HomeMy WebLinkAboutAeroMexico Airport Use & Lease Agreement1
AIRPORT USE AND LEASE AGREEMENT
WITH
AEROVIAS DE MEXICO S.A. de C.V.
(“AEROMEXICO”) doing business as AeroMexico
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Contents
RECITALS ....................................................................................................................... 5
AGREEMENT ................................................................................................................. 5
ARTICLE 1 - DEFINITIONS ............................................................................................ 5
Section 1.01 Meanings and Construction. ..................................................................... 5
Section 1.02 Interpretation ................................................................................... 12
ARTICLE 2 - TERM OF THE AGREEMENT ................................................................. 13
Section 2.01 Term ................................................................................................... 13
Section 2.02 Condition Under Which the Agreement Becomes Effective ................ 13
Section 2.03 Options to Extend .............................................................................. 13
Section 2.04 Holding Over ...................................................................................... 14
ARTICLE 3 - AIRLINE RIGHTS, PRIVILEGES, AND LIMITATIONS ............................. 14
Section 3.01 Use of Airport ..................................................................................... 14
Section 3.02 Employee Parking Facilities ................................................................ 18
Section 3.03 Limitation on Use by Airline ................................................................. 18
Section 3.04 Airport Use Summary .......................................................................... 20
Section 3.05 Airport Security ..................................................................................... 20
Section 3.06 Reassignment, Reallocation, Redesignation, Relocation and/or
Recapture of Leased Premises ................................................................................... 21
ARTICLE 4 - PREMISES .............................................................................................. 21
Section 4.01 General .............................................................................................. 21
Section 4.02 Leased Premises ............................................................................... 21
Section 4.03 Aircraft Parking Areas: ....................................................................... 22
Section 4.04 Use of Loading Bridges ...................................................................... 22
Section 4.05 Accommodation in City-Controlled Facilities ....................................... 23
Section 4.06 Aircraft Overnight Parking ................................................................... 23
Section 4.07 Reassignment of Leased Premises During Construction .................... 24
Section 4.08 Surrender of the Premises .................................................................. 24
Section 4.09 Access ................................................................................................ 25
ARTICLE 5 – CALCULATIONS OF RENTS, FEES AND CHARGES ........................... 25
Section 5.01 Coordination Process .......................................................................... 25
Section 5.02 Terminal Building Rental Rate ............................................................ 26
Section 5.03 Landing Fee Rate ............................................................................. 26
Section 5.04 FIS Fee Rate ..................................................................................... 27
Section 5.05 Common Use Space Charges of Signatory Passenger Carrier .......... 27
Section 5.06 Other Charges for Signatory Passenger Carrier ................................. 27
Section 5.07 Charges for Non-Signatory Passenger Carriers .................................. 28
Section 5.08 Charges for Non-Signatory Charter Carrier ........................................ 28
Section 5.09 Passenger Facility Charge (PFC) ........................................................... 29
Section 5.10 Rate Adjustment ................................................................................ 30
Section 5.11 Annual True-up .................................................................................. 31
Section 5.12 Signatory Credit .................................................................................. 32
Section 5.13 Monthly Activity Report ....................................................................... 33
Section 5.14 Payment Provisions/Interest on Overdue Amounts ............................. 34
Section 5.15 Taxes .................................................................................................. 34
Section 5.16 Records of Airline ................................................................................ 35
Section 5.17 Right of Set Off ................................................................................... 35
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ARTICLE 6 – SECURITY DEPOSIT ............................................................................. 35
Section 6.01 Due Date, Type, Form and Amount of Surety ..................................... 35
Section 6.02 Drawdowns by City ............................................................................. 36
Section 6.03 Return/Surrender/Release of Surety by City ....................................... 36
ARTICLE 7: INDENTURE OF TRUST ......................................................................... 36
Section 7.01 Subordination to Indenture of Trust ..................................................... 36
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 ............................................................ 39
Section 8.05 Payment Bond .................................................................................... 39
Section 8.06 Leasehold Improvements .................................................................... 40
Section 8.07 Debts, Liens, Mortgages ..................................................................... 40
ARTICLE 9: DAMAGE OR DESTRUCTION OF PREMISES ....................................... 40
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 .............................................................................. 45
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 ......................................................................................... 46
Section 11.04 Consent ............................................................................................. 47
ARTICLE 12: DEFAULTS ............................................................................................ 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
Section 14.02 Notices ............................................................................................... 50
Section 14.03 Successors and Assigns Bound ........................................................ 51
Section 14.04 Governing Law, Venue and Attorney’s Fees ..................................... 51
Section 14.05 Subordination to Agreements with U.S. Government ....................... 51
Section 14.06 Nonwaiver of Rights ........................................................................... 51
Section 14.07 Federal Aviation Act, Section 308 ...................................................... 51
Section 14.08 Severability ........................................................................................ 52
Section 14.09 Headings ........................................................................................... 52
Section 14.10 Bad Checks ....................................................................................... 52
Section 14.11 Assignment by City or Other Successor in Interest............................ 52
Section 14.12 Authorization ...................................................................................... 52
Section 14.13 Removal of Disabled Aircraft ............................................................. 52
Section 14.14 Quiet Enjoyment ................................................................................ 53
Section 14.15 Force Majeure ................................................................................... 53
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Section 14.16 Independent Contractor ..................................................................... 53
Section 14.17 Partnership/Joint Venture .................................................................. 53
Section 14.18 Compliance with ADA and Other Handicap Access and
Nondiscrimination ........................................................................................................ 54
Section 14.19 Compliance with Environmental Laws ............................................... 54
Section 14.20 Covenant Not to Grant More Favorable Terms .................................. 56
Section 14.21 Interpretation of Provisions ................................................................ 56
Section 14.22 Interpretation of Agreement ............................................................... 56
Section 14.23 Cumulative Remedies ........................................................................ 56
Section 14.24 Non-Solicitation ................................................................................. 56
Section 14.25 Precedence of Documents ................................................................ 57
Section 14.26 Entire Agreement ............................................................................... 57
ARTICLE 15: SIGNATURE .......................................................................................... 58
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This Airport Use and Lease Agreement (Agreement) is made and entered into this 27th
day of July, 2022, by and between the City of Fresno, a municipal corporation, (City
or Airport) and, Aerovias de Mexico, S.A. de C.V. doing business as AeroMexico,
admitted in good standing to do business in California, (Airline or AeroMexico) 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 Airli ne'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.
Affiliate 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 (IATA) 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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Agreement or Airport Use Agreement (AUA) shall mean this Airport Use and Lease
Agreement.
Airfield Area shall mean those portions of the Airport, including the terminal apron and the
cargo apron, provided for the landing, taking off, and taxiing of aircraft, including without
limitation approach and turning zones, clear zones, avigation or other easements,
runways, a fully integrated taxiway system, runway and taxiway lights, and other
appurtenances related to the aeronautical use of the Airport, including any airfield
property purchased for noise or other environmental mitigation purposes, all as shown on
Exhibit E, as may be modified, renovated or enlarged.
Aircraft Parking Position shall mean the location where the aircraft is parked on the ramp.
Airfield Area Credit shall mean the sum of annual military use fees, fuel flowage fees,
tower area rentals, government land rentals, and U.S. Forest Service landing fees.
Airfield Area Cost Center shall mean and refers to Air Operations Areas including
runways, taxiways, perimeter fencing and approach protection areas.
Airline shall mean the Signatory Passenger Carrier, which is a party to this Agreement.
Airline Airfield Area Net Requirement shall mean annual costs, deposits, and coverage
requirements allocable to the Airfield Area Cost Center and adjusted by the Airfield Area
Credit and the Annual True-Up, as shown on Exhibit F and described in Article 5.
Airline FIS Net Requirement shall mean annual costs, deposits, and coverage
requirements allocable to the FIS Facility Cost Center and adjusted by the Annual True-
Up, as shown on Exhibit G and described in Article 5.
Airline Rates and Charges shall mean rates and charges established pursuant to
Article 5.
Airline Terminal Building Net Requirement annual costs, deposits, and coverage
requirements allocable to the Terminal Building Cost Center and adjusted by the Annual
True-Up, as shown on Exhibit D and described in Article 5.
Airport shall mean the Fresno Yosemite International Airport (FAT), as it currently exists
or hereafter may be modified.
Airport Rules for Airlines/Ground Handlers (Rules and Regulations) shall mean the
manual provided by Director of Aviation or his appointed staff for operating an Airline at
Airport. It is the 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. City shall provide reasonable
advance written notice of any changes to the Rules and Regulations.
Air Transportation Business shall mean the carriage by aircraft of persons or property
as a common carrier for compensation or hire, or the carriage of cargo, freight or mail
by aircraft in commerce, as defined in the Federal Aviation Act of 1958, as amended.
Amortization Charge shall mean, with respect to a capital project to be paid or financed
with airport cash (as opposed to Bonds), an amount based on the useful life of the project
and calculated using an interest rate of 3.45%. Amortization Charge shall be calculated
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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
Non-Signatory Passenger Carriers using such space for the month. FIS users are not
subject to common use charges related to baggage claim area in the Terminal Building.
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Common Use Space shall mean space leased by Airline in common with other Signatory
and Non-Signatory Passenger Carriers in the Terminal Building, including ticket counter
and queuing space, baggage makeup space, baggage claim space, TSA passenger and
baggage screening space, holdroom space and other spaces as described in Article 4
and delineated on Exhibit A.
Common Use Ticket Counter Position shall mean the ticket counter position(s)
designated by the City for the use by the Airline as assigned in accordance with the
Common Use Facilities Policy and Procedures Manual.
Consumer Price Index For All Urban Consumers or CPI shall mean the Consumer Price
Index for Urban Wage Earners and Clerical Workers by the Bureau of Labor Statistics,
U.S. Department of Labor (all items, U.S. city average) from January 1 to December 31
during the last full calendar year prior to the scheduled rental adjustment date. CPI shall
have a base year of 2019.
Cost Centers shall mean the areas (and functional activities associated with such areas)
used in accounting to aggregate costs for the purposes of calculating Airline Rates and
Charges, including Airfield Area, Terminal Building, and FIS Facility.
COVID-19 Federal Operating Grants shall mean the federal operating grant
reimbursements received under the Coronavirus Aid, Relief, and Economic Security Act,
the Coronavirus Response and Relief Supplemental Appropriations Act, the American
Rescue Plan Act, and other federal regulations related to COVID-19.
Date of Beneficial Occupancy or DBO shall mean the date when a project or phased
component of a project has been completed and the Director of Aviation determines that
it is available for use by Passenger Carriers or Cargo Carriers.
Debt Service shall mean the sum of (a) Adjusted Debt Service and (b) other amounts, if
any, to be paid into the Subordinated Indebtedness Funds, both as defined in the
Indenture of Trust.
Director of Aviation shall mean the City’s Director of Aviation, or the designee or other
individual authorized to perform the duties of the Director of Aviation.
Effective Date shall mean the date indicated in Section 2.01.
Enplaned Passengers shall mean any passenger boarding an aircraft at the Terminal
Building, including any such passenger that previously disembarked from another aircraft
of the same or a different Signatory or Non-Signatory Passenger Carrier or Non-Signatory
Charter Carrier or from the same aircraft previously operating under a different flight
number. The term Enplaned Passenger shall exclude all Airline personnel who are
working on the flight.
Environmental Laws shall mean all applicable federal, state, and local statutes,
ordinances, regulations, rules, laws, permits, and orders relating to the generation, use,
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,
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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. 2011et 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.
Federal Aviation Administration 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 Facility 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.
Gate(s) shall mean each area from which passengers enplane or deplane aircraft,
including but not limited to the associated hold room, common use computer system, and
podium(s).
Hazardous Materials shall mean friable asbestos or asbestos-containing materials;
polychlorinated biphenyls (PCBs); petroleum, or crude oil or any fraction thereof; natural
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gas, special nuclear material, and byproduct materials regulated under Environmental
Laws, pesticides regulated under Environmental Laws, and any hazardous waste, toxic,
or dangerous substance or related material, including any material defined as a
hazardous substance, hazardous waste, toxic substance, pollutant or contaminant (or
comparable term) under any Environmental Laws.
Indenture of Trust shall mean the Indenture of Trust dated June 15, 2000 by and between
the City of Fresno and BNY Western Trust Company as Trustee, as amended and
supplemented, relating to City of Fresno Airport Revenue Bonds.
Landed Weight shall mean the highest maximum gross certificated landing weight for the
aircraft model operated at the Airport by carrier as listed in the manufacturer’s
Characteristics or Planning Manual. If the manufacturer’s Characteristics or Planning
Manual is not available, the FAA Type Certificate Data Sheet will be used. The Airport
may annually review and update the highest maximum gross landing weight based on
any changes to the Characteristics or Planning Manual, or the FAA Type Certificate Data
Sheet, as applicable.
Landing Fee Rate shall mean any Landing Fee Rate per thousand pounds of Landed
Weight as established pursuant to Section 5.03.
Leased Premises shall mean Common Use Space and Exclusive Use Space in the
Terminal Building as defined in this Agreement and depicted in its exhibits.
Master Fee Schedule shall mean the annual schedule of fees published by the City.
Multi-User Flight Information Display System (MUFIDS) or Flight Information Display
System (FIDS) shall mean a network of monitors and software applications that displays
real-time flight information for the passengers.
Non-Signatory Cargo Carrier shall mean a cargo carrier using the Airport that is not a
Signatory Cargo Carrier.
Non-Signatory Charter Carrier shall mean a passenger carrier using the Airport that offers
either (a) non-scheduled services or (b) seasonal services that lasts less than twelve (12)
consecutive months.
Non-Signatory Passenger Carrier shall mean a passenger carrier using the Airport to
provide scheduled air service but is not a Signatory Passenger Carrier or a Non-
Signatory Charter Carrier.
Non-Signatory Charter Carrier Terminal Use Fee shall mean the fees and charges in the
Master Fee Schedule applicable to Non-Signatory Charter Carriers, which may be revised
by the City from time to time.
Non-Signatory Terminal Common Use Fee shall mean the fee per Enplaned Passenger
to be paid by Non-Signatory Passenger Carriers for the use of Terminal Building Common
Use Space, calculated as the product of the total square footage of Common Use Space
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.
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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.
Signatory Cargo Carrier shall mean a carrier engaging in all-cargo air transportation at
the Airport, which is certificated by the Secretary of the U.S. Department of Transportation
under 49 U.S.C. § 41103, or 49 U.S.C. § 41302, and has executed a lease of cargo
building space and preferential cargo ramp space directly from the City.
Signatory Credit shall mean fifty percent (50%) of the positive amount, if any, of Revenues
less (a) Operating Expenses; (b) Debt Service; (c) required deposits, if any, to Operating
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Reserve Fund pursuant to the Indenture of Trust; and (d) Capital Allowance, calculated
after Annual True-up.
Signatory Passenger Carrier shall mean a passenger carrier that has executed an Airport
Use Agreement (AUA) and is engaging in regularly scheduled passenger service related
to air transportation at the Airport, which is certificated by the Secretary of the U.S.
Department of Transportation under 49 U.S.C § 41102, or 49 U.S.C § 41302.
Terminal Building shall mean the terminal complex area of the Airport as shown in Exhibit
C, as may be modified, renovated or enlarged.
Terminal Building Cost Center shall mean and refers to Terminal/Concourse Building,
hotel and autos service station. Also includes landscaping along terminal roadways.
Terminal Building Net Requirement shall mean annual costs, deposits, and coverage
requirements allocable to the Terminal Building and adjusted by Security Fees, pursuant
to Section 5.02.
Terminal Building Rental Rate shall mean the annual rental rate per square foot for
space in the Terminal Building, calculated by dividing the Terminal Building Net
Requirement by Useable Space, as shown in Exhibit D and described in Section 5.02.
Transportation Security Administration or TSA shall mean the Transportation Security
Administration created under the Aviation and Transportation Security Act of 2001,
as amended, or any successor agency thereto.
United States Customs and Border Protection or CBP shall mean the U.S. Customs and
Border Protection law enforcement agency and is part of the United States Department
of Homeland Security.
Usable Space shall mean space in the Terminal Building determined by the City that is
either rentable by tenants or usable for public circulation pre- or post-security, which may
be amended by City from time to time to reflect additions to or deletions of space, or other
structural changes within the Terminal Building.
Section 1.02 Interpretation
A. References in the text of this Agreement to articles, sections, paragraphs, or
exhibits pertain to articles, sections, paragraphs, or exhibits of this Agreement,
unless otherwise specified.
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.
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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.
B. Second Option: The second option to extend the term of this Agreement will be for
an additional period of five (5) years, thereby ending June 30, 2037, 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 67% for the calendar year 2030,
must agree to the option and written Notice must be given to the City prior to
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October 1, 2031. 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, 2032. Signatory Passenger Carriers will be allowed to evaluate
and adjust their space needs following the extended five (5) year term, and by no
later than April 30, 2032, provide the City their adjusted space needs, if any.
Section 2.04 Holding Over
Holding over by Airline after the expiration or earlier termination of the Agreement with or
without the consent of City shall be a tenancy from month-to-month only, terminable on
thirty (30) days’ written notice; provided, however, that if Airline shall be in default of this
Agreement beyond all notice and cure periods at the commencement of the holdover,
then the Airline shall not be entitled to Signatory Passenger Carriers’ fees and charges
during said month-to-month tenancy and shall pay the non-signatory fees and charges as
established by City and further provided that except as otherwise specifically provided
within this Article, any such holding over shall be subject to all the other terms, covenants,
conditions, restrictions reservations, prohibitions, warranties, agreements and provision
of this Agreement applicable to a month-to-month tenancy.
ARTICLE 3 - AIRLINE RIGHTS, PRIVILEGES, AND LIMITATIONS
Section 3.01 Use of Airport
Subject to the terms of this Agreement, Airline shall have the right to conduct its Air
Transportation Business at the Airport, directly or through its Affiliate(s), and to
perform all operations and functions that are incidental or necessary to the conduct
of such business at the Airport. Each Affiliate shall have the same rights as Airline with
respect to its use and occupancy of the Airport. Nothing in this Article shall be construed
as authorizing Airline to conduct any business separate and apart from the conduct of
its Air Transportation Business at the Airport. Any rights not specifically granted to
Airline for its use of and operations at the Airport pursuant to this Agreement are hereby
reserved for and to the City.
A. Use of Common Facilities at the Airport. Airline, its employees, passengers,
guests, patrons, agents, independent contractors, and invitees shall have the right
to the use, in common with other duly authorized users, of those portions of the
Airport and appurtenances, together with all facilities, improvements, equipment,
and services that have been or may hereafter be provided for common or joint use
by the City at or in conjunction with the Airport.
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,
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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
FAA-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
fares of such ground transportation commercial carrier for such right as City
may set.
4. The training of persons and testing of aircraft and other equipment at the
Airport, such training and testing to be limited to that incidental to Airline’s
Air Transportation Business.
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5. Subject to this Agreement, the purchase of Airline’s requirements of
personal property or services, including fuel, lubricants, food, beverage, and
other passenger supplies, and any other materials and supplies used by
Airline from any person or company of Airline’s choice for services to be
performed for Airline that are incidental to the operation of Airline’s Air
Transportation Business. Nothing herein shall restrict City from levying a
nondiscriminatory concession fee on any person or company for conducting
non-air transportation business at the Airport.
6. The sale, disposal, and exchange of Airline’s aircraft, engines, accessories,
fuel, oil, lubricants, other equipment, and materials or supplies to other Air
Transportation companies. Such right shall not be construed as authorizing
the conduct of a separate regular business by Airline, but as permitting
Airline to perform only those functions that are related to the operation of its
Air Transportation Business.
7. The servicing by Airline, or by its suppliers of materials or its furnishers of
services, or aircraft and other equipment operated by Airline with minor
maintenance or other materials or supplies, at its assigned Aircraft Parking
Positions or other Aircraft Parking Positions designated by City. City
reserves the right at any time to designate other locations reasonably
accessible from the Terminal Building for performance of aircraft
maintenance and service activities if City believes that such activities would
interfere with aircraft operations of other airlines subject to availability of
space and to such rules and regulations the City may establish.
8. Airline or its ground handling service provider shall be required to supply all
ground service equipment necessary to service their scheduled airline
operations. If any Airline or ground handling service provider has an
agreement to use another company’s equipment, a copy of such written
agreement shall be provided to the City upon its execution.
9. The installation and operation, at Airline’s sole cost and expenses, of
identifying signs and graphics on the Airline’s Exclusive Use Space subject
to prior written approval of City, (not to be unreasonably withheld or
delayed) provided that such signs shall be: (1) substantially uniform in size,
type, and location with those of other airlines; (2) consistent with City’s
graphics standards as established from time to time by the City; and (3) in
compliance with all local laws, ordinances and rules and regulations.
10. 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
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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.
11. In order to maximize the utilization of holdroom check-in podiums, holdroom
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.
12. 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.
13. 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.
14. It is understood and agreed that City reserves the right to charge and to
collect reasonable fees or commissions for in-flight catering, vending,
ground transportation, ground support services (excluding deicing services)
for other Air Transportation Business(es), and other services or facilities
provided by or for Airline in competition with concessionaires and operators
operating under an agreement with City. The City’s right to charge and
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collect fees or commissions from Airline and/or other Air Transportation
Business(es)for such services or facilities shall not apply to Air
Transportation Business serviced by Airline that are code share partners,
subsidiaries, or affiliate airlines. The City’s right to charge and collect a
reasonable fee or commission shall be subject to a written and signed
amendment by both Parties to this Agreement.
15. Airlines are responsible for registering all ground service equipment (GSE)
owned or operated by Airline, with the City. While such equipment is in
service at Airport, Airline is responsible for keeping it in working condition
on the airfield and parked in the properly marked areas. In addition to this
paragraph:
a. No unused or broken GSE equipment shall be left unattended in aircraft
parking areas; and
b. No GSE equipment shall be parked in between aircraft parking spots.
16. Airline and its ground service provider operating on the Airline’s behalf shall
follow all Rules and Regulations as set forth by the City.
Section 3.02 Employee Parking Facilities
Airline employees working at the Terminal Building shall have the right to the use of
vehicular parking facilities in common with other employees. Such facilities shall be
located in an area designated by City. City reserves the right to assess a reasonable
charge to recover the costs of providing such space to such Airline employees, in common
with other Airport/tenant employees, for such parking facilities.
Section 3.03 Limitation on Use by Airline
In connection with the exercise of its rights under this Agreement, Airline:
A. Shall not do or permit to be done anything at or about the Airport that may interfere
with the use, operation, or maintenance of the Airport, including but not limited to,
the effectiveness or accessibility of the water system, drainage and sewage
system, fire protection system, sprinkler system, alarm system, fire hydrants and
hoses, heating or ventilation system, air conditioning system, electrical system,
natural gas, security system, communications, or other Airport systems installed
or located on or within the Leased Premises or the Airport.
B. 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.
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C. 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.
D. 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 (100o) 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.
E. 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.
F. 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 Airline clubroom or similar private facility at the Airport. These
provisions shall not apply to snacks or drinks provided to passengers by the Airline
due to irregular operations or long delay periods that are 60 minutes or more in
duration.
G. Agrees to comply with the FAA-approved Master Security Plan as amended from
time to time for the Airport. Any fines and/or penalties levied against the City for
security violations at the Airport caused by Airline or any of its employees, agents,
or suppliers while under its control, shall be due and payable by Airline.
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I. Shall not install any coin-operated or card operated machine(s) or device(s),
except for (1) machines for the sale of Airline’s tickets or issuance of boarding
passes located on Airline’s Leased Premises or other areas approved in writing by
City, or (2) beverage or snack machines, except as provided in this Agreement.
Section 3.04 Airport Use Summary
A. Airline shall file an Airport Use Summary (“Summary”) with the City within 15 days
of the date hereof. City shall provide Airline with Summary report form requesting
information specified below in regard to Airline’s operation at the Airport. Airline
shall maintain a current Summary on file with the City, and, if requested, by City,
shall promptly confirm that the Summary then on file is accurate.
B. Accordingly, the Summary shall provide the following:
1. Names, addresses, and telephone numbers of Airline officials responsible
for station operations, flight operations, properties, and facilities.
2. The current and proposed schedules of Airline’s flight activity at the Airport.
The Airline shall use its commercially reasonable efforts to notify the City of
schedule changes or the addition of flights at the Airport prior to or no later
than when the public announcement thereof is made.
3. When requested by the City, or when changes are planned by the Airline,
the description of Airline’s fleet and identification of the class of Airline’s
aircraft that will serve the Airport. Airline shall provide reasonable notice of
the introduction of an aircraft that is not being operated by Airline at the
Airport on the date of this Agreement.
4. The identification of Airline’s anticipated facilities requirements at the
Airport.
5. The Airline’s aircraft recovery plan for disabled aircraft.
6. The Airline’s written plan for how it plans to handle all unscheduled aircraft
operations.
Section 3.05 Airport Security
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.
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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
Recapture 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 4.02B
shall in no way diminish the City’s obligations as otherwise provided for in this
Agreement.
1. City and Airline may, from time to time by mutual agreement, add to or
delete space from the Leased Premises. Any such addition or deletion
shall be subject to the rates and charges set forth in Article 5 hereof. In
the event of any such addition or deletion, Exhibits A and B will be revised
to reflect the resulting changes in Airline Leased Premises and signed by
both Parties.
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C. City shall advise Airline, in writing, if and when the Airline is found to be operating
in space other than Exclusive Use Space or Common Use Space and such
space is not displayed on Exhibits A or B. The Airline shall upon receipt of
Director of Aviation’s written Notice promptly (i.e., within seventy–two (72)
hours) cease its use of any and all space not leased to the Airline. In the event
Airline does not immediately cease its use of such space, the City shall
immediately bill the Airline for the additional space at non-signatory airline rates
and, at its option, may require the Airline to vacate the space within 30 days or
execute an amendment to its lease for such additional space. In the event of an
amendment, Exhibits A or B shall be immediately revised to reflect the added
space provided that additional space is not already leased to another tenant of
the Airport. A copy of such revised Exhibits A or B shall be filed on record with
the City and, upon such filing, shall automatically become a part of this Agreement.
D. All space added to Airline Leased Premises, pursuant to Subsection 4.02(B)
and/or Subsection 4.02(C), will become Leased Premises and will be subject to
all the terms, conditions, and other provisions of this Agreement and Airline shall
pay to City all rentals, fees and charges applicable to such additional premises
in accordance with the terms of this Agreement.
E. Airline agrees that City, at its option and upon ninety (90) days written Notice to
Airline, may recapture the Airline’s Leased Premises if said Leased Premises
are required by City to implement any capital improvement projects. In such
event, City agrees to provide Airline with comparable facilities, which shall be
substituted for Airline’s Leased Premises in accordance with Subsections
4.02(B) and 4.02(C). City shall reimburse Airline for any costs incurred by Airline
arising from City’s exercise of the right set forth in this Subsection 4.02(E).
Section 4.03 Aircraft Parking Areas:
Airline shall have a priority in using its Preferential Use Position as follows:
A. Airline’s right to its Preferential Use Position, as depicted in Exhibit B-2, shall be
subject to requirements of the Common Use Policy, Rules and Regulations, Safety
Management Systems and all Rules and Regulations as modified from time to time
by the City provided that such the Common Use Policy, Rules and Regulations,
Safety Management Systems shall not contravene the Airline priory of use for its
“operations as scheduled”.
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”.
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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 Accommodation 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
of Signatory Passenger Carriers and Non-Signatory Passenger Carriers. Upon Airline’s
request, the City may grant to Airline the right to use, in common with other airlines,
designated City- controlled facilities subject to Airline's payment of applicable fees.
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Section 4.06 Aircraft Overnight Parking
Airline is required to follow all requirements as defined in the Rules and Regulations and
Common Use Policy.
Section 4.07 Reassignment of Leased Premises During Construction
During the term of this Agreement, City may initiate a terminal area construction project,
which expands or modifies or impacts the Airline’s Leased Premises including leasehold
dimensions or location of Common Use Space. Before undertaking such construction
project, Director of Aviation shall consult with and consider any suggestions of Airline at
the planning states of the construction project, but the approval of Airline shall not be
required. Upon completion of the construction project, Director of Aviation shall issue
revised exhibits of Airline’s Leased Premises, and such exhibits shall revise the basis for
determining the amount of Leased Premises rentals, fees and charges payable by Airline.
In the event of a terminal area construction project it may be necessary for City to
temporarily reassign Leased Premises or Aircraft Parking Positions during construction
after reasonable written notice is provided to Airline. During the construction period,
Airline shall pay appropriate charges only for those areas designated and utilized for
Airline use. As reasonably agreed to by City, Airline costs for being relocated to
temporary Leased Premises and for being returned to its permanent Leased Premised
shall be paid by the City. City may, at its sole discretion, include such relocation costs as
part of the construction project costs or pay such relocation costs from the Airports
Surplus Fund, as defined in the Indenture of Trust.
Section 4.08 Surrender of the Premises
A. Airline covenants and agrees that on expiration of the term of this Agreement, or
on earlier termination as hereinafter provided, or on reassignment as heretofore
provided, Airline will peaceably surrender possession of the Leased
Premises/portions thereof in good condition, space should be returned to the City
in the condition it was given upon first use of occupancy by the Airline, reasonable
wear and tear excepted. City shall have the right to take possession thereof. City
shall not be required to give notice to quit possession at the expiration date of the
term of this Agreement except to any extent required by law.
B. Airline shall have the right, on expiration or early termination of this Agreement and
within thirty (30) calendar days thereafter, to remove or dispose of all trade fixtures
and equipment and other personal property installed or placed by Airline at its
expenses, in, on, or about the Airport, subject to any valid lien that City may have
thereon for unpaid rents or fees. Such lien shall not apply to aircraft or aircraft
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.
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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 Coordination 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.
B. 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
Year. Airline also shall make best efforts to provide the City with a similar estimate
for each one of its Affiliates.
C. On or about June 1 of each year, the City shall provide Airline’s properties
representative with (1) a preliminary calculation of Airline Rates and Charges; (2)
budgeted operating expenses for the ensuing Fiscal Year; and (3) budgeted capital
projects.
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D. Taking into account the Airline’s consultation comments, and changes in
circumstances or assumptions, if any, the City shall prepare a final calculation of
Airline Rates and Charges for the ensuing Fiscal Year, and will make best efforts
to provide a copy to Airline no later than the last business day of the month
preceding the start of the new Fiscal Year.
Section 5.02 Terminal Building Rental Rate
A. Terminal Building Rental Rate shall be calculated by using the following amounts
allocable to the Terminal Building Cost Center:
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. Terminal Building Credit; equals
7. Terminal Building Net Requirement, divided by
8. Usable Space, equal
9. Terminal Building Rental Rate before adjustment, plus or minus
10. Adjustments due to Annual True-up, equal
11. Terminal Building Rental Rate, multiplied by
12. The Leased Premises of Passenger Carriers, equal
13. Airline Terminal Building Net Requirement
B. Terminal Building Credit is made up of the following annual amounts:
1. Security Fee
2. COVID-19 Federal Operating Grants
3. Other federal operating grant reimbursements
Section 5.03 Landing Fee Rate
A. Landing Fee Rate shall be calculated by using the following amounts allocable to
the Airfield Area Cost Center:
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. 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
10. Landing Fee Rate
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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
DBO 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.
Section 5.05 Common Use Space Charges of Signatory Passenger Carrier
The City shall calculate the Common Use Space charges by multiplying the total square
footage of Common Use Space by Terminal Building Rental Rate net of applicable Non-
Signatory Terminal Use Fee payments, if any, and allocate the net charges based on the
Common Use Formula on a monthly basis.
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Section 5.06 Other Charges for Signatory Passenger Carrier
A. The City shall continue to implement the Security Fee rate at One Dollar ($1.00)
per Enplaned Passenger during the initial term of the Agreement.
1. If the first and second option to extend are approved by the Signatory
Passenger Airlines, the City may, at its discretion adjust the Security Fee
rate, based on changes in the CPI. Any adjustment shall occur prior to the
end of each term period.
B. The City reserves the right to establish, modify, or assess from time to time, and
Airline agrees to pay, reasonable charges for the use of additional City-provided
facilities, equipment and services, if the related costs have not been included in
the calculation of Terminal Building Rental Rate and Landing Fee Rate, or
recovered through FIS charges.
Section 5.07 Charges for Non-Signatory Passenger Carriers
A. Non-signatory Passenger Carriers shall pay the following amounts to the City:
1. For the use of Airfield Area, the product of (a) Landed Weight and (b) One
Hundred and Twenty-five Percent (125%) of Landing Fee Rate;
2. For the use of Terminal Building:
a. Security Fee calculated as Enplaned Passengers multiplied by One Dollar
and Twenty-five Cents ($1.25) for the initial term.
i. If the first and second option to extend are approved by the Signatory
Passenger Airlines, the City may, at its discretion, adjust the Security
Fee rate prior to the end of each term period in accordance with
Section 5.06(A) above.
b. The product of (a) Exclusive Use Space, if any, and (b) One Hundred and
Twenty-five Percent (125%) of Terminal Building Rental Rate
c. Non-Signatory Terminal Use Fee multiplied by Enplaned Passengers of the
Non-Signatory Passenger Carrier.
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.
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Section 5.08 Charges for Non-Signatory 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
agree, the Trust Account shall be held by an independent third party bank
trustee, in which event such trustee's fees shall be payable by City. City shall
have the right to select such trustee subject to the approval of the Collecting
Carrier which approval will not be unreasonably withheld. The Trust Account
shall be separate from and not commingled with all other Collecting Carrier
funds, including PFCs collected on behalf of other airports. In accordance with
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Section 158.51 of the PFC Regulations, any amounts required to be remitted
to City under such section shall be paid in any event by Collecting Carrier, as
trustee, or by such third party bank trustee, to City on or before the date
specified in such section first out of the net principal amount, then, to the extent
of any deficiency, by Collecting Carrier, out of income earned thereon and then,
by Collecting Carrier, out of any available funds of Collecting Carrier. Funds in
the Trust Account shall be invested solely in instruments issued or guaranteed
by the United States government or any of its agencies, commercial paper
rated A 1 or P1 or better by, respectively, Standard & Poors or Moody's Investor
Service, or federally insured bank certificates of deposit. Any income earned
on funds in the Trust Account on or prior to the date of required remittance to
City shall be the property of the Collecting Carrier and shall be paid directly to
Collecting Carrier. Any income earned on funds in the Trust Account after the
date of required remittance to City shall be the property of the City and shall be
paid immediately to City. If Collecting Carrier, as trustee for City, timely and
properly funds and administers the Trust Account and pays over to the City the
PFCs in accordance with PFC Regulations and this Agreement for a period of
eighteen (18) consecutive months, then Collecting Carrier may submit a written
request to City that the Trust Account be terminated and that Collecting Carrier
collect the PFCs in accordance with the provisions of this Section 5.09. City
shall not unreasonably deny Collecting Carrier's request. The City shall have
the right to apply the provisions of this Section each time Collecting Carrier fails
to timely remit PFCs in accordance with the PFC Regulations and within ten
(10) days of written notice of non-payment from City.
2. In the absence of additional regulations governing the treatment of refunds, any
refunds of PFCs due to passengers as a result of changes of itinerary shall be
paid proportionately out of the net principal amount attributable to such PFCs
and the amount that Collecting Carrier was permitted to retain under section
158.53 (a) of the PFC Regulations attributable to such PFCs. Collecting Carrier
hereby acknowledges that the net principal amount of all PFCs collected on
behalf of City shall remain at all times property of City except to the extent of
amounts refunded to passengers pursuant to the preceding sentence (which
shall remain the property of City until refunded and become the property of the
passenger upon and after refund). Other than the amounts that Collecting
Carrier is entitled to retain pursuant to Section 158.53 of the PFC Regulations,
Collecting Carrier shall be entitled to no compensation.
Section 5.10 Rate Adjustment
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
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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 B.
Section 5.11 Annual 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
Premises of Passenger Carriers and be subtracted from the calculation of
Terminal Building Rental Rate in the ensuing Fiscal Year.
B. For the Annual True-up for the last two Fiscal Years of this Agreement - FY 2026
and FY 2027 if no option to extend is exercised, or FY 2034 and FY 2035 if both
options to extend are exercise:
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1. If the actual Airline Airfield Area Net Requirement, Airline FIS Net
Requirement, and Airline Terminal Building Net Requirement exceed the
respective collected amounts, the underpayment shall be billed to Signatory
Passenger Carriers and Signatory Cargo Carriers (when applicable) based
on the difference in the Landing Fee Rate, the FIS Fee Rate, and the
Terminal Building Rental Rate respectively, and invoices shall be due and
payable within sixty (60) days of invoice.
2. If the actual Airline Airfield Area Net Requirement, Airline FIS Net
Requirement, and Airline Terminal Building Net Requirement are less than
the respective collected amounts, the overpayment shall be credited to
Signatory Passenger Carriers and Signatory Cargo Carriers (when
applicable) based on the difference in the Landing Fee Rate, the FIS Fee
Rate, and the Terminal Building Rental Rate respectively, starting after the
month of the Annual True-up calculation.
3. Any overpayment made by an Airline will be paid to the airlines if there is
no future Agreement between the Airline and the City.
Section 5.12 Signatory Credit
A. The City shall calculate the Signatory Credit, as depicted in Exhibit H attached
hereto and incorporated herein, based on actual audited data.
1. Twenty-five Percent (25%) of the Signatory Credit shall be allocated to the
Signatory Passenger Carriers and Signatory Cargo Carriers based on their
share of total Landed Weight of Signatory Passenger Carriers and
Signatory Cargo Carriers for the Fiscal Year being calculated.
2. Sixty-five Percent (65%) of the Signatory Credit shall be allocated to the
Signatory Passenger Carriers based on their share of total Enplaned
Passengers of Signatory Passenger Carriers for the Fiscal Year being
calculated.
3. Ten percent (10%) of the Signatory Credit shall be allocated to the Signatory
Passenger Carriers based on their share of total FIS Users of Signatory
Passenger Carriers for the Fiscal Year being calculated.
B. All or a portion of the Signatory Credit, if any, shall be prorated over the remaining
months of the then-current Fiscal Year, and shall be applied as a monthly credit to
the Airline Rates and Charges invoiced to the Signatory Passenger Carriers and
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).
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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.
B. 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
question. Resulting surpluses or deficits shall be applied as credits or charges to
the appropriate invoices in the succeeding month(s).
C. Airline Monthly Activity Report shall be delivered to City at the address below or at
such address to which City, by service of written notice upon Airline, may direct
the delivery thereof, from time to time:
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Via Mail/Express to: Via Email:
City of Fresno FYI.Finance@fresno.gov
Fresno Yosemite International Airport
Attn.: Airport Accounting
4995 East Clinton Way
Fresno, CA 93727-1504
Section 5.14 Payment Provisions/Interest on Overdue Amounts
A. Unless otherwise provided in this Agreement, fixed (i.e. non-activity based) Airport
rentals, fees and charges shall be due and payable the first (1st) day of each
month, in advance, without invoice.
B. Unless otherwise provided in this Agreement, variable (i.e. activity based) Airport
rentals, fees, and charges shall be due and payable the fifteenth (15th) day of each
month following the month in which assessed, without invoice.
C. Unless otherwise provided in this Agreement, all other rentals, fees, and charges
shall be due and payable on invoice within thirty (30) days of the date of the invoice.
D. The acceptance by City of any payment by Airline shall neither constitute City’s
approval of, nor preclude City from questioning the accuracy of, computations in
Airline’s Monthly Activity Report, submitted to City as provided in Section 5.13, or
from recovering any additional payment actually due from Airline.
E. Any payment not received by the due date shall be deemed delinquent and shall
accrue interest at the lesser of the rate of eighteen percent (18%) per year
calculated on a daily basis at the rate of five-hundredths of a percent (0.05%) per
day from the due date until paid in full, or the maximum rate allowed by law.
F. All payments due and payable herein shall be paid in lawful money of the United
States of America, without set off, by check or wire transfer made payable to City
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 5.15 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
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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 5.16 Records of Airline
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 5.17 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,
provided that such written notice shall not prevent or limit the right of City to exercise any
other right or remedy available to City under this Agreement or at law or in equity as a
result of the non-payment of the amount in dispute by Airline.
ARTICLE 6 – SECURITY DEPOSIT
Section 6.01 Due Date, Type, Form and Amount of Surety
Airline shall provide to City a Security Deposit in an amount equal to three (3) months
Agreement Rents, Fees, and Charges. Such deposit shall be in the form of: (i) cash; (ii)
a Surety Bond issued by an insurance company authorized to do business in the State of
California and authorized to write such bonds in said State; or (iii) a non-revocable Letter
of Credit established in favor of City for the account of Airline by a federally chartered
bank acceptable to City, guaranteeing the faithful performance of all of the covenants and
conditions herein to be performed by Airline. Upon the expiration or termination of this
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
acquired by Airline under this 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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Agreement, and the payment of all fees and charges due to the City for the privileges
granted in this Agreement, the Security Deposit shall be refunded or the surety instrument
returned to Airline, provided there are no other outstanding claims or charges against
Airline by City. City shall not be required to pay, and City shall not pay, any interest on
this Security Deposit.
Section 6.02 Drawdowns by City
If Airline defaults with respect to any provision of this Agreement (and such default
extends beyond any applicable cure period provided in this Agreement), including but not
limited to the provisions relating to payment of rentals, fees and charges or any other
sums due and owing, City may, to the extent allowed by law, with or without prior notice
to Airline (except as otherwise required herein), draw down on the surety provided by
Airline, up to the full amount thereof, and apply such draw on amount(s) to correct any
default by Airline, to pay any rentals or other sums in default by Airline, to reimburse City
for any amount(s) which City may spend or become obligated to spend by reason of
Airline's default, to compensate City for any other loss or damage which City may suffer
by reason of Airline's default, or to pay any amount due or owing upon expiration or earlier
termination of this Agreement.
A. Within fifteen (15) calendar days following any draw on and application by City of
any part or the entire surety amount provided by Airline, City shall provide Airline
with notice of such draw on and application, in writing.
B. In the event the amount of surety provided City by Airline shall, at any time and
from time to time during the life hereof be reduced pursuant to the draw down
provisions of this Agreement, Airline shall, within ten (10) days after written
demand therefore is served upon Airline by City, deposit additional surety with City
in a sum sufficient to restore the required surety to its currently obligatory amount.
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/Surrender/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
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conditions of the lndenture of Trust, Supplemental Indentures, and future indentures. In
conflicts between this Agreement and the lndenture of Trust, the lndenture of Trust shall
govern. All definitional terms that are not specifically defined herein are to have the
meanings set forth in the lndenture 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 lndenture of Trust are outstanding, bond proceeds and all Airport revenues shall be
deposited, maintained, and paid as set forth in the lndenture 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,
and equipment now or hereafter provided by City at or in connection with the
Terminal Building, except any improvements, facilities, and equipment constructed
or installed by Airline and any Exclusive Use Space hereunder. City shall keep the
Terminal Building, except Airline’s Exclusive Use Space, in a neat, orderly,
sanitary, and presentable condition.
C. Consistent with this Agreement and constitutional and local law requirements City,
with its own forces or by contract, shall at all times maintain the structure of all
Leased Premises and repair latent defects in facilities provided by City.
D. Consistent with this Agreement and constitutional and local law requirements City,
with its own forces or by contract, shall at all times maintain the public and
Common Use space areas of the Terminal Building so as to provide for reasonable
unobstructed use thereof by passengers and invitees, and shall keep such area
adequately supplied, equipped (including directional signs), furnished, and
decorated.
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E. City shall supply or cause to be supplied appropriate and adequate equipment and
maintenance for air conditioning, lighting, ventilation, heat, electrical, water, and
sewerage facilities for Terminal Building public use areas and Airline’s Leased
Premises; adequate illumination in Common Use Space; and janitorial service in
Terminal Building public use areas and Common Use Space.
Section 8.02 Airlines Responsibilities
Subject to the provisions of this Section 8.02 and in accordance with Exhibit I:
A. Airline shall, at all times, keep its Exclusive Use Space and Preferenital Use
Positions neat, orderly, sanitary, and presentable. Airline shall pay for all electric
power used in its Exclusive Use Space and preferentially assigned loading bridges;
shall be responsible for re-lamping and shall furnish its own janitorial service for its
Exclusive Use Space; and shall cause to be removed at Airline’s own expense
from its Exclusive Use Space and Preferenital Use Positions all waste, garbage,
and rubbish, and agrees not to deposit the same on any part of the Airport, except
that Airline may deposit same temporarily in its Exclusive Use Space or in space
designated by Director of Aviation in connection with collection for removal.
B. Airline shall maintain the apron area contiguous to its assigned Gates in a neat,
clean, and orderly condition, free from litter, debris, refuse, petroleum products, or
grease, and immediately remove all oil and grease spillage from its Aircraft Parking
Positions that is attributable to Airline’s activities, aircraft or equipment.
C. Airline shall perform, at its sole expense, ordinary preventive maintenance and
ordinary upkeep and repair (except structural repairs and repairs necessitated by
latent defects in facilities provided by City) of its Exclusive Use Space including,
but not limited to, all facilities, personal property, trade fixtures, and equipment.
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.
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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 Right to Inspect and Make Repairs
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.
B. 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.
Section 8.04 Alterations and Improvements
A. Airline shall make no repairs, alterations, additions, improvements to, or
installations on the Leased Premises without the prior written approval of City or
Director of Aviation.
B. Plans and specifications for any such work shall be filed with and subject to the
approval of City and Director of Aviation and all work shall be done in accordance
with local ordinances and California and Federal laws and regulations.
C. All Airline alterations and improvements other than movable furniture, personal
property, equipment, and trade fixtures shall become part of the realty and title
shall vest with City at City’s option and without cost, upon expiration, or early
termination, of this Agreement.
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Section 8.05 Payment Bond
Prior to the commencement of any improvements, City shall have the right to require that
Airline obtain, or cause to be obtained, a contract surety bond, or such other form of
security acceptable to City, in a sum equal to the full amount of the construction contract
awarded by Airline for the improvements. Said bond shall name City as an obligee
thereunder and shall be drawn in a form and from such company acceptable to City and
licensed to do business in the State of California; shall guarantee the faithful performance
of necessary construction and completion of improvements in accordance with approved
final plans and detailed specifications; and shall protect City against any losses and
liability, damages, expenses, claims and judgments caused by or resulting from any
failure to perform completely the work described. City also reserves the right to require
that Airline acquires or causes to be acquired a payment bond with any contractor or
contractors of Airline, as principal, in the sum equal to the full amount of the improvement
contract awarded by Airline for the improvements. Said bond shall name the City as an
obligee thereunder and shall guarantee payment of all wages for labor and services
engaged, and of all bills for materials, supplies, and equipment used in the performance
of said improvement contract. Any work associated with such improvement shall not
unreasonably interfere with the operation of the Airport, or otherwise unreasonably
interfere with the permitted activities of other Airport tenants and users. Upon completion
of approved improvement and within sixty (60) days of Airline’s receipt of a certificate of
occupancy, a complete set of as-built drawings shall be delivered to the City in a media
type and format acceptable for the permanent record of the City.
Section 8.06 Leasehold Improvements
Airline shall be solely responsible for payment of all leasehold improvements made by
Airline. Airline shall be solely responsible for submitting all improvement requests through
the City’s Tenant Improvement Request form with reasonable time for the City to respond
to said request.
Section 8.07 Debts, Liens, Mortgages
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.
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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 9.01B 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
A. Except to any extent expressly provided for in this Agreement, and to the furthest
extent allowed by law, Airline shall indemnify, hold harmless and defend City and
its officers, officials, employees, agents and volunteers (referred to in this Article
10 collectively as “City”) from any and all loss, liability, fines, penalties, forfeitures,
costs and damages (whether in tort or strict liability including damage by fire or
other casualty) alleged to have been incurred by City or Airline, and from any and
all claims, demands and actions in law or equity (including reasonable attorney’s
fees and litigation expenses) arising or alleged to have arisen directly or indirectly
out of Airline’s: (i) occupancy, maintenance, and/or use of the Leased Premises;
(ii) use of any Common Use Space, and/or Exclusive Use Space, upon which the
Leased Premises is located; or (iii) performance of, or failure to perform, its
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obligations under this Agreement. Airline’s obligations under the preceding
sentence shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or
damages caused solely by the gross negligence or willful misconduct of City.
B. Airline acknowledges that any and all loss, liability, fines, penalties, forfeitures,
costs and damages (whether in contract, tort or strict liability, including but not
limited to personal injury, death at any time and property damage, including
damage by fire or other casualty) arising out of or in any way connected with
releases or discharges of a Hazardous Material, or the exacerbation or creation of
an environmental hazard, occurring as a result of: (i) Airline’s occupancy,
maintenance and/or use of the Leased Premises; (ii) Airline’s use of any Common
Use Space and/or Exclusive Use Space, upon which the Leased Premises is
located; (iii) Airline’s activities or the activities of any of Airline’s representatives
(including, without limitation, any of Airline’s officers, officials, employees, agents,
volunteers, invitees, subtenants, consultants, subconsultants, contractors or
subcontractors), and all reasonable costs, expenses and liabilities for
environmental investigations, monitoring, containment, abatement, removal,
repair, cleanup, restoration, remediation and other response costs, including
reasonable attorneys’ fees and disbursements and any fines and penalties
imposed for the violation of any legal requirements relating to the environment or
human health, are expressly within the scope of the indemnity set forth above.
Except to the extent caused by: (1) solely by the gross negligence of City; or (2) a
third party not contractually related to Airline; or (3) resulting from a condition
existing prior to Airline’s first occupancy of the Leased Premises.
C. Airline’s occupancy, maintenance and use of the Leased Premises, and use of all
or any part of Airport, including, but not limited to, use of any Common Use Space
and/or Exclusive Use Space, upon which the Leased Premises is located, shall be
at Airline’s sole risk and expense. Airline accepts all risk relating to Airline’s: (i)
occupancy, maintenance and/or use of the Leased Premises; (ii) Airline’s use of
any Common Use Space, Exclusive Use Space, upon which the Leased Premises
is located; or (iii) performance of, or failure to perform, this Agreement City shall
not be liable to Airline and its insurer(s) for, and Airline and its insurer(s) hereby
waive and release City from, any and all loss, liability, fines, penalties, forfeitures,
costs or damages resulting from or attributable to an occurrence on or about the
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.
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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
injury, property damage and cargo legal liability for aircraft over 60,000
GTW.
(iii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at
least as broad as the most current version of Insurance Service Office (ISO)
Business Auto Coverage Form CA 00 01, and include coverage for all
owned, hired, and non-owned automobiles or other licensed vehicles (Code
1 - Any Auto) with limits of liability of not less than $5,000,000 per accident
for bodily injury and property damage.
(iv) WORKERS' COMPENSATION insurance as required under the
California Labor Code.
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(v) EMPLOYERS’ LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
disease each employee.
(vi) POLLUTION LIABILITY insurance with limits of liability of not less than
$1,000,000 per claim/occurrence and $2,000,000 aggregate; provided,
however, Airline may self-insure for all or any part of the pollution liability
limits required by this Section 1(f).
B. In the event Airline purchases an Umbrella or Excess insurance policy(ies) to meet
the minimum limits of insurance set forth above, this insurance policy(ies) shall
“follow form” and afford no less coverage than the primary insurance policy(ies).
In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a
primary and non-contributory basis for the benefit of the City, Its officers, officials,
employees, agents and volunteers.
C. Airline shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and Airline shall also be responsible for
payment of any self-insured retentions. At no time shall City be responsible for the
payment of any deductibles or self-insured retentions. Any deductibles or self-
insured retentions must be declared to, and approved by, the City’s Risk Manager
or his/her designee. At the option of the City’s Risk Manager or his/her designee,
as respects to any deductibles or self-insured retention Airline shall provide a
financial guarantee, satisfactory to City’s Risk Manager or his/her designee,
guaranteeing payment of losses and related investigations, claim administration
and defense expenses. At no time shall City be responsible for the payment of
any deductibles or self-insured retentions.
D. All policies of insurance required hereunder shall be endorsed to provide that the
coverage shall not be cancelled, reduced in coverage or in limits except after 30
calendar day written notice has been given to City. Upon issuance by the insurer,
broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage
or in limits, Airline shall furnish City with a new certificate and applicable
endorsements for such policy(ies). In the event any policy is due to expire during
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.
E. 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
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waiver of subrogation as to City, its officers, officials, agents, employees, and
volunteers.
F. 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
G. 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.
H. 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.
I. 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
Agreement. This requirement shall survive termination or expiration of this
Agreement.
J. If Airline should contract any work on the Premises or subcontract any of its
obligations under this Agreement, Airline shall require each consultant,
subconsultant, contractor and subcontractor to provide insurance protection in
favor of City and its officers, officials, employees, agents and volunteers in
accordance with the terms of each of the preceding paragraphs, except that the
consultants’, subconsultants’, contractors’ or subcontractors’ certificates and
endorsements shall be on file with Airline and City prior to the commencement of
any work by the consultant, subconsultant, contractor or subcontractor.
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Section 10.3 Non-liability of City
A. Without wavier or limitation, City shall not in any event be liable for any acts or
omissions of Airline, its officers, officials, employees, agents, volunteers, invitees,
consultants, subconsultants, contractors or subcontractors, or for any conditions
resulting from the operations or activities of airline, its officers, officials, employees,
agents, volunteers, invitees, consultants, subconsultants, contractors or
subcontractors, or for any conditions resulting from the operations or activities of
any other airline, tenant, concessionaire, vendor, supplier, consultant,
subconsultant, contractor, subcontractor or invitee, however caused.
B. City shall not be liable for Airline's failure to perform any of its obligations under
this Agreement or for any delay in the performance thereof, nor shall any such
delay or failure be deemed a default by City.
ARTICLE 11: ASSIGNMENT AND SUBLETTING
Section 11.01 Merger, Assignment and Subletting
Airline shall not at any time, directly or indirectly, transfer, convey, sublet, mortgage,
pledge, or encumber its interest under this Agreement, or any part of the Leased Premises
without the advance written approval of City, which approval shall not be unreasonably
withheld or delayed. Regardless of the foregoing, Airline may without City’s approval
assign its interest under this Agreement to any person, firm, or corporation with which
Airline may merge or consolidate or which may succeed to the business of Airline, and
Airline shall give written notice to Director of Aviation of any such assignment and/or
assignment and assumption as soon as practical, but not later than sixty (60) calendar
days prior to such merger, consolidation, acquisition or succession, but shall not be
required to provide non-public information.
Section 11.02 Relinquishment of Space
If Airline desires to relinquish any of its Exclusive Use Space, Airline will notify Director of
Aviation in writing of the space available, and City or Director of Aviation shall use
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
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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;
B. 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
continue to complete, in a timely manner, any of its covenants and agreements after
performance is commenced, or after the filing of any petition, proceedings, or action by,
for, or against Airline under any insolvency, bankruptcy, or reorganization act of law, then
an event of default shall occur under this Agreement and, at the election of City:
A. Without terminating this Agreement, City may reenter the Leased Premises and
improve and relet all or any part of it to others, for the account of Airline, including
costs of renovation necessitated by the neglect of Airline, its agents, or its
employees and a reasonable administrative fee to City (in accordance with its cost
accounting procedures) for all costs incurred, (not to exceed fifteen percent 15%
of such costs) for all sublease rentals received, and Airline shall promptly
reimburse City for any deficiency in rentals or other payments received under such
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subletting, as compared to Airline's obligations hereunder. City shall use
reasonable commercial efforts to sublet the Leased Premises.
B. At any time before or after a reentry and reletting as provided in Article 12, City
may terminate Airline's rights under this Agreement as provided in Article 13,
without any restriction upon recovery by City for past due rentals and other
obligations of Airline. City shall have all additional rights and remedies as may be
provided to landlords by law.
ARTICLE 13: TERMINATION
Section 13.01 Conditions of Leased Premises at Termination
Upon termination of this Agreement, Airline shall yield and deliver to City the Leased
Premises promptly and in good repair and a clean, sanitary condition, and, if necessary,
restored to the satisfaction of City to the condition it was given upon first use of occupancy
by the Airline, reasonable wear and tear excepted.
Section 13.02 Events Permitting Termination by City
A. City may terminate this Agreement upon ninety (90) calendar days’ written notice
and all of its obligations hereunder and may exercise all rights of entry and reentry
upon the Leased Premises available under law, upon or after the occurrence of
any one of the following events:
1. Airline and/or its Affiliates flying on behalf of Airline, and/or subsidiaries is
in arrears in the payment of the whole or any part of the amounts agreed
upon hereunder for a period of ten (10) days after Director of Aviation has
notified Airline in writing that payment was not received when due;
2. Airline files in any court a petition in bankruptcy or insolvency or for the
appointment of a receiver or trustee of all or a portion of Airline’s property;
3. Airline makes any general assignment for the benefit of creditors;
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;
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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
A. Airline shall not use the Leased Premises or any part thereof, or knowingly permit
the same to be used by any of its employees, officers, agents, subtenants, invitees,
or licensees for any illegal purposes and shall, at all times during the term of this
Agreement, comply with all applicable ordinances and laws of any City, county, or
state government or of the U.S. Government, and of any political division or
subdivision or agency, City, or commission thereof which may have jurisdiction to
pass laws or ordinances or to make and enforce rules or regulations with respect
to the uses hereunder or the Leased Premises.
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B. At all times during the term of this Agreement, Airline shall, in connection with its
activities and operations at the Airport:
1.Comply with and conform to all present and future statutes and ordinances,
rules and regulations promulgated thereunder, of all federal, state, local and
other governmental bodies of competent jurisdiction that apply in any
manner to Airline or Airline's operations and activities under this Agreement.
This includes but is not limited to the FAA Assurances as updated from time
to time by the FAA in Exhibit M.
2. In accordance with Exhibit I make, at its own expense, all nonstructural
improvements, repairs, and alterations to its Exclusive Use Space (subject
to prior written approval of City), equipment, and personal property that are
required to comply with or conform to any such statutes and ordinances.
3. Be and remain under this Agreement an independent contractor of City with
respect to all installations, construction, and services performed by or on
behalf of Airline hereunder, and otherwise.
Section 14.02 Notices
A. Any notice under the terms of this Agreement shall be in writing and sent by
certified mail, return receipt requested or by any nationally recognized overnight
delivery service or delivered personally. The deemed date of any notice shall be
the date the notice is received if personally served, the following business day if
sent by recognized overnight delivery service, or 3 days following sufficient service
by mail. If such notice is given by Airline, it shall be submitted to:
City of Fresno – Airports Department
4995 East Clinton Way
Fresno, CA 93727-1504
Director of Aviation
or to such revised address as notified by City
If such notice is given by City, it shall be submitted to:
AEROVÍAS DE MÉXICO, S.A.DE C.V. AEROMEXICO
Paseo de la Reforma 243, Piso 26,
Mexico City, Mexico
Attn.: Graciela Gonzalez Cervantes
International Airports Contract Specialist
Email: grgonzalez@aeromexico.com
Tel: +1(281) 323-0448
A party may change it notice address of record by written notice thereof given in
the manner provided herein.
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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
way or manner, or at any other time than herein provided, shall never be construed as a
waiver of the right of City of any of the provisions herein imposed upon Airline.
Section 14.07 Federal Aviation Act, Section 308
Nothing herein contained shall be deemed to grant to Airline any exclusive right or
privilege within the meaning of Section 308 of the Federal Aviation Act, as amended or
succeeded, for the conduct of any activity on the Airport, except that, subject to the terms
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and provisions hereof, Airline shall have the right to exclusive possession of the Exclusive
Use Space leased to Airline under the provisions of this Agreement.
Section 14.08 Severability
If one or more clauses, sections, or provisions of this Agreement shall be held to be
unlawful, invalid, or unenforceable, it is agreed that the remainder of the Agreement shall
not be affected thereby.
Section 14.09 Headings
The headings of the several articles and sections of this Agreement are inserted only as
a matter of convenience and for reference and in no way define, limit, or describe the
scope or intent of any provisions of this Agreement and shall not be construed to affect in
any manner the terms and provisions hereof or the interpretation or construction thereof.
Section 14.10 Bad Checks
Any checks returned due to insufficient funds or for any other reason caused by Airline
will incur a charge for handling, to be paid by Airline upon proper invoice. This charge
will consist of all identifiable expenses with a minimum charge of twenty-five dollars
($25.00) for each check not to exceed the maximum charge allowed by law.
Section 14.11 Assignment by City or Other Successor in Interest
City may assign or otherwise convey its interest, rights, duties, and/or obligations
hereunder to any extent allowed by law. In this regard City or its assignee may assign,
pledge, or take other appropriate action with respect to this Agreement and their rights
and interests hereunder for any purpose relating to the issuance of bonds or other
revenue generating devices.
Section 14.12 Authorization
Airline covenants that it is licensed and authorized to do business in the State of
California.
Section 14.13 Removal of Disabled Aircraft
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
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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 Enjoyment
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 Force Majeure
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 Independent Contractor
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
security or other tax levied upon or determined with respect to the payments made to
Airline pursuant to this Agreement.
Section 14.17 Partnership/Joint Venture
This Agreement does not evidence a partnership or joint venture between Airline and City.
Except to any extent expressly provided for in this Agreement, (i) the City does not grant,
convey, or delegate to Airline any tangible or intangible property interest or express or
implied agency, license, right or authority, (ii) Airline shall have no authority to bind the
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City absent its express written consent, (iii) either Party shall be free from obligations or
liabilities under contracts entered by the other, and (iv) each Party shall bear its own
costs/expenses in pursuit hereof.
Section 14.18 Compliance with ADA and Other Handicap Access and
Nondiscrimination
Airline agrees that with respect to the Leased Premises including leased Aircraft Parking
Areas and loading bridges, Airline shall be responsible, at Airline's cost, for compliance
with the Americans with Disabilities Act of 1990 ("ADA", 42 U.S.C. 12101 et seq.) and
the regulations and Accessibility Guidelines for Buildings and Facilities issued pursuant
thereto; provided, however, in connection with the foregoing, Airline shall not be obligated
to perform any alterations or undertake any construction in Common Use Space or any
City-maintained loading bridges. Airline recognizes that the City is a public entity subject
to Title II of the ADA. To the extent permitted by law, Airline shall assume and be obligated
to comply with any obligations to which the City may be subject to under Title II of the
ADA with respect to any programs, services, activities, alterations or construction
conducted or undertaken by Airline at its premises. Airline shall also be responsible, at
Airline's cost, for compliance with any applicable disabled accessibility laws, including,
but not limited to, the Air Carriers Access Act ('ACAA", 49 U.S.C. 41705), and regulations
implementing the ACAA.
A Certified Access Specialist (CASp) can inspect the subject premises and determine
whether the subject premises comply with all of the applicable construction-related
accessibility standards under state law. Although state law does not require a CASp
inspection of the subject premises, the commercial property owner or lessor may not
prohibit the Airline or tenant from obtaining a CASp inspection of the subject premises for
the occupancy or potential occupancy of the Airline or tenant, if requested by the Airline
or tenant. The parties shall mutually agree on the arrangements for the time and manner
of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of
making any repairs necessary to correct violations of construction-related accessibility
standards within the premises.
Section 14.19 Compliance with Environmental Laws
Airline shall, in conducting any activity or business at the Airport, including environmental
responses or remedial activities, comply with all applicable Environmental Laws, including
but not limited to Environmental Laws regarding the generation, storage, use,
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
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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
event any claim, demand, action or notice is made against Airline regarding
Airline's failure or alleged failure to comply with any applicable Environmental Laws
at the Leased Premises, Airline promptly shall notify City by in writing within five
(5) business days, followed by written notice and shall provide City with copies of
any written claims, demands, notices, or actions so made.
E. Environmental Remediation. Airline shall undertake such steps to remedy and
remove releases of any Hazardous Materials resulting from the acts or omissions
of Airline on or under the Leased Premises, as are necessary and reasonable to
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protect the public health safety and the environment as required by applicable
Environmental Laws. Such work shall be performed at Airline's sole expense after
Airline submits to City a written plan for completing such work and receives the
prior written approval of City which approval shall not be unreasonably withheld.
City shall have the right to review and inspect all such work at any time using
consultants and representatives of its choice at City’s expense. Specific cleanup
levels for any environmental remediation work shall be in compliance with all of the
applicable Environmental Laws. To the extent that City is named in any
enforcement action or lawsuit by any party in connection with a release of
Hazardous Materials or noncompliance with Environmental Laws caused by Airline
at the Leased Premises, Airline shall defend City and indemnify and hold harmless
City and its officers, employees and agents from any costs, damages or fines
resulting therefrom, except to the extent caused by City or a third party not
contractually related to Airline or resulting from a condition existing prior to Airline’s
first occupancy of the Leased Premises.
Section 14.20 Covenant Not to Grant More Favorable Terms
City shall not enter into any lease, contract or other agreement with any other airline
providing service at the Airport which contains any rates, charges, and/or terms more
favorable to such airline than the rates and charges payable hereunder by the Airline or
terms hereunder unless the City also makes those more favorable terms available to the
Airline.
Section 14.21 Interpretation of Provisions
Nothing herein contained shall be construed or interpreted, in any manner whatsoever,
as limiting, relinquishing or waiving any of the rights of ownership enjoyed by City in and
to Airport property, or in any manner waiving or limiting City’s control over the operation,
maintenance, etc., of Airport property or in derogation of such governmental rights as City
possesses, except as is specifically set forth herein.
Section 14.22 Interpretation of Agreement
The Parties acknowledge that this Agreement in its final form is the result of the combined
efforts of the Parties and that, should any provision of this Agreement be found to be
ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement
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.
///
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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]
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ARTICLE 15: SIGNATURE
IN WITNESS WHEREOF, City has caused this Agreement to be executed and issued by
its Director of Aviation, and Airline, by the signature(s) of its duly authorized officer(s)
hereunto below affixed, has accepted this Agreement and acknowledged and/or agreed
to all of the terms, covenants, conditions, warranties, agreements, and provisions herein
contained, as of the day and year first above written.
CITY OF FRESNO, CALIFORNIA
A Municipal Corporation
By:
Henry Thompson, A.A.E., IAP
Director of Aviation
APPROVED AS TO FORM:
RINA M. GONZALES
Interim City Attorney
By: _____________________________
Brandon M. Collet, Date
Supervising Deputy City Attorney
ATTEST:
Todd Stermer, CMC
City Clerk
By: ____________________________
Deputy
Address for Notice:
City of Fresno
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
AEROVIAS DE MEXICO, S.A. DE
C.V. DOING BUSINESS AS
AEROMEXICO
By:
(Signature)
(Printed Name)
Title:
(If corporation or LLC, Board
Chair, Pres. or Vice Pres.)
By: ___________________________
(Signature)
(Printed Name)
Title: _________________________
(If corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Address for Notice:
AEROVÍAS DE MÉXICO, S.A.DE C.V.
AEROMEXICO
Paseo de la Reforma 243, Piso 26
Mexico City, Mexico
Attn.: Graciela Gonzalez Cervantes
International Airports Contract
Specialist
Attachments:
Exhibit A: Terminal Common Use Area
Exhibit B: Leased Premises Terminal Building
Exhibit C: Terminal Cost Center Map
Exhibit D: Terminal Building Rental Rate
Exhibit E: Airfield Area Cost Center Map
Exhibit F: Airfield Area Rate (Landing Fee)
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DIRECTOR LEGAL CORPORATIVO
8/2/2022
Daniel Martinez Martinez
DIRECTOR INTERNATIONAL AIRPORTS
IVETTE LIZASO
8/2/20228/2/2022
8/3/2022
8/10/2022
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Exhibit G: FIS Fee Rate
Exhibit H: Signatory Credit
Exhibit I: Operation and Maintenance Responsibilities
Exhibit J: Affiliates, Subsidiaries and Code Share Partners
Exhibit K: Monthly Operations Report
Exhibit L: Conflict of Interest Form
Exhibit M: FAA Grant Assurances
Exhibit N: Federal Provision Applicable to All Agreements
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EXHIBIT A
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
ETD ETD ETD ETD ETD ETD ETD ETD ETD ETD ETD ETD DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT B
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
ETD ETD ETD ETD ETD ETD DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
TERMINAL KEYGATE 11DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
GATE 11TERMINAL KEYDocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
UNITED/DELTAVOLARIS/FRONTIERAMERICANALASKAAEROMEXICOALLEGIANTSOUTHWESTDocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT C
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit CTerminal Building and FIS Facility Cost Centers*Note: Reflects Terminal Expansion Project Including FIS FacilityBuildingFacilityDocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT D
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit D
Illustration of Annual Terminal Building Rental Rate Calculation
Fresno Yosemite International Airport
FY 2023
Illustration
Amounts Allocable to Terminal Building Cost Center
Debt Service [A] 765,486$
Rolling Debt Service Coverage [B] -
Amortization Charges [C] 256,468
Operating Expenses [D] 13,747,485
Deposit to the Operating Reserve Fund [E] 130,928
Terminal Building Credit [F] (4,488,286)
Terminal Building Net Requirement [G]= Sum of [A] thru [E] -[F] 10,412,082$
Usable Space [H] 140,704
Rate Before Adjustment [I]=[G]/[H] 74.00$
Rate Adjustment due to Annual True-up [J] -
Terminal Building Rental Rate [K]=[I]-[J] 74.00$
Leased Premises [L] 53,564
Airline Terminal Building Net Requirement [K]*[L] 3,963,721$
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT E
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit EAirfield Area Cost Center*Note: Reflects Terminal Expansion Project Including FIS FacilityBuilding FacilityDocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT F
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit F
Illustration of Annual Landing Fee Rate Calculation
Fresno Yosemite International Airport
FY 2023
Illustration
Amounts Allocable to Airfield Cost Center
Debt Service [A] 9,856$
Rolling Debt Service Coverage [B] -
Amortization Charges [C] 75,000
Operating Expenses [D] 6,921,484
Deposit to the Operating Reserve Fund [E] 65,919
Airfield Area Credit [F] (2,712,502)
Annual True-up [G] 164,704
Airline Airfield Area Net Requirement [H]= Sum of [A] thru [E] -[F]-[G] 4,524,461$
Landed Weight [I] 1,657,757
Landing Fee Rate [H]/[I] 2.73$
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT G
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit G
Illustration of FIS Fee Rate Calculation
Fresno Yosemite International Airport
FY 2023
Illustration
Amounts Allocable to FIS Cost Center
Debt Service [A] 120,911$
Rolling Debt Service Coverage [B] -
Amortization Charges [C] -
Operating Expenses [D] 2,226,760
Deposit to the Operating Reserve Fund [E] 21,207
Applicable credits [F] (500,976)
Airline FIS Net Requirement [G]= Sum of [A] thru [E] -[F] 1,746,991$
FIS Users [H] 179,743
FIS Fee Rate [I]=[G]/[H] 9.72$
Maximum FIS Fee Rate [J] 12.00
FIS Fee Rate to Charge Lower of [I] and [J] 9.72$
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT H
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit H
Illustration of Annual Signatory Credit Calculation
Fresno Yosemite International Airport
FY 2023
Illustration
Revenues [A] 43,604,010$
Debt Service [B] (4,862,988)
Rolling Debt Service Coverage [C] -
Operating Expenses [D] (26,669,055)
Deposit to Operating Reserve Fund [E] (253,991)
Capital Allowance [F] (4,000,000)
Remaining Revenues [G]=[A]-SUM OF [B] Thru [F] 7,817,976$
Share of Sig. Passenger and Sig. Cargo Carriers (a) [H]=50% 50.0%
Signatory Credit [I]=[G]*[H] 3,908,988$
Amounts to Be Applied to FY 2024 (a) [J] 2,000,000$
Terminal Building Cost Center [J]*65% 1,300,000
Airfield Area Cost Center [J]*25% 500,000
FIS Cost Center [J]*10% 200,000
Note: subject to further constraints in Section 5.12.
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT I
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
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
b. Usage
FYI (a)
Airline
FYI
FYI, Airline
(b)
FYI
FYI
FYI
FYI, Airline (b)
5. Water
a. Operation
b. Distribution
c. Fixtures
d. Usage
FYI
FYI
FYI
Airline
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
6. Sewage
a. Operation
b. Distribution
c. Fixtures
d. Usage
FYI
FYI
FYI
Airline
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
FYI
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
N/A
N/A
Airline (c)
FYI
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit H Page 2
Item Exclusive Use
and Shared
Use
Common
Use
Hold Rooms Aircraft
Parking Areas
10. Custodial/Trash Airline FYI FYI Airline
11. Window cleaning
a. Exterior
b. 1Interior
FYI
Airline
FYI
FYI
FYI
FYI
FYI
FYI
12. Access Control Airline, FYI FYI N/A FYI
13. Equipment
a. Signage
b. MUFIDs
c. Loading Bridges
d. Baggage Belts
e. Outgoing baggage
f. CUTE Systems
Airline
N/A
N/A
N/A
N/A
N/A
FYI
FYI
FYI
FYI
N/A
FYI
FYI, Airline (d)
FYI
N/A
FYI
FYI
FYI
N/A
N/A
FYI
FYI
FYI
FYI
14. Painting/decorating
a. Exterior
b. Interior
c. Ceiling
FYI
Airline
Airline
FYI
FYI
FYI
FYI
FYI
FYI
N/A
N/A
N/A
(a) Airline is responsible for any electrical fixtures or services installed by Airline.
(b) Electrical usage consists of ground power for aircraft. Airline is responsible for any electrical fixtures or
services installed by Airline.
(c) Airline is responsible for cleaning debris on ramp from terminal building to a point 20 feet beyond the tail
of the aircraft. City maintains the runway, taxiways, and balance of the ramp on the airfield area.
(d) Airline must apply for and receive approval from City prior to any sign installation.
Note: All areas not part of Airline’s leased premises will be City’s responsibility; however, City will not be
responsible for any systems or services installed by Airline unless otherwise agreed to by the parties in writing
prior to installation.
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT J
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Listing of Airlines Affiliates, Subsidiaries, and Code Share Partners:
Airline Name:
1.
2.
3.
4.
5.
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
-
-
Aerovias de Mexico, S.A. de C.V.
-
-
EXHIBIT K
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
AIRLINE NAME: For Period:SECTION A: STATISTICAL INFORMATION(1) - ENPLANED (2) - DEPLANED (3) - TOTAL1 Passengers (Scheduled)- 2 Passengers (On-Line Charters)- 3 Passengers (NON-REV)- Total Passengers- - - 4 Air Mail (In Pounds)- 5 Air Freight/Express (In Pounds)- SECTION B: LANDING INFORMATION - SCHEDULED FLIGHTSType Aircraft Flown (Make/Model/Series)Total Landings MCGL Wt. of AircraftTotal Aircraft Wt.Rate per 1,000 lbs. Landing Fees Due1:x= 0 x 2.93/1000= -$ 2:x= 0 x 2.93/1000= -$ 3:x= 0 x 2.93/1000= -$ 4:x= 0 x 2.93/1000= -$ Total:0 - Total:-$ SECTION C: FEDERAL INSPECTION STATION (FIS) FEE Rate Per PassengerTotal FIS Fee Duex$10.38 =SECTION D: AIRPORT SECURITY REIMBURSEMENTRate Per PassengerTotal Security Reimb Duex$1.00 =SUMMARY OF FEES DUETotal Due Section B:Total Due Section C:Total Due Section D:Total Fees Due:MCGL Wt. = Maximum Gross Certificated Landing Weight(Signature)-$ (Please Print Name)This Report Prepared and Submitted By:(Area Code and Phone Number)(Date)-$ $0.00-$ FRESNO YOSEMITE INTERNATIONAL SIGNATORY AIRLINES MONTHLY OPERATIONS REPORTSUBMIT REPORT AND PAYMENT BY THE 10TH DAY OF MONTH, FOR THE PRIOR MONTH. REPORT MUST BE COMPLETE AND SIGNEDPLEASE MAKE CHECK PAYABLE TO THE CITY OF FRESNO, AND REMIT WITH THIS REPORT TO: City of Fresno - Airports 4995 East Clinton Way, Fresno, CA 93727-1525(Month) - (Year),$0.00 Number of Passengers DeplanedNumber of Passengers Enplaned - $0.00 Last Updated 08/10/2016C:\Users\MelissaG\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\DT1TB6LD\Signatory Airlines International (Aeromexico) Monthly Operations Report ‐ FY 2022.xlsxDocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
EXHIBIT L
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Exhibit L
DISCLOSURE OF CONFLICT OF INTEREST
Airport Use and Lease Agreement between City of Fresno (“Fresno”)
and AeroMexico “AeroMexico ")
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its
agents?
2 Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with the
City of Fresno, or in a business which is in litigation with the City of
Fresno?
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
(name)
(company)
(address)
Additional page(s) attached.
(city state zip)
DocuSign Envelope ID: 671C0FFA-4753-4222-AA89-190151D65812
Paseo de la Reforma 243
Daniel Martinez Martinez
CDMX 06500
8/2/2022
Aerovias de Mexico, S.A. de C.V.
.
EXHIBIT M
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Airport Sponsor Assurances 5/2022 Page 1 of 19
FAA
Airports
ASSURANCES
AIRPORT SPONSORS
A. General.
1. These assurances shall be complied with in the performance of grant agreements for airport
development, airport planning, and noise compatibility program grants for airport sponsors.
2. These assurances are required to be submitted as part of the project application by sponsors
requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as amended. As used
herein, the term "public agency sponsor" means a public agency with control of a public-use
airport; the term "private sponsor" means a private owner of a public-use airport; and the term
"sponsor" includes both public agency sponsors and private sponsors.
3. Upon acceptance of this grant offer by the sponsor, these assurances are incorporated in and
become part of this Grant Agreement.
B. Duration and Applicability.
1. Airport development or Noise Compatibility Program Projects Undertaken by a Public Agency
Sponsor.
The terms, conditions and assurances of this Grant Agreement shall remain in full force and
effect throughout the useful life of the facilities developed or equipment acquired for an
airport development or noise compatibility program project, or throughout the useful life of
the project items installed within a facility under a noise compatibility program project, but in
any event not to exceed twenty (20) years from the date of acceptance of a grant offer of
Federal funds for the project. However, there shall be no limit on the duration of the
assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an
airport. There shall be no limit on the duration of the terms, conditions, and assurances with
respect to real property acquired with federal funds. Furthermore, the duration of the Civil
Rights assurance shall be specified in the assurances.
2. Airport Development or Noise Compatibility Projects Undertaken by a Private Sponsor.
The preceding paragraph (1) also applies to a private sponsor except that the useful life of
project items installed within a facility or the useful life of the facilities developed or equipment
acquired under an airport development or noise compatibility program project shall be no less
than ten (10) years from the date of acceptance of Federal aid for the project.
3. Airport Planning Undertaken by a Sponsor.
Unless otherwise specified in this Grant Agreement, only Assurances 1, 2, 3, 5, 6, 13, 18, 23, 25,
30, 32, 33, 34, and 37 in Section C apply to planning projects. The terms, conditions, and
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Airport Sponsor Assurances 5/2022 Page 2 of 19
assurances of this Grant Agreement shall remain in full force and effect during the life of the
project; there shall be no limit on the duration of the assurances regarding Exclusive Rights and
Airport Revenue so long as the airport is used as an airport.
C. Sponsor Certification.
The sponsor hereby assures and certifies, with respect to this grant that:
1. General Federal Requirements
It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and
requirements as they relate to the application, acceptance, and use of Federal funds for this Grant
including but not limited to the following:
FEDERAL LEGISLATION
a. 49 U.S.C. subtitle VII, as amended.
b. Davis-Bacon Act, as amended — 40 U.S.C. §§ 3141-3144, 3146, and 3147, et seq.1
c. Federal Fair Labor Standards Act – 29 U.S.C. § 201, et seq.
d. Hatch Act – 5 U.S.C. § 1501, et seq.2
e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C.
§ 4601, et seq.1, 2
f. National Historic Preservation Act of 1966 – Section 106 – 54 U.S.C. § 306108.1
g. Archeological and Historic Preservation Act of 1974 – 54 U.S.C. § 312501, et seq.1
h. Native Americans Grave Repatriation Act – 25 U.S.C. § 3001, et seq.
i. Clean Air Act, P.L. 90-148, as amended – 42 U.S.C. § 7401, et seq.
j. Coastal Zone Management Act, P.L. 92-583, as amended – 16 U.S.C. § 1451, et seq.
k. Flood Disaster Protection Act of 1973 – Section 102(a) - 42 U.S.C. § 4012a.1
l. 49 U.S.C. § 303, (formerly known as Section 4(f)).
m. Rehabilitation Act of 1973 – 29 U.S.C. § 794.
n. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252) (prohibits
discrimination on the basis of race, color, national origin).
o. Americans with Disabilities Act of 1990, as amended, (42 U.S.C. § 12101 et seq.) (prohibits
discrimination on the basis of disability).
p. Age Discrimination Act of 1975 – 42 U.S.C. § 6101, et seq.
q. American Indian Religious Freedom Act, P.L. 95-341, as amended.
r. Architectural Barriers Act of 1968, as amended – 42 U.S.C. § 4151, et seq.1
s. Powerplant and Industrial Fuel Use Act of 1978 – Section 403 – 42 U.S.C. § 8373.1
t. Contract Work Hours and Safety Standards Act – 40 U.S.C. § 3701, et seq.1
u. Copeland Anti-kickback Act – 18 U.S.C. § 874.1
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v. National Environmental Policy Act of 1969 – 42 U.S.C. § 4321, et seq.1
w. Wild and Scenic Rivers Act, P.L. 90-542, as amended – 16 U.S.C. § 1271, et seq.
x. Single Audit Act of 1984 – 31 U.S.C. § 7501, et seq.2
y. Drug-Free Workplace Act of 1988 – 41 U.S.C. §§ 8101 through 8105.
z. The Federal Funding Accountability and Transparency Act of 2006, as amended (P.L. 109-282, as
amended by section 6202 of P.L. 110-252).
aa. Civil Rights Restoration Act of 1987, P.L. 100-259.
bb. Build America, Buy America Act, P.L. 117-58, Title IX.
EXECUTIVE ORDERS
a. Executive Order 11246 – Equal Employment Opportunity1
b. Executive Order 11990 – Protection of Wetlands
c. Executive Order 11998 – Flood Plain Management
d. Executive Order 12372 – Intergovernmental Review of Federal Programs
e. Executive Order 12699 – Seismic Safety of Federal and Federally Assisted New Building
Construction1
f. Executive Order 12898 – Environmental Justice
g. Executive Order 13166 – Improving Access to Services for Persons with Limited English
Proficiency
h. Executive Order 13985 – Executive Order on Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government
i. Executive Order 13988 – Preventing and Combating Discrimination on the Basis of Gender Identity
or Sexual Orientation
j. Executive Order 14005 – Ensuring the Future is Made in all of America by All of America’s
Workers
k. Executive Order 14008 – Tackling the Climate Crisis at Home and Abroad
FEDERAL REGULATIONS
a. 2 CFR Part 180 – OMB Guidelines to Agencies on Governmentwide Debarment and Suspension
(Nonprocurement).
b. 2 CFR Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards. 4, 5
c. 2 CFR Part 1200 – Nonprocurement Suspension and Debarment.
d. 14 CFR Part 13 – Investigative and Enforcement Procedures.
e. 14 CFR Part 16 – Rules of Practice for Federally-Assisted Airport Enforcement Proceedings.
f. 14 CFR Part 150 – Airport Noise Compatibility Planning.
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g. 28 CFR Part 35 – Nondiscrimination on the Basis of Disability in State and Local Government
Services.
h. 28 CFR § 50.3 – U.S. Department of Justice Guidelines for the Enforcement of Title VI of the Civil
Rights Act of 1964.
i. 29 CFR Part 1 – Procedures for Predetermination of Wage Rates.1
j. 29 CFR Part 3 – Contractors and Subcontractors on Public Building or Public Work Financed in
Whole or in Part by Loans or Grants from the United States.1
k. 29 CFR Part 5 – Labor Standards Provisions Applicable to Contracts Covering Federally Financed
and Assisted Construction (Also Labor Standards Provisions Applicable to Nonconstruction
Contracts Subject to the Contract Work Hours and Safety Standards Act).1
l. 41 CFR Part 60 – Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Federal and Federally-assisted contracting requirements).1
m. 49 CFR Part 20 – New Restrictions on Lobbying.
n. 49 CFR Part 21 – Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation - Effectuation of Title VI of the Civil Rights Act of 1964.
o. 49 CFR Part 23 – Participation by Disadvantage Business Enterprise in Airport Concessions.
p. 49 CFR Part 24 – Uniform Relocation Assistance and Real Property Acquisition for Federal and
Federally-Assisted Programs.1, 2
q. 49 CFR Part 26 – Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs.
r. 49 CFR Part 27 – Nondiscrimination on the Basis of Disability in Programs or Activities Receiving
Federal Financial Assistance.1
s. 49 CFR Part 28 – Enforcement of Nondiscrimination on the Basis of Handicap in Programs or
Activities Conducted by the Department of Transportation.
t. 49 CFR Part 30 – Denial of Public Works Contracts to Suppliers of Goods and Services of
Countries That Deny Procurement Market Access to U.S. Contractors.
u. 49 CFR Part 32 – Governmentwide Requirements for Drug-Free Workplace (Financial
Assistance).
v. 49 CFR Part 37 – Transportation Services for Individuals with Disabilities (ADA).
w. 49 CFR Part 38 – Americans with Disabilities Act (ADA) Accessibility Specifications for
Transportation Vehicles.
x. 49 CFR Part 41 – Seismic Safety.
FOOTNOTES TO ASSURANCE (C)(1)
1 These laws do not apply to airport planning sponsors.
2 These laws do not apply to private sponsors.
3 2 CFR Part 200 contains requirements for State and Local Governments receiving Federal
assistance. Any requirement levied upon State and Local Governments by this regulation shall
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apply where applicable to private sponsors receiving Federal assistance under Title 49, United
States Code.
4 Cost principles established in 2 CFR part 200 subpart E must be used as guidelines for
determining the eligibility of specific types of expenses.
5 Audit requirements established in 2 CFR part 200 subpart F are the guidelines for audits.
SPECIFIC ASSURANCES
Specific assurances required to be included in grant agreements by any of the above laws, regulations or
circulars are incorporated by reference in this Grant Agreement.
2. Responsibility and Authority of the Sponsor.
a. Public Agency Sponsor:
It has legal authority to apply for this Grant, and to finance and carry out the proposed project;
that a resolution, motion or similar action has been duly adopted or passed as an official act of
the applicant's governing body authorizing the filing of the application, including all
understandings and assurances contained therein, and directing and authorizing the person
identified as the official representative of the applicant to act in connection with the
application and to provide such additional information as may be required.
b. Private Sponsor:
It has legal authority to apply for this Grant and to finance and carry out the proposed project
and comply with all terms, conditions, and assurances of this Grant Agreement. It shall
designate an official representative and shall in writing direct and authorize that person to file
this application, including all understandings and assurances contained therein; to act in
connection with this application; and to provide such additional information as may be
required.
3. Sponsor Fund Availability.
It has sufficient funds available for that portion of the project costs which are not to be paid by the
United States. It has sufficient funds available to assure operation and maintenance of items funded
under this Grant Agreement which it will own or control.
4. Good Title.
a. It, a public agency or the Federal government, holds good title, satisfactory to the Secretary, to
the landing area of the airport or site thereof, or will give assurance satisfactory to the
Secretary that good title will be acquired.
b. For noise compatibility program projects to be carried out on the property of the sponsor, it
holds good title satisfactory to the Secretary to that portion of the property upon which Federal
funds will be expended or will give assurance to the Secretary that good title will be obtained.
5. Preserving Rights and Powers.
a. It will not take or permit any action which would operate to deprive it of any of the rights and
powers necessary to perform any or all of the terms, conditions, and assurances in this Grant
Agreement without the written approval of the Secretary, and will act promptly to acquire,
extinguish or modify any outstanding rights or claims of right of others which would interfere
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with such performance by the sponsor. This shall be done in a manner acceptable to the
Secretary.
b. Subject to the FAA Act of 2018, Public Law 115-254, Section 163, it will not sell, lease,
encumber, or otherwise transfer or dispose of any part of its title or other interests in the
property shown on Exhibit A to this application or, for a noise compatibility program project,
that portion of the property upon which Federal funds have been expended, for the duration of
the terms, conditions, and assurances in this Grant Agreement without approval by the
Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States
Code, to assume the obligations of this Grant Agreement and to have the power, authority, and
financial resources to carry out all such obligations, the sponsor shall insert in the contract or
document transferring or disposing of the sponsor's interest, and make binding upon the
transferee all of the terms, conditions, and assurances contained in this Grant Agreement.
c. For all noise compatibility program projects which are to be carried out by another unit of local
government or are on property owned by a unit of local government other than the sponsor, it
will enter into an agreement with that government. Except as otherwise specified by the
Secretary, that agreement shall obligate that government to the same terms, conditions, and
assurances that would be applicable to it if it applied directly to the FAA for a grant to
undertake the noise compatibility program project. That agreement and changes thereto must
be satisfactory to the Secretary. It will take steps to enforce this agreement against the local
government if there is substantial non-compliance with the terms of the agreement.
d. For noise compatibility program projects to be carried out on privately owned property, it will
enter into an agreement with the owner of that property which includes provisions specified by
the Secretary. It will take steps to enforce this agreement against the property owner
whenever there is substantial non-compliance with the terms of the agreement.
e. If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure that
the airport will continue to function as a public-use airport in accordance with these assurances
for the duration of these assurances.
f. If an arrangement is made for management and operation of the airport by any agency or
person other than the sponsor or an employee of the sponsor, the sponsor will reserve
sufficient rights and authority to ensure that the airport will be operated and maintained in
accordance with Title 49, United States Code, the regulations and the terms, conditions and
assurances in this Grant Agreement and shall ensure that such arrangement also requires
compliance therewith.
g. Sponsors of commercial service airports will not permit or enter into any arrangement that
results in permission for the owner or tenant of a property used as a residence, or zoned for
residential use, to taxi an aircraft between that property and any location on airport. Sponsors
of general aviation airports entering into any arrangement that results in permission for the
owner of residential real property adjacent to or near the airport must comply with the
requirements of Sec. 136 of Public Law 112-95 and the sponsor assurances.
6. Consistency with Local Plans.
The project is reasonably consistent with plans (existing at the time of submission of this
application) of public agencies that are authorized by the State in which the project is located to
plan for the development of the area surrounding the airport.
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7. Consideration of Local Interest.
It has given fair consideration to the interest of communities in or near where the project may be
located.
8. Consultation with Users.
In making a decision to undertake any airport development project under Title 49, United States
Code, it has undertaken reasonable consultations with affected parties using the airport at which
project is proposed.
9. Public Hearings.
In projects involving the location of an airport, an airport runway, or a major runway extension, it
has afforded the opportunity for public hearings for the purpose of considering the economic,
social, and environmental effects of the airport or runway location and its consistency with goals
and objectives of such planning as has been carried out by the community and it shall, when
requested by the Secretary, submit a copy of the transcript of such hearings to the Secretary.
Further, for such projects, it has on its management board either voting representation from the
communities where the project is located or has advised the communities that they have the right
to petition the Secretary concerning a proposed project.
10. Metropolitan Planning Organization.
In projects involving the location of an airport, an airport runway, or a major runway extension at a
medium or large hub airport, the sponsor has made available to and has provided upon request to
the metropolitan planning organization in the area in which the airport is located, if any, a copy of
the proposed amendment to the airport layout plan to depict the project and a copy of any airport
master plan in which the project is described or depicted.
11. Pavement Preventive Maintenance-Management.
With respect to a project approved after January 1, 1995, for the replacement or reconstruction of
pavement at the airport, it assures or certifies that it has implemented an effective airport
pavement maintenance-management program and it assures that it will use such program for the
useful life of any pavement constructed, reconstructed or repaired with Federal financial assistance
at the airport. It will provide such reports on pavement condition and pavement management
programs as the Secretary determines may be useful.
12. Terminal Development Prerequisites.
For projects which include terminal development at a public use airport, as defined in Title 49, it
has, on the date of submittal of the project grant application, all the safety equipment required for
certification of such airport under 49 U.S.C. § 44706, and all the security equipment required by rule
or regulation, and has provided for access to the passenger enplaning and deplaning area of such
airport to passengers enplaning and deplaning from aircraft other than air carrier aircraft.
13. Accounting System, Audit, and Record Keeping Requirements.
a. It shall keep all project accounts and records which fully disclose the amount and disposition by
the recipient of the proceeds of this Grant, the total cost of the project in connection with
which this Grant is given or used, and the amount or nature of that portion of the cost of the
project supplied by other sources, and such other financial records pertinent to the project. The
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accounts and records shall be kept in accordance with an accounting system that will facilitate
an effective audit in accordance with the Single Audit Act of 1984.
b. It shall make available to the Secretary and the Comptroller General of the United States, or
any of their duly authorized representatives, for the purpose of audit and examination, any
books, documents, papers, and records of the recipient that are pertinent to this Grant. The
Secretary may require that an appropriate audit be conducted by a recipient. In any case in
which an independent audit is made of the accounts of a sponsor relating to the disposition of
the proceeds of a grant or relating to the project in connection with which this Grant was given
or used, it shall file a certified copy of such audit with the Comptroller General of the United
States not later than six (6) months following the close of the fiscal year for which the audit was
made.
14. Minimum Wage Rates.
It shall include, in all contracts in excess of $2,000 for work on any projects funded under this Grant
Agreement which involve labor, provisions establishing minimum rates of wages, to be
predetermined by the Secretary of Labor under 40 U.S.C. §§ 3141-3144, 3146, and 3147, Public
Building, Property, and Works), which contractors shall pay to skilled and unskilled labor, and such
minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for
the work.
15. Veteran's Preference.
It shall include in all contracts for work on any project funded under this Grant Agreement which
involve labor, such provisions as are necessary to insure that, in the employment of labor (except in
executive, administrative, and supervisory positions), preference shall be given to Vietnam era
veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small
business concerns owned and controlled by disabled veterans as defined in 49 U.S.C. § 47112.
However, this preference shall apply only where the individuals are available and qualified to
perform the work to which the employment relates.
16. Conformity to Plans and Specifications.
It will execute the project subject to plans, specifications, and schedules approved by the Secretary.
Such plans, specifications, and schedules shall be submitted to the Secretary prior to
commencement of site preparation, construction, or other performance under this Grant
Agreement, and, upon approval of the Secretary, shall be incorporated into this Grant Agreement.
Any modification to the approved plans, specifications, and schedules shall also be subject to
approval of the Secretary, and incorporated into this Grant Agreement.
17. Construction Inspection and Approval.
It will provide and maintain competent technical supervision at the construction site throughout the
project to assure that the work conforms to the plans, specifications, and schedules approved by
the Secretary for the project. It shall subject the construction work on any project contained in an
approved project application to inspection and approval by the Secretary and such work shall be in
accordance with regulations and procedures prescribed by the Secretary. Such regulations and
procedures shall require such cost and progress reporting by the sponsor or sponsors of such
project as the Secretary shall deem necessary.
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18. Planning Projects.
In carrying out planning projects:
a. It will execute the project in accordance with the approved program narrative contained in the
project application or with the modifications similarly approved.
b. It will furnish the Secretary with such periodic reports as required pertaining to the planning
project and planning work activities.
c. It will include in all published material prepared in connection with the planning project a
notice that the material was prepared under a grant provided by the United States.
d. It will make such material available for examination by the public, and agrees that no material
prepared with funds under this project shall be subject to copyright in the United States or any
other country.
e. It will give the Secretary unrestricted authority to publish, disclose, distribute, and otherwise
use any of the material prepared in connection with this grant.
f. It will grant the Secretary the right to disapprove the sponsor's employment of specific
consultants and their subcontractors to do all or any part of this project as well as the right to
disapprove the proposed scope and cost of professional services.
g. It will grant the Secretary the right to disapprove the use of the sponsor's employees to do all
or any part of the project.
h. It understands and agrees that the Secretary's approval of this project grant or the Secretary's
approval of any planning material developed as part of this grant does not constitute or imply
any assurance or commitment on the part of the Secretary to approve any pending or future
application for a Federal airport grant.
19. Operation and Maintenance.
a. The airport and all facilities which are necessary to serve the aeronautical users of the airport,
other than facilities owned or controlled by the United States, shall be operated at all times in a
safe and serviceable condition and in accordance with the minimum standards as may be
required or prescribed by applicable Federal, state, and local agencies for maintenance and
operation. It will not cause or permit any activity or action thereon which would interfere with
its use for airport purposes. It will suitably operate and maintain the airport and all facilities
thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal
to temporarily close the airport for non-aeronautical purposes must first be approved by the
Secretary. In furtherance of this assurance, the sponsor will have in effect arrangements for:
1. Operating the airport's aeronautical facilities whenever required;
2. Promptly marking and lighting hazards resulting from airport conditions, including
temporary conditions; and
3. Promptly notifying pilots of any condition affecting aeronautical use of the airport. Nothing
contained herein shall be construed to require that the airport be operated for
aeronautical use during temporary periods when snow, flood, or other climatic conditions
interfere with such operation and maintenance. Further, nothing herein shall be construed
as requiring the maintenance, repair, restoration, or replacement of any structure or
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facility which is substantially damaged or destroyed due to an act of God or other
condition or circumstance beyond the control of the sponsor.
b. It will suitably operate and maintain noise compatibility program items that it owns or controls
upon which Federal funds have been expended.
20. Hazard Removal and Mitigation.
It will take appropriate action to assure that such terminal airspace as is required to protect
instrument and visual operations to the airport (including established minimum flight altitudes) will
be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or
otherwise mitigating existing airport hazards and by preventing the establishment or creation of
future airport hazards.
21. Compatible Land Use.
It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to
restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and
purposes compatible with normal airport operations, including landing and takeoff of aircraft. In
addition, if the project is for noise compatibility program implementation, it will not cause or permit
any change in land use, within its jurisdiction, that will reduce its compatibility, with respect to the
airport, of the noise compatibility program measures upon which Federal funds have been
expended.
22. Economic Nondiscrimination.
a. It will make the airport available as an airport for public use on reasonable terms and without
unjust discrimination to all types, kinds and classes of aeronautical activities, including
commercial aeronautical activities offering services to the public at the airport.
b. In any agreement, contract, lease, or other arrangement under which a right or privilege at the
airport is granted to any person, firm, or corporation to conduct or to engage in any
aeronautical activity for furnishing services to the public at the airport, the sponsor will insert
and enforce provisions requiring the contractor to:
1. Furnish said services on a reasonable, and not unjustly discriminatory, basis to all users
thereof, and
2. Charge reasonable, and not unjustly discriminatory, prices for each unit or service,
provided that the contractor may be allowed to make reasonable and nondiscriminatory
discounts, rebates, or other similar types of price reductions to volume purchasers.
c. Each fixed-based operator at the airport shall be subject to the same rates, fees, rentals, and
other charges as are uniformly applicable to all other fixed-based operators making the same or
similar uses of such airport and utilizing the same or similar facilities.
d. Each air carrier using such airport shall have the right to service itself or to use any fixed-based
operator that is authorized or permitted by the airport to serve any air carrier at such airport.
e. Each air carrier using such airport (whether as a tenant, non-tenant, or subtenant of another air
carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules,
regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly
and substantially related to providing air transportation as are applicable to all such air carriers
which make similar use of such airport and utilize similar facilities, subject to reasonable
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classifications such as tenants or non-tenants and signatory carriers and non-signatory carriers.
Classification or status as tenant or signatory shall not be unreasonably withheld by any airport
provided an air carrier assumes obligations substantially similar to those already imposed on air
carriers in such classification or status.
f. It will not exercise or grant any right or privilege which operates to prevent any person, firm, or
corporation operating aircraft on the airport from performing any services on its own aircraft
with its own employees (including, but not limited to maintenance, repair, and fueling) that it
may choose to perform.
g. In the event the sponsor itself exercises any of the rights and privileges referred to in this
assurance, the services involved will be provided on the same conditions as would apply to the
furnishing of such services by commercial aeronautical service providers authorized by the
sponsor under these provisions.
h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be
met by all users of the airport as may be necessary for the safe and efficient operation of the
airport.
i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport
if such action is necessary for the safe operation of the airport or necessary to serve the civil
aviation needs of the public.
23. Exclusive Rights.
It will permit no exclusive right for the use of the airport by any person providing, or intending to
provide, aeronautical services to the public. For purposes of this paragraph, the providing of the
services at an airport by a single fixed-based operator shall not be construed as an exclusive right if
both of the following apply:
a. It would be unreasonably costly, burdensome, or impractical for more than one fixed-based
operator to provide such services, and
b. If allowing more than one fixed-based operator to provide such services would require the
reduction of space leased pursuant to an existing agreement between such single fixed-based
operator and such airport. It further agrees that it will not, either directly or indirectly, grant or
permit any person, firm, or corporation, the exclusive right at the airport to conduct any
aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental
and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier
operations, aircraft sales and services, sale of aviation petroleum products whether or not
conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft,
sale of aircraft parts, and any other activities which because of their direct relationship to the
operation of aircraft can be regarded as an aeronautical activity, and that it will terminate any
exclusive right to conduct an aeronautical activity now existing at such an airport before the
grant of any assistance under Title 49, United States Code.
24. Fee and Rental Structure.
It will maintain a fee and rental structure for the facilities and services at the airport which will
make the airport as self-sustaining as possible under the circumstances existing at the particular
airport, taking into account such factors as the volume of traffic and economy of collection. No part
of the Federal share of an airport development, airport planning or noise compatibility project for
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which a Grant is made under Title 49, United States Code, the Airport and Airway Improvement Act
of 1982, the Federal Airport Act or the Airport and Airway Development Act of 1970 shall be
included in the rate basis in establishing fees, rates, and charges for users of that airport.
25. Airport Revenues.
a. All revenues generated by the airport and any local taxes on aviation fuel established after
December 30, 1987, will be expended by it for the capital or operating costs of the airport; the
local airport system; or other local facilities which are owned or operated by the owner or
operator of the airport and which are directly and substantially related to the actual air
transportation of passengers or property; or for noise mitigation purposes on or off the airport.
The following exceptions apply to this paragraph:
1. If covenants or assurances in debt obligations issued before September 3, 1982, by the
owner or operator of the airport, or provisions enacted before September 3, 1982, in
governing statutes controlling the owner or operator's financing, provide for the use of the
revenues from any of the airport owner or operator's facilities, including the airport, to
support not only the airport but also the airport owner or operator's general debt
obligations or other facilities, then this limitation on the use of all revenues generated by
the airport (and, in the case of a public airport, local taxes on aviation fuel) shall not apply.
2. If the Secretary approves the sale of a privately owned airport to a public sponsor and
provides funding for any portion of the public sponsor’s acquisition of land, this limitation
on the use of all revenues generated by the sale shall not apply to certain proceeds from
the sale. This is conditioned on repayment to the Secretary by the private owner of an
amount equal to the remaining unamortized portion (amortized over a 20-year period) of
any airport improvement grant made to the private owner for any purpose other than land
acquisition on or after October 1, 1996, plus an amount equal to the federal share of the
current fair market value of any land acquired with an airport improvement grant made to
that airport on or after October 1, 1996.
3. Certain revenue derived from or generated by mineral extraction, production, lease, or
other means at a general aviation airport (as defined at 49 U.S.C. § 47102), if the FAA
determines the airport sponsor meets the requirements set forth in Section 813 of Public
Law 112-95.
b. As part of the annual audit required under the Single Audit Act of 1984, the sponsor will direct
that the audit will review, and the resulting audit report will provide an opinion concerning, the
use of airport revenue and taxes in paragraph (a), and indicating whether funds paid or
transferred to the owner or operator are paid or transferred in a manner consistent with Title
49, United States Code and any other applicable provision of law, including any regulation
promulgated by the Secretary or Administrator.
c. Any civil penalties or other sanctions will be imposed for violation of this assurance in
accordance with the provisions of 49 U.S.C. § 47107.
26. Reports and Inspections.
It will:
a. submit to the Secretary such annual or special financial and operations reports as the Secretary
may reasonably request and make such reports available to the public; make available to the
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public at reasonable times and places a report of the airport budget in a format prescribed by
the Secretary;
b. for airport development projects, make the airport and all airport records and documents
affecting the airport, including deeds, leases, operation and use agreements, regulations and
other instruments, available for inspection by any duly authorized agent of the Secretary upon
reasonable request;
c. for noise compatibility program projects, make records and documents relating to the project
and continued compliance with the terms, conditions, and assurances of this Grant Agreement
including deeds, leases, agreements, regulations, and other instruments, available for
inspection by any duly authorized agent of the Secretary upon reasonable request; and
d. in a format and time prescribed by the Secretary, provide to the Secretary and make available
to the public following each of its fiscal years, an annual report listing in detail:
1. all amounts paid by the airport to any other unit of government and the purposes for
which each such payment was made; and
2. all services and property provided by the airport to other units of government and the
amount of compensation received for provision of each such service and property.
27. Use by Government Aircraft.
It will make available all of the facilities of the airport developed with Federal financial assistance
and all those usable for landing and takeoff of aircraft to the United States for use by Government
aircraft in common with other aircraft at all times without charge, except, if the use by Government
aircraft is substantial, charge may be made for a reasonable share, proportional to such use, for the
cost of operating and maintaining the facilities used. Unless otherwise determined by the Secretary,
or otherwise agreed to by the sponsor and the using agency, substantial use of an airport by
Government aircraft will be considered to exist when operations of such aircraft are in excess of
those which, in the opinion of the Secretary, would unduly interfere with use of the landing areas
by other authorized aircraft, or during any calendar month that:
a. Five (5) or more Government aircraft are regularly based at the airport or on land adjacent
thereto; or
b. The total number of movements (counting each landing as a movement) of Government
aircraft is 300 or more, or the gross accumulative weight of Government aircraft using the
airport (the total movement of Government aircraft multiplied by gross weights of such
aircraft) is in excess of five million pounds.
28. Land for Federal Facilities.
It will furnish without cost to the Federal Government for use in connection with any air traffic
control or air navigation activities, or weather-reporting and communication activities related to air
traffic control, any areas of land or water, or estate therein as the Secretary considers necessary or
desirable for construction, operation, and maintenance at Federal expense of space or facilities for
such purposes. Such areas or any portion thereof will be made available as provided herein within
four months after receipt of a written request from the Secretary.
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29. Airport Layout Plan.
a. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, it will keep up
to date at all times an airport layout plan of the airport showing:
1. boundaries of the airport and all proposed additions thereto, together with the boundaries
of all offsite areas owned or controlled by the sponsor for airport purposes and proposed
additions thereto;
2. the location and nature of all existing and proposed airport facilities and structures (such
as runways, taxiways, aprons, terminal buildings, hangars and roads), including all
proposed extensions and reductions of existing airport facilities;
3. the location of all existing and proposed non-aviation areas and of all existing
improvements thereon; and
4. all proposed and existing access points used to taxi aircraft across the airport’s property
boundary.
Such airport layout plans and each amendment, revision, or modification thereof, shall be
subject to the approval of the Secretary which approval shall be evidenced by the signature of
a duly authorized representative of the Secretary on the face of the airport layout plan. The
sponsor will not make or permit any changes or alterations in the airport or any of its facilities
which are not in conformity with the airport layout plan as approved by the Secretary and
which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of
the airport.
b. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, if a change or
alteration in the airport or the facilities is made which the Secretary determines adversely
affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or
off the airport and which is not in conformity with the airport layout plan as approved by the
Secretary, the owner or operator will, if requested, by the Secretary:
1. eliminate such adverse effect in a manner approved by the Secretary; or
2. bear all costs of relocating such property (or replacement thereof) to a site acceptable to
the Secretary and all costs of restoring such property (or replacement thereof) to the level
of safety, utility, efficiency, and cost of operation existing before the unapproved change in
the airport or its facilities except in the case of a relocation or replacement of an existing
airport facility due to a change in the Secretary’s design standards beyond the control of
the airport sponsor.
30. Civil Rights.
It will promptly take any measures necessary to ensure that no person in the United States shall, on
the grounds of race, color, and national origin (including limited English proficiency) in accordance
with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to
2000d-4); creed and sex (including sexual orientation and gender identity) per 49 U.S.C. § 47123
and related requirements; age per the Age Discrimination Act of 1975 and related requirements; or
disability per the Americans with Disabilities Act of 1990 and related requirements, be excluded
from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any
program and activity conducted with, or benefiting from, funds received from this Grant.
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a. Using the definitions of activity, facility, and program as found and defined in 49 CFR
§§ 21.23(b) and 21.23(e), the sponsor will facilitate all programs, operate all facilities, or
conduct all programs in compliance with all non-discrimination requirements imposed by or
pursuant to these assurances.
b. Applicability
1. Programs and Activities. If the sponsor has received a grant (or other federal assistance)
for any of the sponsor’s program or activities, these requirements extend to all of the
sponsor’s programs and activities.
2. Facilities. Where it receives a grant or other federal financial assistance to construct,
expand, renovate, remodel, alter, or acquire a facility, or part of a facility, the assurance
extends to the entire facility and facilities operated in connection therewith.
3. Real Property. Where the sponsor receives a grant or other Federal financial assistance in
the form of, or for the acquisition of real property or an interest in real property, the
assurance will extend to rights to space on, over, or under such property.
c. Duration.
The sponsor agrees that it is obligated to this assurance for the period during which Federal
financial assistance is extended to the program, except where the Federal financial assistance is
to provide, or is in the form of, personal property, or real property, or interest therein, or
structures or improvements thereon, in which case the assurance obligates the sponsor, or any
transferee for the longer of the following periods:
1. So long as the airport is used as an airport, or for another purpose involving the provision
of similar services or benefits; or
2. So long as the sponsor retains ownership or possession of the property.
d. Required Solicitation Language. It will include the following notification in all solicitations for
bids, Requests For Proposals for work, or material under this Grant Agreement and in all
proposals for agreements, including airport concessions, regardless of funding source:
“The ([Selection Criteria: Sponsor Name]), in accordance with the provisions of Title VI of the
Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations,
hereby notifies all bidders or offerors that it will affirmatively ensure that for any contract
entered into pursuant to this advertisement, [select businesses, or disadvantaged business
enterprises or airport concession disadvantaged business enterprises] will be afforded full and
fair opportunity to submit bids in response to this invitation and no businesses will be
discriminated against on the grounds of race, color, national origin (including limited English
proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in
consideration for an award.”
e. Required Contract Provisions.
1. It will insert the non-discrimination contract clauses requiring compliance with the acts and
regulations relative to non-discrimination in Federally-assisted programs of the
Department of Transportation (DOT), and incorporating the acts and regulations into the
contracts by reference in every contract or agreement subject to the non-discrimination in
Federally-assisted programs of the DOT acts and regulations.
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2. It will include a list of the pertinent non-discrimination authorities in every contract that is
subject to the non-discrimination acts and regulations.
3. It will insert non-discrimination contract clauses as a covenant running with the land, in
any deed from the United States effecting or recording a transfer of real property,
structures, use, or improvements thereon or interest therein to a sponsor.
4. It will insert non-discrimination contract clauses prohibiting discrimination on the basis of
race, color, national origin (including limited English proficiency), creed, sex (including
sexual orientation and gender identity), age, or disability as a covenant running with the
land, in any future deeds, leases, license, permits, or similar instruments entered into by
the sponsor with other parties:
a. For the subsequent transfer of real property acquired or improved under the
applicable activity, project, or program; and
b. For the construction or use of, or access to, space on, over, or under real property
acquired or improved under the applicable activity, project, or program.
f. It will provide for such methods of administration for the program as are found by the
Secretary to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees,
contractors, subcontractors, consultants, transferees, successors in interest, and other
participants of Federal financial assistance under such program will comply with all
requirements imposed or pursuant to the acts, the regulations, and this assurance.
g. It agrees that the United States has a right to seek judicial enforcement with regard to any
matter arising under the acts, the regulations, and this assurance.
31. Disposal of Land.
a. For land purchased under a grant for airport noise compatibility purposes, including land
serving as a noise buffer, it will dispose of the land, when the land is no longer needed for such
purposes, at fair market value, at the earliest practicable time. That portion of the proceeds of
such disposition which is proportionate to the United States' share of acquisition of such land
will be, at the discretion of the Secretary, (1) reinvested in another project at the airport, or (2)
transferred to another eligible airport as prescribed by the Secretary. The Secretary shall give
preference to the following, in descending order:
1. Reinvestment in an approved noise compatibility project;
2. Reinvestment in an approved project that is eligible for grant funding under 49 U.S.C.
§ 47117(e);
3. Reinvestment in an approved airport development project that is eligible for grant funding
under 49 U.S.C. §§ 47114, 47115, or 47117;
4. Transfer to an eligible sponsor of another public airport to be reinvested in an approved
noise compatibility project at that airport; or
5. Payment to the Secretary for deposit in the Airport and Airway Trust Fund.
If land acquired under a grant for noise compatibility purposes is leased at fair market value
and consistent with noise buffering purposes, the lease will not be considered a disposal of the
land. Revenues derived from such a lease may be used for an approved airport development
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project that would otherwise be eligible for grant funding or any permitted use of airport
revenue.
b. For land purchased under a grant for airport development purposes (other than noise
compatibility), it will, when the land is no longer needed for airport purposes, dispose of such
land at fair market value or make available to the Secretary an amount equal to the United
States' proportionate share of the fair market value of the land. That portion of the proceeds of
such disposition which is proportionate to the United States' share of the cost of acquisition of
such land will, upon application to the Secretary, be reinvested or transferred to another
eligible airport as prescribed by the Secretary. The Secretary shall give preference to the
following, in descending order:
1. Reinvestment in an approved noise compatibility project;
2. Reinvestment in an approved project that is eligible for grant funding under 49 U.S.C.
§ 47117(e);
3. Reinvestment in an approved airport development project that is eligible for grant funding
under 49 U.S.C. §§ 47114, 47115, or 47117;
4. Transfer to an eligible sponsor of another public airport to be reinvested in an approved
noise compatibility project at that airport; or
5. Payment to the Secretary for deposit in the Airport and Airway Trust Fund.
c. Land shall be considered to be needed for airport purposes under this assurance if (1) it may be
needed for aeronautical purposes (including runway protection zones) or serve as noise buffer
land, and (2) the revenue from interim uses of such land contributes to the financial self-
sufficiency of the airport. Further, land purchased with a grant received by an airport operator
or owner before December 31, 1987, will be considered to be needed for airport purposes if
the Secretary or Federal agency making such grant before December 31, 1987, was notified by
the operator or owner of the uses of such land, did not object to such use, and the land
continues to be used for that purpose, such use having commenced no later than
December 15, 1989.
d. Disposition of such land under (a), (b), or (c) will be subject to the retention or reservation of
any interest or right therein necessary to ensure that such land will only be used for purposes
which are compatible with noise levels associated with operation of the airport.
32. Engineering and Design Services.
If any phase of such project has received Federal funds under Chapter 471 subchapter 1 of Title
49 U.S.C., it will award each contract, or sub-contract for program management, construction
management, planning studies, feasibility studies, architectural services, preliminary engineering,
design, engineering, surveying, mapping or related services in the same manner as a contract for
architectural and engineering services is negotiated under Chapter 11 of Title 40 U S.C., or an
equivalent qualifications-based requirement prescribed for or by the sponsor of the airport.
33. Foreign Market Restrictions.
It will not allow funds provided under this Grant to be used to fund any project which uses any
product or service of a foreign country during the period in which such foreign country is listed by
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the United States Trade Representative as denying fair and equitable market opportunities for
products and suppliers of the United States in procurement and construction.
34. Policies, Standards, and Specifications.
It will carry out any project funded under an Airport Improvement Program Grant in accordance
with policies, standards, and specifications approved by the Secretary including, but not limited to,
current FAA Advisory Circulars (https://www.faa.gov/airports/aip/media/aip-pfc-checklist.pdf) for
AIP projects as of [Selection Criteria: Project Application Date].
35. Relocation and Real Property Acquisition.
a. It will be guided in acquiring real property, to the greatest extent practicable under State law,
by the land acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse
property owners for necessary expenses as specified in Subpart B.
b. It will provide a relocation assistance program offering the services described in Subpart C of 49
CFR Part 24 and fair and reasonable relocation payments and assistance to displaced persons as
required in Subpart D and E of 49 CFR Part 24.
c. It will make available within a reasonable period of time prior to displacement, comparable
replacement dwellings to displaced persons in accordance with Subpart E of 49 CFR Part 24.
36. Access By Intercity Buses.
The airport owner or operator will permit, to the maximum extent practicable, intercity buses or
other modes of transportation to have access to the airport; however, it has no obligation to fund
special facilities for intercity buses or for other modes of transportation.
37. Disadvantaged Business Enterprises.
The sponsor shall not discriminate on the basis of race, color, national origin, or sex, in the award
and performance of any DOT-assisted contract covered by 49 CFR Part 26, or in the award and
performance of any concession activity contract covered by 49 CFR Part 23. In addition, the sponsor
shall not discriminate on the basis of race, color, national origin or sex in the administration of its
Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business
Enterprise (ACDBE) programs or the requirements of 49 CFR Parts 23 and 26. The sponsor shall take
all necessary and reasonable steps under 49 CFR Parts 23 and 26 to ensure nondiscrimination in the
award and administration of DOT-assisted contracts, and/or concession contracts. The sponsor’s
DBE and ACDBE programs, as required by 49 CFR Parts 26 and 23, and as approved by DOT, are
incorporated by reference in this agreement. Implementation of these programs is a legal obligation
and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification
to the sponsor of its failure to carry out its approved program, the Department may impose
sanctions as provided for under Parts 26 and 23 and may, in appropriate cases, refer the matter for
enforcement under 18 U.S.C. § 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31
U.S.C. §§ 3801-3809, 3812).
38. Hangar Construction.
If the airport owner or operator and a person who owns an aircraft agree that a hangar is to be
constructed at the airport for the aircraft at the aircraft owner’s expense, the airport owner or
operator will grant to the aircraft owner for the hangar a long term lease that is subject to such
terms and conditions on the hangar as the airport owner or operator may impose.
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39. Competitive Access.
a. If the airport owner or operator of a medium or large hub airport (as defined in 49 U.S.C.
§ 47102) has been unable to accommodate one or more requests by an air carrier for access to
gates or other facilities at that airport in order to allow the air carrier to provide service to the
airport or to expand service at the airport, the airport owner or operator shall transmit a report
to the Secretary that:
1. Describes the requests;
2. Provides an explanation as to why the requests could not be accommodated; and
3. Provides a time frame within which, if any, the airport will be able to accommodate the
requests.
b. Such report shall be due on either February 1 or August 1 of each year if the airport has been
unable to accommodate the request(s) in the six month period prior to the applicable due date.
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I.PROVISIONS APPLICABLE TO ALL LEASES
A. ACCESS TO RECORDS AND REPORTS
The contractor (Airline) must maintain an acceptable cost accounting system. The
contractor agrees to provide the sponsor (City), 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 used 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
nonresponsive.
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.
D.CIVIL RIGHTS ACT OF 1964, TITLE VI
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During the performance of this contract, the contractor, for itself, its assignees, and
successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes
consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts
And Authorities, as they may be amended from time to time, which are herein
incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it
during the contract, will not discriminate on the grounds of race, color, or national
origin in the selection and retention of subcontractors, including procurements of
materials and leases of equipment. The contractor will not participate directly or
indirectly in the discrimination prohibited by the Nondiscrimination Acts and
Authorities, including employment practices when the contract covers any
activity, project, or program set forth in Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and
Equipment: In all solicitations, either by competitive bidding, or negotiation
made by the contractor for work to be performed under a subcontract, including
procurements of materials, or leases of equipment, each potential subcontractor
or supplier will be notified by the contractor of the contractor’s obligations under
this contract and the Nondiscrimination Acts And Authorities on the grounds of
race, color, or national origin.
4. Information and Reports: The contractor will provide all information and
reports required by the Acts, the Regulations, and directives issued pursuant
thereto and will permit access to its books, records, accounts, other sources of
information, and its facilities as may be determined by the sponsor or the Federal
Aviation Administration to be pertinent to ascertain compliance with such
Nondiscrimination Acts And Authorities and instructions. Where any information
required of a contractor is in the exclusive possession of another who fails or
refuses to furnish the information, the contractor will so certify to the sponsor or
the Federal Aviation Administration, as appropriate, and will set forth what efforts
it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance
with the Non-discrimination provisions of this contract, the sponsor will impose
such contract sanctions as it or the Federal Aviation Administration may
determine to be appropriate, including, but not limited to:
a. Withholding payments to the contractor under the contract until the
contractor complies; and/or
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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 actio n 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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8. Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the contractor, for itself, its assignees,
and successors in interest (hereinafter referred to as the “contractor”) agrees to
comply with the following non-discrimination statutes and authorities; including
but not limited to:
a. 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);
b. 49 CFR part 21 (Non-discrimination In Federally-Assisted Programs of The
Department of Transportation—Effectuation of Title VI of The Civil Rights Act
of 1964);
c. The Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatme nt of persons
displaced or whose property has been acquired because of Federal or
Federal-aid programs and projects);
d. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as
amended, (prohibits discrimination on the basis of disability); and 49 CFR part
27;
e. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.),
(prohibits discrimination on the basis of age);
f. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123),
as amended, (prohibits discrimination based on race, creed, color, national
origin, or sex);
g. The Civil Rights Restoration Act of 1987, (PL 100 -209), (Broadened the
scope, coverage and applicability of Title VI of the Civil Rights Act of 1964,
The Age Discrimination Act of 1975 and Sectio n 504 of the Rehabilitation Act
of 1973, by expanding the definition of the terms “programs or activities” to
include all of the programs or activities of the Federal -aid recipients, sub-
recipients and contractors, whether such programs or activities are F ederally
funded or not);
h. Titles II and III of the Americans with Disabilities Act of 1990, which prohibit
discrimination on the basis of disability in the operation of public entities,
public and private transportation systems, places of public accommodati on,
and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by
Department of Transportation regulations at 49 CFR parts 37 and 38;
i. The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. §
47123) (prohibits discrimination on the basis of race, color, national origin,
and sex);
j. Executive Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations, which ensures non-
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discrimination against minority populations by discoura ging 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);
l. 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 10 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 go od 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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issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6201 et
seq).
G. FEDERAL FAIR LABOR STANDARDS ACT (MINIMUM WAGE)
All contracts and subcontracts resulting from this solicitation incorporate by reference
the provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), with
the same force and effect as if given in full text. The FLSA sets minimum wage,
overtime pay, recordkeeping, and child labor standards for full and part time workers.
The contractor has full responsibility to monitor compliance to the referenced statute or
regulation. The contractor must address any claims or disputes that arise from this
requirement directly with the U.S. Department of Labor – Wage and Hour Division.
H. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
All contracts and subcontracts that result from this agreement incorporate by reference
the requirements of 29 CFR Part 1910 with the same force and effect as if given in full
text. Contractor must provide a work environment that is free from recognized hazards
that may cause death or serious physical harm to the employee. The Contractor retains
full responsibility to monitor its compliance and their subcontractor’s compliance wi th the
applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR
Part 1910). Contractor must address any claims or disputes that pertain to a referenced
requirement directly with the U.S. Department of Labor – Occupational Safety and
Health Administration.
I. TRADE RESTRICTION CLAUSE
The contractor or subcontractor, by submission of an offer and/or execution of a
contract, certifies that it:
a. is not owned or controlled by one or more citizens of a foreign country included
in the list of countries that discriminate against U.S. firms as published by the
Office of the United States Trade Representative (U.S.T.R.);
b. has not knowingly entered into any contract or subcontract for this project with a
person that is a citizen or national of a foreign country included on the list of
countries that discriminate against U.S. firms as published by the U.S.T.R; and
c. has not entered into any subcontract for any product to be used on the Federal
on the project that is produced in a foreign country included on the list of
countries that discriminate against U.S. firms published by the U.S.T.R.
This certification concerns a matter within the jurisdiction of an agency of the United
States of America and the making of a false, fictitious, or fraudulent certification may
render the maker subject to prosecution under Title 18, United States Code, Section
1001.
The contractor must provide immediate written notice to the Sponsor if the contractor
learns that its certification or that of a subcontractor was erroneous when submitted or
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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 m ore 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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K. SEISMIC SAFETY (applicable to agreements involving design)
In the performance of design services, the Contractor agrees to furnish a building
design and associated construction specification that conform to a building code
standard which provides a level of seismic safety substantially equivalent to standards
as established by the National Earthquake Hazards Reduction Program (NEHRP).
Local building codes that model their building code after the current version of the
International Building Code (IBC) meet the NEHRP equivalency level for seismic
safety. At the conclusion of the design services, the Contractor agrees to furnish the
Sponsor a “certification of compliance” that attests conformance of the building design
and the construction specifications with the seismic standards of NEHRP or an
equivalent building code.
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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 in curred 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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(1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all
times by the contractor and its subcontractors at the site of the work in a prominent
and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any c lass of laborers or mechanics,
including helpers, which is not listed in the wage determination and which is to be
employed under the contract shall be classified in conformance with the wage
determination. The contracting officer shall approve an addition al classification and
wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a
classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and the contracting officer agree on
the classification and wage rate (including the amount designated for fringe benefits
where appropriate), a report of the actio n taken shall be sent by the contracting officer
to the Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, D.C. 20210. The
Administrator, or an authorized representative, will approve, m odify, or disapprove
every additional classification action within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within the 30 -day period that
additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the contracting officer do not agree on the
proposed classification and wage rate (including the amount designated for fringe
benefits where appropriate), the contracting officer shall refer the questions, including
the views of all interested parties and the recommendation of the contracting officer, to
the Administrator for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within the 30 -day period that
additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant
to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers
performing work in the classification under this contract from the first day on which
work is performed in the classification.
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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 o f 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)(B) of the Davis -Bacon Act, the contractor
shall maintain records which show that the commitment to p rovide such benefits is
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enforceable, that the plan or program is financially responsible, and that the plan or
program has been communicated in writing to the laborers or mechanics affected, and
records which show the costs anticipated or the actual costs incurred in providing such
benefits. Contractors employing apprentices or trainees under approved programs
shall maintain written evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the apprentices and trainees, and
the ratios and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly for each week in which any contract work is
performed a copy of all payrolls to the Federal Aviation Administration if the a gency is
a party to the contract, but if the agency is not such a party, the contractor will submit
the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission
to the Federal Aviation Administration. The payrolls submitted shall set out accurately
and completely all of the information required to be maintained under 29 CFR
5.5(a)(3)(i), except that full social security numbers and home addresses shall not be
included on weekly transmittals. Instead the payrolls shall only need to include an
individually identifying number for each employee (e.g. , the last four digits of the
employee's social security number). The required weekly payroll information may be
submitted in any form desired. Optional Form WH–347 is available for this purpose
from the Wage and Hour Division Web site at
http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime
contractor is responsible for the submission of copies of payrolls by all subcontractors.
Contractors and subcontractors shall maintain the full social security number and
current address of each covered worker, and shall provide them upon request to the
Federal Aviation Administration if the agency is a party to the contract, but if the
agency is not such a party, the contracto r will submit them to the applicant, sponsor, or
owner, as the case may be, for transmission to the Federal Aviation Administration,
the contractor, or the Wage and Hour Division of the Department of Labor for purposes
of an investigation or audit of compliance with prevailing wage requirements. It is not a
violation of this section for a prime contractor to require a subcontractor to provide
addresses and social security numbers to the prime contractor for its own records,
without weekly submission to the sponsoring government agency (or the applicant,
sponsor, or owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the contractor or subcontractor or his or her agent who pays or supervises
the payment of the persons employed under the contract and shall certify the
following:
(1) That the payroll for the payroll period contains the information required to be
provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained
under 29 CFR § 5.5 (a)(3)(i) and that such information is correct and complete;
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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 certific ation 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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as stated above, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess 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. Where a contractor is performing
construction on a project in a locality other than that in which its program is registered,
the ratios and wage rates (expressed in percentages of the journeyman's hourly rate)
specified in the contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered
program for the apprentice's level of progress, expressed as a percentage of the
journeymen hourly rate specified in the applicable wage determination. Apprentices
shall be paid fringe benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator determines that a different practice
prevails for the applicable apprentice classification, fringes shall be paid in accordance
with that determination. In the event the Bureau of Apprenticeship and Training, or a
State Apprenticeship Agency recognized by the Bureau, withdraws approval of an
apprenticeship program, the contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work performed until
an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work
at less than the predetermined rate for the work performed unless they are employed
pursuant to and individually registered in a program which has received prior appr oval,
evidenced by formal certification by the U.S. Department of Labor, Employment and
Training Administration. The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the
approved program for the trainee's level of progress, expressed as a percentage of the
journeyman hourly rate specified in the applicable wage determination. Trainees sha ll
be paid fringe benefits in accordance with the provisions of the trainee program. If the
trainee program does not mention fringe benefits, trainees shall be paid the full
amount of fringe benefits listed on the wage determination unless the Administrato r of
the Wage and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate on the wage determination
which provides for less than full fringe benefits for apprentices. Any employee listed
on the payroll at a trainee rate that is not registered and participating in a training plan
approved by the Employment and Training Administration shall be paid not less than
the applicable wage rate on the wage determination for the classification of work
actually performed. In addition, any trainee performing work on the job site in excess
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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 claus es 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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(i) By entering into this contract, the contractor certifies that neither it (nor he or she)
nor any person or firm who has an interest in the contractor's firm is a person or firm
ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -
Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for
award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29
CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code,
18 U.S.C. 1001.
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III. 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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IV.PROVISIONS APPLICABLE TO LEASES
$10,000 AND GREATER
A. AFFIRMATIVE ACTION REQUIREMENT (applicable to contracts and
subcontracts exceeding $10,000 and including AIP-funded construction work.
“Construction work” means construction, rehabilitation, alteration, conversion,
extension, demolition or repair of buildings, highways, or other changes or
improvements to real property, including facilities providing utility services. The term
also includes the supervision, inspection, and other onsite functions incidental to the
actual construction.)
1. The Offeror's or Bidder’s attention is called to the "Equal Opp ortunity Clause" and the
"Standard Federal Equal Employment Opportunity Construction Contract Specifications"
set forth herein.
2. The goals and timetables for minority and female participation, expressed in
percentage terms for the contractor's aggregate workforce in each trade on all
construction work in the covered area, are as follows:
Timetables
Goals for minority participation for each trade: 26.1%
Goals for female participation in each trade: 6.9%
These goals are applicable to all of the contracto r's construction work (whether or not it
is Federal or federally-assisted) performed in the covered area. If the contractor
performs construction work in a geographical area located outside of the covered area,
it shall apply the goals established for such geographical area where the work is
actually performed. With regard to this second area, the contractor also is subject to the
goals for both its federally involved and non-federally involved construction.
The Contractor's compliance with the Executive Order and the regulations in 41 CFR
Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific
affirmative action obligations required by the specifications set forth in 41 CFR 60 -
4.3(a), and its efforts to meet the goals. The hours of minority and female employment
and training must be substantially uniform throughout the length of the contract, and in
each trade, and the contractor shall make a good faith effort to employ minorities and
women evenly on each of its projects. T he transfer of minority or female employees or
trainees from Contractor to Contractor or from project to project for the sole purpose of
meeting the Contractor's goals shall be a violation of the contract, the Executive Order
and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured
against the total work hours performed.
3. The Contractor shall provide written notification to the Director of the Office of
Federal Contract Compliance Programs (OFCCP) within 10 working days of awar d of
any construction subcontract in excess of $10,000 at any tier for construction work
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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 con tractor 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 incl ude, 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 co ntractor
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 c opies 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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accounts by the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor's noncompliance with the nondiscrimination clauses
of this contract or with any of the said rules, regulations, or orders, this contract may
be canceled, terminated, or suspended in whole or in part and the contractor may be
declared ineligible for further Government contracts or federally assisted construction
contracts in accordance with procedures authorized in Executive Order 11246 of
September 24, 1965, and such other sanctions may be imposed and remedies
invoked as provided in Executive Order 11246 of September 24, 1965, or by rule,
regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the portion of the sentence immediately preceding
paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or
purchase order unless exempted by rules, regulations, or orders of the Secretary of
Labor issued pursuant to section 204 of Executive Order 11246 of September 24,
1965, so that such provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or purchase order as
the administering agency may direct as a means of enforcing such provisions,
including sanctions for noncompliance: Provided, however, That in the event a
contractor becomes involved in, or is threatened with, litigation with a subcontractor or
vendor as a result of such direction by the administering agency the contractor may
request the United States to enter into such litigation to protect the interests of the
United States.
2. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY
CONSTRUCTION CONTRACT SPECIFICATIONS
1. As used in these specifications:
a. "Covered area" means the geographical area described in the solicitation from
which this contract resulted;
b. "Director" means Director, Office of Federal Contract Compliance Programs
(OFCCP), U.S. Department of Labor, or any person to whom the Director
delegates authority;
c. "Employer identification number" means the Federal social security number
used on the Employer's Quarterly Federal Tax Return, U.S. Treasury
Department Form 941;
d. "Minority" includes:
(1) Black (all) persons having origins in any of the Black African racial groups
not of Hispanic origin);
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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 part icipation 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 o r
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 demo nstrate
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 subcontracto r'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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5. Neither the provisions of any collective bargaining agreement nor the failure by a
union with whom the contractor has a collective bargaining agreement to refer either
minorities or women shall excuse the contractor's obligations under these
specifications, Executive Order 11246 or the regulations promulgated pursuant
thereto.
6. In order for the non-working training hours of apprentices and trainees to be
counted in meeting the goals, such apprentices and trainees shall be employed by the
contractor during the training period and the contractor shall have made a commitment
to employ the apprentices and trainees at the completion of their training, subject to
the availability of employment opportunities. Trainees shall be trained pursuant to
training programs approved by the U.S. Department of Labor.
7. The contractor shall take specific affirmative actions to ensure equal employment
opportunity. The evaluation of the contractor's compliance with these specifications
shall be based upon its effort to achieve maximum results from its actions. The
contractor shall document these efforts fully and shall implement affirmative action
steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation,
and coercion at all sites, and in all facilities at which the contractor's employees are
assigned to work. The contractor, where possible, will assign two or more women
to each construction project. The contractor shall specifically ensure that all
foremen, superintendents, and other onsite supervisory personnel are aware of
and carry out the contractor's obligation to mainta in such a working environment,
with specific attention to minority or female individuals working at such sites or in
such facilities.
b. Establish and maintain a current list of minority and female recruitment sources,
provide written notification to minority and female recruitment sources and to
community organizations when the contractor or its unions have employment
opportunities available, and maintain a record of the organizations' responses.
c. Maintain a current file of the names, addresses, and telephone numbers of each
minority and female off -the-street applicant and minority or female referral from a
union, a recruitment source, or community organization and of what action was
taken with respect to each such individual. If such individual was sent to the union
hiring hall for referral and was not referred back to the contractor by the union or, if
referred, not employed by the contractor, this shall be documented in the file with
the reason therefore along with whatever additional actions the contr actor may
have taken.
d. Provide immediate written notification to the Director when the union or unions
with which the contractor has a collective bargaining agreement has not referred to
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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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j. Encourage present minority and female employees to recruit other minority
persons and women and, where reasonable, provide after school, summer, and
vacation employment to minority and female youth both on the site and in other
areas of a contractor's workforce.
k. Validate all tests and other selection requirements where there is an obligation to
do so under 41 CFR Part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and
female personnel, for promotional opportunities and encourage these employees to
seek or to prepare for, through appropriate training, etc., such opportunities.
m. Ensure that seniority practices, job classifications, work assignments, and other
personnel practices do not have a discriminatory effect by continually monitoring all
personnel and employment related activities to ensure that the EEO policy and the
contractor's obligations under these specifications are being carried out.
n. Ensure that all facilities and company activities are non -segregated except that
separate or single user toilet and necessary changing faciliti es shall be provided to
assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts
from minority and female construction contractors and suppliers, including
circulation of solicitations to minority and female contractor associations and other
business associations.
p. Conduct a review, at least annually, of all supervisor's adherence to and
performance under the contractor's EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations, which assist in
fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts
of a contractor association, joint contractor union, contractor community, or other
similar groups of which the contractor is a member and participant, may be asserted
as fulfilling any one or more of its obligations under 7a through 7p of these
specifications provided that the contractor actively participates in the group, makes
every effort to assure that the group has a positive impact on the employment of
minorities and women in the industry, ensures that the concrete benefits of the
program are reflected in the contractor's minority and female workforce participation,
makes a good faith effort to meet its individual goals and timetables, and can provide
access to documentation which demonstrates the effectiveness of actions taken on
behalf of the contractor. The obligation to comply, however, is the contractor's and
failure of such a group to fulfill an obligation shall not be a defense for the contractor's
noncompliance.
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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 number, 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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requirements for the hiring of local or other area residents (e.g., those under the Public
Works Employment Act of 1977 and the Community Development Block Grant
Program).
C. PROHIBITION of SEGREGATED FACILITIES (applicable to contracts and
subcontracts exceeding $10,000 and including AIP-funded construction work.
“Construction work” means construction, rehabilitation, alteration, conversion,
extension, demolition or repair of buildings, highways, or other change s or
improvements to real property, including facilities providing utility services. The term
also includes the supervision, inspection, and other onsite functions incidental to the
actual construction.)
(a) The Contractor agrees that it does not and will not maintain or provide for its
employees any segregated facilities at any of its establishments, and that it
does not and will not permit its employees to perform their services at any
location under its control where segregated facilities are maintained. The
Contractor agrees that a breach of this clause is a violation of the Equal
Opportunity clause in this contract.
(b) “Segregated facilities,” as used in this clause, means any waiting rooms,
work areas, rest rooms and wash rooms, restaurants and other eating areas,
time clocks, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees, that are segregated by explicit
directive or are in fact segregated on the basis of race, color, religion, sex, or
national origin because of written or oral policies or employee custom. The term
does not include separate or single-user rest rooms or necessary dressing or
sleeping areas provided to assure privacy between the sexes.
(c) The Contractor shall include this clause in every subcontract and purchase
order that is subject to the Equal Opportunity clause of this contract.
D. PROCUREMENT OF RECOVERED MATERIALS (applicable if an agreement
includes procurement of a product that exceeds $10,000)
Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, and the
regulatory provisions of 40 CFR Part 247. In the performance of this contract and to
the extent practicable, the Contractor and subcontractors are to use of products
containing the highest percentage of recovered materials for items designated by the
Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
a) The contract requires procurement of $10,000 or more of a designated item
during the fiscal year; or,
b) The contractor has procured $10,000 or more of a designated item using Federal
funding during the previous fiscal year.
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The list of EPA-designated items is available at
www.epa.gov/epawaste/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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i) Perform the services within the time specified in this contract or by
Sponsor approved extension;
ii) Make adequate progress so as to endanger satisfactory performance of
the Project;
iii) Fulfill the obligations of the Agreement that are essential to the
completion of the Project.
Upon receipt of the notice of termination, the Contractor must immediately
discontinue all services affected unless the notice directs otherwise. 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.
If, after finalization of the termination action, the Sponsor determines the
Contractor was not in default of the Agreement, the rights and obligations of the
parties shall be the same as if the Sponsor issued the termination for the
convenience of the Sponsor.
b) Termination by Contractor: The Contractor may terminate this Agreement in
whole or in part, if the Sponsor:
i) Defaults on its obligations under this Agreement;
ii) Fails to make payment to the Contractor in accordance with the terms of
this Agreement;
iii) Suspends the Project for more than [180] days due to reasons beyond the
control of the Contractor.
Upon receipt of a notice of termination from the Contractor, Sponsor agrees to
cooperate with Contractor for the purpose of terminating the agreement or portion
thereof, by mutual consent. If Sponsor and Contractor cannot reach mutual
agreement on the termination settlement, the Contractor may, without prejudice to
any rights and remedies it may have, proceed with terminating all or parts of this
Agreement based upon the Sponsor’s breach of the contract.
In the event of termination due to Sponsor breach, the Engineer is entitled to
invoice Sponsor and to receive full payment for all services performed or furnished
in accordance with this Agreement and all justified reimbursable expenses incurred
by the Contractor through the effective date of termination action. Sponsor agrees
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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. PROVISION APPLICABLE TO LEASES
$25,000 AND GREATER
A. CERTIFICATIONS REGARDING DEBARMENT AND SUSPENSION
1. CERTIFICATE REGARDING DEBARMENT AND SUSPENSION (BIDDER OR
OFFEROR)
By submitting a bid/proposal under this solicitation, the bidder or offeror certifies that at
the time the bidder or offeror submits its proposal that neither it nor its principals are
presently debarred or suspended by any Federal department or agency from
participation in this transaction.
2. CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
(SUCCESSFUL BIDDER REGARDING LOWER TIER PARTICIPANTS)
The successful bidder, by administering each lower tier subcontract that exceeds
$25,000 as a “covered transaction”, must verify each lower tier participant of a “covered
transaction” under the project is not presently debarred or otherwise disqualified from
participation in this federally assisted project. The successful bidder will accomplish this
by:
1. Checking the System for Award Management at website: http://www.sam.gov
2. Collecting a certification statement similar to the Certificate Regarding
Debarment and Suspension (Bidder or Offeror), above.
3. Inserting a clause or condition in the covered transaction with the lower tier
contract
If the FAA later determines that a lower tier participant failed to tell a higher tier that it
was excluded or disqualified at the time it entered the covered transactio n, the FAA may
pursue any available remedy, including suspension and debarment of the non-compliant
participant.
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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 (FAA) or the Owner shall upon its own action or
upon written request of an authorized representative of the Depar tment 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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4. Subcontractors.
The contractor or subcontractor shall insert in any subcontracts the clauses set forth in
paragraphs (1) through (4) and also a clause requiring the subcontractor to include
these clauses in any lower tier subcontracts. The prime contractor shall be
responsible for compliance by any subcontractor or lower tier subcontractor with the
clauses set forth in paragraphs (1) through (4) of this clause.
B. LOBBYING AND INFLUENCING FEDERAL EMPLOYEES
The contractor certifies by signing and submitting this bid or proposal, to the best of his
or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of
the contractor, to any person for influencing or attempting to influence an officer
or employee of an agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making o f any Federal grant, the making
of any Federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit Standard Form -LLL, “Disclosure Form to Report
Lobbying,” in accordance with its instructions.
(3) The contractor shall require that the language of this certification be included in
the award documents for all sub-awards at all tiers (including subcontracts, sub-
grants, and contracts under grants, loans, and cooperative agreements) and
that all sub-recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by section 1352, title
31, U.S. Code. Any person who fails to file the required certification shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each such
failure.
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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.
///
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Attachment A: CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR
TOTAL FACILITY
(Buildings such as Terminal, SRE, ARFF, etc.)
As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and
submit this certification statement with their proposal. The bidder or offeror must
indicate how they intend to comply with 49 USC § 50101 by selecting one of the
following certification statements. These statements are mutually exclusive. Bidder
must select one or the other (i.e. not both) by inserting a checkmark () or the letter “X”.
Bidder or offeror hereby certifies that it will comply with 49 USC. 50101 by:
a) Only installing steel and manufactured products produced in the United
States; or
b) Installing manufactured products for which the FAA has issued a waiver
as indicated by inclusion on the current FAA Nationwide Buy American
Waivers Issued listing; or
c) Installing products listed as an Excepted Article, Material or Supply in
Federal Acquisition Regulation Subpart 25.108.
By selecting this certification statement, the bidder or offeror agrees:
1. To provide to the Owner evidence that documents the source and
origin of the steel and manufactured product.
2. To faithfully comply with providing US domestic products
3. To refrain from seeking a waiver request after establishment of the
contract, unless extenuating circumstances emerge that the FAA
determines justified.
The bidder or offeror hereby certifies it cannot comply with the 100% Buy
American Preferences of 49 USC § 50101(a) but may qualify for either a Type
3 or Type 4 waiver under 49 USC § 50101(b). By selecting this certification
statement, the apparent bidder or offeror with the apparent low bid agrees:
1. To the submit to the Owner within 15 calendar days of the bid opening, a
formal waiver request and required documentation th at support the type
of waiver being requested.
2. That failure to submit the required documentation within the specified
timeframe is cause for a non-responsive determination may results in
rejection of the proposal.
3. To faithfully comply with providing US domestic products at or above the
approved US domestic content percentage as approved by the FAA.
4. To furnish US domestic product for any waiver request that the FAA
rejects.
5. To refrain from seeking a waiver request after establishment of the
contract, unless extenuating circumstances emerge that the FAA
determines justified.
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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 FAA 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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Attachment B: CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR
MANUFACTURED PRODUCTS
(Non-building construction projects, equipment acquisition projects)
As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and
submit this certification statement with their proposal. The bidder or offeror must
indicate how they intend to comply with 49 USC § 50101 by selecting one on the
following certification statements. These statements are mutually exclusive. Bidder
must select one or the other (not both) by inserting a checkmark () or the letter “X”.
Bidder or offeror hereby certifies that it will comply with 49 USC § 50101 by:
a) Only installing steel and manufactured products produced in the United
States, or;
b) Installing manufactured products for which the FAA has issued a waiver as
indicated by inclusion on the current FAA Nationwide Buy American Waivers
Issued listing, or;
c) Installing products listed as an Excepted Article, Material or Supply in
Federal Acquisition Regulation Subpart 25.108.
By selecting this certification statement, the bidder or offeror agrees:
1. To provide to the Owner evidence that documents the source and origin of
the steel and manufactured product.
2. To faithfully comply with providing US domestic product
3. To furnish US domestic product for any waiver request that the FAA rejects
4. To refrain from seeking a waiver request after establishment of the contract,
unless extenuating circumstances emerge that the FAA determines justified.
The bidder or offeror hereby certifies it cannot comply with the 100% Buy
American Preferences of 49 USC § 50101(a) but may qualify for either a Typ e 3
or Type 4 waiver under 49 USC § 50101(b). By selecting this certification
statement, the apparent bidder or offeror with the apparent low bid agrees:
To the submit to the Owner within 15 calendar days of the bid opening, a formal
waiver request and required documentation that support the type of waiver being
requested.
1. That failure to submit the required documentation within the specified
timeframe is cause for a non-responsive determination may result in
rejection of the proposal.
2. To faithfully comply with providing US domestic products at or above the
approved US domestic content percentage as approved by the FAA.
3. To refrain from seeking a waiver request after establishment of the contract,
unless extenuating circumstances emerge that the FAA determines justified.
Required Documentation
Type 3 Waiver - The cost of the item components and subcomponents produced in the
United States is more that 60% of the cost of all components and subcomponents of the
“item”. The required documentation for a type 3 waiver is:
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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 FAA
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) 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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