HomeMy WebLinkAboutAlaska Airlines Airport Use & Lease Agreement 6/23/2022DocuSign Envelope ID: FADF5140-9ECA-422F-9217-85A271 F6CBF9
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FRESNO YOSEMITE
International Airport
AIRPORT USE AND LEASE AGREEMENT
WITH
ALASKA AIRLINES, INC.
An Alaska Corporation
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DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271 F6CBF9
Section 5.18 Right of Set Off ................................................................................... 35
ARTICLE 6 -SECURITY DEPOSIT ............................................................................. 36
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Section 6.01 Due Date, Type, Form and Amount of Surety
Section 6.02 Drawdowns by City
Section 6.03 Return/Surrender/Release of Surety by City
ARTICLE 7: INDENTURE OF TRUST ......................................................................... 37
Section 7.01 Subordination to Indenture of Trust.. ................................................... 37
Section 7 .02 Flow of Funds ..................................................................................... 37
ARTICLE 8: MAINTENANCE AND OPERATION OF AIRPORT .................................. 37
Section 8.01 City's Responsibilities ......................................................................... 37
Section 8.02 Airlines Responsibilities ...................................................................... 38
Section 8.03 City's Right to Inspect and Make Repairs ........................................... 39
Section 8.04 Alterations and Improvements ............................................................ 40
Section 8.05 Payment Bond ................................. ................................................... 40
Section 8.06 Leasehold Improvements ....................................................................40
Section 8.07 Debts, Liens, Mortgages ..................................................................... 40
ARTICLE 9: DAMAGE OR DESTRUCTION OF PREMISES ....................................... 41
Section 9.01 Damage or Destruction ....................................................................... 41
ARTICLE 10: INDEMNIFICATION, INSURANCE AND RELEASE .............................. 41
Section 10.1 Indemnification ................................................................................... 41
Section 10.2 Insurance ............................................................................................ 43
Section 10.3 Non-liability of City .............................................................................. 46
ARTICLE 11 : ASSIGNMENT AND SUBLETTING ....................................................... 46
Section 11.01 Merger, Assignment and Subletting .................................................... 46
Section 11.02 Relinquishment of Space .................................................................... 46
Section 11.03 Bankruptcy ......................................................................................... 47
Section 11.04 Consent .............................................................................................. 4 7
ARTICLE 12: DEF AUL TS ............................................................................................ 47
Section 12.01 Default ................................................................................................ 47
ARTICLE 13: TERMINATION ...................................................................................... 48
Section 13.01 Conditions of Leased Premises at Termination .................................. 48
Section 13.02 Events Permitting Termination by City ................................................ 48
ARTICLE 14: GENERAL PROVISIONS ....................................................................... 49
Section 14.01 Compliance with Law .......................................................................... 49
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Section 14.02 Notices
Section 14.03 Successors and Assigns Bound
Section 14.04 Governing Law, Venue and Attorney's Fees
Section 14.05 Subordination to Agreements with U.S. Government
Section 14.06 Nonwaiver of Rights
Section 14.07 Federal Aviation Act, Section 308
Section 14.08 Severability
Section 14.09 Headings
Section 14.10 Bad Checks
Section 14.11 Assignment by City or Other Successor in Interest
Section 14.12 Authorization
Section 14.13 Removal of Disabled Aircraft
Section 14.14 Quiet Enjoyment
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This Airport Use and Lease Agreement (Agreement) is made and entered into this 17 th
day of March, 2022, by and between the City of Fresno, a municipal corporation, (City or
Airport) and, Alaska Airlines, Inc., an Alaska Corporation admitted in good standing to do
business in California, (Airline) and collectively referred to as the "Parties".
RECITALS
WHEREAS, City is the owner and operator of Fresno Yosemite International Airport
located in the City of Fresno, County of Fresno, State of California, (Airport); and
WHEREAS, Airline is engaged in the business of commercial air transportation of persons,
property, cargo and mail as a scheduled air carrier and is certified or otherwise authorized by
the United States Government to engage in such business; and
WHEREAS, Airline wishes to provide commercial air transportation at the Airport on
a non-exclusive basis and in competition with other passenger carriers engaged in similar
businesses and, desires to enter into this Agreement, negotiated in common with all
similar incumbent passenger carriers for the use of the Airport and its facilities; and
WHEREAS, This Agreement shall supersede all previously executed agreements; and
WHEREAS, The City has the right to lease property at the Airport and to grant the use of
the Airport to Airline for the operation of Airline's passenger carrier service.
AGREEMENT
The Parties agree this Agreement is subject to the terms, covenants, conditions,
agreements, warranties, and provisions herein contained and Airline expressly covenants
and agrees, as a material part of the consideration for the Agreement, that Airline shall
fully and faithfully comply with, keep, perform and/or observe each and every term,
covenant, condition, agreement, warranty, and/or provision hereof to be complied with,
kept performed, and/or observed by Airline.
ARTICLE 1 -DEFINITIONS
Section 1.01 Meanings and Construction.
Except as otherwise clearly indicated by the context, the words and phrases defined in
this Section shall have the following meanings when used elsewhere in this Agreement.
Affi liate shall mean a passenger carrier that is designated by a Signatory Passenger
Carrier on forms in Exhibit J, which is (i) controlled by, controlling, or under common
control with a Signatory Passenger Carrier; or (ii) shares an International Air Transport
Association (IAT A) flight designator code with a Signatory Passenger Carrier at the
Airport (code sharing partner); or (iii) otherwise operates under essentially the same trade
name as a Signatory Passenger Carrier at the Airport or uses essentially the same livery
as Airline at the Airport. A Passenger Carrier shall only be deemed an Affiliate of a
Signatory Passenger Carrier during those times in which the Passenger Carrier is acting
for and on behalf of the Signatory Passenger Carrier.
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starting from the first full Fiscal Year after the DBO of the project. For projects put in
service prior to July 1, 2022, the interest rate shall be zero percent.
Annual True-up shall mean the recalculation of Airline Rates and Charges of a Fiscal
Year after the end of such Fiscal Year based on actual results pursuant to Article 5.
Bond(s) shall mean all bonds, notes, or other obligations issued by the City pursuant to
the Indenture of Trust.
Capital Allowance shall mean an annual allowance for capital projects of four million
dollars
($4,000,000). The Capital Allowance may be adjusted if the Agreement is extended
beyond the initial five (5) year term.
City shall mean the City of Fresno California, a municipal corporation.
City Airports shall mean the airport known as the Fresno Yosemite International Airport,
located within the City, and the airport known as the Fresno Chandler Executive Airport,
located within the City, each as it now exists, including, without limitation, runways,
taxiways, landing pads, aprons, beacon sites, obstruction lights, navigational and landing
aids, control towers, facilities for storage of aircraft and for parking of automobiles,
roadways, passenger and freight terminals, land, easements and rights in land for clear
zone and approach purposes, maintenance hangars and related facilities and all
equipment, buildings, grounds, facilities, utilities and structures owned, leased or
operated in connection with or for the promotion or the accommodation of air commerce
and air navigation and services in connection therewith, together with all additions,
betterments, extensions, replacements, renewals and improvements thereto which may
hereafter be undertaken, and any future airport or aviation facilities, or any interest
therein, from time to time hereafter owned, operated or controlled in whole or in part by
the City and determined by the City to be a part of the City Airports.
Collecting Carrier means an issuing carrier or other carrier collecting a PFC, whether or
not such carrier issues the air travel ticket.
Common Use Facilities Policy and Procedures Manual (Common Use Policy) shall mean
the policy and procedures manual provided by Director of Aviation, which describes the
procedures lawful, reasonable, and impartial rules and regulations, including ordinances
and operating directives, promulgated by the Director of Aviation or the City from time
to time for the orderly operation of the Airport.
Common Use Formula shall mean the formula for apportionment of the total monthly
rental for Common Use Space, net of Non-Signatory Charter Carrier Terminal Use Fee
payments if any, among the Signatory and Non-Signatory Passenger Carriers using the
Common Use Space on the basis of: (a) twenty percent (20%) of the total monthly rental
apportioned evenly among all Signatory and Non-Signatory Passenger Carriers using
such space for the month; and (b) the remaining eighty percent (80%) of the total monthly
rental prorated among all Signatory and Non-Signatory Passenger Carriers using such
space on the basis of the ratio of each airline's Enplaning Passengers at the Airport
divided by the total number of Enplaning Passengers at the Airport of all Signatory and
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storage, transportation, or disposal of Hazardous Materials, including, without limitation,
the Clean Air Act, 442 U.S.C. §7401 et seq.; the Clean Water Act, 33 U.S.C. §1251
et seq., as amended by the Water Quality Act of 1987; the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. §136 et seq.; the Marine Protection, Research,
and Sanctuaries Act, 33 U.S.C. §1401 et seq.; the Noise Control Act, 42 U.S.C. §4901
et seq.; the Occupational Safety and Health Act, 29 U.S.C. §651 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq., as amended by the
Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42
U.S.C. §300f et seq.; the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C §9601 et seq., as amended by the Superfund
Amendments and Reauthorization Act, the Emergency Planning and Community Right
to Know Act, and the Radon Gas and Indoor Air Quality Research Act; the Hazardous
Material Transportation Act, 49 U.S.C. §5101 et seq.; and the Toxic Substance Control
Act, 15 U.S.C. §2601 et seq.; the Atomic Energy Act, 42 U.S.C. 2011 et seq.; and the
Nuclear Waste Policy Act of 1982, U.S.C. §1010 et seq.
Environmental Permits shall mean any and all permits, licenses, approvals,
authorizations, consents, or registrations required by Environmental Laws, whether
federal, state or local, which pertain to the production, use, treatment, generation,
transportation, processing, handling, disposal, or storage of Hazardous Materials.
Event of Default shall mean an Event of Default as referred to in Article 7 and as defined
in Section 9.01 of the Indenture of Trust.
Exclusive Use Space shall mean the areas within the Terminal Building, as depicted
on Exhibit B, in which Airline has the exclusive right of use in accordance with this
Agreement.
Fede ral Aviat ion Adm inistration or FAA shall mean the Federal Aviation Administration
or any successor agency thereto.
FIS Facility or FIS shall mean federal inspection services facilities as shown on Exhibit
A, as may be modified, renovated and enlarged.
FIS Fee Rate shall mean the rate for each FIS User established pursuant to Section 5.04.
FIS Facility Cost Center shall mean and refers to FIS Facility and includes meeters and
greeters area .
FIS Facil ity Project shall mean the renovation and expansion of the FIS Facilities, as
depicted by the City in the 2019 Master Plan for the Airport.
FIS User(s) shall mean a passenger arriving on international flights using the FIS Facility
at the Airport.
Fiscal Year or FY refers to the City's fiscal year and shall mean the twelve-month
period commencing July 1 and extending through June 30 of the following calendar
year, or such other fiscal year as the City may establish by ordinance.
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and Terminal Building Rental Rate divided by Enplaned Passengers of all Passenger
Carriers using the Terminal Building Common Use Space and multiplied by One Hundred
and Twenty-five Percent (125%).
Notice shall mean a communication between the Parties to this Agreement performed
in accordance with the requirements of Section 14.02.
Operating Expenses shall mean the reasonable and necessary costs of operating,
maintaining and administering the City Airports, as defined in the Indenture of Trust.
Operating Reserve Fund shall mean Operating Reserve Fund as defined in the Indenture
of Trust.
Other Buildings and Areas shall mean buildings and areas at the Airport that are not part
of the Airfield Area, Terminal Building or FIS Facility.
Passenger Carriers shall include Signatory Passenger Carriers, Non-Signatory
Passenger Carriers, and Non-Signatory Charter Carriers.
Passenger Facility Charge or PFC shall mean charges imposed by the City pursuant
to 49 U.S.C. § 40117and 14 C.F.R. Part 158, as amended or supplemented from time to
time.
Preferential Use Positions shall mean means those Gates, Aircraft Parking Positions
and Common Use Ticket Counter Position within the Terminal Building, as depicted on
Exhibit B.
Rate Covenant shall mean Section 8.11 of the Indenture of Trust as hereafter may be
amended.
Rentable Space shall mean the number of square feet of space in the Terminal Building
that is rentable to tenants, excluding public space, FIS Facility space, space used by City
or the City's contractor and other space used by federal agencies for which City receives
no rent, as may be determined by the Director of Aviation.
Rents, Fees, and Charges shall mean for any Fiscal Year, all rents, fees, and charges
payable by Airline pursuant to Article 5. The definition of Rents, Fees, and Charges
excludes Passenger Facility Charge.
Rolling Debt Service Coverage shall go into effect at DBO, and shall amount to 25 percent
(25%) of the Debt Service for the Fiscal Year being calculated less 25 percent (25%) of
the Debt Service for the prior Fiscal Year, plus similar coverage requirement for the
Subordinated Indebtedness if any.
Security Deposit shall mean an irrevocable letter of credit or another instrument
acceptable to the City provided pursuant to Article 6.
Security Fee shall mean the fee imposed on each Enplaned Passenger by the City to
recover security related expenses, pursuant to Section 5.06. A Consumer Price Index
adjustment may be applied to the Security Fee if the Agreement is extended beyond the
initial five (5) year term.
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B. The terms "hereby," "herein," "hereof," "hereto," "hereunder," and any similar
terms used in this Agreement refer to this Agreement.
C. Words importing persons shall include firms, associations, partnerships, trusts,
corporations, and other legal entities, including public bodies, as well as natural
persons.
D. Any headings preceding the text of the articles and sections of this Agreement,
and any table of contents or marginal notes appended to copies hereof, shall
be solely for convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction, or effect.
E. Words importing the singular shall include the plural and vice versa. Words of any
gender shall be deemed to include correlative words of the other gender.
F. The term "including" shall be construed to mean "including without limitation,"
unless otherwise expressly indicated.
G. All references to number of days shall mean calendar days.
H. Words used in the present tense include the future.
ARTICLE 2 -TERM OF THE AGREEMENT
Section 2.01 Term
The term of this Agreement shall commence on July 1, 2022, and shall expire at
midnight on June 30, 2027, unless sooner terminated pursuant to the provisions hereof.
Section 2.02 Condition Under Which the Agreement Becomes Effective
The Agreement becomes effective if executed by Airlines accounting for at least 75% of
Signatory Passenger Carriers' and Signatory Cargo Carriers' total Landed Weight from
May 2021 -August 2021.
Section 2.03 Options to Extend
A. First Option: The first option to extend the term of this Agreement will be for an
additional period of five (5) years, thereby ending June 30, 2032, upon the mutual
agreement, in writing by side letter, of the City and the Signatory Passenger
Carriers. The Signatory Passenger Carriers' and Signatory Cargo Carriers
accounting for a combined total Landed Weight of no less than 67% for the
calendar year 2025, must agree to the option, and written Notice must be given
to the City prior to October 1, 2026. Upon receipt of this Notice, the City must
notify the Signatory Passenger Carriers of its mutual agreement to extend the term
of this Agreement prior to January 1, 2027. Signatory Passenger Carriers will be
allowed to evaluate and adjust their space needs following the initial five (5) year
term, and by no later than April 30, 2027, provide the City their adjusted space
needs, if any.
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B. Use in Common of Terminal Building. Airline shall have the right to use, in common
with, and subject to the rights of others so authorized, the public areas and public
facilities of the Terminal Building.
C. Use in Common of Airfield Area. Airline shall have the right to use the Airfield
Area, in common with others so authorized, to land, takeoff, fly over, taxi, tow,
park, and condition Airline's aircraft. Airline shall have the right to park, service,
deice, load, unload, and maintain Airline's aircraft and support equipment in areas
designated by the City, subject to the availability of space. Airline shall not
knowingly permit, without the consent of the City, the use of the Airfield Area
or any portion thereof by any aircraft operated or controlled by Airline that exceeds
the design strength or capability of such area as described in the then-current
FM-approved Airport Layout Plan (ALP) or other engineering evaluations
performed subsequent to the then-current ALP, including the then-current Airport
Certification Manual, a copy of which shall be provided, upon request, by the City
to Airline.
D. Airline Operations. Airline shall have the right to handle reservations, sell tickets;
document shipments; and load and unload ( i) persons through passenger
loading bridges affixed to the terminal structure, (ii) property, (iii) cargo, and (iv)
mail, including interlining with other airlines. Airline shall also be permitted to
engage in the following activities at the Airport:
1. The operation of an air transportation system by aircraft for the carriage of
persons, property, and mail, for compensation or hire, on a reasonable and
not unjustly discriminatory basis, including all activities reasonably
necessary to such operation including advertising and marketing associated
with services offered by Airline and/or its partners.
2. The landing, taking off, flying over, taxiing, pushing, towing, loading,
unloading, fueling, repairing, maintaining, conditioning, servicing, parking,
storing, and testing of aircraft or other equipment of or operated by Airline,
or other certificated air transportation company with which City has an
applicable agreement, including the right to provide or handle all or part of
the operations or services of such other company, all of which are subject
to this Agreement.
3. The sale of tickets, documentation of shipments, handling of reservations,
and the loading and unloading of persons, property, cargo, and mail at the
Airport by such motor vehicles or other means of conveyance as Airline may
desire to use in the operation of its air transportation system. However, City
reserves the right to require any ground transportation commercial carrier
(including Airline) regularly transporting persons to and from the Airport to
first secure and thereafter hold a valid lease, license, permit, or other
agreement with City for the right to carry persons to and from the Airport
and shall pay City such rentals, fees, charges, and/or percentages of the
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10.
11 .
12.
13.
The installation, maintenance, and operation, at no cost to City, of such
radio, communication, meteorological, and aerial navigation equipment and
facilities at suitable locations on the Airport. The location of such equipment
and facilities, method of installation, and type of equipment shall be subject
to the prior written approval of City, and shall conform with all applicable
federal, state, and local requirements. Airline is required to input and
maintain flight information in the Multi-User Flight Information Display
System (MUFIDS) installed by City to display flight information. Airline may
use its own FIDS in its Leased Premises subject to the prior written consent
of Director of Aviation and subject to such reasonable conditions as Director
of Aviation may require.
In order to maximize the utilization of hold room check-in podiums, hold room
areas and other passenger facilities in the Terminal Building, City reserves
the right, but is not hereby obligated, to install and require Airline to use
common use gate information display technology and/or equipment (not to
include Airlines customer service automation equipment). Until such time
as City installs such equipment, Airline may install, at Airline's cost,
identifying signs and/or gate information displays ("signage") at the podium
in the holdroom of the Gate(s) assigned to Airline and/or other locations
approved by City. City shall reasonably establish standards and/or
guidelines regarding the dimensions, materials, and content of such signs,
and the method of attaching the sign to the designated location. Any
signage installed by Airline shall be at the risk of Airline. In the event that
Airline shall be no longer assigned the use of the Gate(s), then, upon the
request of City, Airline shall promptly remove such signage at Airline's
expense.
The provision of baggage porter skycap service, curbside airline baggage
check-in services in the public areas of the Terminal Building. Airline may
arrange with other airline to provide such services or may provide such
services on its own behalf. Airline shall notify the City in writing as to what
company is providing such services at the Airport. City reserves the right to
require third party companies to enter into a lease or permit with the City for
such services provided to Airline.
The rights and privileges granted Airline under this Agreement with respect
to the performance of ground services and activities in connection with its
Air Transportation Business at the Airport may be exercised by Airline only
for and on behalf of Airline for its regularly scheduled or unscheduled
service and that of its affiliates, subsidiaries, and code share partners
identified in this Agreement. Airline may, subject to the prior written
approval by City, perform ground services for any Air Transportation
Business using the Airport provided said company has executed an
operating agreement or permit with the City and further provided that said
company agrees to report its activity or arranges to have Airline report its
activity in the manner described in this Agreement.
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8 .
C .
D .
E.
F .
Shall not do or permit to be done anything, either by act or failure to act, that shall
cause the cancellation or violation of the provisions, or any part thereof, of any
policy of insurance for the Airport, or that shall cause a hazardous condition so as
to increase the risks normally attendant upon operations permitted by this
Agreement. If Airline shall do or permit to be done any act not permitted under this
Agreement, or fail to do any act required under this Agreement, which act or failure,
in and of itself, causes an increase in City's insurance premiums, Airline shall
immediately remedy such actions and/or pay the increase in premiums.
Shall not dispose of or permit any employee, agent or contractor of Airline to
dispose of any waste material, including but not limited to deicing materials, toxic
waste, hazardous substance , hazardous waste, and Hazardous Materials
(including hazardous materials as defined by federal and State of California
regulations) except in accordance with controlling laws.
Shall not keep or store any Hazardous Materials such as flammable liquids and
solids, corrosive liquids, compressed gases, or magnetized or radioactive
materials on the Airport except when all the following conditions are met: (1) such
Hazardous Materials are stored in accordance with applicable standards
established by National Fire Protection Association, any liquids having a flash point
of less than one hundred degrees (100°) Fahrenheit shall be kept and stored as
specified by NFPA #30; (2) said Hazardous Materials are under the control and
care of designated and properly trained Airline personnel; (3) said Hazardous
Materials are packaged , handled and stored in compliance with applicable
Environmental Law including but not limited to: U.S. Department of Transportation,
Environmental Protection Agency, and other applicable regulations for transport,
pre-transport and storage of hazardous articles and materials; and (4) said
materials shall be only stored in such storage areas as are designated and
approved by Director of Aviation.
Shall not install fuel storage tanks and pumping facilities for use in fueling any
aircraft at the Airport without prior written approval of City. The granting of the right
to store aviation fuels shall be subject to the execution of a separate agreement
between Airline and City.
Shall not maintain or operate in the Terminal Building or elsewhere at the Airport
a cafeteria, restaurant, bar or cocktail lounge for the purpose of selling or
dispensing food or beverages to the public or passengers; nor shall Airline in any
manner otherwise provide for the sale or dispensing of food and beverages at the
Airport except that the Airline may provide vending machines solely for the sale of
hot and cold beverages, food and confections to Airline employees in areas not
accessible to the general public. Airline may dispense snacks, drinks, and/or in
flight meals at the Gate to only those persons traveling on such flight. Airline may,
by separate agreement with the City and to the extent it does not conflict with any
terminal concession agreements, engage in the provision or sale of food or
beverages at any A irline clubroom or similar private facility at the Airport. These
provisions shall not apply to snacks or drinks provided to passengers by the Airline
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A . Airline shall not do or permit its agents, employees, and its contractors or
suppliers, while such contractors or suppliers are providing services to Airline, to
do anything at the Airport that would be in conflict with or violate the
requirements of any federal, state, or local law, regulation or security directive
regarding airport security, as they may be amended from time to time, or the
Airport's security program.
B . Airline shall be responsible for obtaining and coordinating any security badging,
vehicle decals, and/or any other actions required to ensure that Airline's agents,
employees, contractors, or suppliers are in compliance with the City's approved
security plan, and any federal regulation and security directive regarding airport
security, as they may be amended from time to time. Airline shall be responsible
for all costs associated with obtaining such badge and/or access privileges.
Section 3.06 Reassignment, Reallocation, Redesignation, Relocation and/or
Recaptu re of Leased Premises
City may reassign, reallocate, re-designate and/or relocate Airline's Leased Premises as
City, in its reasonable discretion, determines is necessary, after sixty (60 days) written
notice to the Airline, under the operational needs of the Airport. The reasonable costs of
any such reassignment, re-designation, reallocation or relocation shall be paid by the City.
ARTICLE 4 -PREMISES
Section 4.01 General
The City intends to maximize the utilization and flexibility of current Airport facilities to
meet changing air service demands.
Section 4.02 Leased Premises
A. Common Use Space: The City hereby leases to Airline, subject to the provisions
of this Agreement, the Common Use Space as shown on Exhibit A. Airline
accepts the Common Use Space in "As Is" condition, with no warranties or
representations, expressed or implied, oral or written, made by the City or any
of its agents or representatives; provided, however, that this Subsection 4.02A
shall in no way diminish the City's obligations as otherwise provided for in this
Agreement.
B . Exclusive Use Space: The City hereby leases to Airline, subject to the provisions
of this Agreement, the Exclusive Use Space as shown on Exhibit B. Airline
accepts the Exclusive Use Space in "As Is" condition, with no warranties or
representations, expressed or implied, oral or written, made by the City or any
of its agents or representatives; provided, however, that this Subsection 4.028
shall in no way diminish the City's obligations as otherwise provided for in this
Agreement.
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B. All Gates shall remain as Common Use Space as defined in and as further
explained in the Common Use Policy provided that such the Common Use Space
designation shall not contravene the Airlines rights of its Preferential Use Position
for its "operations as scheduled".
Section 4.04 Use of Loading Bridges
A. Any loading bridges financed and maintained by City shall be made available to all
airlines serving the Airport on a Common Use basis unless assigned for
Preferential Use Position.
B . The use of City-owned loading bridges shall be subject to the following terms and
conditions:
1. The bridges shall be operated only by employees or agents of Airline, but
no such employees or agents shall be permitted to operate the bridges until
they have satisfactorily completed a course of instruction conducted by City
or City's designee in the proper use and operation of the bridges, and have
received a certificate or written notice from City or City's designee qualifying
them to operate the bridges .
2. City and Airline each shall be solely responsible for any and all damages,
claims, or injuries which may be caused by the negligent use of the bridges
by their respective employees, agents, or servants, and each shall
indemnify, defend and hold harmless the other and their respective officers,
agents, and employees from any and all demands, losses, liabilities, or
judgments and all claims of every kind and character, together with costs
and expenses incident thereto, arising from or as a result of negligent acts
or omissions thereof in connection with or arising from use of the loading
bridges, provided that City's liability shall not exceed the lesser of proceeds
payable from its self-insurance retention or $1,000,000. Each party shall
notify the other, in writing, of any claims , damages, or injuries promptly after
discovery of same by the party charged with giving notice.
3 . Airline shall be solely responsible for any damage to bridges caused by the
action of its employees or agents.
4 . City, during the term of this Agreement, shall maintain and keep in good
repair the loading bridges.
Section 4.05 Accommodati on in City-Controlled Facilities
The City may retain under its exclusive control and possession certain facilities in the
Terminal Building, including , initially, the facilities described and shown on Exhibit A.
It is the intent of the City to use, at its discretion, any of the City-controlled facilities to
accommodate: (i) airlines not requiring permanent facilities or airlines requiring
temporary accommodation pending allocation of permanent facilities , and (ii) the needs
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parts. Airline agrees to reimburse City for any net costs incurred by City if City
elects to remove or dispose of Airline's property after such thirty (30) day period.
C. Ownership of any and all property not removed by Airline within the said thirty (30)
day period shall, at the option of City, vest in City.
Section 4.09 Access
A. Subject to the provisions hereof and such restrictions as City may impose with
respect to Airline's use of the Leased Premises pursuant hereto, City hereby grants
to Airline, its agents, suppliers, employees, contractors, passengers, guests, and
invitees, the right and privilege of free and unrestricted access, ingress, and egress
to the Leased Premises and to public areas and public facilities of the Terminal
Building.
B . The ingress and egress provided for in Section 4.09(A) shall not be used, enjoyed,
or extended to any person engaging in any activity or performing any act or
furnishing any service for or on behalf of Airline that Airline is not authorized to
engage in or perform under the provisions hereof unless expressly authorized in
writing by City.
C . City shall have the right at any time to close, relocate, reconstruct, change, alter,
or modify any such means of access provided for Airline's use pursuant to this
Agreement or otherwise, either temporarily or permanently, provided that
reasonable notice to Airline and a reasonably convenient and comparable means
of access, ingress, and egress shall exist or be provided in lieu thereof. City shall
suffer no liability by reason thereof and such action shall in no way alter or affect
any of Airline's obligations under this Agreement.
ARTICLE 5 -CALCULATIONS OF RENTS, FEES AND CHARGES
Section 5.01 Coord in ation Process
Effective July 1, 2022, and for each Fiscal Year thereafter for the term of this Agreement,
Airline Rates and Charges shall be calculated based on the principles and procedures
set forth in this Article. The methodology for the calculation of Airline Rates and
Charges described in this Article is illustrated in Exhibit D, Exhibit F, and Exhibit
G.
A. On or about February 15 of each year, the City shall provide Airline's properties
representative with a calculation of the Signatory Credit, as illustrated in Exhibit
H.
8. On or about April 1 of each year, the Signatory and Non-Signatory Passenger
Carriers, including Airline, shall provide the City with an estimate of their Landed
Weights of all aircraft expected to be landed at the Airport during the ensuing Fiscal
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3. Amortization Charges; plus
4. Operating Expenses; plus
5. Required deposit to the Operating Reserve Fund, if any; minus
6. Airfield Area Credit; plus or minus
7. Result of Annual True-up of the applicable prior Fiscal Year; equals
8. Airline Airfield Area Net Requirements, divided by
9. Landed Weight of Passenger Carriers and Cargo Carriers, equals
1o. Landing Fee Rate
B . The Airfield Area Credit is made up of the following annual amounts:
1. Military use fees;
2. Fuel flowage fees;
3. Tower area rentals;
4. Government land rentals;
5. U.S. Forest Service landing fees;
6. COVID-19 Federal Operating Grants
C . Activities in Section 5.03, 5.04, 5.05, 5.06, 5.09, 5.10 and 5.11 shall include the
activities of each Signatory Passenger Carrier's Affiliates.
Section 5.04 FIS Fee Rate
A. FIS Fee Rate shall be calculated by adding and subtracting the following amounts
allocable to the FIS Facility Cost Center, as listed below:
1.-Debt Service (net of PFC revenues applied to eligible debt service, if any);
plus
2 . Rolling Debt Service Coverage; plus
3 . Amortization Charges; plus
4 . Operating Expenses; plus
5 . Required deposit to the Operating Reserve Fund, if any; minus
6. Applicable credits including COVID-19 Federal Operating Grants; plus or
minus
7. Result of Annual True-up of the applicable prior Fiscal Year; equals
8. Airline FIS Net Requirements, divided by
9. FIS Users, equals
10. FIS Fee Rate
A. The maximum FIS Fee Rate shall not exceed $12.00 per FIS User through the
D8O of the FIS Facility Project, or $15.00 thereafter for the remaining term of this
Agreement.
B . The City will use its best efforts to obtain the Port of Entry status, which would
transfer the staffing of the FIS Facility to the CBP, resulting in a decline of the
calculated FIS Fee Rate.
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B. For the use of FIS Facility, the product of (a) FIS Users of the Non-Signatory
Passenger Carrier and (b) One Hundred and Twenty-five Percent (125%) of FIS
Fee Rate.
C . Other charges that may be established by the City pursuant to Section 5.06.
Section 5.08 Charges fo r No n-S ig nat ory Charter Carrier
The City shall charge Non-Signatory Charter Carriers fees and charges published in the
Master Fee Schedule.
Section 5.09 Passenger Facility Charge (PFC)
A. City shall have the right to assess passengers a PFC for the use of the Airport in
accordance with the requirements of 14 CFR Part 158 ("PFC Regulations") and
any other relevant governmental directives, statutes, orders or provisions. In
accordance therewith and to the extent required by 14 CFR Part 158, the
Collecting Carrier shall collect on behalf of and remit to City any such PFC charges.
Any charges so collected shall, pending remittance to City, be held in trust in
accordance with federal law. City shall have the right to use all such passenger
facility charges collected in any lawful manner.
B . Collecting Carrier and City shall be bound by and shall observe all of the provisions
of 14 CFR Part 158 and any other relevant governmental directives, statutes,
orders or provisions, as they apply to either or both parties.
C. If Collecting Carrier fail(s) to collect, maintain in trust and remit PFC revenue to the
City within the time limits and in the manner established by federal regulation,
Collecting Carrier shall be deemed to be in default of this Agreement. Any late
payment of PFCs shall be subject to interest compounded in accordance with
Section 5.14, to the extent allowed by law.
D . PFCs to be Held in Trust for the City
1. In the event that Collecting Carrier fails to make payments of PFCs to City in
accordance with the PFC Regulations and within ten (10) calendar days after
receipt of a written notice of non-payment from City, City may require Collecting
Carrier to establish a PFC trust account pursuant to this section 5 .09. In the
event City requires Collecting Carrier to establish a PFC trust account, and
notwithstanding Section 158.49 of the PFC Regulations, upon receipt of PFCs
that are collected by Collecting Carrier, Collecting Carrier shall at its own cost
establish and shall deposit the net principal amount of such PFCs in a trust
account for City's benefit (the "Trust Account"). City and Collecting Carrier
agree that the Trust Account shall be held in the name of Collecting Carrier as
trustee for City provided that City and Collecting Carrier mutually agree to terms
upon which amounts may be withdrawn from such account upon the joint
direction of City and Collecting Carrier. If City and Collecting Carrier do not so
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If, at any time during any Fiscal Year, the City estimates that the total costs attributable
to the Terminal Building and Airfield Area Cost Centers, or the aggregate Landed Weight
for Passenger Carriers and Cargo Carriers, or the enplanement forecast, will vary 10%
or more from the estimates used in setting Airline Rates and Charges in accordance with
the provisions of Article 5, such rates may be adjusted based on the new estimates and
in accordance with the principles and procedures set forth in this Article. The City shall
notify Airline of any such rate adjustment, along with a written explanation of the basis for
such rate adjustment, 30 days prior to the effective date of the new rates. Unless
extraordinary circumstances warrant additional adjustments, the City shall limit any such
rate adjustments to no more than once during each Fiscal Year.
During any Fiscal Year, if the City anticipates that the minimum annual debt service
coverage ratio of 1.25 times may not be met, as required by the Rate Covenant, the City
will adjust Airlines Rates and Charges as necessary, including using Rentable Space
instead of Usable Space in Section 5.02 Item A.8, and modifying Airfield Area Credits in
Section 5.03 item 8.
Section 5.11 An nual True -up
A. As soon as possible following the completion of the annual audit for a Fiscal
Year, the City shall recalculate Airline Airfield Area Net Requirement, Airline FIS
Net Requirement, and Airline Terminal Building Net Requirement based on actual
audited data, and compare actual requirements to collected requirements.
Variances shall be addressed as detailed below:
1. If the actual Airline Airfield Area Net Requirement exceeds the collected
Airline Airfield Area Net Requirement, the underpayment shall be added to
the Airline Airfield Area Net Requirement in the ensuing Fiscal Year.
2. If the actual Airline FIS Net Requirement exceeds the collected Airline FIS
Net Requirement, the underpayment shall be added to the Airline FIS Net
Requirement in the ensuing Fiscal Year.
3. If the actual Airline Terminal Building Net Requirement exceeds the
collected Airline Terminal Building Net Requirement, the underpayment
shall be divided by the Leased Premises of Passenger Carriers and add to
the calculation of Terminal Building Rental Rate in the ensuing Fiscal Year.
4. If the actual Airline Airfield Area Net Requirement is less than collected
Airline Airfield Area Net Requirement, the overpayment shall be subtracted
from the Airfield Area Net Requirement in the ensuing Fiscal Year.
5. If the actual Airline FIS Net Requirement is less than collected Airline FIS
Net Requirement, the overpayment shall be subtracted from the Airline FIS
Net Requirement in the ensuing Fiscal Year.
6. If the actual Airline Terminal Net Requirement is less than collected Airline
Terminal Net Requirement, the overpayment shall be divided by the Leased
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Signatory Cargo Carriers, subject to annual maximum amount of two million dollars
($2,000,000). The unused amount of the Signatory Credit, if any, shall continue to
be applied in the ensuing Fiscal Year.
C. The cumulative amount of the Signatory Credit earned during the initial term of this
Agreement shall not exceed seven million and five hundred thousand dollars
($7,500,000).
D. If Airline ceases operation at the Airport, resulting in Signatory Credit exceeding
the remaining invoice amount, the difference shall be kept by the City and used for
any lawful purposes.
E . To the extent that Rate Covenant is not projected to be met in a given Fiscal Year,
the City shall have the right to postpone the Signatory Credit.
Section 5.13 Monthly Activity Report
A. Airline shall furnish to Director of Aviation on or before the fifteenth (15th) day of
each month, an accurate written report of Airline's operations at the Airport during
the preceding month, setting forth all data necessary to calculate the rentals, fees,
and charges due under this Agreement. The report form shall be provided by the
Director of Aviation and shall include, but shall not necessarily be limited to (a copy
of the report is attached hereto and incorporated herein as Exhibit K:
1. Airline's total number of aircraft arrivals for the month by type of aircraft, the
maximum certificated gross landing weight of each aircraft, and the total
airline landed weight for the month to include any non-scheduled and
charter operations;
2. Total number of enplaning and deplaning passengers of Airline and aircraft
of other airlines handled by Airline (so long as those handled airlines are
not otherwise required to report on those same aircraft);
3. Weight of cargo freight, mail, and express for the month; and
4. Other such information that City may reasonably request from Airline to
prepare airline invoices and establish and assess rates and charges.
8. If Airline fails to furnish Director of Aviation with the report required by Section 5.13
(A) by the date specified within Section 5.13(A), then Airline's rentals, fees, and
charges, as provided for the month thereafter, shall be determined by assuming
that Airline's Total Airline Landed Weight and Enplaned Passengers for such
month was one hundred twenty-five percent (125%) of its Total Airline Landed
Weight and Enplaned Passengers during the most recent month(s) for which such
data are available for Airline and by applying the rates of the Fiscal Year. Any
necessary adjustment in such rentals, fees, and charges shall be calculated after
an accurate report is delivered to Director of Aviation by Airline for the month(s) in
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and delivered or wired, as applicable, to the following address or account, or to
such other address or account as City by service of written notice upon Airline ,
may otherwise direct the payment thereof from time to time during the term hereof:
Via Mail/Express
City of Fresno -Airports
Fresno Yosemite International Airport
Attn.: Airport Accounting
4995 East Clinton Way
Fresno, CA 93727-1504
Section 5.16 Taxes
Airline shall pay all taxes of whatever character that may be lawfully levied, assessed, or
charged upon the property, real and personal, occupied, used , or owned by Airline, or
upon the rights of Airline to occupy and use the premises and emolument received
thereby, or upon Airline's rights or operations hereunder or services provided by Airline
at the Airport. Airline shall have the right, at its sole cost and expense , to contest the
amount or validity of any tax. 1
Section 5.17 Records of Airlin e
Airline shall make available to City, upon the written request of the City , at the offices of
the Airline at the Airport such books, records and accounts, or photocopies thereof, that
are relevant to payment of rentals, fees and charges required under this Agreement for
the current year and the preceding calendar year, and shall make such records, or
photocopies thereof, available for inspection and audit by City or its authorized
representative at reasonable and mutually agreed upon hours and times during the entire
term of this Agreement and for two (2) years thereafter.
Section 5. 18 Right of Set Off
The City shall have the right to set off any past due amount(s) by applying all or a portion
of current payments to such past due amount(s). In the event a disputed charge becomes
past due, if resolved in favor of Airline, said overpaid amounts shall be credited to the
next amount due under this Agreement. If the Agreement is terminated, it shall be
credited to amounts due by or to Airline. Past due amounts may include sums due on
prior agreements, this Agreement or for usage of the Airport as a Non-Signatory Airline.
In the event the City exercises the right, it shall notify Airline. Airline shall be responsible
for promptly submitting such a sum as will reflect the total amount needed to satisfy
current amounts due. Regardless of the foregoing, City shall not have the right to offset
past due amounts which Airline has notified the City, in writing, are disputed by Airline,
1 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 (City) is a taxable possessory
interest unless the possessor of interest in such property is exempt from taxation. With regard to any possessory interest to be
acqu ired by Airline under th is Agreement, Airline, by its signatures hereunto affixed , warrants , stipulates, confirms, acknowledges and
agrees that, prior to executing this Agreement, Airline either took a copy of this Agreement to the office of the Fresno County Tax
Assessors or by some other appropriate means independent of City or any employee, agent, or representative of City determined, to
Airline 's full and complete satisfaction , how much Airline will be taxed, if at all .
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C. In the event City finds it necessary to draw down on the surety instrument more
than two times for any reason, the third draw down shall itself constitute grounds
for default and breach of this Agreement by Airline.
Section 6.03 Return/Surrende r/Release of Surety by City
The surety instrument shall be returned to Airline not later than sixty (60) days after
termination of this Agreement, provided there are no outstanding claims against the
Airline by City.
ARTICLE 7: INDENTURE OF TRUST
Section 7.01 Subordination to Indenture of Trust
This Agreement and all rights of Airline hereunder are expressly subordinated and subject
to the lien and provisions of any pledge, transfer, hypothecation, or assignment made at
any time by City pursuant to the terms, covenants (including the Rate Covenant), and
conditions of the Indenture of Trust, Supplemental Indentures, and future indentures. In
conflicts between this Agreement and the Indenture of Trust, the Indenture of Trust shall
govern. All definitional terms that are not specifically defined herein are to have the
meanings set forth in the Indenture of Trust.
Section 7.02 Flow of Funds
Subject to the terms and provisions of the Indenture of Trust and other related
instruments, it is mutually understood and agreed that, as long as any Bonds secured by
the Indenture of Trust are outstanding, bond proceeds and all Airport revenues shall be
deposited, maintained, and paid as set forth in the Indenture of Trust.
ARTICLE 8: MAINTENANCE AND OPERATION OF AIRPORT
Section 8.01 City's Responsibilities
In accordance with Exhibit I, attached hereto and incorporated herein, and except to any
extent otherwise expressly provided in this Agreement:
A. City agrees that it will, with reasonable diligence, keep the Airport and its aerial
approaches reasonably free from obstruction and interference for the safe and
proper use thereof by Airline; and will develop, maintain, and operate the Airport
in all respects in a manner at least equal to the standards or rating established by
the FAA and any other governmental agency having jurisdiction thereof, except for
conditions beyond the reasonable control of City. City shall not be liable to Airline
for temporary failure to so perform, whether due to mechanical breakdown or for
any other causes beyond the reasonable control of City.
B. City, with its own forces or by contract, shall operate and maintain and keep in
good condition the Terminal Building and all additions, improvements, facilities,
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For purposes of this Section, structural repairs are defined as repairs to the roof,
insulation, foundation and exterior walls of the Terminal Building.
D. Airline shall immediately repair any damage in any other space at the Airport
occasioned by the activities, fault or negligence of Airline, its servants, agents,
employees, licensees, passengers, and invitees at its sole expense.
E . Airline shall not erect, maintain, or display on its Leased Premises or anywhere in
the Terminal Building in the public view any billboards, banners, advertising,
promotional signs, or materials without the prior written approval of Director of
Aviation.
F . Airline expressly agrees that City shall not be liable to Airline, for bodily injury or
for any loss or damage to real or personal property occasioned by flood, fire,
earthquake, lightning , windstorm, hail, explosion, riot, strike, civil commotion,
smoke, vandalism, malicious mischief, or acts of civil authority.
G. Airline shall provide and maintain hand fire extinguishers for the interior of its
Exclusive Use Space in accordance with applicable safety codes.
H . Airline shall, in conducting any activity or business at the Airport, including
environmental responses or remedial activities, comply with all applicable
Environmental Laws, as discussed in detail in Section 14.19.
Section 8.03 City's Righ t to Inspect and Ma ke R~pa irs
City, by its Director of Aviation or authorized officers, employees, agents, contractors,
subcontractors, and other representatives, shall have the right at any time in the case of
emergencies or upon request of the Airline, otherwise during normal business hours upon
reasonable notice to Airline, and in any event in a manner as to not unreasonably interfere
with Airline's normal operations, to enter upon Airline's Exclusive Use Space,
accompanied by an authorized Airline representative, if practicable, for the following
purposes:
A. To inspect such space to determine whether Airline has complied and is in
compliance with the terms and conditions of this Agreement.
8. Upon reasonable notice and opportunity to perform, except in emergencies, to
perform such maintenance, cleaning, or repair as City reasonably deems
necessary, if Airline fails to perform its obligations under Section 8.02, and to
recover the actual cost of such maintenance, cleaning, or repair from Airline, plus
a fifteen percent (15%) administrative charge from Airline upon invoice.
C . Upon reasonable notice, except in emergencies, to perform such maintenance,
cleaning, or repair as City reasonably deems necessary, and which is the
responsibility of the City under this Agreement.
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Airline shall pay promptly when due and owing, all bills, debts and obligations incurred by
Airline in connection with its operations or activities on Leased Premises at the Airport,
and shall not permit the same to become delinquent. Except as expressly approved by
City in writing, Airline shall not permit any mechanics' or material men or any other lien to
be attached to or be foreclosed upon Leased Premises at the Airport or improvements
thereto. Airline shall suffer no lien, mortgage, judgment, or execution to be filed against
the Leased Premises at the Airport or improvements thereon. If any lien shall be filed
against the Leased Premises, Airline shall take action, including the payment of and/or
bonding against the amount of the lien, to cause such lien to be removed within twenty
(20) business days of recordation of the lien.
ARTICLE 9: DAMAGE OR DESTRUCTION OF PREMISES
Section 9.01 Damage or Destruction
A. If the Airline Leased Premises or any portions thereof, or buildings or structures of
which space may be a part, are damaged by fire or other casualty not caused by
Airline, Director of Aviation shall notify Airline within sixty (60) days whether the
space will be repaired. If the space is to be repaired, it shall be repaired with due
diligence by City, and the rent allocable to the particular building, rooms, or other
portion of the space rendered untenantable shall be abated for the period from the
occurrence of the damage to the completion of the repairs, provided that City shall
exert its best effort to provide Airline with temporary substitute space, if available,
at such rent as deemed necessary and reasonable by City, until such time as the
repairs are completed. City shall provide a credit to the Airline's account for any
amounts deemed to be paid in advance for all or the portion of the Leased
Premises rendered untenatable.
B. For damage, not caused by Airline, Airline shall notify Director of Aviation in writing
within 30 days, if Airline will not be able to operate to its reasonable satisfaction
without repair of the damaged space.
C. If the Director of Aviation shall fail to notify Airline of its decision within sixty (60)
days after destruction, City shall be deemed to have elected to terminate the
provision of this Agreement as to only the space damaged and destroyed. The
specific location, and the Agreement shall automatically terminate as to such
space as of the date of the damage or the entire Agreement if Airline is not able to
operate to its reasonable satisfaction as a result of the damage, provided Airline
gave timely notice as required in 9.01 B above. In such case, any amounts due
under this Agreement shall be proportionately abated from the time of such
damage, and City shall reimburse Airline for any amounts paid in advance for all
or the portion of the Leased Premises rendered untenantable, provided there are
no past due amounts on the account.
ARTICLE 10: INDEMNIFICATION, INSURANCE AND RELEASE
Section 10. 1 Indemnification
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Leased Premises, or all or any part of the Airport, including, but not limited to, use
of any Common Use Space and/or Exclusive Use Space , upon which the Leased
Premises is located, in any way related to the Airline's operations and
activities. This waiver shall not extend to any and all loss, liability, fines, penalties,
forfeitures, costs, or damages caused solely by the gross negligence, or by the
willful misconduct of City.
D. Airline shall immediately notify City of any occurrence arising from Airline's use of
any Common Use Space and Exclusive Use Space, upon which the Leased
Premises is located, resulting in injury or death to any person or damage to
property of any person.
E . If Airline should contract any work on the Leased Premises or subcontract any of
its obligations under this Agreement, Airline shall require each consultant,
subconsultant, contractor and subcontractor to indemnify, hold harmless and
defend City and its officers, officials, employees, agents and volunteers in
accordance with the terms of this Section.
F. The provisions of this Section shall survive the termination or expiration of this
Agreement.
Section 10.2 Insurance
A. Throughout the life of this Agreement, Airline shall pay for and maintain in full force
and effect all policies of insurance required hereunder with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner to do
business in the State of California and rated not less than "A-VII" in Best's
Insurance Rating Guide, or (ii) authorized in writing by City's Risk Manager or
his/her designee. The following policies of insurance are required:
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least
as broad as Insurance Services Office (ISO) form CG 00 01 and shall
include coverage for "bodily injury", "property damage" and "personal and
advertising injury", including premises and operation, products and
completed operations, and contractual liability with limits of liability of not
less than $5,000,000 per occurrence for bodily injury and property damage,
$1 ,000,000 per occurrence for personal and advertising injury, $5,000,000
aggregate for products and completed operations and $10,000,000 general
aggregate. Airline may substitute Airport Liability insurance for this
insurance provided the coverage is as broad as required and the limits of
liability are not less than required.
(ii) AIRCRAFT LIABILITY insurance shall include coverage for bodily injury
to passengers and non-passengers, property damage and cargo legal
liability with combined single limits of liability of not less than $100,000,000
per occurrence for bodily injury, property damage and cargo legal liability
for aircraft under 60,000 GTW and $350,000,000 per occurrence for bodily
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E.
F.
G.
H.
I.
this Agreement, Airline shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy prior to the expiration date of the
expiring policy.
The General Liability (or Airport Liability, if applicable), Aircraft Liability, Pollution
and Automobile Liability insurance policies shall be written on an occurrence form
and shall name City, its officers, officials, agents, employees and volunteers as an
additional insured. Such policy(ies) of insurance shall be endorsed so Airline's
insurance shall be primary and no contribution shall be required of City. The
coverage shall contain no special limitations on the scope of protection afforded to
City, its officers, officials, employees, agents, and volunteers. All policies of
insurance including the Workers' Compensation insurance policy shall contain a
waiver of subrogation as to City, its officers, officials, agents, employees, and
volunteers.
Airline shall furnish City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the City's Risk Manager or
his/her designee prior to City's execution of the Agreement. Such evidence of
insurance shall be provided City at the following address:
City of Fresno -Airports Department
Properties Division
4995 E. Clinton Way
Fresno, CA 93727
Or via email at FYI.Properties@fresno.gov
Any failure to maintain the required insurance shall be sufficient cause for City to
terminate this Agreement. No action taken by City hereunder shall in any way
relieve Airline of its responsibilities under this Agreement.
The fact that insurance is obtained by Airline shall not be deemed to release or
diminish the liability of Airline, including, without limitation, liability under the
indemnity provisions of this Agreement. The duty to indemnify City and its officers,
officials, employees, agents and volunteers 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 Airline.
Approval or purchase of any insurance contracts or policies shall in no way relieve
from liability nor limit the liability of Airline.
Airline and its insurers hereby waive all rights of recovery against City and its
officers, officials, employees, agents and volunteers, on account of injury, loss by
or damage to the Airline or its officers, officials, employees, agents, volunteers,
invitees, consultants, subconsultants, contractors and subcontractors, or its
property or the property of others under its care, custody, and control. Airline shall
give notice to its insurers that this waiver of subrogation is contained in this
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reasonable efforts to reassign the space to another airline. No such reassignment,
vacation, transference, conveyance, or sublease shall release Airline from its obligations
under this Agreement including responsibility for payment of rent, utilities, fees and other
charges, without, specific written consent by City to such release. Airline shall be
responsible for returning all relinquished space to the condition upon it was given, normal
wear and tear accepted.
Section 11.03 Bankruptcy
Section 11.01 shall not apply to any valid assumption and/or assignment of this
Agreement, the leased space, or any part thereof, by a trustee, or by Airline as a debtor
in possession under the Bankruptcy Code of 1978, as amended, including the Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005 (collectively the "U. S.
Bankruptcy Code"), provided that adequate assurance of future performance as provided
by the U. S. Bankruptcy Code is to be provided, in writing, as a condition of the
assumption and/or assignment of this Agreement. Such assurance shall include but shall
not be limited to:
A. Adequate assurance of the reliability of the proposed source for the rental, utilities,
fees or other charges due under this Agreement upon the assumption and/or
assignment of this Agreement;
8 . Adequate assurance that all other consideration due under this Agreement shall
be forthcoming after the assumption or assignment of this Agreement and that any
defaults thereunder shall be cured; and
C. The procurement of a bond from a financially reputable surety covering any costs
or damages which the City reasonably estimated the City would incur in the event
that City, within three (3) years following the assumption and/or assignment of this
Agreement, becomes entitled to and exercises any right to reassign the lease
covered by this Agreement under this Agreement.
Section 11.04 Consent
Consent by City to any type of transfer provided for by this Article 11 shall not in any way
be construed to relieve Airline from obtaining further consent for any subsequent transfer,
assignment, and/or assumption of any nature whatsoever.
ARTICLE 12: DEFAULTS
Section 12.01 Default
If Airline and/or its Affiliates, and/or subsidiaries (1) fails to pay rent or any other payment
past due hereunder within ten (10) calendar days after receipt of written notice of a past
due account under Article 5 or elsewhere in this Agreement, or (2) fails to keep and
perform any of its other covenants and agreements hereunder and such failure continues
for thirty (30) calendar days after receipt of written notice of such failure, or (3) fails to
47 of 59
DocuSign Envelope 10: FADF5140-9ECA-422F-9217-85A271F6CBF9
4. Airline voluntarily abandons the Leased Premises for a period exceeding
sixty (60) days;
5. Airline defaults in the performance of any of the covenants and conditions
required herein ( except rental payments) to be kept and performed by
Airline, and such default continues for a period of thirty (30) days after
receipt of written notice from Director of Aviation to cure such default;
6. Airline is adjudged a bankrupt in involuntary bankruptcy procedures;
7. Airline is made a party to any receivership proceeding in which a receiver is
appointed for the property or affairs of Airline where such receivership is not
vacated within sixty (60) days after the appointment of such receiver;
8. The abolition, limitation, or restriction by any act of federal, state or local
authority under which these Premises are being leased, except with respect
to legislation that grants authority to a successor.
9. Airline and/or its affiliates, and/or subsidiaries fails to comply with PFC
requirements including those requirements set forth in this Agreement and
such failure continues for ten (10) days after written notice from the Director
of Aviation.
10. Redevelopment of the Airport that necessitates relocation of Airline from
Leased Premises.
B. In any of the aforesaid events, City may take immediate possession of the Leased
Premises in any lawful manner including any and all improvements thereon and
remove Airline's effects.
C. Failure of City to declare this Agreement terminated upon the default of Airline for
any of the reasons set out shall not operate to bar or destroy the right of City to
terminate this Agreement by reason of any subsequent violation of the terms of
this Agreement.
D. No receipt or acceptance of money by City from Airline after the expiration or
termination of this Agreement, or after the service of any notice, or after the
commencement of any suit, or after final judgment for possession of the Leased
Premises, shall reinstate, continue, or extend the terms of this Agreement, or affect
any such notice, demand or suit or imply consent for any action for which City's
consent is required or operate as a waiver of any right or remedy of City including
any right to lawfully retake and resume possession of the Leased Premises.
ARTICLE 14: GENERAL PROVISIONS
Section 14.01 Compliance with Law
49 of 59
DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271F6CBF9
Seattle, WA 98188
or P.O. Box 68900-SEAPZ
Seattle, WA 98168-0900
A party may change it notice address of record by written notice thereof given in
the manner provided herein.
B. If notice is given in any other manner or at any other place, it will also be given at
the place and in the manner specified above.
Section 14.03 Successors and Assigns Bound
This Agreement shall be binding upon and inure to the benefit of the successors and
assigns of the parties hereto.
Section 14.04 Governing Law, Venue and Attorney 's Fees
A. This Agreement and all disputes arising hereunder shall be governed by the laws
of the State of California, and exclusive venue in any and all actions arising under
this Agreement shall be laid in a state or Federal court located in the Judicial
District of Fresno County, California.
B. In any action or proceeding which City or Airline may be required to prosecute to
enforce its respective rights under this Agreement, the unsuccessful party therein
agrees to pay all costs incurred by the prevailing party therein, including
reasonable interest and attorneys' fees, to be fixed by the court, and said costs,
interest, and attorneys' fees shall be made a part of the judgment in said action.
Section 14.05 Subordination to Agreements with U.S. Government
This Agreement is subject and subordinate to the provisions of any agreements
heretofore or hereinafter made between the City and the United States, relative to the
operation or maintenance of the Airport, the execution of which has been required as a
condition precedent to the transfer of federal rights or property to City for Airport purposes,
or to the expenditure of federal funds for the improvement or development of the Airport,
including the expenditure of federal funds for the development of the Airport in
accordance with the provisions of the Federal Aviation Act of 1958, as it has been
amended from time to time. City covenants that it has no existing agreements with the
United States in conflict with the express provisions hereof.
Section 14.06 Nonwaiver of Rights
The non-enforcement by either party of the breach of any term, covenant or condition
herein stipulated, shall never be construed to be a waiver of any other or succeeding
breach of any term, covenant or condition herein imposed upon the other party. The
acceptance of payments of any amounts due or to become due hereunder in any other
51 of 59
DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271F6CBF9
Following the authorization or clearance of federal avaiton, law enforcement authorities
and/or Airport Operations designee, Airline shall promptly remove any of its disabled
aircraft from any part of the Airport (including, without limitation, runways, taxiways,
aprons, and aircraft parking positions) and place any such disabled aircraft in such
storage areas as may be designated by Director of Aviation. Airline may store such
disabled aircraft only for such length of time and on such terms and conditions as may be
established by Director of Aviation. If Airline fails to remove any of its disabled aircraft
promptly, Director of Aviation may, but shall not be obligated to, cause the removal and
storage of such disabled aircraft, provided, however, the obligation to remove or store
such disabled aircraft shall be consistent with federal laws and regulations, including
those of the FAA and the National Transportation Safety Board (NTSB). Airline agrees to
reimburse City for all reasonable costs of such removal and storage; and Airline,
furthermore, hereby releases City from any and all claims for damage to the disabled
aircraft or otherwise arising from or in any connected with such removal by City, except
to the extent caused by the active negligence or willful misconduct of City, its agents, or
its employees.
Section 14.14 Quiet En joymen t
Except to any extent otherwise expressly provided in this Agreement, City covenants and
agrees that Airline on paying the rent (and other charges herein provided for) and
observing and keeping the covenants, conditions, and terms of this Agreement, shall
lawfully and quietly hold , occupy and enjoy the Leased Premises during the term of this
Agreement without hindrance or molestation by City or any person claiming under City.
Section 14.15 Fo rce Ma jeure
No party to this Agreement is responsible to the other party for nonperformance or delay
in performance of the terms and conditions herein due to acts of God, acts of government,
wars, riots, strikes, acts of terrorism, accidents in transportation, fuel or material
shortages, or other causes beyond the control of a party.
Section 14.16 Indepe nd ent Contracto r
Airline is and throughout this Agreement shall be an independent contractor and not an
employee, partner or agent of the City. Neither party shall have any right to control,
supervise or direct the manner or method or choice by which the other party or its
contractors shall perform its or their work or function. However, each party shall retain
the right to verify that the other is performing its respective obligations in accordance with
the terms hereof.
Neither the Airline, nor any of its officers, associates, agents, or employees shall be
deemed an employee of the City for any purpose. Airline shall not be entitled to nor shall
it receive any benefit normally provided to employees of the City such as, but not limited
to, vacation payment, retirement, health care, or sick pay. The City shall not be
responsible for withholding income or other taxes from the payments made to Airline.
Airline shall be solely responsible for filing all returns and paying any income, social
53 of 59
DocuSign Envelope ID: FADF5140-9ECA-422F-9217-85A271F6CBF9
transportation and disposal of solid wastes, Hazardous Materials, or other contaminants
and regarding releases or threatened releases of Hazardous Materials or other
contaminants in the environment.
A. Review of Environmental Documents. Airline, at the request of City, shall make
available for the inspection and copying upon reasonable notice at a reasonable
time, any or all of the documents and materials Airline has prepared pursuant to
any applicable Environmental Law or submitted to any governmental regulatory
agency pursuant to any Environmental Law; provided, that such documents and
materials are not protected from disclosure by a court order, any available self
audit privilege, attorney work product doctrine or attorney client privilege and are
pertinent to Airline's rights and obligations under this Agreement at the Airport or
to the Leased Premises. Such documents and materials released to the City shall
be kept confidential to the fullest extent allowed by law. If any applicable
Environmental Law requires Airline to file any notice or report of a release or
threatened release of Hazardous Materials on, under or about the Leased
Premises or the Airport, Airline shall provide a draft copy of such report or notice
to the City to the extent practical given time constraints imposed by applicable
Environmental Laws and Airline shall consult with City and give due consideration
to the City's comments and concerns prior to submitting such notice or report to
the appropriate governmental agency.
B. Access of Environmental Inspection. On reasonable written notice and at a
reasonable time, such to not disturb Airline's operations, City shall have access to
the Leased Premises to inspect the same, with a representative of Airline to be
present during such access and inspection, in order to confirm that the Airline is
using the Leased Premises in accordance with applicable Environmental Laws.
Airline, at the request of City and at City's expense, shall conduct such testing and
analysis as is reasonable and necessary to ascertain whether Airline is using the
Leased Premises in compliance with applicable Environmental Laws; provided that
if the testing and analysis determines that Airline's use is not in compliance with
applicable Environmental Laws, then Airline shall bear the reasonable cost of such
testing and analysis. Any such tests shall be conducted by qualified independent
experts chosen by Airline and subject to City's approval which approval will not be
unreasonably withheld. Copies of reports from any such testing shall be provided
to City upon receipt by Airline.
C. Environmental Non-compliance. If, after reasonable notice to Airline and
opportunity for Airline to commence measures to address compliance, Airline fails
to comply with any applicable Environmental Laws, City, in addition to its rights
and remedies provided at law or in equity, may lawfully enter the Leased Premises
and take all reasonable and necessary measures, at Airline's expense, to insure
compliance with applicable Environmental Laws.
D. Duty to Notify City. In the event of a release or threatened release of Hazardous
Material into the environment in violation of applicable Environmental Laws relating
to or arising out of Airline's use or occupancy of the Leased Premises or in the
55 of 59
DocuSign Envelope ID: FADF5140-9ECA-422F-9217-85A271F6CBF9
in favor or against any party, but rather by construing the terms in accordance with their
generally accepted meaning.
Section 14.23 Cumulative Remedies
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible,
be cumulative with all other remedies at law or in equity.
Section 14.24 Non-Solicitation
Airline represents and warrants that it has not paid or agreed to pay any compensation,
contingent or otherwise, to solicit or procure this Agreement or any rights/benefits
hereunder.
Section 14.25 Precedence of Documents
In the event of any conflict between the body of this Agreement and any exhibit or
attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the exhibit or
attachment. Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
Section 14.26 Entire Agreement
This Agreement, together with all exhibits, documents and instruments attached hereto
and incorporated herein, constitutes the entire agreement between the parties hereto,
and all other representations or statements heretofore made, verbal or written, are
merged herein, and this Agreement may be amended only in writing, and executed by
duly authorized representatives of the parties hereto.
[Signatures on the following page]
57 of 59
DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271F6CBF9
Exhibit J: Affiliates, Subsidiaries and Code Share Partners
Exhibit K: Monthly Operations Report
Exhibit L: Conflict of Interest Form
Exhibit M : FM Grant Assurances
Exhibit N: Federal Provision Applicable to All Agreements
59 of 59
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REVISIONS/REFERENCEKRA NO.::-----AIRPORTS FUND NO,____ REF NO.FRESNO YOSEMITE INTERNATIONAL AIRPORTDEPARTMENT ORG NO
l~o;;;;1R;;,ECl:;:;O:;;;-R--;;o:;-F:;,.Vl/i,~J;;;:;10;:;-N-}--------------------------_J ACTIVllY'----
KEVIN R. MEIKLE, ARCHITECT PROJECT I.D
APPROVE'.O CONST. ENG. _ ___OFFICE ENG. ____FIRST FLOOR TERMINAL
CITY DESIGN ENG .
DR. BY: LNSGATE 8CITY OF FftESNO
AIRPOR"IS DEPARTMENJ CH. BY: MGP
4985 EAST CLINJON WAY t-----------------------------l DATE: 3-7-22FftESNO, CALIFORNIA 93727
PHONE: 559-621-4500 SCALE: N/A
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CITY DRAWING NO. XX-X-XXX
SHEET NO. 1
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KRA NO. _ _ _ _ REVISIONS/REFERENCEAIRPORTS FUND NO ____ REF NO.FRESNO YOSEMITE INTERNATIONAL AIRPORT ORG NO,____DEPARTMENT
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SECOND FLOOR TERMINAL ENG. ___PP_CONST. A RoriffrcE ENG. ___
CITY DESIGN ENO . 1
DR. BY: LNS CITY DRAWING NO. XX-X-XXXGATE 1 2 CITY OF FRESNO
AIRPORTS DEPARTMENT CH. BY: MGP SHEET NO. 1
4995 EAST CLINTON WAY 1------------------------------1 DATE: 3-7-22TERMINAL KEY FRESNO, CALIFORNIA 93727
PHONE: 559-621-4500 SCALE: N/A OF 2 SHEETS
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D Airfield
-Terminal Building
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D Non Airline
FRESNO YOSEMITE
International Airport
Exhibit C
Terminal Building and FIS Facility
Cost Centers
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DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271F6CBF9
Exhibit D
Illustration of Annual Terminal Building Rental Rate Calculation
Fresno Yosemite International Airport
Amounts Allocable to Terminal Building Cost Center
Debt Service
Rolling Debt Service Coverage
Amortization Charges
Operating Expenses
Deposit to the Operating Reserve Fund
Terminal Building Credit
Terminal Building Net Requirement
Usable Space
Rate Before Adjustment
Rate Adjustment due to Annual True-up
Terminal Building Rental Rate
leased Premises
Airline Terminal Building Net Requirement
[A]
[Bl
[C]
[D]
[E]
[F]
[G]= Sum of [A] thru [E] -[F]
[H]
[l]=[G]/[H]
[J]
[K]=[I]-[J]
[L]
[K]*[l)
FY 2023
Illustration
$ 765,486
256,468
13,747,485
130,928
(4,488,286)
$10,412,082
140,704
$ 74.00
$ 74 .00
53,564
$ 3 ,963,721
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DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271 F6CBF9
Exhibit F
Illustration of Annual Landing Fee Rate Calculation
Fresno Yosemite International Airport
Amounts Allocable to Airfield Cost Center
Debt Service
Rolling Debt Service Coverage
Amortization Charges
Operating Expenses
Deposit to the Operating Reserve Fund
Airfield Area Credit
Annual True-up
Airline Airfield Area Net Requirement
Landed Weight
Landing Fee Rate
[A]
[BJ
[C]
[D]
[E]
[F]
[G]
[H]= Sum of [A] thru [E] -[F]-[G)
[I]
[H]/[1]
FY 2023
Illustration
$ 9,856
75,000
6,921,484
65,919
(2,712,502)
164,704
$4,524,461
1,657,757
$ 2.73
OocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271F6CBF9
Exhibit G
Illustration of FIS Fee Rate Calculation
Fresno Yosemite International Airport
Amounts Allocable to FIS Cost Center
Debt Service
Rolling Debt Service Coverage
Amortization Charges
Operating Expenses
Deposit to the Operating Reserve Fund
Applicable credits
Airline FIS Net Requirement
FIS Users
FIS Fee Rate
Maximum FIS Fee Rate
FIS Fee Rate to Charge
[A]
[B]
[CJ
[D]
[E]
[F]
[G]= Sum of [A] thru [E] -[F]
[H]
[l]=[G]/[H]
[J]
Lower of [I] and [J]
FY 2023
Illustration
$ 120,911
2,226,760
21,207
(500,976)
$ 1,746,991
179,743
$ 9.72
12.00
$ 9.72
DocuSign Envelope ID: FADF5140-9ECA-422F-9217-85A271F6CBF9
Exhibit H
Illustration of Annual Signatory Credit Calculation
Fresno Yosemite International Airport
Revenues
Debt Service
Rolling Debt Service Coverage
Operating Expenses
Deposit to Operating Reserve Fund
Capital Allowance
Remaining Revenues
Share of Sig. Passenger and Sig . Cargo Carriers (a)
Signatory Credit
Amounts to Be Applied to FY 2024 (a)
Terminal Building Cost Center
Airfield Area Cost Center
FIS Cost Center
Note: subject to further constraints in Section 5.12.
[A]
[B]
[C]
[DJ
[E]
[F]
[G]=[A]-SUM OF [B] Thru [F]
[H]=50%
[l]=[G]*[H]
[J]
[J]*65%
[J]*25%
[J]*10%
FY 2023
Illustration
$43,604,010
(4,862,988)
(26 ,669,055)
(253,991)
(4,000,000)
$ 7,817,976
50.0%
$ 3,908,988
$ 2,000,000
1,300,000
500,000
200,000
DocuSign Envelope ID: FADF5140-9ECA-422f-9217-85A271f6CBF9
Exhibit I
OPERATIONS AND MAINTENANCE RESPONSIBILITIES
FRESNO YOSEMITE INTERNATIONAL AIRPORT
Item Exclusive Use
and Shared
Use
Common
Use
Hold Rooms Aircraft
Parking Areas
1. Air conditioning
a. Maintenance
b. Operation
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
2. Heating
a. Maintenance
b . Operation
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
3. Lighting
a. Maintenance
b . Bulb replacement
Airline
Airline
FYI
FYI
FYI
FYI
FYI
FYI
4. Electrical
a. Maintenance FYI (a) FYI FYI FYI
b. Usage Airline FYI, Airline
(b)
FYI FYI, Airline (b)
5. Water
a. Operation FYI FYI FYI FYI
b. Distribution FYI FYI FYI FYI
C. Fixtures FYI FYI FYI FYI
d . Usage Airline FYI FYI FYI
6 . Sewage
a . Operation FYI FYI FYI FYI
b . Distribution FYI FYI FYI FYI
C. Fixtures FYI FYI FYI FYI
d . Usaoe Airline FYI FYI FYI
7. Restrooms
a . Maintenance
b. Janitorial
FYI
Airline
FYI
FYI
FYI
FYI
FYI
FYI
8. Building maintenance
a. Structural
b. Non-Structural
C. Exterior
FYI
Airline
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
9. Ramp
a. Sweeping
b. Maintenance/Repair
N/A
N/A
N/A
N/A
NIA
N/A
Airline (c)
FYI
DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271 F6CBF9
C. Sponsor Certification.
The sponsor hereby assures and certifies, with respect to this grant that:
1. General Federal Requirements.
It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines,
and requirements as they relate to the application, acceptance and use of Federal funds for this
project including but not limited to the following:
a. Title 49, U.S.C., subtitle VII, as amended.
b. Davis-Bacon Act -40 U.S.C. 276(a), et seq.1
c. Federal Fair Labor Standards Act -29 U.S.C. 201, et seq.
d. Hatch Act-5 U.S.C. 1501, et seq.2
e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Title 42
U.S.C. 4601, et seq.12
f. National Historic Preservation Act of 1966 -Section 106 -16 U.S.C. 470(f).1
g. Archeological and Historic Preservation Act of 1974 -16 U.S.C. 469 through 469c.1
h. Native Americans Grave Repatriation Act -25 U.S.C. Section 3001, et seq.
1. Clean Air Act, P.L. 90-148, as amended.
J. Coastal Zone Management Act, P.L. 93-205, as amended.
k. Flood Disaster Protection Act of 1973 -Section 102(a) -42 U.S.C. 4012a.1
I. Title 49, U.S.C., Section 303, (formerly known as Section 4(f))
m. Rehabilitation Act of 1973 -29 U.S.C. 794.
n. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252) (prohibits
discrimination on the basis of race, color, national origin);
o. Americans with Disabilities Act of 1990, as amended, (42 U.S.C. § 12101 et seq.), prohibits
discrimination on the basis of disability).
p. Age Discrimination Act of 1975 -42 U.S .C. 6101, et seq.
q. American Indian Religious Freedom Act, P.L. 95-341, as amended.
r. Architectural Barriers Act of 1968 -42 U.S.C. 4151, et seg.1
s. Power plant and Industrial Fuel Use Act of 1978 -Section 403-2 U.S.C. 8373.1
t. Contract Work Hours and Safety Standards Act -40 U.S.C. 327, et seq .1
u. Copeland Anti-kickback Act -18 U.S .C. 874.1
v. National Environmental Policy Act of 1969 -42 U.S.C. 4321, et seq.1
w. Wild and Scenic Rivers Act, P.L. 90-542, as amended .
x . Single Audit Act of 1984 -31 U.S.C . 7501, et seg.2
y. Drug-Free Workplace Act of 1988 -41 U.S.C. 702 through 706.
z. The Federal Funding Accountability and Transparency Act of 2006, as amended (Pub. L.
109-282, as amended by section 6202 of Pub. L. 110-252).
Airport Sponsor Assurances 2/2020 Page 2 of 18
DocuSign Envelope ID : FADF5140-9ECA-422F-9217-85A271F6CBF9
n. 49 CFR Part 21-Nondiscrimination in federally-assisted programs of the Department of
Transportation -effectuation of Title VI of the Civil Rights Act of 1964.
o. 49 CFR Part 23 -Participation by Disadvantage Business Enterprise in Airport Concessions.
p. 49 CFR Part 24 -Uniform Relocation Assistance and Real Property Acquisition for Federal
and Federally Assisted Programs.12
q. 49 CFR Part 26 -Participation by Disadvantaged Business Enterprises in Department of
Transportation Programs.
r. 49 CFR Part 27 -Nondiscrimination on the Basis of Handicap in Programs and Activities
Receiving or Benefiting from Federal Financial Assistance.1
s. 49 CFR Part 28 -Enforcement of Nondiscrimination on the Basis of Handicap in Programs or
Activities conducted by the Department of Transportation.
t. 49 CFR Part 30 -Denial of public works contracts to suppliers of goods and services of
countries that deny procurement market access to U.S. contractors.
u. 49 CFR Part 32 -Government-wide Requirements for Drug-Free Workplace (Financial
Assistance)
v. 49 CFR Part 37-Transportation Services for Individuals with Disabilities (ADA).
w. 49 CFR Part 41 -Seismic safety of Federal and federally assisted or regulated new building
construction.
SPECIFIC ASSURANCES
Specific assurances required to be included in grant agreements by any of the above laws,
regulations or circulars are incorporated by reference in this grant agreement.
FOOTNOTES TO ASSURANCE C.1.
1 These laws do not apply to airport planning sponsors.
2 These laws do not apply to private sponsors.
3 49 CFR Part 18 and 2 CFR Part 200 contain requirements for State and Local Governments
receiving Federal assistance. Any requirement levied upon State and Local Governments by this
regulation and circular shall also be applicable to private sponsors receiving Federal assistance
under Title 49, United States Code.
4 On December 26, 2013 at 78 FR 78590, the Office of Management and Budget (0MB) issued the
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards in 2 CFR Part 200. 2 CFR Part 200 replaces and combines the former Uniform
Administrative Requirements for Grants (0MB Circular A-102 and Circular A-110 or 2 CFR Part
215 or Circular) as well as the Cost Principles (Circulars A-21 or 2 CFR part 220; Circular A-87 or 2
CFR part 225; and A-122, 2 CFR part 230). Additionally it replaces Circular A-133 guidance on the
Single Annual Audit. In accordance with 2 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 0MB.
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Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United
States Code, to assume the obligations of this grant agreement and to have the power,
authority, and financial resources to carry out all such obligations, the sponsor shall insert in
the contract or document transferring or disposing of the sponsor's interest, and make
binding upon the transferee all of the terms, conditions, and assurances contained in this
grant agreement.
c. For all noise compatibility program projects which are to be carried out by another unit of
local government or are on property owned by a unit of local government other than the
sponsor, it will enter into an agreement with that government. Except as otherwise
specified by the Secretary, that agreement shall obligate that government to the same
terms, conditions, and assurances that would be applicable to it if it applied directly to the
FAA for a grant to undertake the noise compatibility program project. That agreement and
changes thereto must be satisfactory to the Secretary. It will take steps to enforce this
agreement against the local government if there is substantial non-compliance with the
terms of the agreement.
d. For noise compatibility program projects to be carried out on privately owned property, it
will enter into an agreement with the owner of that property which includes provisions
specified by the Secretary. It will take steps to enforce this agreement against the property
owner whenever there is substantial non-compliance with the terms of the agreement.
e. If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure
that the airport will continue to function as a public-use airport in accordance with these
assurances for the duration of these assurances.
f. If an arrangement is made for management and operation of the airport by any agency or
person other than the sponsor or an employee of the sponsor, the sponsor will reserve
sufficient rights and authority to insure that the airport will be operated and maintained in
accordance Title 49, United States Code, the regulations and the terms, conditions and
assurances in this grant agreement and shall insure that such arrangement also requires
compliance therewith.
g. Sponsors of commercial service airports will not permit or enter into any arrangement that
results in permission for the owner or tenant of a property used as a residence, or zoned for
residential use, to taxi an aircraft between that property and any location on airport.
Sponsors of general aviation airports entering into any arrangement that results in
permission for the owner of residential real property adjacent to or near the airport must
comply with the requirements of Sec. 136 of Public Law 112-95 and the sponsor assurances.
6. Consistency with Local Plans.
The project is reasonably consistent with plans (existing at the time of submission of this
application) of public agencies that are authorized by the State in which the project is located to
plan for the development of the area surrounding the airport.
7. Consideration of Local Interest.
It has given fair consideration to the interest of communities in or near where the project may
be located.
8. Consultation with Users.
In making a decision to undertake any airport development project under Title 49, United States
Code, it has undertaken reasonable consultations with affected parties using the airport at
which project is proposed.
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14. Minimum Wage Rates.
It shall include, in all contracts in excess of $2,000 for work on any projects funded under this
grant agreement which involve labor, provisions establishing minimum rates of wages, to be
predetermined by the Secretary of Labor, in accordance with the Davis-Bacon Act, as amended
(40 U.S.C. 276a-276a-S), which contractors shall pay to skilled and unskilled labor, and such
minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids
for the work.
15. Veteran's Preference.
It shall include in all contracts for work on any project funded under this grant agreement which
involve labor, such provisions as are necessary to insure that, in the employment of labor
(except in executive, administrative, and supervisory positions), preference shall be given to
Vietnam era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans,
and small business concerns owned and controlled by disabled veterans as defined in 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, specifications, and schedules shall also be
subject to approval of the Secretary, and incorporated into this grant agreement .
17. Construction Inspection and Approval.
It will provide and maintain competent technical supervision at the construction site throughout
the project to assure that the work conforms to the plans, specifications, and schedules
approved by the Secretary for the project. It shall subject the construction work on any project
contained in an approved project application to inspection and approval by the Secretary and
such work shall be in accordance with regulations and procedures prescribed by the Secretary.
Such regulations and procedures shall require such cost and progress reporting by the sponsor
or sponsors of such project as the Secretary shall deem necessary.
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.
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respect to the airport, of the noise compatibility program measures upon which Federal funds
have been expended.
22. Economic Nondiscrimination.
a. It will make the airport available as an airport for public use on reasonable terms and
without unjust discrimination to all types, kinds and classes of aeronautical activities,
including commercial'aeronautical activities offering services to the public at the airport.
b. In any agreement, contract, lease, or other arrangement under which a right or privilege at
the airport is granted to any person, firm, or corporation to conduct or to engage in any
aeronautical activity for furnishing services to the public at the airport, the sponsor will
insert and enforce provisions requiring the contractor to-
1) furnish said services on a reasonable, and not unjustly discriminatory, basis to all users
thereof, and
2) charge reasonable, and not unjustly discriminatory, prices for each unit or service,
provided that the contractor may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price reductions to
volume purchasers.
c. Each fixed-based operator at the airport shall be subject to the same rates, fees, rentals, and
other charges as are uniformly applicable to all other fixed-based operators making the
same or similar uses of such airport and utilizing the same or similar facilities.
d. Each air carrier using such airport shall have the right to service itself or to use any fixed
based operator that is authorized or permitted by the airport to serve any air carrier at such
airport.
e. Each air carrier using such airport (whether as a tenant, non-tenant, or subtenant of another
air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable
rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities
directly and substantially related to providing air transportation as are applicable to all such
air carriers which make similar use of such airport and utilize similar facilities, subject to
reasonable classifications such as tenants or non-tenants and signatory carriers and non
signatory carriers. Classification or status as tenant or signatory shall not be unreasonably
withheld by any airport provided an air carrier assumes obligations substantially similar to
those already imposed on air carriers in such classification or status .
f. It will not exercise or grant any right or privilege which operates to prevent any person, firm,
or corporation operating aircraft on the airport from performing any services on its own
aircraft with its own employees [including, but not limited to maintenance, repair, and
fueling] that it may choose to perform.
g. In the event the sponsor itself exercises any of the rights and privileges referred to in this
assurance, the services involved will be provided on the same conditions as would apply to
the furnishing of such services by commercial aeronautical service providers authorized by
the sponsor under these provisions .
h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to
be met by all users of the airport as may be necessary for the safe and efficient operation of
the airport.
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by the airport (and, in the case of a public airport, local taxes on aviation fuel) shall not
apply.
2) If the Secretary approves the sale of a privately owned airport to a public sponsor and
provides funding for any portion of the public sponsor's acquisition of land, this
limitation on the use of all revenues generated by the sale shall not apply to certain
proceeds from the sale. This is conditioned on repayment to the Secretary by the private
owner of an amount equal to the remaining unamortized portion (amortized over a 20-
year period) of any airport improvement grant made to the private owner for any
purpose other than land acquisition on or after October 1, 1996, plus an amount equal
to the federal share of the current fair market value of any land acquired with an airport
improvement grant made to that airport on or after October 1, 1996.
3) Certain revenue derived from or generated by mineral extraction, production, lease, or
other means at a general aviation airport (as defined at Section 47102 of title 49 United
States Code), if the FAA determines the airport sponsor meets the requirements set
forth in Sec. 813 of Public Law 112-95.
b. As part of the annual audit required under the Single Audit Act of 1984, the sponsor will
direct that the audit will review, and the resulting audit report will provide an opinion
concerning, the use of airport revenue and taxes in paragraph (a), and indicating whether
funds paid or transferred to the owner or operator are paid or transferred in a manner
consistent with Title 49, United States Code and any other applicable provision of law,
including any regulation promulgated by the Secretary or Administrator.
c. Any civil penalties or other sanctions will be imposed for violation of this assurance in
accordance with the provisions of Section 47107 of Title 49, United States Code.
26. Reports and Inspections.
ltwill:
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
d. in a format and time prescribed by the Secretary, provide to the Secretary and make
available to the public following each of its fiscal years, an annual report listing in detail :
1) all amounts paid by the airport to any other unit of government and the purposes for
which each such payment was made; and
2) all services and property provided by the airport to other units of government and the
amount of compensation rece ived for provision of each such service and property.
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with the airport layout plan as approved by the Secretary and which might, in the
opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport.
b. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, if a change
or alteration in the airport or the facilities is made which the Secretary determines adversely
affects the safety, utility, or efficiency of any federally owned, leased, or funded property on
or off the airport and which is not in conformity with the airport layout plan as approved by
the Secretary, the owner or operator will, if requested, by the Secretary (1) eliminate such
adverse effect in a manner approved by the Secretary; or (2) bear all costs of relocating such
property (or replacement thereof) to a site acceptable to the Secretary and all costs of
restoring such property (or replacement thereof) to the level of safety, utility, efficiency, and
cost of operation existing before the unapproved change in the airport or its facilities except
in the case of a relocation or replacement of an existing airport facility due to a change in
the Secretary's design standards beyond the control of the airport sponsor.
30. Civil Rights.
It will promptly take any measures necessary to ensure that no person in the United States shall,
on the grounds of race, 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 § 21, the sponsor will facilitate all programs, operate all facilities, or
conduct all programs in compliance with all non-discrimination requirements imposed by, or
pursuant to these assurances .
b. Applicability
1) Programs and Activities. If the sponsor has received a grant (or other federal assistance)
for any of the sponsor's program or activities, these requirements extend to all of the
sponsor's programs and activities.
2) Facilities . Where it receives a grant or other federal financial assistance to construct,
expand, renovate, remodel, alter or acquire a facility, or part of a facility, the assurance
extends to the entire facility and facilities operated in connection therewith.
3) Real Property. Where the sponsor receives a grant or other Federal financial assistance
in the form of, or for the acquisition of real property or an interest in real property, the
assurance will extend to rights to space on, over, or under such property.
c. Duration.
The sponsor agrees that it is obligated to this assurance for the period during which Federal
financial assistance is extended to the program, except where the Federal financial
assistance is to provide, or is in the form of, personal property, or real property, or interest
therein, or structures or improvements thereon, in which case the assurance obligates the
sponsor, or any transferee for the longer of the following periods:
1) So long as the airport is used as an airport, or for another purpose involving the
provision of similar services or benefits; or
2) So long as the sponsor retains ownership or possession of the property.
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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 at that 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 purposes, dispose of
such land at fair market value or make available to the Secretary an amount equal to the
United State~• 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 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) oftitle 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 at that
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 financial
self-sufficiency of the airport. Further, land purchased with a grant received by an airport
operator or owner before December 31, 1987, will be considered to be needed for airport
purposes if the Secretary or Federal agency making such grant before December 31, 1987,
was notified by the operator or owner of the uses of such land, did not object to such use,
and the land continues to be used for that purpose, such use having commenced no later
than December 15, 1989.
d. Disposition of such land under (a) (b) or (c) will be subject to the retention or reservation of
any interest or right therein necessary to ensure that such land will only be used for
purposes which are compatible with noise levels associated with operation of the airport.
32. Engineering and Design Services.
Engineering and Design Services. If any phase of such project has received Federal funds under
Chapter 471 subchapter 1 of Title 49 U.S .C., it will award each contract, or sub-contract for
program management, construction management, planning studies, feasibility studies,
architectural services, preliminary engineering, design, engineering, surveying, mapping or
related services in the same manner as a contract for architectural and engineering services is
negotiated under Chapter 11 of Title 40 U. S. C., or an equivalent qualifications-based
requirement prescribed for or by the sponsor of the airport.
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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.
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 at that airport in order to allow the air carrier to
provide service to the airport or to expand service at the airport, the airport owner or
operator shall transmit a report to the Secretary that-
1) Describes the requests;
2) Provides an explanation as to why the requests could not be accommodated; and
3) Provides a time frame within which, if any, the airport will be able to accommodate
the requests.
b. Such report shall be due on either February 1 or August 1 of each year if the airport has
been unable to accommodate the request(s) in the six month period prior to the applicable
due date.
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I. PROVISIONS APPLICABLE TO ALL LEASES
A. ACCESS TO RECORDS AND REPORTS
The contractor must maintain an acceptable cost accounting system. The contractor
agrees to provide the sponsor, the Federal Aviation Administration, and the Comptroller
General of the United States or any of their duly authorized representatives' access to
any books, documents, papers, and records of the contractor which are directly
pertinent to the specific contract for the purpose of making audit, examination, excerpts
and transcriptions. The contractor agrees to maintain all books, records and reports
required under this contract for a period of not less than three years after final payment
is made and all pending matters are closed.
B. BUY AMERICAN CERTIFICATION
The contractor agrees to comply with 49 USC § 50101, which provides that Federal
funds may not be obligated unless all steel and manufactured goods us.ed in AIP-funded
projects are produced in the United States, unless the FAA has issued a waiver for the
product; the product is listed as an Excepted Article, Material Or Supply in Federal
Acquisition Regulation subpart 25.108; or is included in the FAA Nationwide Buy
American Waivers Issued list.
A bidder or offeror must submit the appropriate Buy America Certification (below) with
all bids or offers on Airport Improvement Program ("AIP")-funded projects. Bids or offers
that are not accompanied by a completed Buy America certification must be rejected as
non responsive.
Type of Certification is based on Type of Project:
There are two types of Buy American certifications.
• For projects for a facility, the Certificate of Compliance Based on Total Facility
(Terminal or Building Project) must be submitted .
• For all other projects, the Certificate of Compliance Based on Equipment and
Materials Used on the Project (Non-building construction projects such as
runway or roadway construction; or equipment acquisition projects) must be
submitted.
See Attachments A and B: Buy American Certifications
C. GENERAL CIVIL RIGHTS PROVISIONS
The contractor agrees that it will comply with pertinent statutes, Executive Orders and
such rules as are promulgated to ensure that no person shall, on the grounds of race,
creed, color, national origin, sex, age, or handicap be excluded from participating in any
activity conducted with or benefiting from Federal assistance.
This provision binds the contractor from the bid solicitation period through the
completion of the contract. This provision is in addition to that required of Title VI of the
Civil Rights Act of 1964.
i
D. CIVIL RIGHTS ACT OF 1964, TITLE VI
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b. Cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of
paragraphs one through six in every subcontract, including procurements of
materials and leases of equipment, unless exempt by the Acts, the Regulations
and directives issued pursuant thereto. The contractor will take action with
respect to any subcontract or procurement as the sponsor or the Federal Aviation
Administration may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, that if the contractor becomes involved
in, or is threatened with litigation by a subcontractor, or supplier because of such
direction, the contractor may request the sponsor to enter into any litigation to
protect the interests of the sponsor. In addition, the contractor may request the
United States to enter into the litigation to protect the interests of the United
States.
7. Use or Access to Real Property Acquired Under the Activity, Facility or
Program:
A. The conractor for himself /herself, his/her heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof,
does hereby covenant and agree (in the case of deeds and leases add, "as a
covenant running with the land") that (1) no person on the ground of race,
color, or national origin, will be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of said
facilities, (2) that in the construction of any improvements on, over, or under
such land, and the furnishing of services thereon, no person on the ground of
race, color, or national origin, will be excluded from participation in, denied the
benefits of, or otherwise be subjected to discrimination, (3) that the (grantee,
licensee, lessee, permittee, etc.) will use the premises in compliance with all
other requirements imposed by or pursuant to the List of discrimination Acts
And Authorities.
B. With respect to leases and permits, in the event of breach of any of the above
nondiscrimination covenants, City will have the right to terminate the lease or
permit and to enter or re-enter and repossess said land and the facilities
thereon, and hold the same as if said lease or permit had never been made or
issued.
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discrimination against minority populations by discouraging programs,
policies, and activities with disproportionately high and adverse human health
or environmental effects on minority and low-income populations;
k. Executive Order 13166, Improving Access to Services for Persons with
Limited English Proficiency, and resulting agency guidance, national origin
discrimination includes discrimination because of limited English proficiency
(LEP). To ensure compliance with Title VI, you must take reasonable steps to
ensure that LEP persons have meaningful access to your programs (70 Fed.
Reg. at 74087 to 74100);
I. Title IX of the Education Amendments of 1972, as amended, which prohibits
you from discriminating because of sex in education programs or activities (20
U.S.C. 1681 et seq).
E. DISADVANTAGED BUSINESS ENTERPRISES
In the event that the Sponsor has established a Disadvantaged Business Enterprises
(DBE) participation goal for the Project which is the subject of this contract, contractor
shall comply with all applicable DBE requirements of 49 CFR Part 26. The DBE
participation may be composed of any combination of firms certified as DBEs in
accordance with 49 CFR Part 26. The contractor shall comply with Sponsor's DBE
Program and subcontract with those firms as previously submitted to Sponsor (on form
provided by Sponsor) on the contractor's list of disadvantaged businesses to meet the
DBE participation goal for this Project. If the contractor intends to subcontract a portion
of the services to be performed hereunder, the contractor shall affirmatively seek out
DBEs that are potential subcontractors, suppliers, or consultants, and actively solicit
their interest, capability and prices. Any questions concerning DBE issues shall be
addressed to DBE Program staff at Telephone No. (559) 498-4071 or
Fax No. (559) 621-1182.
Contract Assurance (§ 26.13) -The contractor or subcontractor shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this contract.
The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award
and administration of DOT assisted contracts. Failure by the contractor to carry out
these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy, as the recipient deems appropriate.
Prompt Payment (§26.29) -The contractor agrees to pay each subcontractor under
this contract for satisfactory performance of its contract no later than 1O days from the
receipt of each payment the contractor receives from Sponsor. The contractor agrees
further to return any retainage payments to each subcontractor within 10 days after the
subcontractor's work is satisfactorily completed. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
approval of the Sponsor. This clause applies to both DBE and non-DBE subcontractors.
F. ENERGY CONSERVATION REQUIREMENTS
Contractor and any subcontractors agree to comply with mandatory standards and
policies relating to energy efficiency as contained in the state energy conservation plan
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has become erroneous by reason of changed circumstances. The contractor must
require subcontractors provide immediate written notice to the Contractor if at any time
it learns that its certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in
accordance with 49 CFR 30.17, no contract shall be awarded to an Sponsor or
subcontractor:
(1) who is owned or controlled by one or more citizens or nationals of a foreign
country included on the list of countries that discriminate against U.S. firms
published by the U.S.T.R. or
(2) whose subcontractors are owned or controlled by one or more citizens or nationals
of a foreign country on such U.S.T.R. list or
(3) who incorporates in the public works project any product of a foreign country on
such U.S.T.R. list;
Nothing contained in the foregoing shall be construed to require establishment of a
system of records in order to render, in good faith, the certification required by this
provision. The knowledge and information of a contractor is not required to exceed
that which is normally possessed by a prudent person in the ordinary course of
business dealings.
The Sponsor agrees that, if awarded a contract resulting from this solicitation, it will
incorporate this provision for certification without modification in in all lower tier
subcontracts. The contractor may rely on the certification of a prospective
subcontractor that it is not a firm from a foreign country included on the list of countries
that discriminate against U.S. firms as published by U.S.T.R, unless the Sponsor has
knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed
when making an award. If it is later determined that the contractor or subcontractor
knowingly rendered an erroneous certification, the Federal Aviation Administration
may direct through the Sponsor cancellation of the contract or subcontract for default
at no cost to the Sponsor or the FAA.
J. VETERAN'S PREFERENCE
In the employment of labor (excluding executive, administrative, and supervisory
positions), the contractor and all sub-tier contractors must give preference to covered
veterans as defined within Title 49 United States Code Section 47112. Covered
veterans include Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war
veterans, disabled veterans, and small business concerns (as defined by 15 U.S.C.
632) owned and controlled by disabled veterans. This preference only applies when
there are covered veterans readily available and qualified to perform the work to which
the employment relates.
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II. PROVISIONS APPLICABLE TO LEASES
VALUED AT $2,000 AND GREATER
A. COPELAND "ANTI-KICKBACK" ACT (applicable if contract includes
construction, alteration, repair, as defined in 29 CFR Part 5)
Contractor must comply with the requirements of the Copeland "Anti-Kickback" Act (18
U.S.C. 874 and 40 U.S.C. 3145), as supplemented by Department of Labor regulation
29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any
means, any person employed on the project to give up any part of the compensation to
which the employee is entitled. The Contractor and each Subcontractor must submit
to the Sponsor a weekly statement on the wages paid to each employee performing on
covered work during the prior week. Sponsor must report any violations of the Act to
the Federal Aviation Administration.
B. DAVIS-BACON REQUIREMENTS (applicable if contract includes construction,
alteration, repair, as defined in 29 CFR Part 5)
1. Minimum Wages
(i) All laborers and mechanics employed or working upon the site of the work will be
paid unconditionally and not less often than once a week, and without subsequent
deduction or rebate on any account (except such payroll deductions as are permitted
by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of
wages and bona fide fringe benefits (or cash equivalent thereof) due at time of
payment computed at rates not less than those contained in the wage determination of
the Secretary of Labor which is attached hereto and made a part hereof, regardless of
any contractual relationship which may be alleged to exist between the contractor and
such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under
section 1(b )(2) of the Davis-Bacon Act on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject to the provisions of
paragraph (1 )(iv) of this section; also, regular contributions made or costs incurred for
more than a weekly period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are deemed to be constructively
made or incurred during such weekly period. Such laborers and mechanics shall be
paid the appropriate wage rate and fringe benefits on the wage determination for the
classification of work actually performed, without regard to skill, except as provided in
29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the
time actually worked therein: Provided, that the employer's payroll records accurately
set forth the time spent in each classification in which work is performed. The wage
determination (including any additional classification and wage rates conformed under
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(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers
or mechanics includes a fringe benefit which is not expressed as an hourly rate, the
contractor shall either pay the benefit as stated in the wage determination or shall pay
another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the
contractor may consider as part of the wages of any laborer or mechanic the amount
of any costs reasonably anticipated in providing bona fide fringe benefits under a plan
or program, Provided, That the Secretary of Labor has found, upon the written request
of the contractor, that the applicable standards of the Davis-Bacon Act have been met.
The Secretary of Labor may require the contractor to set aside in a separate account
assets for the meeting of obligations under the plan or program.
2. Withholding.
The Federal Aviation Administration or the sponsor shall upon its own action or upon
written request of an authorized representative of the Department of Labor withhold or
cause to be withheld from the contractor under this contract or any other Federal
contract with the same prime contractor, or any other Federally-assisted contract
subject to Davis-Bacon prevailing wage requirements, which is held by the same prime
contractor, so much of the accrued payments or advances as may be considered
necessary to pay laborers and mechanics, including apprentices, trainees, and
helpers, employed by the contractor or any subcontractor the full amount of wages
required by the contract. In the event of failure to pay any laborer or mechanic,
including any apprentice, trainee, or helper, employed or working on the site of work,
all or part of the wages required by the contract, the Federal Aviation Administration
may, after written notice to the contractor, sponsor, applicant, or owner, take such
action as may be necessary to cause the suspension of any further payment, advance,
or guarantee of funds until such violations have ceased.
3. Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the contractor
during the course of the work and preserved for a period of three years thereafter for
all laborers and mechanics working at the site of the work. Such records shall contain
the name, address, and social security number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates of contributions or costs
anticipated for bona fide fringe benefits or cash equivalents thereof of the types
described in 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours
worked, deductions made and actual wages paid. Whenever the Secretary of Labor
has found under 29 CFR 5.5(a)(1 )(iv) that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing benefits under a
plan or program described in section 1(b )(2)(8) of the Davis-Bacon Act, the contractor
shall maintain records which show that the commitment to provide such benefits is
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(2) That each laborer and mechanic (including each helper, apprentice and trainee)
employed on the contract during the payroll period has been paid the full weekly
wages earned, without rebate, either directly or indirectly, and that no deductions have
been made either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage
rates and fringe benefits or cash equivalents for the classification of work performed,
as specified in the applicable wage determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse
side of Optional Form WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph (3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and
Section 231 of Title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph
(3)(i) of this section available for inspection, copying or transcription by authorized
representatives of the sponsor, the Federal Aviation Administration or the Department
of Labor, and shall permit such representatives to interview employees during working
hours on the job. If the contractor or subcontractor fails to submit the required records
or to make them available, the Federal agency may, after written notice to the
contractor, sponsor, applicant or owner, take such action as may be necessary to
cause the suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to make such
records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined
rate for the work they performed when they are employed pursuant to and individually
registered in a bona fide apprenticeship program registered with the U.S. Department
of Labor, Employment and Training Administration, Bureau of Apprenticeship and
Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a
person is employed in his or her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually registered in the
program, but who has been certified by the Bureau of Apprenticeship and Training or a
State Apprenticeship Agency (where appropriate) to be eligible for probationary
employment as an apprentice. The allowable ratio of apprentices to journeymen on the
job site in any craft classification shall not be greater than the ratio permitted to the
contractor as to the entire work force under the registered program. Any worker listed
on a payroll at an apprentice wage rate, who is not registered or otherwise employed
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of the ratio permitted under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work actually performed . In
the event the Employment and Training Administration withdraws approval of a
training program, the contractor will no longer be permitted to utilize trainees at less
than the applicable predetermined rate for the work performed until an acceptable
program is approved.
(iii) Equal Employment Opportunity. The utilization of apprentices, trainees and
journeymen under this part shall be in conformity with the equal employment
opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part
30.
5. Compliance with Copeland Act Requirements.
The contractor shall comply with the requirements of 29 CFR Part 3, which are
incorporated by reference in this contract.
6. Subcontracts.
The contractor or subcontractor shall insert in any subcontracts the clauses contained
in 29 CFR Part 5.5(a)(1) through (10) and such other clauses as the Federal Aviation
Administration may by appropriate instructions require, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in 29 CFR Part 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be
grounds for termination of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance With Davis-Bacon and Related Act Requirements.
All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29
CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes Concerning Labor Standards.
Disputes arising out of the labor standards provisions of this contract shall not be
subject to the general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor set forth in 29
CFR Parts 5, 6 and 7. Disputes within the meaning of this clause include disputes
between the contractor (or any of its subcontractors) and the contracting agency, the
U .S. Department of Labor, or the employees or their representatives.
10. Certification of Eligibility.
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Ill. PROVISION APPLICABLE TO LEASES
$3,000 AND GREATER
A. BAN ON TEXTING AND DRIVING
The contractor shall adopt and enforce workplace safety policies to decrease crashes
caused by distracted drivers, including policies to ban text messaging while driving
when performing any work for, or on behalf of, the Federal government. The contractor
further agrees to conduct workplace safety initiatives commensurate with the size of its
business, such as establishing rules or programs that prohibit text messaging while
driving and education, awareness, and other outreach to employees about the safety
risks associated with texting while driving.
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under the contract resulting from this solicitation. The notification shall list the name,
address, and telephone number of the subcontractor; employer identification number
of the subcontractor; estimated dollar amount of the subcontract; estimated starting
and completion dates of the subcontract; and the geographical area in which the
subcontract is to be performed.
4. As used in this notice and in the contract resulting from this solicitation, the "covered
area" is the State of California, County of Fresno, City of Fresno.
B. EQUAL EMPLOYMENT OPPORTUNITY (E.E.O) (applicable to construction
contracts, as defined in the Affirmative Action provision, over $10,000)
1. EQUAL OPPORTUNITY CLAUSE
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. The contractor will
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment without regard to their race, color, religion, sex, sexual
orientation, gender identify or national origin. Such action shall include, 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 . The contractor
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided setting forth the provisions of this
nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or
on behalf of the contractor, state that all qualified applicants will receive considerations
for employment without regard to race, color, religion, sex, or national origin.
(3) The contractor will send to each labor union or representative of workers with
which he has a collective bargaining agreement or other contract or understanding, a
notice to be provided advising the said labor union or workers' representatives of the
contractor's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
(5) The contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books, records, and
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(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South
American, or other Spanish culture or origin regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original
peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the
Pacific Islands); and
(4) American Indian or Alaskan native (all persons having origins in any of the
original peoples of North America and maintaining identifiable tribal affiliations
through membership and participation or community identification).
2. Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of
the work involving any construction trade, it shall physically include in each
subcontract in excess of $10,000 the provisions of these specifications and the Notice
which contains the applicable goals for minority and female participation and which is
set forth in the solicitations from which this contract resulted.
3. If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan
approved by the U.S. Department of Labor in the covered area either individually or
through an association, its affirmative action obligations on all work in the Plan area
(including goals and timetables) shall be in accordance with that Plan for those trades
which have unions participating in the Plan. Contractors shall be able to demonstrate
their participation in and compliance with the provisions of any such Hometown Plan .
Each contractor or subcontractor participating in an approved plan is individually
required to comply with its obligations under the EEO clause and to make a good faith
effort to achieve each goal under the Plan in each trade in which it has employees.
The overall good faith performance by other contractors or subcontractors toward a
goal in an approved Plan does not excuse any covered contractor's or subcontractor's
failure to take good faith efforts to achieve the Plan goals and timetables .
4. The contractor shall implement the specific affirmative action standards provided in
paragraphs 7a through 7p of these specifications. The goals set forth in the
solicitation from which this contract resulted are expressed as percentages of the total
hours of employment and training of minority and female utilization the contractor
should reasonably be able to achieve in each construction trade in which it has
employees in the covered area. Covered construction contractors performing
construction work in a geographical area where they do not have a Federal or federally
assisted construction contract shall apply the minority and female goals established for
the geographical area where the work is being performed. Goals are published
periodically in the Federal Register in notice form , and such notices may be obtained
from any Office of Federal Contract Compliance Programs office or from Federal
procurement contracting officers. The contractor is expected to make substantially
uniform progress in meeting its goals in each craft during the period specified.
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the contractor a minority person or female sent by the contractor, or when the
contractor has other information that the union referral process has impeded the
contractor's efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs
for the area which expressly include minorities and women , including upgrading
programs and apprenticeship and trainee programs relevant to the contractor's
employment needs, especially those programs funded or approved by the
Department of Labor. The contractor shall provide notice of these programs to the
sources compiled under 7b above.
f. Disseminate the contractor's EEO policy by providing notice of the policy to
unions and training programs and requesting their cooperation in assisting the
contractor in meeting its EEO obligations; by including it in any policy manual and
collective bargaining agreement; by publicizing it in the company newspaper,
annual report, etc.; by specific review of the policy with all management personnel
and with all minority and female employees at least once a year; and by posting the
company EEO policy on bulletin boards accessible to all employees at each
location where construction work is performed.
g. Review, at least annually, the company's EEO policy and affirmative action
obligations under these specifications with all employees having any responsibility
for hiring, assignment, layoff, termination , or other employment decisions including
specific review of these items with onsite supervisory personnel such a
superintendents, general foremen, etc., prior to the initiation of construction work at
any job site. A written record shall be made and maintained identifying the time
and place of these meetings , persons attending, subject matter discussed, and
disposition of the subject matter.
h. Disseminate the contractor's EEO policy externally by including it in any
advertising in the news media, specifically including minority and female news
media, and providing written notification to and discussing the contractor's EEO
policy with other contractors and subcontractors with whom the contractor does or
anticipates doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female, and
community organizations, to schools with minority and female students; and to
minority and female recruitment and training organizations serving the contractor's
recruitment area and employment needs. Not later than one month prior to the
date for the acceptance of applications for apprenticeship or other training by any
recruitment source, the contractor shall send written notification to organizations,
such as the above, describing the openings, screening procedures, and tests to be
used in the selection process.
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9. A single goal for minorities and a separate single goal for women have been
established. The contractor, however, is required to provide equal employment
opportunity and to take affirmative action for all minority groups, both male and female,
and all women, both minority and non-minority. Consequently, if the particular group is
employed in a substantially disparate manner (for example, even though the contractor
has achieved its goals for women generally,) the contractor may be in violation of the
Executive Order if a specific minority group of women is underutilized.
10. The contractor shall not use the goals and timetables or affirmative action
standards to discriminate against any person because of race, color, religion, sex, or
national origin.
11. The contractor shall not enter into any subcontract with any person or firm
debarred from Government contracts pursuant to Executive Order 11246.
12. The contractor shall carry out such sanctions and penalties for violation of these
specifications and of the Equal Opportunity Clause, including suspension, termination,
and cancellation of existing subcontracts as may be imposed or ordered pursuant to
Executive Order 11246, as amended, and its implementing regulations, by the Office
of Federal Contract Compliance Programs. Any contractor who fails to carry out such
sanctions and penalties shall be in violation of these specifications and Executive
Order 11246, as amended.
13. The contractor , in fulfilling its obligations under these specifications, shall
implement specific affirmative action steps, at least as extensive as those standards
prescribed in paragraph 7 of these specifications, so as to achieve maximum results
from its efforts to ensure equal employment opportunity. If the contractor fails to
comply with the requirements of the Executive Order, the implementing regulations, or
these specifications, the Director shall proceed in accordance with 41 CFR 60-4.8.
14. The contractor shall designate a responsible official to monitor all employment
related activity to ensure that the company EEO policy is being carried out, to submit
reports relating to the provisions hereof as may be required by the Government, and to
keep records. Records shall at least include for each employee, the name, address,
telephone number, construction trade, union affiliation if any, employee identification
number when assigned, social security numb,er, race, sex, status (e.g., mechanic,
apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per
week in the indicated trade, rate of pay, and locations at which the work was
performed. Records shall be maintained in an easily understandable and retrievable
form; however, to the degree that existing records satisfy this requirement, contractors
shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of
other laws which establish different standards of compliance or upon the application of
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The list of EPA-designated items is available at
www.epa.gov/e pawaste/conserve/tools/cpg/products/. Section 6002(c) establishes
exceptions to the preference for recovery of EPA-designated products if the contractor
can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the
contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or
c) Is only available at an unreasonable price.
E. TERMINATION OF CONTRACT
1. TERMINATION FOR CONVENIENCE
The Sponsor may, by written notice to the Contractor, terminate this Agreement for its
convenience and without cause or default on the part of Contractor. Upon receipt of
the notice of termination, except as explicitly directed by the Sponsor, the Contractor
must immediately discontinue all services affected.
Upon termination of the Agreement, the Contractor must deliver to the Sponsor all
data, surveys, models, drawings, specifications, reports, maps, photographs,
estimates, summaries, and other documents and materials prepared by the Engineer
under this contract, whether complete or partially complete.
Sponsor agrees to make just and equitable compensation to the Contractor for
satisfactory work completed up through the date the Contractor receives the
termination notice. Compensation will not include anticipated profit on non-performed
services.
Sponsor further agrees to hold Contractor harmless for errors or omissions in
documents that are incomplete as a result of the termination action under this clause.
2. TERMINATION FOR DEFAULT
Either party may terminate this Agreement for cause if the other party fails to fulfill its
obligations that are essential to the completion of the work per the terms and
conditions of the Agreement. The party initiating the termination action must allow the
breaching party an opportunity to dispute or cure the breach.
The terminating party must provide the breaching party [7] days advance written notice
of its intent to terminate the Agreement. The notice must specify the nature and extent
of the breach, the conditions necessary to cure the breach, and the effective date of
the termination action. The rights and remedies in this clause are in addition to any
other rights and remedies provided by law or under this agreement.
a) Termination by Sponsor: The Sponsor may terminate this Agreement in
whole or in part, for the failure of the Contractor to:
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to hold Contractor harmless for errors or omissions in documents that are
incomplete as a result of the termination action under this clause.
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V . PROVISIONS APPLICABLE TO LEASES
$100,000 AND GREATER
A. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
REQUIREMENTS (applicable to contracts employing laborers, mechanics, watchmen
and guards, or installing equipment onsite)
1. Overtime Requirements.
No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers or mechanics shall require or permit any
such laborer or mechanic, including watchmen and guards , in any workweek in which
he or she is employed on such work to work in excess of forty hours in such workweek
unless such laborer or mechanic receives compensation at a rate not less than one
and one-half times the basic rate of pay for all hours worked in excess of forty hours in
such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of this clause , the
contractor and any subcontractor responsible therefor shall be liable for the unpaid
wages. In addition, such contractor and subcontractor shall be liable to the United
States (in the case of work done under contract for the District of Columbia or a
territory, to such District or to such territory), for liquidated damages. Such liquidated
damages shall be computed with respect to each individual laborer or mechanic,
including watchmen and guards, employed in violation of the clause set forth in
paragraph (1) of this clause, in the sum of $10 for each calendar day on which such
individual was required or permitted to work in excess of the standard workweek of
forty hours without payment of the overtime wages required by the clause set forth in
paragraph (1) of this clause.
3. Withholding for Unpaid Wages and Liquidated Damages.
The Federal Aviation Administration (FM) or the Owner shall upon its own action or
upon written request of an authorized representative of the Department of Labor
withhold or cause to be withheld, from any moneys payable on account of work
performed by the contractor or subcontractor under any such contract or any other
Federal contract with the same prime contractor, or any other Federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is held
by the same prime contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such contractor or subcontractor for unpaid wages and
liquidated damages as provided in the clause set forth in paragraph 2 of this clause.
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VI. PROVISIONS APPLICABLE TO LEASES
$150,000 AND GREATER
A. BREACH OF CONTRACT TERMS
Any violation or breach of terms of this contract on the part of the contractor or its
subcontractors may result in the suspension or termination of this contract or such
other action that may be necessary to enforce the rights of the parties of this
agreement.
Sponsor will provide the contractor with written notice that describes the nature of the
breach and corrective actions the contractor must undertake in order to avoid
termination of the contract. Sponsor reserves the right to withhold payments to
Contractor until such time the Contractor corrects the breach or the Sponsor elects to
terminate the contract. The Sponsor's notice will identify a specific date by which the
contractor must correct the breach. Sponsor may proceed with termination of the
contract if the contractor fails to correct the breach by deadline indicated in the
Sponsor's notice.
The duties and obligations imposed by the Contract Documents and the rights and
remedies available thereunder are in addition to, and not a limitation of, any duties,
obligations, rights and remedies otherwise imposed or available by law.
B. CLEAN AIR AND WATER POLLUTION CONTROL
Contractor agrees to comply with all applicable standards, orders, and regulations
issued pursuant to the Clean Air Act (42 U.S.C. § 740-7671q) and the Federal Water
Pollution Control Act as amended (33 U .S.C. § 1251-1387). The Contractor agrees to
report any violation to the Sponsor immediately upon discovery. The Sponsor
assumes responsibility for notifying the Environmental Protection Agency (EPA) and
the Federal Aviation Administration.
Contractor must include this requirement in all subcontracts that exceeds $150,000.
Ill
Ill
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Required Documentation
Type 3 Waiver -The cost of components and subcomponents produced in the United
States is more that 60% of the cost of all components and subcomponents of the
"facility". The required documentation for a type 3 waiver is :
a) Listing of all manufactured products that are not comprised of 100% US
domestic content (Excludes products listed on the FM Nationwide Buy
American Waivers Issued listing and products excluded by Federal
Acquisition Regulation Subpart 25.108; products of unknown origin must be
considered as non-domestic products in their entirety)
b) Cost of non-domestic components and subcomponents, excluding labor costs
associated with final assembly and installation at project location.
c) Percentage of non-domestic component and subcomponent cost as
compared to total "facility" component and subcomponent costs, excluding
labor costs associated with final assembly and installation at project location.
Type 4 Waiver -Total cost of project using US domestic source product exceeds the
total project cost using non-domestic product by 25%. The required documentation for a
type 4 of waiver is:
a) Detailed cost information for total project using US domestic product
b) Detailed cost information for total project using non-domestic product
False Statements: Per 49 USC § 47126, this certification concerns a matter within
the jurisdiction of the Federal Aviation Administration and the making of a false,
fictitious or fraudulent certification may render the maker subject to prosecution under
Title 18, United States Code .
Date Signature
Company Name Title
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a) Listing of all product components and subcomponents that are not comprised
of 100% US domestic content (Excludes products listed on the FM
Nationwide Buy American Waivers Issued listing and products excluded by
Federal Acquisition Regulation Subpart 25.108; products of unknown origin
must be considered as non-domestic products in their entirety)
b) Cost of non-domestic components and subcomponents, excluding labor costs
associated with final assembly at place of manufacture.
c) Percentage of non-domestic component and subcomponent cost as
compared to total "item" component and subcomponent costs, excluding labor
costs associated with final assembly at place of manufacture.
Type 4 Waiver -Total cost of project using US domestic source product exceeds the
total project cost using non-domestic product by 25%. The required documentation for a
type 4 of waiver is:
a) Detailed cost information for total project using US domestic product
b) Detai led cost i nfo rma ti on f o r t ot al pro ject usi ng non -domesti c product
False St~tements: Per 49 USC § 47126, this certification concerns a matter within
the jurisdiction of the Federal Aviation Administration and the making of a false,
fictitious or fraudulent certification may render the maker subject to prosecution under
Title 18, United States Code.
Date Signature
Company Name Title
FYI Fed Assurances LEASES (07-21 -16)
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