance prior to City's execution
of this Agreement at the following address:
City of Fresno
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
or to such other address as City may, from time to time, provide Concessionaire in writing
during the Term. Concessionaire shall furnish City with copies of the actual policies upon the
request of City's Risk Manager or his/her designee at any time during the Term or any
extension, and this requirement shall survive termination or expiration of this Agreement.
Any failure to maintain the required insurance shall be sufficient cause for City to terminate this
Agreement.
Concessionaire shall have the right to provide the coverage specified in this Article by a
program of self-insurance, which has been approved by the State of California. Concessionaire
shall furnish City with a self-insured certificate of insurance and applicable endorsements. Said
certificate and applicable endorsements shall document that Concessionaire's self-insurance
program is approved by the State of California; the retention level of such self-insurance
program; the City and its officials, officers, employees, agents and volunteers are named as
additional insureds; and that the policy of insurance is primary and no contribution shall be
required by City. Concessionaire shall also supply the name of Concessionaire's excess
insurance carrier at the time the certificate of self-insurance is supplied to City.
Section 6.04: Delivery to Director of Evidence of Insurance.
Concessionaire must deliver, without request or demand, to the Director, a certificate of
insurance and all applicable endorsements or other evidence of insurance coverage required by
this Article in form and content satisfactory to City's Risk Manager or his/her designee.
Concessionaire must update such evidence of insurance not less frequently than annually.
Page 28 of 51
Section 6.05: Expiration of lnsurance Policy.
Prior to the expiration of any insurance policy required by this Article, Concessionaire must
submit to the Director a certificate of insurance and all applicable endorsements showing that
such insurance coverage has been renewed. lf such coverage is cancelled or reduced,
Concessionaire, within five business days following the date of written notice from the insurer of
such cancellation or reduction in coverage, must file with the Director a certificate of insurance
and all applicable endorsements showing that the required insurance has been reinstated or
provided through another insurer or insurers.
Section 6.06: Adjustment of Claims.
Concessionaire must provide for the prompt and efficient handling of all claims for bodily injury,
property damage or theft arising out of the activities of Concessionaire under this Agreement.
Section 6.07: Conditions of Default.
lf, at any time, Concessionaire fails to obtain and maintain the insurance required herein, City
may but shall not be required to affect such insurance by taking out a policy or policies in a
company or companies satisfactory to City. The amount of the premium or premiums paid for
such insurance must be payable by Concessionaire to City with the installment of fees
thereafter next due under the terms of this Agreement, with interest thereon at the rate of the
lesser of one and one-half percent (1 .5o/o) per month or the legal maximum.
ARTICLE VII . HYPOTHECATION, SUB-LEASE, AND ASSIGNMENT
Section 7.01: General.
Nothing within this Agreement contained shall be deemed to allow Concessionaire or
Concessionaire's successors or assigns, either voluntarily or by operation of law, to
hypothecate, encumber, sell, assign, surrender, or othen¡rise transfer this Agreement, in whole
or in part; or to hypothecate, encumber, sell, assign, surrender, or othenruise transfer, in whole
or in part, any of Concessionaire's rights, title and interests in or to any part or all of the
Concession Facility and/or in or to any part or all of the improvements and appurtenances which
existed therein or thereon at the commencement of the Term or which may, at any time and
from time to time, be constructed/installed therein or thereon during the Term; or to rent, sub-let
or othen¡vise permit/allow/suffer occupancy and/or use of any part or all of the Concession
Facility by any other person or entity, except as herein specifically provided for and in the
manner and under the conditions herein expressly set forth, and any and all such action(s)
which shall be contrary to and/or not in full conformity with the provisions hereof shall be null
and void.
Section 7.02: Hypothecation.
During the Term, Concessionaire shall not offer, mortgage, hypothecate, pledge, or otherwise
encumber either this Agreement, the Concession Facility, any improvement(s)
constructed/placed/installed/located on or in said Concession Facility, or any of
Concessionaire's rights, title, and/or interest in or to any one or more of these, for any purpose
whatsoever, any and all such actions by Concessionaire being expressly prohibited hereby.
lil
Page 29 of 51
Section 7.03: Sub-lease.
During the Term, Concessionaire shall not rent, sub-lease, or suffer or permit the occupancy
and/or use of any part or all of the Concession Facility by any other person or entity, not a part
of the Parent Entity, unless obtained through transfer by operation of law, whomsoever for any
reason whatsoever, any and all such actions by Concessionaire being expressly prohibited
hereby.
Section 7.04: Assignment.
A. Citv's Consent Required: Concessionaire may not and shall not assign this Agreement
to any other Parent Entity, non-affiliated brand or other rental car company without first
obtaining the written consent of City in advance.
1. Any attempted/purported assignment of this Agreement without City's advance
written consent shall be null and void and shall constitute a breach of this
Agreement.
2. City shall not be obligated to consent to and may withhold consent to any
assignment of this Agreement by Concessionaire to any other rental car
company where Concessionaire shall be in default of any of its obligations
hereunder as of the date on which City's consent to such assignment would have
otheruvise been given.
3. City's consent to any such action shall not constitute a waiver of the conditions,
limitations, and restrictions of this Section of this Article relative to further or other
such actions, which conditions, limitations, and restrictions shall apply to each
and every transfer and/or assignment hereof and shall be binding upon each and
every assignee, transferee, and/or other successor in interest of Concessionaire,
subject to the provisions hereof.
B. Advance Notice by Concessionaire: ln the event of any proposed assignment of this
Agreement by Concessionaire (as Assignor), to another rental car company (as
Assignee), Concessionaire shall, not less than thirly (30) days prior to the proposed
effective date of such action, provide City with written notice of the proposed
assignment and assumption of this Agreement, setting forth the following:
1. The name, address and telephone number of the proposed Assignee;
and
2. The planned effective date of the proposed assignment and assumption
action.
C. Documents to Accompany Concessionaire's Notice: The notice that the
Concessionaire provides to City pursuant to the provisions hereof shall be
accompanied by:
1. Fully executed original set(s) of any and all documents being used to
effect the proposed actions set fodh within such notice in the number then
specified by and in a form acceptable to City.
Page 30 of 51
2. All such documents shall, âS, when, and where applicable and
appropriate, by a specific provision therein contained, clearly evidence
the fact that the Assignment and the assumption agreements and actions
specified therein are subject to and/or conditioned upon City's consenting
thereto and that such actions shall not become effective nor be binding on
either Concessionaire, as Assignor, or the Assignee named therein,
unless and until such consent shall be given by City in writing.
D. The Assignment/Assumption Agreement shall contain:
1 An "assignment of Concession Agreement" by Concessionaire whereby
Concessionaire assigns all of its rights, title and interests in and to this
agreement to the assignee;
2 An "Assumption of Concession Agreement" by Assignee which shall
clearly evidence the fact that, as of the effective date of such assumption
of this Agreement, Assignee assumes any and all of the obligations of
Concessionaire under this Agreement and shall, on and after said date
undertake, peÍorm, keep and/or observe any and all of the terms, coven-
ants, conditions, warranties, agreements, and/or provisions of this Agree-
ment to be undertaken, performed, kept, andior observed by
Concessionaire; and
3 The specific date on which the Assignment and Assumption Agreements
shall be effective.
E. Modification of Documents: Once City's consent is given for any Assignment and
Assumption Agreements, the documents provided City pursuant to the provisions
hereof shall not be modified, in any way whatsoever, other than in writing, signed by
the parties in interest at the time of the modification, and any such modification shall
be null and void unless City's consent thereto, in writing, shall have been obtained by
Concessionaire in advance.
Section 7.05: Transfer by Operation of Law.
Any assignment or transfer of this Agreement by operation of law or any issuance, sale or
transfer of a sufficient number of shares of stock or other ownership interest in Concessionaire
to result in a change in control of the Concessionaire will be deemed an assignment of this
Agreement for purposes of this Section; provided, however, that nothing in this Section will be
deemed to require such consent solely as a result of issuance, transfer or sale of shares or
ownership interests among the existing stockholders or other owners of the Concessionaire;
transfer of shares or ownership interests by devise or descent upon the death of any existing
stockholder; merger of the Concessionaire into any parent or subsidiary corporation of the
Concessionaire or sale of all of Concessionaire's stock or ownership interests to any parent or
subsidiary of Concessionaire.
Section 7.06: Modification.
Unless stated othenruise in this Agreement, no provision of this Agreement may be waived,
modified or amended except by written amendment signed by City and Concessionaire.
Page 31 of 51
No act, conversation or communication with any officer, agent, or employee of City, either
before or after the execution of this Agreement, will affect or modify any term or terminology of
this Agreement and any such act, conversation or communication will not be binding upon City
or Concessionaire.
ARTICLE VIII- CONCESSIONAIRE AND JOINT PARTY IMPROVEMENTS
Section 8.01 : lmprovements by Goncessionaire.
Subject to the provisions of this Lease, the Concessionaire, at its sole cost may make
improvements at the Ready Return lot, such additional improvements and install additional
equipment as may be required by its operation, subject to prior written approval of the Director.
Section 8.02: Preparation of Plans and Specifications.
The Concessionaire must develop detailed drawings, plans and specifications for any
improvements it intends to make to the premises.
Sectlon 8.03: Design Gontrol.
Prior to commencement of working drawings and specifications for any construction,
modifications, and/or improvements to be made by the Concessionaire, the Concessionaire
must submit to the Director, all proposed design concepts, including architectural renderings
showing appearance, types of materials and colors proposed for all improvements and
equipment to be placed or erected upon the premises. All design and construction work must
meet City standards as applicable and receive prior written approvalfrom the Director.
Final plans and specifications for the construction and installation of the improvements and the
equipment must be submitted to the Director for his written approval prior to commencement of
construction or installation of said improvements and equipment.
Section 8.04: Gontractor's Indemnification and Insurance.
ln any construction contract between the Concessionaire and its contractors, consultants,
architects and engineers pertaining to improving and equipping the Ready Return Lot, the
Concessionaire must require the contractor, consultants, architects and engineers to indemnify,
defend and hold harmless the City and its officers, officials, employees, agents and volunteers
in accordance with Section 6.01 and maintain General Liability, Auto Liability, Workers'
Compensation and Employer's Liability insurance in accordance with Section 6.03.
Concessionaire shall ensure that contractors, consultants, architects and engineers comply with
all other conditions of Section 8.03. Concessionaire shall require any consultant, architects and
engineer to maintain Professional Liability insurance with limits of liability of not less than
$1,000,000 each occurrence and $2,000,000 general aggregate. Said insurance requirements
may change from time to time and must be in a form reasonably agreeable to the City.
Section 8.05: Gertificates of Completion.
Upon the completion of any improvements made by the Concessionaire, on the premises, the
Concessionaire must submit to the Director a copy of its acceptance letter certifying completion,
and a ceñified copy of any certificate or permit which may be required by federal, state or local
government or agency in connection with the completion or occupancy thereof by the
Concessionaire.
Page 32 of 51
The Concessionaire must deliver to the City duplicate copies of 'as-built' plans and
specifications of completed improvements on the premises within thirty (30) days after the date
on which the Concessionaire has certified completion thereof. At the same time, the
Concessionaire must submit to the Director an itemized statement prepared and certified by the
architect and engineer for the design and construction of the facilities and certified by an officer
of the Concessionaire, showing the actual cost of such improvements, and must, if so requested
by the City in writing, produce copies of all invoices and other records in connection therewith.
Said itemized statement must, unless disputed in writing by the City within sixty (60) days next
following receipt thereof from the Concessionaire, constitute prima facre evidence of the costs
shown therein.
Section 8.06: Title to Exclusive Use Premises, lmprovements and Equipment.
Title to the premises, and to tenant improvements and equipment paid for with the
Concessionaire Allowance will at all times remain in the City. At the Termination Date or any
earlier termination of this Lease, title to all tenant improvements, excepting only the
Concessionaire's trade fixtures, equipment and other property that Concessionaire purchased
with other than the Concessionaire Allowance, installed or placed in, on or about the Exclusive
Use Premises, and that may be removed without material damage to the premises, will be and
remain in the City, free and clear of all liens and encumbrances.
Section 8.07: Joint Party lmprovements Program.
It is contemplated that City, Concessionaire, and the lndustry, will jointly develop an
lmprovements Program to reconfigure and remodel the counter space located in the baggage
claim area of the Terminal. This program will include projects which are common to the lndustry
which will be the City's projects to develop, and projects which are pad of the Concessionaire's
Concession Facility, which will be the Concessionaire's projects to develop, and projects which
are pad of the lndustry's Concession Facilities, which will be the lndustry's projects to develop.
This lmprovements Program will be planned by the City with direct input and coordination from
Concessionaire and the lndustry. Methods of implementation of design and delivery of
improvements will be determined jointly among City, Concessionaire and lndustry during the
planning phase, and then carried out accordingly. When this remodel occurs the
Concessionaires will be granted a certain allowance for changes to their exclusive use area.
The amount of the allowance and the expenses eligible for reimbursement under this allowance
will be addressed in a subsequent side letter between the padies.
Section 8.08: Performance and Payment Bonds.
ln order to guarantee the completion of anylall improvements to the premises undertaken by the
Concessionaire and the payment of all laborers and material suppliers, the Concessionaire must
ensure that a one hundred percent (100%) performance and a one hundred percent (100%)
payment bond is furnished to the City in the full amount of any contract for such work. Said
performance and payment bond must be in a form satisfactory to the City. All sums derived
from any pedormance and payment bond must be used for the completion of said
improvements and the payment of laborers and material suppliers.
ilt
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Page 33 of 51
ARTICLE IX. DEFAULTS AND REMEDIES
Section 9.01: Default by Gity.
City shall not be in default unless City fails to perform obligations required of City under this
Agreement within a reasonable period of time, but in no event later than thirty (30) days after
written notice is served upon City by Concessionaire specifying wherein City has failed to
perform any such obligation; provided, however, that if the nature of City's obligation is such that
more than thirty (30) days may reasonably be deemed to be required for performance, then City
shall not be in default if City commences pedormance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. ln the event any default shall occur,
Concessionaire may declare this Agreement and all rights and interests thereby created to be
terminated. Concessionaire expressly waives any claim against City, its officers, agents, or
employees for loss of anticipated profits in any suit or proceeding involving this Agreement or
any part hereof.
Section 9.02: Default by Goncessionaire.
A. Defaults: The occurrence of any of the following events shall constitute a material
default and breach of this agreement by Concessionaire:
1. The vacating or abandonment of all or any part of the Concession Facility by
Concessionaire which reduces its average fleet size, staffing level and operating
capability in any Agreement Year to less than seventy-five percent (75o/o) of that
which existed at the same period the previous Agreement Year, as determined
solely and exclusively by the Director.
2. The failure by Concessionaire to use the Concession Facility for lawful purposes
and in accordance with Section 2.03.4 only and/or failure by it to comply with or
observe any statute, law, ordinance, rule, regulation, standard or requirement of
any federal, state, or local government entity with respect to its occupancy(ies)
and/or use(s) of any pad or all of the Concession Facility, as such statutes, laws,
ordinances, rules, regulations, standards or requirements exist(ed) on the
commencement date of the Term or as such may exist at any time and from time
to time during the Term, where any such failure shall be evidenced by either a
finding or judgment of any court of competent jurisdiction or where any such
shall be admitted by Concessionaire in any proceeding brought against
Concessionaire by any government entity.
3. The inability of and/or failure of Concessionaire to obtain, pay for, and maintain in
full force and effect at all times during the life of this Agreement, without any
lapse in coverage, such insurance as shall be required of Concessionaire in
Article Xl hereunder.
4. The occurrence of any of the following:
(a) Concessionaire's becoming insolvent or the making by it, of any general
arrangement or an assignment for the benefit of creditors;
(b) The filing by or against Concessionaire of a petition to have it adjudged a
bankrupt or a petition for reorganization or arrangement under any law
Page 34 of 5'1
5.
6
relating to bankruptcy unless, in the case of a petition filed against
Concessionaire, the same is dismissed within sixty (60) days;
(c) The appointment of a receiver to take possession of substantially all of
Concessionaire's assets located in, on or about, the Concession Facility
or elsewhere on Airport, or of its interest in this Agreement, where
possession is not restored to Concessionaire within thirty (30) days; or
(d) The attachment, execution or other judicial seizure of substantially all of
Concessionaire's assets located in, on or about the Concession Facility or
elsewhere on Airport, or of Concessionaire's interest in this Agreement,
where such seizure is not discharged within thirty (30) days.
The discovery by City that any financial statement provided to the City by
Concessionaire, any Assignee of Concessionaire, any sub-lessee/-company of
Concessionaire, any successor in interest of Concessionaire, or any guarantor of
Concessionaire's obligations hereunder, and/or any one or more of such persons
or entities, was materially false.
Any attempted/purported hypothecation, encumbrance, sale, assignment, or
transfer of either this Agreement, in whole or in pad; or of any of
Concessionaire's rights, title and interests in or to any pad or all of the
Concession Facility and/or in or to any part or all of the improvements and
appurtenances thereto which exist(ed) therein or thereon at the commencement
of the Term or which may at any time and from time to time be constructed or
installed therein or thereon during the Term or any attemptedipurported
subletting or permitting occupancy of any part or all of the Concession Facility by
any person or entity other than Concessionaire, without City's prior written
consent.
The failure by Concessionaire to make any payment of rent or Annual
Concession Fees or any other required payment, or to furnish any Security
Deposit or instrument, as and when due hereunder, where such failure shall
continue for a period of ten (10) days following service of notice thereof upon
Concessionaire by City.
The failure by Concessionaire to actively conduct a Rental Car business at
Airporl for a period of seventy-two (72) consecutive hours, where such failure
shall continue for a period in excess of seventy-two (72) hours following serviceof notice thereof upon Concessionaire by City; provided, however,
Concessionaire shall not be in default and breach under this sub-paragraph of
this Section of this Article, where such failure to conduct a Rental Car business at
airport shall have been caused by circumstances beyond Concessionaire's
control.
The failure of Goncessionaire to keep, observe, undertake, fulfill, or perform any
of the terms, covenants, conditions, warranties, agreements, obligations, and/or
provisions of this Concession Agreement to be kept, observed, undertaken,
fulfilled, and/or performed by it, other than those hereinabove within sub-
paragraphs "4" through 'H" of this Section of this Article expressly set forth,
where such failure shall continue for a period of thirly (30) days following service
of notice thereof upon Concessionaire by City; provided, however, that if the
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B
nature of Concessionaire's default is such that more than thirty (30) days are
reasonably required for its cure, then Concessionaire shall not be deemed to be
in default and breach of this Agreement if Concessionaire commences such cure
within said thirty (30) day period and thereafter diligently prosecutes such cure to
completion as soon as reasonably possible following service of such notice upon
Concessionaire by City.
10. Failure to maintain in full force and effect a Service Facility Lease Agreement at
alltimes hereunder.
City's Remedies:
1. Abandonment: lf Concessionaire abandons all or any pañ of the Concession
Facility, this Concession Agreement shall continue in effect. City shall not be
deemed to terminate this Concession Agreement as a result of such material
default and breach other than by written notice of termination served upon
Concessionaire by City, and City shall have all of the remedies available to City
under Section 1951.4 of the Civil Code of the State of California so long as City
does not terminate Concessionaire's right to possession of the Concession
Facility, and City may enforce all of City's rights and remedies under this
Agreement, including the right to recover the rents and the Annual Concession
Fees as such becomes due under this Agreement. After abandonment of the
Concession Facility by Concessionaire, City may, at any time thereafter, give
notice of termination.
2. Termination: Upon the occurrence of any material default and breach of this
Agreement by Concessionaire as set forth within paragraph 1 of this Section of
this Article, above, City may then immediately, or at any time thereafter,
terminate this Agreement by service of a minimum of ten (10) days advance
written notice to such effect upon Concessionaire and this Agreement shall
terminate at 1 1:59:59 p.m., on the termination date specified within such notice.
(a) Such notice shall, as a minimum, set forth the following:
(i) The default and breach which resulted in such termination by City;
and
(i¡) A demand for possession, which, in the event only ten (10) days
advance notice shall be given by City, shall be effective at
12:00:01 a.m., on the eleventh (11th) calendar day following the
date on which the notice in which such demand is contained shall
be sufficiently served upon Concessionaire by City in conformity
with the provisions of Article Xll, "Notices", of this Agreement; or, if
more than the minimum number of days advance notice shall be
given, at 12.00.01 a.m., on the next day following the date
specified within such notice as being the date of termination
hereof.
Such notice may contain any other notice which City may, at its option,
desire or be required to give (e.9., "Demand For Payment" of any and all
monies due and owing).
(b)
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3 Possession: Following termination of this Agreement by City pursuant to the
provisions of this Article, without prejudice to other remedies City may have by
reason of Concessionaire's default and breach and/or by reason of such
termination, City may:
(a) Peaceably re-enter the Concession Facility upon voluntary surrender
thereof by Concessionaire; or
(b) Remove Concessionaire and/or any other persons and/or entities
occupying the Concession Facility therefrom, and remove all personal
property therefrom and store all personal property not belonging to City in
a public warehouse or elsewhere at the cost of and for the account of
Concessionaire, using such legal proceedings as may be available to City
under the laws or judicial decisions of the State of California; or
(c) Retake possession of the Concession Facility or relet the Concession
Facility or any part thereof for such term (which may be for a term
extending beyond the Term of this Agreement) at such rents and upon
such other terms and conditions as shall be determined solely by City,
with the right to make reasonable alterations and repairs to the
Concession Facility.
Recovery: Following termination of this Agreement by City pursuant to the
provisions of this Article, City shall have all the rights and remedies available to
City under Section 1951.2 of the Civil Code of the State of California. The
amount of damages City may recover following such termination of this
Agreement shall include:
(a) The worth at the time of award of the unpaid rents which had been
earned at the time of termination of this Agreement;
(b) The worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination of this Agreement until
the time of award exceeds the amount of such rental loss that
Concessionaire proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the unpaid rent for
the balance of the Term after the time of award exceeds the amount of
such rental loss for the same period Concessionaire proves could be
reasonably avoided; and
(d) Any other amount necessary to compensate City for all the detriment
proximately caused by Concessionaire's failure to perform
Concessionaire's obligations under this Agreement or which in the
ordinary course of things would be likely to result therefrom.
Additional Remedies: Following the occurrence of any material default and
breach of this Agreement by Concessionaire as set forth within paragraph 1 of
this Section of this Article, above, in addition to the fore-going remedies, City may
maintain Concessionaire's right to possession, in which case this Concession
Agreement shall continue in effect whether or not Concessionaire shall have
abandoned the Concession Facility and, so long as this Agreement is not
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terminated by City or by a decree of a court of competent jurisdiction, City shall
be entitled to enforce all of City's rights and remedies hereunder, including the
right to recover the rent as it becomes due under this Agreement and, during any
such period, City shall have the right to remedy any default of Concessionaire, to
maintain or improve the Concession Facility without terminating this Concession
Agreement, to incur expenses on behalf of Concessionaire in seeking a new
sub-tenant, to cause a receiver to be appointed to administer the Concession
Facility and any new or existing sub-leases and to add to the rent payable
hereunder all of City's reasonable costs in so doing, with interest at the maximum
reasonable rate then permitted by law from the date of such expenditure until the
same is repaid.
6. Other: ln the event Concessionaire causes or threatens to cause a breach of
any of the covenants, terms or conditions contained in this Agreement, City shall
be entitled to obtain all sums held by Concessionaire, by any trustee or in any
account provided for herein, to enjoin such breach or threatened breach and to
invoke any remedy allowed at law, in equity, by statute or othenruise as though
re-entry, summary proceedings and other remedies were not provided for in this
Agreement.
7. Cumulative Remedies. Each right and remedy of City provided for in this Article
or now or hereafter existing at law, in equity, by statute or othen¡vise shall be
cumulative and shall not preclude City from exercising any other rights or from
pursuing any other remedies provided for in this Agreement or now or hereafter
available to City under the laws or jupicial decisions of the State of California.
8. lndemnification: Nothing contained within this Section of this Article affects the
right of City to indemnification by Concessionaire, as herein provided, for liability
arising from personal injuries or property damage prior to the termination of this
Agreement.
ARTICLE X. REDELIVERY
Section 10.01: General.
Upon the expiration of the term of this Agreement and any extensions, or upon earlier
termination as herein provided, Concessionaire shall have no further interest in the Concession
Facility or the rights granted herein, and Concessionaire shall peaceably and quietly quit and
deliver possession of the Concession Facility to City in as good order and condition as when
received, except for reasonable wear and tear, and expecting any maintenance, repairs,
reconstruction, and/or restoration which shall be the obligation of City pursuant to any of the
provisions hereof. Concessionaire shall provide City with a recordable quitclaim or other
recordable instrument to evidence the termination of any interests in the Concession Facility
that Concessionaire may have under this Agreement.
ARTICLE XI . DESTRUCTION OF IMPROVEMENTS
Section 11.01:. General.
lf the Concession Facility or any part and the City-owned improvements, fixtures, and
equipment located therein or thereon shall be partially or totally destroyed at any time during the
Term, the respective rights and obligations of the pañies hereto, with respect to repairing,
Page 38 of 51
reconstructing, and restoring said premises and/or with respect to the matter of continuance or
termination of this Agreement, shall be controlled by the provisions of this Article Xl.
Section 11.02= Partial Destruction.
A. ln the event the Concession Facility shall suffer partial destruction at any time during
the Term, but shall not be rendered untenantable, then the Concession Facility shall
be repaired, reconstructed, and restored by City, at City's cost and expense, as soon
as possible, but within sixty (60) days, and payment of rents and Annual Concession
Fees by Concessionaire shall continue without any abatement whatsoever.
B. ln the event the Concession Facility shall suffer parlial destruction at any time during
the life hereof, if such damage shall be so extensive as to render the Concession
Facility untenantable, but capable of being fully repaired, reconstructed, and restored
within sixty (60) days, the Concession Facility shall be repaired, reconstructed and/or
restored with due diligence by City, at City's cost and expense, during said period of
time, and any rents payable by Concessionaire, hereunder, for the Concession Facility
shall be prorated and paid to the date of such destruction but shall thereafter be
abated until such time as the Concession Facility is restored to a tenantable condition.
Section 11.03: Total Destruction.
ln the event, the Concession Facility shall suffer total destruction at any time during the Term:
A. City may (but shall not be obligated to so perform) repair/re-construct/restore the
Concession Facility, and the monthly rents payable by Concessionaire therefore shall
be prorated and paid to the date of such destruction and shall thereafter cease until
such time as the Concession Facility is restored to a tenantable condition.
B. lf within sixty (60) days after the date of such destruction City has not commenced
repair/reconstruction/restoration of the Concession Facility or, if such action has been
commenced during said period but the Concession Facility shall not have been fully
repaired/ reconstructed/ restored to a tenantable condition within one hundred twenty
(120) days following the date of such destruction, then at any time prior to the
completion of such repair/reconstructioni restoration by City, Concessionaire may
cancel and terminate this Agreement by service of a minimum of thirty (30) days
advance written notice upon City to such effect, in which event, this Agreement shall
terminate as of the date specified within Concessionaire's notice.
Section 11.04: Limitation on Gity's Obligations.
The foregoing provisions of this Article notwithstanding, City shall not be liable for or obligated to
reconstrucUrepair/restore/re-install/replace any improvements or any furnishings, fixtures, or
equipment, or other personal property installed/ placed/located in, on or about the Concession
Facility by Concessionaire, Concessionaire's employees, agents, representatives, tenants, or
sub-lessees.
Section 11.05: Goncessionaire's Obligations.
ln the event of any destruction to the Concession Facility which shall result in any
reconstruction/ repair/restoration by City pursuant to any of the foregoing provisions of this
Adicle, if such actions shall be taken by City and this Agreement remains in full force and effect
Page 39 of 51
pursuant to the provisions hereof, then, immediately upon the Concession Facility being
returned to a tenantable condition by City, Concessionaire shall, as soon as possible, but within
thirly (30) days, at Concessionaire's cost and expense, reconstruct//reinstall/replace such
Concessionaire-installed improvements, decorations, furnishings, fixtures and equipment as
shall have been destroyedi damaged so as to result in the Concession Facility being restored to
substantially the same condition that existed immediately priôr to such destruction/damage.
Section 11.06:Use Of Temporary Facilities.
ln the event the Concession Facility or any part shall suffer destruction to such an extent that it
is rendered untenantable for any period of time, City shall endeavor to make suitable temporary
facilities for Concessionaire's temporary use until such time as the leased premises shall be
returned to a tenantable condition.
ln the event such temporary-use facilities are available and City offers such to Concessionaire,
if Concessionaire accepts such temporary facilities, any and all costs and expenses associated
with Concessionaire's adapting such facilities for its use, locating thereto, conducting its Rental
Car business operations therein and therefrom, and relocating back to the Concession Facility
once they are returned to tenantable condition shall be borne by Concessionaire.
Section 11.07= Waiver By Goncessionaire.
Concessionaire waives the provisions of California Civil Code Sections 1932(2) and 1933(4)
which relate to termination of leases when the thing leased is destroyed and agrees that such
event shall be governed by the provisions of this Article of this Agreement.
ARTICLE XII . SIGNS
Section 12.01= Standard Signs.
A. Concessionaire shall be required to provide, at its cost and expense, any directional or
service identification signs, which are required within the Concessionaire's Exclusive
Use Area, which bear Concessionaire's company name or logo or brand.
B. Concessionaire may, at its option, install its company or business identification sign on
any sign directories provided by City. The installation of such optional signs shall be
subject to space availability, and City will not be required to provide space to
Concessionaire if none is available. The airlines shall always have first priority, even
to the extent of removing or relocating non-airline signs already in place if necessary to
accommodate additional airline signs. Following the airlines, space assignments shall
be on a first-come first-served basis.
C. All such standard signs, whether required or optional, shall be fabricated and installed
in accordance with plans and specifications on file with Director and shall in every
respect match the standards and appearance of existing signs. These signs shall be
and remain the property of Concessionaire, and upon termination of this Agreement,
all such signs shall be removed by Concessionaire and replaced with blank media.
Section 12.02= Non-Standard Signs.
A. Concessionaire shall be allowed to install its company logo and decor on the back wall
behind the customer service counter or within the enclosed customer service area for
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each brand they plan to offer. In such area Concessionaire may also post customary
service oriented signs (such as flight schedules, business hours, etc.) and customary
signs pursuant to legal or regulatory authority (such as limits of liability, airport security
notices, etc.).
B. Concessionaire may also, from time to time, display within the customer service area
special promotional signs (such as introduction of new service, special rates, etc.),
provided that any such promotional signs shall be permitted only for limited periods of
time.
C. No signs, banners, or advertising material shall be placed in front of the customer
service counter, or anywhere outside of the Concession Facility. Concessionaire shall,
however, have the right to purchase advertising space through the Airport adverlising
company, in which case any sign media must comply with the physical requirements of
the advertising company and with the design requirements established by the City
herein.
D. ln the Ready Return Area, Concessionaire shall install signs which identify the
Concessionaire and the number assigned to the parking space, in order to aid
customers in locating specific Rental Cars. Such signs may not exceed seven hundred
twenty (720) square inches in area, with the maximum dimension in any direction
being thirty (30) inches. Colors, lettering, and style are to be determined by each of the
Concessionaires for their respective spaces. However the design for all signs must be
approved in advance by the Director. All such signs are to be prepared by August 15,
2014, in order to be available for the initial allocation of Ready Return parking spaces;
any additional or modified signs required due to the annual reallocation of such area
shall be available by October 1 of each subsequent Agreement Year. These signs
shall be the property of the Concessionaire, and the cost of providing such signs shall
be entirely borne by each of the Concessionaires for its signs.
Section 12.03: Gonditions Applicable To Signs.
The following shall apply to any and all signs.
A. The location, size, type and style of each and every sign shall conform to and be
compatible with the general architqcture, design and appearance of the Terminal
Building area and facilities.
B. No such sign shall be erected, installed or operated until Concessionaire has first
submitted written request, together with descriptions, plans and drawings of such
proposed sign, to Director and has received prior written approval from Director.
C. Concessionaire shall obtain any permits or approvals required for such signs and shall
bear all costs and expenses pertaining to the construction, installation, maintenance,
repair and removal of any and all such signs.
D. Any and all such signs shall be professionally designed, manufactured, installed and
maintained so as to present at all times a professional and attractive appearance;
hand written or hand printed signs are expressly prohibited. The size of such signs
shall not exceed that which is required for recognition and, as to size and number,
shall be limited to that which is prudent or required and to that which will preserve a
neat and uncluttered appearance.
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E. Except for the temporary promotional displays provided for above, Concessionaire is
prohibited from installing or displaying any advertising material or signs in or about the
Concession Facility and Terminal Building area.
F. Upon termination of this Agreement, all such signs shall be removed by
Concessionaire, and Concessionaire shall be responsible for either restoring the
Concession Facility where such sign(s) was located to original condition, or installing
blank media, whichever is appropriate.
ARTICLE XIII . HOLDING OVER
Section 13.01 : General.
ln the event Concessionaire shall remain in possession of the Concession Facility or any part
thereof, after the expiration of the Term of this Agreement, and thus hold over the Term, with or
without the expressed written consent of City, such holding-over shall be a tenancy from month
to month only, terminable by either pady hereto upon service of a minimum of thirty (30) days
advance written notice upon the other party.
Section 13.02: Rentals/Fees/G ha rges.
During any such holding-over period, Concessionaire agrees to pay and shall pay to City
monthly rents, and monthly Percentage Fees and MAG and other fees and charges pursuant to
this Agreement; provided, however, that the monthly rental to be paid by Concessionaire to City
during any such holding over period for such space shall be at fair market value.
Section 13.03: Agreement Controls Computations.
During any such holding-over period, all rents, MAG/Percentage Fees payable monthly and
other charges shall be calculated as specified within this Agreement.
Section 13.04: Agreement Controls Holdover Tenancy.
Except as othenruise specifically provided within this Article, any such holding over shall be
subject to all the terms, covenants, conditions, restrictions, reservations, prohibitions,
warranties, agreements, and provisions of this Concession Agreement applicable to a month to
month tenancy.
ARTICLE XIV - NON-DISCRIMINATION
Section 1 4.0'l : Non-Discrimination.
A. To the extent required by controlling federal, state and local law, Concessionaire shall
not employ discriminatory practices in the provision of services, employment of
personnel, or in any other respect on the basis of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. Subject to the foregoing and during the performance of this Agreement,
Concessionaire agrees as follows:
1. Concessionaire will comply with all applicable laws and regulations providing that no
person shall, on the grounds of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, gender identification, ethnicity, status as a disabled veteran or
Page 42 of 51
veteran of the Vietnam era be excluded from participation in, be denied the benefits
of, or be subject to discrimination under any program or activity made possible by or
resulting from this Agreement.
2. Concessionaire will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, gender identification, ethnicity, status as a disabled veteran or
veteran of the Vietnam era. Concessionaire shall ensure that applicants are
employed, and the employees are treated during employment, without regard to their
race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, sexual orientation, gender
identification, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to Concessionaire's employment practices including,
but not be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship.
Concessionaire agrees to post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provision of this
nondiscrimination clause.
3. Concessionaire will, in all solicitations or advertisements for employees placed by or
on behalf of Concessionaire in pursuit hereof, state that all qualified applicants will
receive consideration for employment without regard to race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition,
marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or
veteran of the Vietnam era.
4. Concessionaire will send to each labor union or representative of workers with which
it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of Concessionaire's
commitment under this section and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
Section 14.02: Airport Concession Disadvantaged Business Enterprise (ACDBE)
Program.
City has developed and maintains and Concessionaire at all times hereunder shall comply with
the Disadvantaged Business Enterprise Concession PIan for the Airpod in accordance with U.S.
Department of Transportation regulations 49 CFR Part 23, SubpaÉ F, which plan establishes
policies and procedures designed to promote City's interest in establishing Airport concession
opportunities for Disadvantaged Business Enterprises and sets lawful, realistic and reasonable
goals therefore, as enforceable in the Ninth Circuit.
Any questions concerning Disadvantaged Business Enterprise (DBE) issues should be
directed to DBE Program Coordinator, Gity of Fresno, Finance; 2600 Fresno St., Room
2156; Fresno, CA 93721; Telephone (559) 621-1182 or Fax (559) 488-1069.
Section 14.03: Federal lmmigration Reform and GontrolAct.
As a material part of any Concession on a City of Fresno property, every Concessionaire who
has employees who will work on a City of Fresno property is required to comply with all of the
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provisions of the Federal lmmigration Reform and Control Act of 1986 (P.L.99-603, 100 Stat.
3359). This requirement includes compliance with all of the employee documentation
provisions. Furthermore, Concessionaire will make any employee documentation required to
comply with such Act immediately available to City, upon its request for each individual
employee working on a City of Fresno property.
ARTICLE XV. OFF AIRPORT PROVIDERS
Section 15.01 : Governmental Gompliance.
City agrees that all Off-Airpod Rental Car Companies will be required to comply with all City
laws, regulations and operating policies applicable thereto.
ARTICLE XVI . MISCELLANEOUS PROVISIONS
Section 16.01: No Personal Liability.
No Councilperson, Director, officer employee or other agent of either party shall be personally
liable under or in connection,with this Agreement.
Section 16.02: Agreements with the United States,
This Agreement is subject and subordinate to the provisions of any agreements heretofore
made between City and the United States relative to the operation, security or maintenance of
the Airport, the execution of which has been required as a condition precedent to the transfer of
federal rights or propefty to City for airport purposes, or to the expenditure of federal funds for
development of the Airport, in accordance with the provisions of the Federal Aviation Act as it
has been amended from time to time. This may include rules and regulations promulgated by
the TSA and/or Airport security plan/requirements including pursuant to 49 CFR Part 1542, as
modified from time to time by legislative/regulatory action. These FAA Grant Assurances
attached hereto as Exhibit "C" are incorporated herein.
Section 16.03: Modifications for Granting FAA Funds/Bond Reimbursement.
ln the event that the FAA requires modifications or changes to this Agreement, Concessionaire
agrees to consent to such reasonable amendments, modifications, revisions, supplements or
deletions of any of the terms, conditions or requirements of this Agreement as reasonably may
be required to enable City to obtain FAA funds.
The Concessionaire acknowledges that the City has issued Bonds and reimbursed expenditures
related to the construction of the Concession Facility with Bond proceeds. This Agreement shall
be deemed modified or, upon the mutual agreement of the parties, the Concession granted
terminated, to any extent necessary to comply with the lndenture.
Section 16.04: Notices.
A. All notices required to be served by City or Concessionaire, one upon the other, under
the terms of this Agreement shall be in writing.
B. All notices or demands of any kind which City shall have cause to serve upon
Concessionaire under the terms of this Agreement shall be served upon
Concessionaire by mailing a copy thereof by certified or registered mail, return receipt
Page 44 o'í 51
requested, to Concessionaire at the address shown below or to such other address as
Concessionaire may, from time to time, specify to City in writing.
C. All notices 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 mailing 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 time to time, specify
to Concessionaire in writing.
City of Fresno
Airpods Department
4995 E. Clinton Way
Fresno, CA 93727
D. ln 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 (4th) calendar day following the date of deposit in the United States mail of such
certified or registered mail properly addressed and postage prepaid.
Section 16.05: Amendments.
This Agreement may be amended from time to time by written Amendment, duly authorized and
executed by representatives the parties hereto.
Section 16.06: Headings; Gonstruction of Agreement; Gender.
The headings of each Section of this Agreement are for reference only. Unless the context of
this Agreement clearly requires othen¡rise, all terms and words used herein, regardless of the
number and gender in which used, shall be construed to include any other number, singular or
plural, or any other gender, masculine, feminine or neuter, the same as if such words had been
fully and properly written in that number or gender. Words of any gender in this Agreement will
be held and construed to include any other gender.
Section 16.07: Force Majeure.
Neither City nor Concessionaire will be deemed in violation of this Agreement if either is
prevented from performing any of the obligations hereunder by reason of strikes, boycotts, labor
disputes, embargoes, shodages of materials, acts of God, acts of public enemy, acts of superior
governmental authority, weather conditions, riots, rebellion, sabotage, or any other
circumstances for which it is not responsible or which are not within its control.
Section 16.08: Exclusiveness of Goncessionaire's Rights.
Nothing herein contained shall be deemed to grant to Concessionaire any exclusive right or
privilege within the meaning of Section 3.08 of the Federal Aviation Act for the conduct of any
activity on the Airport.
Section 16.09: Withholding Required Approvals.
Whenever the approval of City or Director or Concessionaire is required herein, no such
approval shall be unreasonably, conditioned, delayed or withheld.
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Section 16.10: lnspection of City Records.
Concessionaire, at its expense and upon reasonable notice, shall have the right to inspect the
books, records and other data of City relating to the provisions and requirements hereof,
provided such inspection is made during regular business hours.
Section 16.11= Successors and Assigns.
Subject to the limitations on assignment contained herein, all of the terms, provisions,
covenants, stipulations, conditions and considerations in this Agreement shall extend to and
bind the legal representatives, successors and assigns of the respective parties hereto.
Section 16.12= Accord and Satisfaction.
No payment by Concessionaire or receipt by City of a lesser amount than the rent, fees and/or
charges due to be made by Concessionaire hereunder shall be deemed to be other than on
account of the rent, fees and/or charges due. No endorsement or statement on any check or in
any letter accompanying any check or payment as rent; fees and or charges shall be deemed
an accord and satisfaction. City may accept such check or payment without prejudice to City's
right to recover the balance of such rent, fees and/or charges or to pursue any other remedy
provided in this Agreement.
Section 16.13: Observation of Governmental Regulations.
City's Airport Rules and Regulations: City reserves the right to adopt, amend and enforce
reasonable rules and regulations governing the Concession Facility and the public areas and
facilities used by Concessionaire in connection therewith. Such rules and regulations shall be
consistent with the safety, security and overall public utility of Airpod and with the rules,
regulations and orders of the Federal Aviation Administration (FAA) (or such successor
agency[ies] as may, at any time and from time to time during the Term be designated by the
Federal Government to perform either similar, new, additional, and/or supplemental functions,
powers and/or duties with respect to air transportation, aircraft, Airports, etc.), and such rules
and regulations shall not be inconsistent with the provisions of this Agreement or the
procedures prescribed and approved, from time to time, by the FAA with respect to the
operation of aircraft at the Airport. Concessionaire agrees to observe, obey and abide by all
such rules and regulations heretofore or hereafter adopted or amended by City, including
compliance with all FAA and Airpod security rules, regulations and plans, including any and all
measures mandated by the FAA from time to time to provide increased levels of security at
Airport, and Concessionaire shall be fully liable to City for any and all claims, demands,
damages, fines and/or penalties of any nature whatsoever which may be imposed upon City by
the United States Government as a result of any unauthorized entry by Concessionaire,
Concessionaire's employees, agents, representatives, servants, tenants, and/or sub-lessees, or
vehicle operated by any of these or by a customer of Concessionaire, into any area of the
Airpod to which access by persons or vehicles is restricted/controlled pursuant to FAA/Airport
Security Rules and Regulations.
Other Governmental Regulations: Concessionaire shall, at all times during the Term, observe,
obey and comply with any and all laws, statutes, ordinances, codes, rules, regulations, and/or
orders of any governmental entity(ies) lawfully exercising any control(s) over either the Airport or
over any part or all of Concessionaire's activities/ operations thereon and/or therefrom,
including, without limitation, any and all local business license andior permit requirements.
Page 46 of 51
lncreased Levels of Security: ln the event City must provide for an increased level of security in
the areas occupied or used by any or all of the Concessionaires as mandated by the
Transpodation Security Administration ('TSA'), the Concessionaire agrees that the City shall
have the following options:
1. Require Concessionaire to take whatever steps are necessary to meet the
security requirements of the TSA mandate, at its own cost and expense; or
2. Close the Ready Return Areas. ln the event of closure of any part of such Area
the City may at its option provide an alternate location for such area, but shall not
be required to do so; or
3. Take the steps necessary to provide the required additional security measures
and assess the cost of those steps to Concessionaire. Such costs will be
allocated among all the Concessionaires based on each Concessionaire's
proportionate share of Ready Return Area. For example, a Concessionaire that
occupies twenty-five percent (25o/o) of the ready return spaces will be responsible
for twenty-five percent (25o/o) of the costs. City shall invoice Concessionaire
directly, in arrears, for its share, and payment to the City shall be due upon
receipt of such invoice. ln the event that Federal reimbursement for such costs is
made available to City, the City shall apply for such funds prior to seeking
reimbu rsement from Concessionalre.
Section 16.14: Governing Law and Venue.
This Agreement shall be construed and governed in accordance with the laws of the State of
California. The parties submit to the jurisdiction of the courts of the State of California, Fresno
County judicial district.
Section 16.15: Waiver.
Waiver by City of any term, covenant, or condition hereof shall not operate as a waiver of any
subsequent breach of the same or of any other term, covenant or condition. No term, covenant,
or condition of this Agreement can be waived except by written consent of City, and forbearance
or indulgence by City in any regard whatsoever shall not constitute a waiver of same to be
performed by Concessionaire to which the same may apply and, until complete performance by
Concessionaire of the term, covenant or condition, City shall be entitled to invoke any remedy
available to it under this Agreement or by law despite any such forbearance or indulgence.
Section 16.1 6: Modification.
Unless stated othen¡rrise in this Agreement, no provision of this Agreement may be waived,
modified or amended except in writing and signed by City.
Section 16.17: Severability of Provisions.
Except, as specifically provided in this Agreement, all of the provisions of this Agreement shall
be severable. ln the event that any provision of this Agreement is found by a court of competent
jurisdiction to be unconstitutional or unlawful, the remaining provisions of this Agreement shall
be valid unless the courl finds that the valid provisions of this Agreement are so essentially and
inseparably connected with and so dependent upon the invalid provision(s) that it cannot be
presumed that the parties to this Agreement could have included the valid provisions without the
Page47 of 51
invalid provision(s); or unless the court finds that the valid provisions, standing alone, are
incapable of being performed in accordance with the intentions of the parties.
Section 16.18: Conflicts of lnterest.
Concessionaire certifies that no officer or employee of City has, or will have, a direct or indirect
financial or personal interest in this Agreement, and that no officer or employee of City, or
member of such officer's or employee's immediate family, either has negotiated, or has or will
have an arrangement, concerning employment to pedorm services on behalf of Concessionaire
in this Agreement.
Section 16.19: Public Address System.
Concessionaire shall permit the installation, within its Concession Facility, of outlets for the
Airport public address system and allow the reception in and about its Concession Facility of
flight announcements and other information broadcast over such system. Concessionaire may,
at its option, have access to the public address system for the purpose of making customer-
service announcements. Should Concessionaire elect to have such access, then
Concessionaire shall pay to City such public address system fees as are established from time
to time by the City Council.
Section 16.20= Employee Parking.
City has provided off-street parking facilities to meet the employee pârking requirements of all
persons whose primary place of duty is in the Airport's main passenger terminal/concourse
Building complex/area, and, except as provided within paragraph 3 of this Section below,
Concessionaire's employees shall be required to use such employee parking facilities/lots as
are designated by Director and to pay appropriate employee parking fees for such use at such
rates as are from time to time established therefore by the City Council.
Employee parking fees for Concessionaire's employees shall be paid to City by Concessionaire,
as and when due, whether or not Concessionaire includes the costs of such parking in the
benefits it provides its employees or requires its employees to reimburse it for the costs of such
parking.
Nothing in this Section of this Article shall be construed to represent a prohibition against
Concessionaire's allowing one, more or all of its employees to use, for employee parking
purposes, space located on the Service Facility which Concessionaire occupies and uses on the
Airport by separate agreement with City, and, in such event, no parking fees shall accrue to City
with respect to those employees of Concessionaire who park their vehicles on such Service
Facility.
Section 16.21= Special Provisions.
A. Concessionaire's Responsibility Regarding Hazardous Substances:
1. Definition: The term "Hazardous Substances", as used in this Agreement, shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
Page 48 of 51
2
hereafter enacted or promulgated by any governmental authority. The terms
"Environmental Law" or "Environmental Laws", as used in this Agreement, shall
mean any and all federal, state, local laws, statutes, ordinances, rules,
regulations and/or common law relating to environmental protection,
contamination, the release, generation, production, transpott, treatment,
processing, use, disposal, or storage of Hazardous Substances, and the
regulations promulgated by regulatory agencies pursuant to these laws, and any
applicable federal state, and/or local regulatory agency-initiated orders,
requirements, obligations, directives, notices, approvals, licenses, or permits,
including but not limited to those for the reporting, investigation, cleaning, or
remediation of any Hazardous Substances in, on under or about the Concession
Facility.
Restrictions: Concessionaire shall not cause or permit to occur:
(a)Any violation of any federal, state, or local law, ordinance, or regulation
now or hereafter enacted, related to environmental conditions in, on,
under or about the Concession Facility, or arising from Concessionaire's
use(s) or occupancy(ies) thereof, including, but not limited to, soil and
ground water conditions; or
The use, generation, release, manufacture, refining, production,
processing, storage, or disposal of any Hazardous Substance in, on,
under or about the Concession Facility, or the transpoÉation to or from
the Concession Facility of any Hazardous Substance, except where: (1)
such use, generation, release, manufacture, refining, production,
processing, storage or transportation shall be expressly authorized in this
Agreement; or (2) City's advance written consent to any such use,
generation, release, manufacture, refining, production, processing,
storage or transportation shall have first been requested in writing and
received by Concessionaire. Any and all such authorizations/consents of
City shall be deemed given subject to and conditioned upon
Concessionaire's fully and faithfully complying with any and all federal,
state, or local statutes, laws, ordinances, rules and/or regulations, now or
hereafter enacted, applicable to the use, generation, manufacture,
refining, production, processing, transporl, transfer, storage, disposal
and/or sale of that/those Hazardous Substances to which any such
authorization/consent of City may, in any way whatsoever, be deemed to
apply.
Notwithstanding Subsection B, City's consentiapproval shall not be
required for the use, storage and disposal of materials/supplies containing
hazardous substances where such materials/supplies are used on the
Concession Facility in commercially reasonable quantities as a consumer
and generator thereof, and in connection with the rental, leasing and
storage of motor vehicles, for the cleaning and preparation of such
vehicles, for fuel storage and dispensing fuel, for office, administrative
and other uses incidental or related; provided
(i) So long as the use, storage and disposal of any and all of such
materials/supplies shall be in full compliance with any and all
federal, state and local statutes, laws, ordinances, codes, rules
(b)
(c)
Page 49 of 51
ilt
ilt
and regulations applicable thereto now or hereafter enacted
(including, without limitation, any and all Occupational Safety and
Health statutes, laws, codes, rules and regulations of the Federal
Government and the State of California).
Section 16.22: Entire Agreement.
This Agreement, together with all documents referenced herein and exhibits attached hereto,
constitutes the entire Agreement between the parties. All other representations or statements
heretofore made, verbal or written, are merged hereln.
Page 50 of 51
ARTICLE XVll: SIGNATURE
lN WITNESS WHEREOF, the pafties hereto, for themselves, their successors and assigns,
have executed this Agreement, the day and year first above written.
CITY OF FRESNO, CALIFORNIA THE HERTZ CORPORATION, ING.
A Municipal Corporation A Delaware Corporation
By:By:
Director of Aviation
Address for Notice;
City of Fresno
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
ATTEST:
Yvonne Spence, CMC
City Clerk
APPROVED AS TO FORM:
Douglas T. Sloan
City Attorney
Title: Vice President Real Estate &
Dollar Car Rentals, Thrifty Car Rental:
s33ûE-Slsstreet 225 Brae Boulevard
Tr¡lsa;€K-74+35 Park Ridge, NJ 07656
Phone. 91 8-669-3048
Fax: 9l€-669-3046 201-307-2689
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
ExhibÌt G
ttltrl'/Ç.
By: toføftl
p,lf srrr(t+ BAbtl€3lÛt
Description/Depiction of Consolidated Facility, Common Areas
Description/Depiction of Concession Facility, Exclusive Use Areas
FAA Grant Assurances
Disclosure of Conflict of lnterest Form
Gross Revenues Statement Form
Customer Facility Charge (CFC) Remittance Form
Annual Rental Adjustment Calculation
Page 5'1 of 51
EXHIBIT 31 A"
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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 o\,vner
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.
Duration and Applicabilify.
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 proj ect. 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 precedingparagraph I 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 ofacceptance ofFederal aid
for the project.
B.
Airport Sponsor Assurances 3/20 I 4 Page I of20
3. Airport Planning Undertaken by a Sponsor.
Unless otherwise specified in this grant agreement, only Assurances 1,2, 3, 5, 6, 13,
18,25,30,32,33, and 34 in Section C apply to planning projects. The terms,
conditions, and 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 Airport Revenue so long as the airport is used as an airport.
C. SponsorCertification.
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 project including but not limited to the following:
Federal Legislation
Title 49, U.S.C., subtitle VII, as amended.
Davis-Bacon Act - 40 U.S.C. 276(a), et seq.r
Federal Fair Labor Standards Act - 29 U.S.C. 201, et seq.
Hatch Act - 5 U.S.C. 1501, et secl.2
Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 Title 42 U.S.C. 4601, et seq.12
National Historic Preservation Act of 1966 - Section 106 - 16 U.S.C. 470(Ð.r
Archeological and Historic Preservation Act of 1974 - 16 U.S.C. 469 through
469c.1
Native Americans Grave Repatriation Act - 25 U.S.C. Section 3001, et seq.
Clean Air Act, P.L. 90-148, as amended.
Coastal ZoneManagement Act, P.L. 93-205, as amended.
Flood Disaster Protection Act of 1913 - Section 102(a) - 42 U.S.C. 4072a.1
Title 49, U.S.C., Section 303, (formerly known as Section 4(f))
Rehabilitation Act of 1973 - 29 U.5.C.794.
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 7990, 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 -42 U.S.C. 415I, et seq.l
s. Power plant and Industrial Fuel Use Act of 1978 - Section 403- 2U.S.C. 83ß.1
t. Contract Work Hours and Safety Standards Act - 40 U.S.C. 327, et seq.l
u. Copeland Anti-kickback Act - 18 U.S.C.874.1
v. National Environmental Policy Act of 1969 - 42 U.S.C. 432I,et seq.r
w. Wild and Scenic Rivers Act, P.L. 90-542, as amended.
x. Single Audit Act of 1984 - 31 U.S.C. 7501, et seq.2
y. Drug-Free Worþlace Act of 1988 - 41 U.S.C. 702 through706.
a.
b.
c.
d.
e.
Airport Sponsor Assurances 3/2014 Page 2 of 20
z. The Federal Funding Accountability and Transparency Act of 2006, as amended
(Pub. L. 109-282, as amended by section 6202 of Pub.L.ll0-252).
Executive Orders
a. Executive Order 11246 - Equal Employment Opportunityr
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 Constructionl
f. Executive Order 12898 - Environmental Justice
Federal Regulations
a. 2 CFR Part 180 - OMB Guidelines to Agencies on Governmentwide Debarment
and Suspension (Nonprocurement).
b. 2 CFR Part200, Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards. IOMB Circular A-87 Cost Principles
Applicable to Grants and Contracts with State and Local Governments, and OMB
Circular A-133 - Audits of States, Local Governments, and Non-Proht
Organizations].4'5'6
c. 2 CFR Part 1200 - Nonprocurement Suspension and Debarment
d. 14 CFR Part 13 - Investigative and Enforcement Proceduresl4 CFR Part 16 -
Rules of Practice For Federally Assisted Airport Enforcement Proceedings.
e. 14 CFR Part 150 - Airport noise compatibility planning.
f. 28 CFR Part 35- Discrimination on the Basis of Disability in State and Local
Government Services.
g. 28 CFR $ 50.3 - U.S. Department of Justice Guidelines for Enforcement of Title
VI of the Civil Rights Act of 1964.
h. 29 CFR Part 1 - Procedures for predetermination of wage rates.l
i. 29 CFR Part 3 - Contractors and subcontractors on public building or public work
financed in whole or part by loans or grants from the United States.l
j. 29 CFR Part 5 - Labor standards provisions applicable to contracts covering
federally financed and assisted construction (also labor standards provisions
applicable to non-construction contracts subject to the Contract Work Hours and
Safety Standards Act).l
k. 41 CFR Part 60 - Offrce of Federal Contract Compliance Programs, Equal
Employment Opporlunity, Department of Labor (Federal and federally assisted
contracting requirements). I
1. 49 CFR Part 18 - Uniform administrative requirements for grants and cooperative
agreements to state and local govemments.3
m. 49 CFR Part 20 - New restrictions on lobbying.
n. 49 CFR Part2l - Nondiscrimination in federally-assisted programs of the
Department of Transportation - effectuation of Title VI of the Civil Rights Act of
1964.
o. 49 CFR Part23 - Participation by Disadvantage Business Enterprise in Airport
Concessions.
Airport Sponsor Assurances 3/2014 Page 3 of20
p. 49 CFR Part24 - Uniform Relocation Assistance and Real Property Acquisition
for Federal and Federally Assisted Programs.l2
q. 49 CFR Part26 - Participation by Disadvantaged Business Enterprises in
Department of Transportation Programs.
r. 49 CFR Part27 - Nondiscrimination on the Basis of Handicap in Programs and
Activities Receiving or Benefiting from Federal Financial Assistance.l
s. 49 CFR Paft2ï - 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 Pafi32 - Governmentwide Requirements for Drug-Free Workplace
(Financial Assistance)
v. 49 CFR Part37 - Transportation Services for Individuals with Disabilities
(ADA).
w. 49 CFR Par141 - Seismic safety of Federal and federally assisted or regulated
new building construction.
Specifîc 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.
Footnotes to Assurance C.1.
I These laws do not apply to airport planning sponsors.
These laws do not apply to private sponsors.
49 CFR Part l8 and 2 CFR Part200 contain requirements for State and Local
Governments receiving Federal assistance. Any requirement levied upon State
and Local Govemments by this regulation and circular shall also be applicable
to private sponsors receiving Federal assistance under Title 49, United States
Code.
On December 26,2013 af 78 FR 78590, the Ofhce of Management and Budget
(OMB) issued the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards in 2 CFR Part 200. 2 CFR Part200
replaces and combines the former Uniform Administrative Requirements for
Grants (OMB Circular A-102 and Circular A-110 or 2 CFR Part275 or
Circular) as well as the Cost Principles (Circulars A-21 or 2 CFR part220;
Circular A-87 or 2 CFR paú225; and A-122,2 CFR part230). Additionally it
replaces Circular A-133 guidance on the Single Annual Audit. In accordance
with2 CFR section 200.110, the standards set forth in Part 200 which affect
administration of Federal awards issued by Federal agencies become effective
once implemented by Federal agencies or when any future amendment to this
Part becomes final. Federal agencies, including the Department of
Transportation, must implement the policies and procedures applicable to
Federal awards by promulgating a regulation to be effective by December 26,
2014 unless different provisions are required by statute or approved by OMB.
2
J
Airyort Sponsor Assurances 3/20 1 4 Page 4 of20
2.
5 Cost principles established in 2 CFR part200 subpart E must be used as
guidelines for determining the eligibility of specific types of expenses.
6 Arrdit requirements establishe din2 CFR part 200 subpart F are the guidelines
for audits.
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 aresolution, motion or similar action has been duly adopted or passed as
an official act of the applicant's governing body authorizingthe filing of the
application, including all understandings and assurances contained therein, and
directing and authorizingthe 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 ofhcial 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.
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 suffrcient funds available to assure operation and
maintenance of items funded under this grant agreement which it will own or control.
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.
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 tems, 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 with such performance by the
sponsor. This shall be done in a manner acceptable to the Secretary.
-).
4.
5.
Airport Sponsor Assurances 3/2014 Page 5 of 20
b.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 Tille 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.
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
govemment. 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 grantto 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.
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.
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.
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 suffrcient rights and authority to insure that the airport will
be operated and maintained in accordance Title 49, United States Code, the
regulations and the tems, conditions and assurances in this grant agreement and
shall insure that such arrangement also requires compliance therewith.
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. I 3 6 of Public Law 112-95 and the sponsor assurances.
d.
ûb.
Airport Sponsor Assurances 3/2014 Page 6 of20
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 airporl.
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 underlaken 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
canied 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.
I 0. Metropolitan Planning Organization.
In projects involving the location of an airport, an airport runway, or a major ruilÀ/ay
extension at a medium or large hub airport, the sponsor has made available to and has
provided upon request to the metropolitan planning organizalion 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.
I 1. Pavement Preventive Maintenance.
With respect to a project approved after January I, 1995, for the replacement or
reconstruction of pavement at the airport, it assures or certif,res 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 apublic 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 section 44706 of Title 49,
United States Code, and all the security equipment required by rule or regulation, and
Airport Sponsor Assurances 3/2014 PageT of20
has provided for access to the passenger enplaning and deplaning area ofsuch 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 granf, the total cost of the
project in connection with which this grant is given or used, and the amount or
nature ofthat portion ofthe cost ofthe project supplied by other sources, and such
other financial records pertinentto the project. The 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 pu{pose of audit and
examinatioî, aÍry 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 \ilage 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, in accordance with the
Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5), 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.
I 5. Veterants 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 vetetans, Persian Gulf veterans,
Afghanistan-Iraq war veterans, disabled veterans, and small business concerns owned
and controlled by disabled veterans as defined in Section 47112 of Title 49, United
States Code. 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,
Airport Sponsor Assurances 3/2014 Page 8 of20
specifications, and schedules shall also be subject to approval ofthe 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
ofsuch project as the Secretary shall deem necessary.
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
specihc 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 ofthis 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,
Airport Sponsor Assurances 3/2014 Page 9 of20
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 fuilherance of this assurance, the sponsor will
have in effect arrangements for-
1) Operating the airporl's aeronautical facilities whenever required;
2) Promptly marking and lightinghazards resulting from airport conditions,
including temporary conditions; and
3) Promptly notifying airmen 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.
Furlher, nothing herein shall be construed as requiring the maintenance,
repair, restoration, or replacement of any structure or 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.
2}.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
zoninglaws, 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 airpoft, of the noise
compatibility program measures upon which Federal funds have been expended.
22. Economic Nondiscrimination.
a. It will make the airporl 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, frrm, or corporation to conduct or
Airport Sponsor Assurances 3/2014 Page 10 of20
c.
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.
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.
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.
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
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.
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 fincluding, but not limited to
maintenance, repair, and fueling] that it may choose to perform.
In the event the sponsor itselfexercises any ofthe 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.
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 effrcient operation of the airport.
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.
d.
e.
(t
h.
Airport Sponsor Assurances 3/2014 Page 1l of20
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 hxed-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 ofaircraft 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
Tifle 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 selÊsustaining 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 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 airporl. The following
exceptions apply to this paragraph:
1) If covenants or assurances in debt obligations issued before September 3,
I982,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 airporl owner or
Airport Sponsor Assurances 3/2014 Page 12 of20
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 2}-year period) of any
airport improvement grant made to the private owner for any purpose other
than land acquisition on or after October I,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 l,1996.
3) Certain revenue derived from or generated by mineral extraction, production,
lease, or other means at a general aviation airport (as defined at Section 47102
of title 49 United States Code), if the FAA determines the airporl sponsor
meets the requirements set forth in Sec. 813 of Public Law II2-95.
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 Section 47I07 of Title 49, United
States Code.
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 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
Airport Sponsor Assurances 3/2014 Page 13 of20
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 govemment 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 afucraft 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, or
rights in buildings of the sponsor 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.
29. Airport Layout Plan.
a. 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
pulposes 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
Airport Sponsor Assurances 3/201 4 Page 14 of20
roads), including all proposed extensions and reductions of existing airport
facilities;
3) the location of all existing and proposed nonaviation 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 effrciency of the airport.
b. If a change or alteration in the airport or the facilities is made which the Secretary
determines adversely affects the safety, utility, or efhciency 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,
effrciency, and cost ofoperation 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 measuÍes necessary to ensure that no person in the United
States shall, on the grounds ofrace, creed, color, national origin, sex, age, or
disability be excluded from participation in, be denied the benefits of, or be otherwise
subjected to discrimination in any activity conducted with, or benefiting from, funds
received from this grant.
a. Using the definitions of activity, facility and program as found and defined in $$
21.23 (b) and 21.23 (e) of 49 CFR $ 2l,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. V/here it receives agrant or other federal financial assistance to
consfuuct, 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.
Airport Sponsor Assurances 3/2014 Page 15 of20
d.
3) Real Property. V/here the sponsor receives a grant or other Federal financial
assistance in the form of, or for the acquisition ofreal property or an interest
in real property, the assurance will extend to rights to space on, over, or under
such property.
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 pu{pose involving
the provision of similar services or benefits; or
2) So long as the sponsor retains ownership or possession of the property.
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@,inaccordancewiththeprovisionsofTit1eVIofthe
Civil Rights Act of 1964 (78 Sfat.252,42 U.S.C. $$ 2000d to 2000d-4) and the
Regulations, hereby notifies all bidders that it will afhrmatively ensure that any
contract entered into pursuant to this advertisement, disadvantaged business
enterprises and airport concession disadvantaged business enterprises will be
afforded full and fair opportunity to submit bids in response to this invitation and
will not be discriminated against on the grounds of race, color, or national origin
in consideration for an award."
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 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.
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 ofrace, color, national origin, creed, sex, age, or handicap as a
e.
Airport Sponsor Assurances 3/20 I 4 Page 16 of20
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, conttactors, subcontractors, consultants, transferees, successors in
interest, and other participants ofFederal 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 pulposes,
including land serving as a noise buffer, it will dispose of the land, when the land
is no longer needed for such pu{poses, atfair 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 ofthe 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 Section 47II7(e) of title
49 United States Code, (3) reinvestment in an approved airport development
project that is eligible for grant funding under Sections 47ll4,4llI5, or 47117 of
title 49 United States Code, (4) transferred to an eligible sponsoÍ of another public
airport to be reinvested in an approved noise compatibility project alfhat airport,
and (5) paid 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 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
prqposes, 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, (1) upon application to the Secretary, be reinvested or transferred to another
Airport Sponsor Assurances 3/2014 Page 17 of20
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 Section 47117(e) of title 49 United States Code, (3)
reinvestment in an approved airport development project that is eligible for grant
funding under Sections 47114,47115, or 47117 of title 49 United States Code, (4)
transferred to an eligible sponsor of another public airport to be reinvested in an
approved noise compatibility project atthal airport, and (5) paid 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 f,tnancial 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 ofthe uses ofsuch land, did not object to such use, and the land
continues to be used for that pu{pose, 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.
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 with respect
to the project in the same manner as a contract for architectural and engineering
services is negotiated under Title IX of the Federal Property and Administrative
Services Act of 1949 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 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 Specifïcations.
It will carry out the project in accordance with policies, standards, and specif,rcations
approved by the Secretary including but not limited to the advisory circulars listed in
the Current FAA Advisory Circulars for AIP projects, dated (the latest
approved version as ofthis grant offer) and included in this grant, and in accordance
Airport Sponsor Assurances 3/2014 Page 18 of20
with applicable state policies, standards, and specifications approved by the
Secretary.
35. Relocation and Real Properfy 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 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 airporl 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 tace, colot, 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. ln addition, the sponsor shall not discriminate on the basis of race,
color, national origin or sex in the administration of its DBE and ACDBE programs
or the requirements of 49 CFR Parts 23 and26. The sponsor shall take all necessary
and reasonable steps under 49 CFR Parts 23 and26 to ensure nondiscrimination in the
award and administration of DOT-assisted contracts, and/or concession
contracts. The sponsor's DBE and ACDBE programs, as requiredby 49 CFR Parts
26 and23, 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 and23 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 1936 (31 U.S.C. 3801).
38. Hangar Construction.
If the airport owner or operator and a person who owns an aircraft agree that ahangar
is to be constructed at the airport for the aircraft at the aircraft owner's expense, the
airport ownff 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.
Airport Sponsor Assurances 3/2014 Page 19 of20
39. Competitive Access.
a. If the airport owner or operator of a medium or large hub airport (as defined in
section 47102 of title 49, U.S.C.) has been unable to accommodate one or more
requests by an air carrier for access to gates or other facilities atthat 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 repoft shall be due on either February I or August I 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.
Airport Sporxor Assurances 3/2014 Page 20 of20
EXHIBIT E'D''
Exhibit "D"
DISCLOSURE OF CONFLICT OF INTEREST
September 11,2014
Date
Michael E. Holdgrafer
(name)
The Hertz Corporation
(company)
225 Brae Boulevard
(address)
Park Ridge, NJ 07656
between City of Fresno ("Fresno")
tAnd Ti"r- þt*l (1-v.r:o,,rz-,-lå nr-r ,lh¡ lþtrþ *"tI
YES*NO
1 Are you currently in litigation with the City of Fresno or any of its
agents?
tr m
2 Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
tr X
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?
tr K
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?
tr E
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?
n K
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?
!K
* lf the answer to any question is yes, please explain in full below.
Explanation:ttlttfl5.
Signature
I Additional page(s) attached.
(city state zip)
EXHIBIT E'8"
TENANT RENTAL CAR GROSS RECEIPTS REPORT
Fresno Yosemite lnternational Airport
Name of Rental Car Agency:
For Period:Through:
Total Monthly Gross Receipts (AIl business):
Total Number of Airport Transactions:
Total Customer Facility Charge (CFC) Rental Days:
Total Rental Days:
Fleet Size:
Staffing Level:
Airport Generated
Gross Receipts
for the Month (All
lncome)
Fee Rate
10%
Total Receipts Airports
Gross Reported
$0.00
Monthly MAG
Fees
Current Month
Fees Due
$0.00
Payment Due for Current Month:$0.00
I,do hereby certify that I am the
and that in accordance with the terms of our concession agreement,
there is set forth below, a true statement of our revenues received from our operations.
Prepared By:
of
Tte
Signature of Preparer:
Date:Phone:
lnstructions:
1: Complete report, leaving no space blank.
2: Please make check payable to Gity of Fresno, and remit with this originally signed report to:
City of Fresno
Airport Department
4995 E. Clinton Way
Fresno, C493727
Phone (559) 621-4500
Fax (559) 251-4825
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 agreement
IF CURRENT MONTH FEES DUE IS LESS THAN ZERO NO ADDITIONAL PAYMENT IS NECESSARY.
Exhibit "E"
EXHIBIT TTF''
City of Fresno
Dept. of Airports
4995 East Clinton Way
Fresno, C493727
Phone (559) 621-4500
Fax (559) 251-4828
Rental Car Company:
FRESNO YOSEMITE
INTF RNAT IONAT- AIRPORI'
Month of: Year:
$+.S per Day (max 5 days) (Effective 1,ltl2ltzl
Days Rate Total Due to Airport
rport-CFC x S+.SO
Notes:
Total Transactions
Total Rental Days
Submit report and fees by the 20th day of the month, for the prior month.
Wofe: An originally signed copy of your repoft must be remitted to the
address above in accordance with the terms of your concession
agreement
EXHIBIT "G"
FRESNO YOSEMITE
i ToncE oFANNUAL RENTALADJUSTMENT
(Based on USDLBLS Gonsumer Price lndex
for All Urban Gonsumers - All ltems
San Francisco)
February 11,2014 11:31 AM
RE: CONCESSION AGREEMENT
RENTAL CAR COMPANY A
The rental adjustment calculation shown to the right
was completed in keeping with the intent of the lease
for Common Use Space in the Ready Return Lot of
the Consolidated Rental Car Facility at Fresno
Yosemite lnternational Airpoft,
between
THE CITY OF FRESNO, CALIFORNIA
AND
RENTAL GAR COMPANY A
EFFEGTIVE:September 1,2014
MONTHLY RENTAL WILL BE: $1,051.88
lf you have any questions concerning this matter,
please contact the undersigned at (559) 621-4500.
Very truly yours,
Melissa A. Garza-Perry
Airports Properties Specialist ll
City of Fresno, Department of Airpofts
FRESNO YOSEMITE INTERNATIONAL AIRPORT
CONSOLIDATED RENTAL CAR FACILITY
COMMON USE AREA
DATE: February 11,2014'11:31 AM
ANNUAL RENTAL ADJUSTMENT COMPUTATION
FOR LEASE YEAR COMMENCING:
September 1,2014
USDLBLS CPI - JAN-DEC., 2012 ...........
2013
239.650 .
245.023 *
5.4
2.2420%
14,383.00
$1,031.26
0.8604
0.017208
USDLBLS CPI - JAN-DEC.,
AMOUNT OF CPI CHANGE
PERCENTAGE CPI CHANGE
SQUARE FOOTAGE
CURRENT MONTHLY RENTAL
CURRENT RENT P/SQ FTA/R
AMOUNT OF ADJUSTMENT
NEW MONTHLY RENTAL
AMOUNT OF ADJUSTMENT
0.8776
NOTE: 2% MAXIMUM APPLIES
$20.62
NEW MONTHLY RENTAL $1,051.
EFFEGTIVE: September 1,2014
Prepared by:CITY OF FRESNO
DEPARTMENT OF AIRPORTS
PROPERTIES SECTION
4995 EAST CLINTON WAY
FRESNO, CA 93727-1504
TELEPHONE: (559) 621-4500
FACSIMILE: (559) 251-4825
- PER USDL/BLSNOTES:
J:\RFP's and RFQ'S\RAC 2014 RFP\Drafts\Ready Rtn-Common Use Rental Adj Worksheet - Exhibit G >ds