HomeMy WebLinkAboutSmarte Carte, Inc - Concession Agreement 12-1-2022L/UIiUJIIyII CIIVCIUpt: IL/. 0%, 10 I U04-D000-4F\UU-DLLU-UHU Irr'iJC•*OI1
BAGGAGE CART CONCESSION AGREEMENT
BETWEEN
CITY OF FRESNO
(A Municipal Corporation)
AND
SMARTE CARTE, INC.
A MINNESOTA CORPORATION
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BAGGAGE CART CONCESSION AGREEMENT
THIS CONCESSION AGREEMENT, made and entered into the 1st day of December,
2022, by and between the CITY OF FRESNO, CALIFORNIA, a municipal corporation,
hereinafter referred to as "City" and SMARTE CARTE, INC. a Minnesota Corporation,
admitted in good standing to do business in California, hereinafter referred to as
"Concessionaire".
WITNESSETH
WHEREAS, City is the owner and operator of the Fresno -Yosemite International Airport
located in the City of Fresno, County of Fresno, State of California, hereinafter referred
to as "Airport"; and
WHEREAS, Concessionaire desires to operate a self-service baggage cart
management business and massage chairs as services to the traveling public in the
Terminal/Concourse Building at Airport; and
WHEREAS, on May 1, 2022, acting by and through the City's Director of Aviation, the
City of Fresno, a municipal corporation, entered into a 6 month Temporary Use Lease
effective May 1, 2022 and expires November 30, 2022; and
WHEREAS, City desires to grant the Concessionaire the right to continue to operate
said business from areas within locations as described and depicted on Exhibit "A",
attached hereto and incorporated herein, upon the terms and conditions herein.
NOW THEREFORE, in consideration of the above recitals which recitals are contractual
in nature, mutual covenants, agreements, and conditions contained herein and for other
valuable consideration the receipt and sufficiency of which are hereby acknowledged
the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
The following words and phrases shall have the following meanings when used
elsewhere in this Agreement.
A. "Agreement" means this Baggage Cart Concession Agreement between
City and Concessionaire, as the same may be amended or supplemented
from time to time pursuant to the terms hereof.
B. "Assigned Area" means the public area or areas designated and depicted
on Exhibit "A" attached hereto as the place or places within the Airport
where the baggage cart dispensing machines, including associated
equipment, wiring and enclosures may be located.
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C. "Concession" means the Section 3.1 grant of rights to operate a self-
service baggage cart management system at the Airport.
D. "Concession Fees" mean the total Article 5 compensation, fees and
charges due to the City from the Concessionaire.
E. "Director" shall mean the City of Fresno's Director of Aviation, or the
designee of the Director of Aviation.
F. "Minimum Monthly Guarantee" means 1/12th of the Section 5.1 Minimum
Annual Guarantee.
G. "Percentage Concession Fees" means 10% of Gross Receipts due and
payable as provided in Section 5.1 of this Agreement.
H. "Terminal Building" means the Passenger Terminal/Concourse Building at
the Airport as it exists on the date hereof, and any additions made thereto
during the term of this Agreement.
"The life of this Agreement" (and any and all readily identifiable variations
thereof), when used herein, means the full term of this Agreement, as
specified within Article 2 of this Agreement, including any extension(s) of
said term, UNLESS this Agreement shall be terminated earlier as herein
elsewhere provided, in which event, said phrase and said variations
thereof, shall mean the lesser period during which this Agreement shall
be in full force and effect.
ARTICLE 2 - TERM
Section 2.1 Term
The term of this Agreement shall become effective upon the date set forth above and
shall continue for five (5) years, until 11:59 p. P.S.T., November 30, 2027, subject to
prior termination as provided herein.
Section 2.2 Automatic Extension
In the event that this Agreement shall remain in full force and effect throughout the
entire term specified in Article 2, Section 2.1, above, at the end of said term, City at its
sole discretion shall have the option to renew this Agreement for an additional five (5)
year period, upon the terms and conditions herein, provided that in no event shall this
Agreement remain in force beyond November 30, 2032.
ARTICLE 3 - RIGHTS OF CONCESSIONAIRE
Section 3.1 Grant of Concession and Use Rights
City hereby grants to Concessionaire the exclusive right to operate a self-service
baggage cart management system and massage chairs at Airport including a revocable
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(as provided herein) right to use the Assigned Area solely for the purposes of this
Agreement. Concessionaire agrees to provide a minimum of one (1) full time employee
to act as a location manager. This individual's responsibility shall include but not be
limited to equipment maintenance and retrieval of stray carts. All costs incurred by
Concessionaire in pursuit hereof, including costs arising from maintenance and
ownership of all equipment and carts shall rest solely with Concessionaire.
Section 3.2 Installation of Improvements and E ui ment
Concessionaire has installed three (3) cart management units and three (3) return units
in the Assigned Area(s) and provide carts inside Federal Inspection Station for
international passengers. At any time during the life hereof, City may by written notice
reasonably require Concessionaire to install additional equipment and/or provide
additional carts at Airport if public demand so indicates. Any additional baggage cart
dispensing units and carts placed in the Airport will be subject to the terms and
conditions of this Agreement. The City may require relocation of any baggage cart
dispensing units upon seven (7) days written notice. Concessionaire shall not install or
affix any signs or advertisements in or to any portion of the Airport without the prior
written consent of City.
Section 3.3 Concessionaire's Rental Charge
Concessionaire is granted the right to charge customers utilizing Concessionaire's
baggage cart concession Five dollars ($5.00) for each baggage cart during years 1 & 2
of this Agreement and Six dollars ($6.00) at start of year 3, with a twenty-five cent ($.25)
refund for returned baggage carts. Any adjustments of Concessionaire's rental charge
as provided in this Section 3.3 must be approved in writing by the Director.
Section 3.4 Concessionaire's Alterations and Improvements
Concessionaire shall not install or erect any alterations or improvements in the
Assigned Area, unless and until plans and specifications for such alterations or
improvements shall have been submitted to and approved in writing by City. Any such
alterations or improvements shall be without cost to City. All alterations, improvements,
equipment and interior design and decor constructed or installed by Concessionaire, its
agents, or contractors, including the plans and specifications, shall conform to all
applicable statutes, ordinances, building codes, and rules and regulations.
Full and complete plans and specifications for all work, facilities, improvements, and
finishes, and the time required to complete same, shall be submitted to and receive the
written approval of City before any work or construction is commenced. First-class
standards of design and construction shall be complied with in connection with all such
work, facilities, and improvements; and all construction shall conform with the general
architectural requirements of City
Two copies of the as -built plans for all improvements or subsequent changes therein or
alterations thereof to the Assigned Area shall be given to City for review prior to
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commencement of construction; after final approval by City, City will return one
approved copy for Concessionaire's records and shall retain one approved copy as an
official record thereof. These plans, and any subsequent modifications or alterations,
shall also be furnished to City on computer discs as electronic files in a format
compatible with the CADD system used by City.
Section 3.5 Cit 's Alterations and Improvements to Airport
Concessionaire acknowledges that from time to time City may undertake construction,
repair, or other activities related to the operation, maintenance and repair of the
Terminal Building, which may temporarily affect Concessionaire's operations hereunder.
Concessionaire agrees to accommodate City in such matters, even though
Concessionaire's own activities may be inconvenienced, and Concessionaire agrees
that no liability shall attach to City, its members, employees, or agents by reason of
such inconvenience or impairment. It is agreed that in the event such activities of City
substantially impair the operations of Concessionaire under this Agreement, the
Minimum Monthly Guarantee shall be reduced or waived during such period of
substantial impairment in reasonable proportion to the degree of impairment, with what
constitutes "substantial impairment" being determined at the sole discretion of City after
consultation with Concessionaire.
Section 3.6 Title Removal and Demolition of Improvements
Any permanent improvements, additions and alterations made to the Assigned Area by
Concessionaire shall upon installation become the property of City free and clear of
liens or encumbrances; provided, however, that any trade fixtures, baggage carts,
baggage cart dispensing machines, associated equipment, signs and other personal
property of Concessionaire not permanently affixed to Assigned Area shall remain the
property of Concessionaire. Should Concessionaire fail within twenty (20) business
days following the termination of this Agreement to remove its trade fixtures, baggage
carts, baggage cart dispensing machines, signs and other personal property of
Concessionaire not permanently affixed to Assigned Area, then at the option of City, title
to same shall vest in City at no cost to City.
Concessionaire shall not remove or demolish, in whole or in part, any improvements
upon Assigned Area without the prior written consent of the Director. Concessionaire
understands and agrees that consent may be conditioned upon the obligation of
Concessionaire to replace the same by an improvement specified in such consent at
Concessionaire's sole expense.
ARTICLE 4 — MAINTENANCE
Section 4.1 Citv's Obligations
A. City shall provide structural maintenance and maintenance of water, sewer,
electrical, heating, ventilating and air conditioning systems to main Terminal
Building.
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B. City agrees that it will at all times maintain, operate, and keep in good repair the
Terminal Building, and all appurtenances, facilities, and services now or hereafter
connected thereto.
Section 4.2 Concessionaire's Obligations
A. Except for structural maintenance of the Terminal Building, as provided in
Subsection 4.1, Concessionaire shall be obligated, without cost to City, to
maintain the baggage carts and baggage cart dispensing machines in good
appearance, repair, and safe condition and in compliance with all requirements of
the law and the City.
B. Concessionaire shall also maintain all of the Assigned Area and baggage cart
dispensing machines in a neat and clean condition, free from all litter, trash,
scrap paper and similar debris, and perform all such painting and repair work as
is necessary to maintain said area in an attractive condition. Floor maintenance,
sweeping, and waxing shall remain the responsibility of the City.
C. Concessionaire shall observe and comply with any and all requirements of all
federal, state or local statutes, ordinances, regulations and standards applicable
to Concessionaire or its use of the Airport, including, but not limited to, rules and
regulations promulgated from time to time by the City and other authorities
having jurisdiction over operations in and about the Airport.
D. Upon execution of this Agreement, Concessionaire shall establish a preventive
and routine maintenance program, the provisions of which shall be subject to the
approval of and periodic review by the Director or designee. Concessionaire
shall from time to time, upon request, provide the Director or designee a written
schedule of Concessionaire's cleaning and maintenance program.
E. If City determines that maintenance of the baggage carts or baggage cart
dispensing machines is not satisfactory, City shall so notify Concessionaire in
writing. If appropriate maintenance is not performed by Concessionaire within
fifteen (15) days after receipt of written notice, City or its agent shall have the
right to perform the maintenance and Concessionaire agrees to reimburse City
promptly for the cost thereof, plus ten percent (10%) for administrative overhead.
F. Prior to making any repairs to the Assigned Area other than to its own
equipment, Concessionaire shall discuss with the Director or designee to
determine whether City elects to make the repairs with its own personnel and
charge Concessionaire its standard rates for such service including any
overhead charges. All work performed by Concessionaire must be inspected and
approved by the Director.
G. All repairs done by Concessionaire or by others on its behalf shall be of
professional quality in both materials and workmanship. All repairs shall be made
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in conformity with the rules and regulations prescribed from time to time by
federal, state, county or local authority having jurisdiction over the work in the
Assigned Area.
H. Upon discovery, Concessionaire shall immediately give written notice to City of
any hazardous or potentially hazardous conditions in the Terminal Building. Any
hazardous or potentially hazardous condition in the baggage carts and baggage
cart dispensing machines shall be corrected immediately upon receipt of written
notice from the Director. At the direction of Director or designee, Concessionaire
shall cease to operate defective baggage carts and baggage cart dispensing
machines until such hazardous or potentially hazardous condition is removed.
ARTICLE 5 - COMPENSATION, BOOKKEEPING, AND AUDIT
In consideration of the rights granted by City to Concessionaire pursuant to this
Agreement, Concessionaire shall pay to City Percentage Concession Fee, or the
Minimum Monthly Guarantee, whichever is greater payable in accordance with
provisions of this Article 5.
Section 5.1 Compensation
A. Each month of the term of this Agreement, Concessionaire shall pay a
Percentage Concession Fee, or the Minimum Monthly Guarantee, whichever is
greater. Concessionaire shall also submit to City, in a form and with detail
satisfactory to City, a statement of Gross Receipts collected during the preceding
month from its operations at the Assigned Area upon which the monthly
concession fee is computed.
B. The first year Minimum Annual Guarantee shall be the sum of Twenty One
Hundred Dollars ($2,100), subject, however, to the following adjustments:
Commencing at the end of the first twelve-month period after the commencement
of this Agreement (and at the end of each twelve-month period thereafter), the
Minimum Annual Guarantee shall be adjusted (i.e. increased only) for the next
ensuing twelve-month period to a sum of money representing 85% of the total
Concession Fees paid to City under this Agreement for the previous twelve-
month period; provided, however, that in no event shall the Minimum Annual
Guarantee ever be reduced.
Said Minimum Annual Guarantee shall be payable in twelve equal monthly
installments, as a Minimum Monthly Guarantee, in advance and without demand,
on the first day of each calendar month throughout the term of this Agreement.
For any period less than one calendar month that this Agreement shall be in
effect, said Minimum Monthly Guarantee shall be calculated on a prorata basis.
C. The Percentage Concession Fee to be applied to the Gross Receipts as
hereinafter defined, shall be Ten percent (10%) of said Gross Receipts.
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The Percentage Concession Fee shall be payable within twenty (20) calendar
days after following the month within which due. Concessionaire shall pay to City
a sum of money that represents the excess of the difference between the
Percentage Concession Fee and the Minimum Monthly Guarantee Fee for the
previous month.
D. The City will pay Permittee an annual amount of $50,000 for baggage carts used
by international passengers. This amount shall be subject to annual CPI
adjustment. Amount will be paid in 12 equal monthly installments and will be paid
in arrears. Invoice to be provided by Concessionaire to City on the 1st of each
month for the prior month.
Section 5.2 Definition of Gross Receipts
The term "Gross Receipts," as used herein and upon which the Percentage Concession
Fee is based/computed/paid, shall mean the total amount of all revenues generated by
or accruing to Concessionaire in pursuit of this Agreement and all gains/accruals
thereon less refunds, cart return rewards and sales/excise taxes paid by
Concessionaire in its operations hereunder, consistent with Fresno Municipal Code
Section 5-302.1, a copy of which is attached hereto as Exhibit "D" and incorporated by
reference herein.
Except as herein above specified, if any charge for any of the products or services
provided hereunder is not assessed, charged, or collected, irrespective of the reason
therefore, the proper amount of such charge shall, nevertheless, be included in the term
"Gross Receipts" as the same is used in this section. Further, no deduction shall be
made from Gross Receipts by reason of any credit loss, charge, or deduction that may
be incurred by reason of the acceptance or use of credit cards or other credit or charge
arrangements.
Section 5.3 Late Payment Charge
Should any installment of Concession Fees or other sums accruing to City under the
provisions of this Agreement, not be paid as and when due, there shall be due a late
payment charge equal to the lesser of the maximum rate allowable by law or one and
one-half percent (1.5%) per month on the total amount overdue for each month
thereafter until such delinquent installment or other payment amount(s) shall be
received by City. It is expressly stipulated that the amount of the above said late
payment charge may, at any time and from time to time during the life of this
Agreement, be changed by action of the City Council of City when, in said Council's
opinion, economic conditions and/or other relevant facts and/or circumstances may
reasonable warrant such action. Nothing herein contained shall be deemed, in any way
whatsoever, to relieve Concessionaire from payment of fees, and/or other sums at the
time and in the manner herein provided.
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Section 5.4 Maintenance of Books and Records
Concessionaire shall prepare and keep for a period of not less than three (3) years
following the end of each year during the life hereof, full, complete and proper books,
records and accounts of transactions occurring in connection with Concessionaire's
operation at Airport and shall make these documents available for inspections and
audits by City or its designated representatives during such times provided that any
such inspection and audit shall be made by City during Concessionaire's regular
business hours. Concessionaire shall keep and maintain complete and adequate books
and records of all its gross sales and shall file and maintain all invoices and records in
such a manner that provides easy and accurate accountability by City of all gross sales
generated by Concessionaire pursuant to this Agreement and in accordance with
generally accepted accounting principles.
Section 5.5 Written Reports
Concessionaire shall submit to City, on or before the twentieth (20th) day of each month
during the life of this Agreement (and the twentieth (20th) day of the month following the
expiration or termination of the life of this Agreement), a written statement signed by
Concessionaire and certified to be true and correct, showing in reasonable detail the
amount Concessionaire's Gross Receipts during the preceding month.
Section 5.6 Annual Report
Concessionaire shall submit to City, within ninety (90) days following the end of each
twelve (12) month period during the life of this Agreement and the ninetieth (90th) day
following the expiration or termination of the life of this Agreement, an annual report of
Concessionaire's Gross Receipts for the year then ended or portion of year completed
prior to earlier termination (including a breakdown of monthly gross sales), certified by
Concessionaire's chief financial officer to be a true and accurate reporting of all Gross
Receipts. Within thirty (30) calendar days Concessionaire shall pay any deficiency or
shall receive a refund of any excess in Percentage Concession Fee payments made by
Concessionaire which are determined to be due to or from City as a result of said
report.
Section 5.7 Cash and Record Handling Requirements
Internal Controls. Concessionaire shall maintain an internal control structure designed
to provide reasonable assurance that assets are safeguarded from loss or unauthorized
uses, that transactions are executed in accordance with management's authority and
that the financial records are reliable. The internal control structure shall be supported
by the selection, training and development of qualified personnel by an appropriate
segregation of duties, and by the dissemination of written policies and procedures.
Section 5.8 Property and Regulatory Taxes Assessments and Fees
Concessionaire shall pay promptly when due all taxes, assessments, license and permit
fees, and any penalties thereon, imposed upon Concessionaire or City by any
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governmental agency having the direct or indirect power to tax, assess or impose such
and arising out of, resulting from or relating to Concessionaire's operations at Airport
including, without limitation, the payment of all taxes and assessments on the
improvements, alterations, machines, equipment, furniture and other personal property
of Concessionaire installed by Concessionaire at Airport, whether assessed to
Concessionaire or assessed to City with the real property. At all times hereunder
Concessionaire shall keep the Assigned Area from all liens, encumbrances and security
interest.'
Concessionaire acknowledges and agrees that any interest in real property which exists
as a result of possession, exclusive use, or a right to possession or exclusive use of any
real property (land and/or improvements located therein or thereon) which is owned by
the City of Fresno is a taxable possessory interest, unless the possessor of interest in
such property is exempt from taxation. With regard to any possessory interest to be
acquired by Concessionaire, Concessionaire, by its signature(s) hereunto affixed,
warrants, stipulates, confirms, acknowledges and agrees that, prior to its executing this
Agreement, Concessionaire either took a copy hereof to the office of the Fresno County
Tax Assessor or by some other appropriate means, independent of City or any
employee, agent or representative of City determined, to Concessionaire's full and
complete satisfaction, how much Concessionaire shall be taxed, if at all.
Section 5.9 Place of Payment
All fees shall be paid to City at the address shown below or at such place or places at
which City may be in writing direct the payment thereof from time to time during the life
hereof.
City of Fresno, Airports Division
Accounting Department
4995 E. Clinton Way
Fresno, CA 93727
ARTICLE 6 - STANDARDS OF SERVICE
Section 6.1 Purpose
Concessionaire shall use the Assigned Area only for the purpose of operating a self-
service baggage claim cart management system as more completely described in
Exhibit "B" attached to this Agreement and incorporated herein.
1 Any interest in real property which exists as a result of 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 Concessionaire under this Agreement, Concessionaire, by its signatures hereunto affixed, warrants,
stipulates, confirms, acknowledges and agrees that, prior to executing this Agreement, Concessionaire 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 Concessionaire's full and complete satisfaction, how much
Concessionaire will be taxed, if at all.
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Section 6.2 Standards of Operation
In its use of the Assigned Area, Concessionaire shall maintain the highest degree and
standards of service to meet the needs of the traveling public and will ensure courteous,
polite and inoffensive conduct and demeanor on the part of all employees.
Concessionaire shall at all times during the life of this Agreement strictly comply with the
following conditions and requirements;
A. Conduct and Appearance of Employees. Concessionaire shall control the
conduct, demeanor and appearance of each of its employees at Airport, and,
upon objection from City concerning the conduct, demeanor or appearance of
any employee, Concessionaire shall forthwith take all steps necessary to correct
or to remove the cause of the objection.
B. Clothing of Employees. Concessionaire shall require all employees to wear clean
and neat clothing.
C. Interference With Utilities or Emergency Procedures. Concessionaire shall not do
or permit to be done anything which may interfere with the effectiveness or
accessibility of utility, heating, ventilating or air conditioning systems or portions
thereof, nor do or permit to be done anything which may interfere with free access
and passage or hinder police, fire fighting or other emergency personnel in the
discharge of their duties at Airport or the public areas or the streets and sidewalks
adjacent thereto.
D. Interference With Exits. Concessionaire shall not do or permit to be done
anything which may interfere with the effectiveness or accessibility of fire exits, or
other exits, adjacent to the leased premises or elsewhere at Airport, including
lines, pipes, wires, conduits and equipment connected with or appurtenant
thereto.
E. Equipment Maintenance. Concessionaire shall maintain any and all
Concessionaire's equipment, including but not limited to carts, and the cart
dispensing unit, in a neat, clean, orderly and operable condition at all times during
the life of this Agreement.
F. Pricing. Subject to Section 3.3, at all times during the life of this Agreement,
Concessionaire shall charge fair and reasonable prices to the traveling public for
services provided pursuant to this Agreement.
Section 6.3 Compatible Use
Concessionaire hereby acknowledges that the principal use of Airport consists of the
operation of a public airport and that all other operations and businesses which are now
or hereafter permitted by City, including Concessionaire's use of the Assigned Area for
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the activities authorized hereunder, must be at all times compatible with such principal
use, as City shall determine, in its sole discretion.
ARTICLE 7 - INDEMNIFICATION, EXEMPTION OF CITY, AND INSURANCE
Section 7.1 Indemnification
To the furthest extent allowed by law, Concessionaire shall indemnify, hold
harmless and defend City, and its officers, officials, employees, agents, and volunteers
(hereinafter referred to collectively as "City") from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict liability,
including but not limited to personal injury, death at any time and property damage,
including damage by fire or other casualty) incurred by City, Concessionaire or any
other person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to have arisen
directly or indirectly out of Concessionaire's: (i) occupancy, maintenance and/or use of
the Premises; (ii) use of all or any part of the Airport, including use of any public airport
facilities and improvements, upon which the Premises is located; or (iii) performance of,
or failure to perform, this Agreement. CONCESSIONAIRE's obligations under the
preceding sentence shall apply to any negligence of CITY, but shall not apply to any
loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross
negligence, or by the willful misconduct, of CITY.
If Concessionaire should contract any work on the Premises or subcontract any
of its obligations under this Agreement, Concessionaire shall require each consultant,
contractor and subcontractor to enter into a Side Agreement, at the discretion of the
City's Risk Manager or designee, to indemnify, hold harmless and defend City, and its
officers, officials, employees, agents, and volunteers in accordance with the terms of the
preceding paragraph.
Concessionaire's occupancy, maintenance and use of the Premises shall be at
Concessionaire's sole risk and expense. Concessionaire accepts all risk relating to
Concessionaire's: (i) occupancy, maintenance and/or use of the Premises; (ii) use of all
or any part of that Premises, including use of any public facilities and improvements,
upon which the Premises is located; and (iii) the performance of, or failure to perform,
this Agreement. City shall not be liable to Concessionaire or Concessionaire's
insurer(s) for, and Concessionaire and its insurer(s) hereby waives and releases City
from, any and all loss, liability, fines, penalties, forfeitures, costs or damages resulting
from or attributable to an occurrence on or about the Premises including any public
facilities and improvements, upon which the Premises is located, in any way related to
the Concessionaire's operations and activities. Concessionaire shall immediately notify
CITY of any occurrence on the Premises including any public facilities and
improvements, upon which the Premises are located, resulting in injury or death to any
person or damage to property of any person.
This section shall survive termination or expiration of this Agreement.
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Section 7.2 Exemption Of City
City shall not be liable for, and is hereby released from, any and all liability to
Concessionaire, Concessionaire's insurance carrier(s), or to any person claiming under
or through Concessionaire, for any loss or damage to Concessionaire's business or any
loss of income therefrom or for damage to the goods, wares, merchandise, or other
property located in, upon, or about Airport under authority hereof, whether belonging to
Concessionaire, or any employee, agent, contractor, subcontractor of Concessionaire,
or any other person whomsoever; nor shall City be liable for any injury to the person of
Concessionaire or Concessionaire's employees, agents, contractors, subcontractors,
customers, or invitees, whether or not such loss, damage, or injury is caused by or
results from fire, steam, electricity, gas, water, or rain, or from the leakage, breakage,
obstruction, or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning, or lighting fixtures, or from any other cause, whether or not such loss,
damage or injury results from conditions arising in or on any part or all of the Premises
utilized by Concessionaire, or in or on any of the improvements and facilities
appurtenant thereto, or from other sources or places, and regardless of whether or not
the cause of such damage or injury or the means of repairing the same is inaccessible
to Concessionaire. Further, Concessionaire shall be solely responsible for the safety
and security of each and every area within the Premises utilized by Concessionaire and
the safety and security of all equipment, supplies, and commodities used or sold by
Concessionaire (City shall have no liability or responsibility whatsoever in this regard
and Concessionaire shall make no claim against City with respect to such matters).
Concessionaire also covenants and agrees that City shall not be liable for any damages
arising from any act or neglect on the part of any third parties.
Section 7.3 Insurance
(a) Throughout the life of this Agreement, Concessionaire shall pay for and
maintain in full force and effect all insurance as required herein with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner to do
business in the State of California and rated no less than "A-VII" in the Best's Insurance
Rating Guide, or (ii) as may be authorized in writing by City's Risk Manager or designee
at any time and in his/her sole discretion. The City of Fresno and each of its officers,
officials, employees, agents, and volunteers (hereinafter referred to collectively as
"City") requires policies of insurance as stated herein shall maintain limits of liability of
not less than those amounts stated therein. However, the insurance limits available to
City, shall be the greater of the minimum limits specified therein or the full limit of any
insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension,
Concessionaire or any of its subcontractors fail to maintain any required insurance in full
force and effect, all services and work under this Agreement shall be discontinued
immediately, and all payments due or that become due to Concessionaire shall be
withheld until notice is received by City that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid for a period
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satisfactory to City. any failure to maintain the required insurance shall be sufficient
cause for City to terminate this Agreement. No action taken by City pursuant to this
section shall in any way relieve Concessionaire of its responsibilities under this
Agreement. The phrase "fail to maintain any required insurance" shall include, without
limitation, notification received by City that an insurer has commenced proceedings, or
has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Concessionaire shall not be
deemed to release or diminish the liability of Concessionaire, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify City
shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by Concessionaire. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of Concessionaire,
vendors, suppliers, invitees, contractors, subcontractors, or anyone employed directly or
indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on an
occurrence form and shall provide coverage for "bodily injury," "property damage" and
"personal and advertising injury" with coverage for premises and operations (including
the use of owned and non -owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under "Minimum Limits of
Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile Policy shall be
written on an occurrence form and shall provide coverage for all owned, hired, and non -
owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal
automobile coverage is used, the City, its officers, officials, employees, agents, and
volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE CONCESSIONAIRE
CONCESSIONAIRE, or any party the Concessionaire subcontracts with, shall maintain
limits of liability of not less than those set forth below. However, insurance limits
available to The City of Fresno and each of its officers, officials, employees, agents and
volunteers as additional insureds, shall be the greater of the minimum limits specified
herein or the full limit of any insurance proceeds available to the named insured:
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1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed under
the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits and EMPLOYER'S LIABILITY with limits of liability not
less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
4. PROPERTY: Limits of insurance in an amount equal to the full (100%)
replacement cost (without deduction for depreciation) of Concessionaire's business
property.
UMBRELLA OR EXCESS INSURANCE
In the event Concessionaire purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," 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 of Fresno and each of its officers, officials,
employees, agents and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
Concessionaire shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Concessionaire shall also be responsible for
payment of any self -insured retentions. At no time shall the City be responsible for the
payment of any deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice has been given to City, except ten (10) days for
nonpayment of premium. Concessionaire is also responsible for providing written notice
to the City under the same terms and conditions. Upon issuance by the insurer, broker,
or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits,
Concessionaire shall furnish City with a new certificate and applicable endorsements for
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such policy(ies). In the event any policy is due to expire during the work to be
performed for City, Concessionaire shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen (15) calendar
days prior to the expiration date of the expiring policy.
The Commercial General and Automobile Liability policies of insurance shall be
endorsed to name The City of Fresno and each of its officers, officials, employees,
agents and volunteers as additional insureds. Concessionaire shall establish additional
insured status for the City and for all operations by use of ISO Form CG 20 12 04 13 or
CG 20 26 04 13 or by an executed manuscript insurance company endorsement
providing additional insured status as broad as that contained in the ISO Forms noted.
The Commercial General and Automobile Liability policies of insurance shall be
endorsed so Concessionaire'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 The City of Fresno and each of its officers, officials, employees,
agents and volunteers.
If Concessionaire maintains higher limits of liability than the minimums shown above,
City requires and shall be entitled to coverage for the higher limits of liability maintained
by Concessionaire.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
The Workers' Compensation insurance policy shall contain, or be endorsed to contain, a
waiver of subrogation as to The City of Fresno and each of its officers, officials,
employees, agents and volunteers.
The property insurance policy is to contain, or be endorsed to contain, the following
provisions:
1. Full replacement value of any permanent improvements on the Premises, with
the CITY named as a Loss Payee.
2. The coverage shall contain:
(i) No coinsurance penalty.
(ii) No limitations or exclusions for vacancy of any part of the Premises.
(iii) No special limitations on the scope of protection afforded to City.
PROVIDING OF DOCUMENTS - Concessionaire shall furnish City with all certificate(s)
and applicable endorsements effecting coverage required herein to the address noted
below. All certificates and applicable endorsements are to be received and approved by
the City's Risk Manager or designee prior to City's execution of the Agreement and
before work commences. All non -ISO endorsements amending policy coverage shall
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be executed by a licensed and authorized agent or broker. Upon request of City,
Concessionaire shall immediately furnish City with a complete copy of any insurance
policy required under this Agreement, including all endorsements, with said copy
certified by the underwriter to be a true and correct copy of the original policy. This
requirement shall survive expiration or termination of this Agreement. All
subcontractors working under the direction of Cshall also be required to provide all
documents noted herein.
SUBCONTRACTORS - If CONCESSIONAIRE should subcontract all or any portion of
the services to be performed under this Agreement, Concessionaire shall require, at the
discretion of the City, their subcontractor to enter into a separate Side Agreement in
order to provide indemnification and insurance protection to City. Concessionaire shall
verify that all subcontractors maintain insurance meeting all the requirements stated
herein and Concessionaire shall ensure that City and each of their officers, officials,
agents, employees and volunteers are additional insureds. The subcontractors'
certificates and endorsements shall be on file with Concessionaire and City prior to the
commencement of any work by the subcontractor.
Address for submission of Certificates of Insurance:
City of Fresno, Airports Department
4995 E. Clinton Way
Fresno, CA 93727-1525
Any failure to maintain the required insurance, or to provide City with the required
Certificates of Insurance, shall constitute a material default and breach of this
Agreement by Concessionaire.
The limits of insurance obtained by Concessionaire pursuant to any of the provisions of
this Section of this Article shall not, in any way whatsoever, be deemed to limit the
liability of Concessionaire hereunder.
If Concessionaire fails to obtain, pay for and maintain insurance as required under this
Section, then City may, at its option, respond to any and all claims, demands for
damages or suits arising out of Concessionaire's uses of Airport premises and/or
Concessionaire's operations/activities under authority of this Agreement, without
waiving any of City's rights hereunder.
Concessionaire shall provide such additional insurance as may from time to time be
reasonably prescribed by City.
ARTICLE 8 - ASSIGNMENT
Section 8.1 City's Consent
Concessionaire shall not voluntarily or by operation of law, assign or transfer all or any
part of Concessionaire's rights under this Agreement, without prior written consent of
City, which consent shall not be unreasonably withheld or delayed. Any attempted
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assignment or transfer without such consent shall be wholly void. Without limiting the
foregoing, for the purposes of this Section, if Concessionaire is a corporation, any
transfer or other event which results in the reduction of the interest of the present
stockholders of record to less than a majority of the voting stock of Concessionaire, or if
Concessionaire is a partnership, any transfer of partnership interest (s) or other event
which results in the reduction of the interest (s) of the present partners to less than a
majority of interest in the partnership, shall be deemed an assignment for which City's
consent is required.
Section 8.2 No Release of Concessionaire
No approved assignment or transfer by Concessionaire of its rights under this
Agreement shall release Concessionaire or relieve Concessionaire of its obligations to
pay the Concession Fees or any other consideration which Concessionaire is obligated
to pay pursuant to this Agreement or to perform any of its other obligations hereunder
except as agreed by the City in writing. The acceptance by City of any payment from or
performance by any other person shall not be deemed to be a waiver by City of any
provision of this Agreement, or consent to any assignment.
Section 8.3 Liability of Assignees
Each approved assignee or transferee of Concessionaire's rights under this Agreement
shall assume and be deemed to have assumed Concessionaire's obligations hereunder
and shall be and remain liable jointly and severally with Concessionaire throughout the
life of this Agreement for (a) the payment of the Concession Fee and all other
consideration with Concessionaires is obligated to pay hereunder and (b) the full and
timely performance of all of the obligations required to be performed by Concessionaire
hereunder.
Section 8.4 Sub -Uses of Assigned Area
Concessionaire shall not allow subuses of any portion of and/or all of the Assigned
Area, such is expressly prohibited.
ARTICLE 9 - LICENCES AND AGREEMENTS
Concessionaire shall, at Concessionaire's cost and expense, obtain and maintain all
licenses, permits, certificates or other authorizations of any governmental authority
having jurisdiction including, but not limited to, the FAA, which may be necessary for the
lawful conduct of the activities authorized hereunder.
ARTICLE 10 - SUBORDINATE TO RIGHTS OF AND AGREEMENTS WITH UNITED
STATES
This Agreement shall be subordinate to the provisions and requirements of the existing
or future agreement between City and the United States relative to the development,
operation or maintenance of Airport. This Agreement and all the provisions hereof shall
be subject to whatever right the United States Government now has, or in the future
UUUUJIIJ.II CIIVCIUytZ IU. 0k, IO IUOG-DODU-'FMUU-DLLU-U'iU IrrYJC'40H
may have or acquire, affecting the control, operation or regulation of Airport, or the
exclusive or non-exclusive use of Airport, by the United States during the time of war or
national emergency.
ARTICLE 11 - FEDERAL AVIATION AGENCY RESTRICTIONS
It is understood and agreed that nothing herein contained shall be construed to grant or
authorize the granting of any exclusive right within the meaning of Section 308 (a) of the
Federal Aviation Act of 1958. Concessionaire shall use reasonable precautions to
prevent unauthorized persons from gaining access through the Assigned Area to
restricted flight and aircraft operational areas. Concessionaire shall comply with Part
107 of the Federal Aviation Regulations and successor provisions set out at 49 C.F.R.
Ch. XII, Subchapter A, Section 1542.1 et seq., as they exist as of the commencement
date of the term hereof or may exist at any time during the life hereof, as they relate to
Concessionaire's operations at Airport.
ARTICLE 12 - DEFAULTS AND REMEDIES
Section 12.1 Defaults By Concessionaire
Any of the following shall constitute an event of default under this Agreement:
A. The filing of any petition, proceeding or action by, for or against Concessionaire
under any insolvency, bankruptcy or reorganization act or law, where such filing
continues undismissed for a period of thirty (30) days;
B. An assignment by Concessionaire for the benefit of creditor, or the appointment
of a receiver, guardian, conservator, trustee, assignee or any similar person to
take charge of all or any part of Concessionaire's property, when such
assignment or appointment is not vacated within thirty (30) days;
C. Failure to pay any monthly installment of the Concession Fee payments pursuant
to this Agreement, when due and payable, when such failure to pay continues for
a ten (10) day after written notice thereof;
D. Failure to remedy any default in the performance of any other obligations
required to be performed by Concessionaire pursuant to this Agreement, within a
period of thirty (30) days after written notice of such default (or, in the event the
default is of such a nature as to reasonably require more than thirty (30) days to
cure, if Concessionaire shall fail to commence said cure within said time and
thereafter diligently prosecute the same to completion).
Section 12.2 City's Remedies
A. Termination of Agreement. Upon the occurrence of any event of default, City, at
its option and election, and without further demand or notice, shall have the right
to declare this Agreement ended and terminated by providing written notice
thereof to Concessionaire at any time after the expiration of any notice and cure
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periods provided hereunder. No delay in providing such notice of termination
shall be deemed a waiver of City's right to terminate this Agreement.
B. Possession of Concessionaire's Property_. In the event of default, all furniture,
equipment, carts, machines and other personal property of Concessionaire shall
remain at the Assigned Area, and City shall have the right, but not the obligation,
to take exclusive possession of same and to use same, without cost to the City,
until all defaults are cured or to require Concessionaire to remove same.
C. Performance of _Covenants by City_. In the event Concessionaire defaults
hereunder City may, but shall not be obligated to, immediately or at any time
thereafter, without further notice or demand and without waiver or releasing
Concessionaire from any obligation of a concessionaire, make such payment or
perform such other act for the account of Concessionaire, to the extent City may
deem desirable. In connection therewith, City may pay expenses and employ
counsel in instituting, prosecuting or defending any action or proceeding under
this Agreement. All sums so paid by City and all expenses incurred in
connection therewith shall be deemed additional consideration hereunder and
shall be paid by Concessionaire to City upon demand. In the event such
additional amounts remain unpaid, City shall have the same rights and remedies
as for the nonpayment of any Concession Fee payment or other consideration
required to be paid by Concessionaire pursuant to this Agreement.
D. Cumulative Remedies. The various rights, option, elections, powers, and
remedies reserved to City herein shall be cumulative, and, except as otherwise
provided by statute, City may pursue any or all such rights and remedies,
whether at the same time or otherwise, and no single right shall be deemed to be
exclusive of any of the others or of any right or priority allowed by law or in
equity. No delay or omission of City to exercise any right or remedy shall be
construed as a waiver of any such right or remedy or waiver of any default by
Concessionaire. In addition to the foregoing, City may exercise any other
remedy now or hereafter available under the laws of the State of California.
E. Subsequent Obligations. City shall be under no obligation to observe or
perform any covenant of this Agreement on its part to be observed or performed
for the benefit of Concessionaire which accrues after the date of any default by
Concessionaire.
Section 12.3 Default of City
City shall not be deemed to be in default in the performance of any obligation required
to be performed by it hereunder unless and until it has failed to perform such obligation
within thirty (30) days after written notice by Concessionaire to City specifying wherein
City has failed to perform such obligation; provided, however, in the event that the
nature of City's obligation is such that more than thirty (30) days are required for its
performance, City shall not be deemed to be in default if it shall commence such
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performance within such thirty (30) day period and thereafter shall diligently prosecute
the same to completion.
Section 12.4 Concessionaire's Remedies
A. Termination of Agreement. Upon the occurrence of any event of default,
Concessionaire, at its option and election, and without further demand or notice,
shall have the right to declare this Agreement ended and terminated by providing
written notice thereof to City at any time after the expiration of any notice and
cure periods provided hereunder. No delay in providing such notice of
termination shall be deemed a waiver of Concessionaire's right to terminate this
Agreement.
B. Cumulative Remedies. The various rights, option, elections, powers, and
remedies reserved to Concessionaire herein shall be cumulative, and, except as
otherwise provided by statute, City may pursue any or all such rights and
remedies, whether at the same time or otherwise, and no single right shall be
deemed to be exclusive of any of the others or of any right or priority allowed by
law or in equity. No delay or omission of Concessionaire to exercise any right or
remedy shall be construed as a waiver of any such right or remedy or waiver of
any default by Concessionaire. In addition to the foregoing, Concessionaire may
exercise any other remedy now or hereafter available under the laws of the State
of California.
C. Subsequent Obligations. Concessionaire shall be under no obligation to observe
or perform any covenant of this Agreement on its part to be observed or
performed for the benefit of City, which accrues after the date of any default by
City.
ARTICLE 13 - REMOVAL OF CONCESSIONAIRE'S PROPERTY AT END OF TERM
Subject to the provisions of Section 3.6, upon the expiration or other termination of this
Agreement, Concessionaire shall remove all of its equipment and other personal
property from the Assigned Area and shall promptly repair any damages to the
Assigned Area caused by such removal. Concessionaire's obligation to perform this
covenant shall survive the expiration or other termination of this Agreement.
ARTICLE 14 - TRANSFER OF CITY'S INTEREST
In the event of any transfer of City's interest in Airport, the transferor shall be
automatically relieved of any and all obligations and liabilities accruing from and after
the date of such transfer.
ARTICLE 15 - MISCELLANEOUS
Section 15.1 FAA Grant Agreement Assurances
Those certain sixteen (16) numbered provisions set forth within Section "B",
"Assurances" of Exhibit "B", "Assurances Required by the Federal Aviation
21
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Administration", attached hereto and made a part hereof, are specific provisions
required by the FAA to be appropriately included within all agreements (including,
without limitations, leases, licenses, permits, and contracts) between City and any and
all persons and/or entities who use or perform work or conduct activities on City -owned
airport premises for aeronautical or non -aeronautical purposes. Concessionaire, by its
signature (s) hereunto affixed, acknowledges that is has reviewed the aforesaid Exhibit,
in its entirety, and fully understands the meaning, purpose, and intent thereof.
Concessionaire expressly agrees that, throughout the life hereof, it shall fully and
faithfully comply with, abide by and/or adhere to, as applicable and appropriate, each
and every one of the numbered provisions contained within Section "B", "Assurance", of
said Exhibit (as said numbered provisions are reflected therein or as same may be
amended, from time to time, during the life hereof, by City, as and when the FAA's
requirements thereon imposed may so dictate), which, pursuant to the guidelines
established within paragraphs 2 through 4 of Section "A" of said Exhibit, shall either be
applicable to Concessionaire on the start date of the term hereof or which, as a result of
changing facts and/or circumstances, shall subsequently become applicable to
Concessionaire, hereunder, during the life hereof.
Section 15.2 Required Accessibility Disclosure
A Certified Access Specialist (CASp) can 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 lessee or tenant from obtaining a CASp inspection of the subject premises
for the occupancy or potential occupancy of the lessee or tenant, if requested by the
lessee or tenant. The parties shall mutually agree on the arrangements for the time and
manner of the CASp inspection, the payment of the fee for the CASp inspection, and
the cost of making any repairs necessary to correct violations of construction -related
accessibility standards within the premises.
Section 15.3 Incorporation of Prior Agreement. Amendments
This Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof, and no prior agreement or understanding shall be effective
for any purpose. No provision of this Agreement may be amended or added to, except
by an agreement in writing signed by the parties hereto or their respective successors in
interest.
Section 15.4 No Representations by City
Concessionaire acknowledges that neither City nor any employee of City has made any
representations or promises with respect to the Concession and Assigned Area or the
other areas of Airport, except as herein expressly set forth. Concessionaire
acknowledges that it has not executed this Agreement in reliance upon any
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representations or promises of City or any employee of City with respect thereto, and
that Concessionaire has made its own independent examination thereof.
Section 15.5 Examination of Agreement
Submission of this Agreement for examination or signature by Concessionaire does not
constitute a reservation of or option for a concession agreement, and this Agreement is
not effective as an agreement or otherwise until execution and delivery by both City and
Concessionaire.
Section 15.6 Relationship Between Parties
Nothing contained in this Agreement shall be construed to create the relationship of
principal and agent, partnership, joint venture or any other relationship between the
parties hereto, other than the relationship of City and independent contractor.
Section 15.7 Waivers
The waiver by either party of any provision of this Agreement shall not be deemed to be
a waiver of any other provision hereof or of any subsequent breach of any other
provision hereof or of any subsequent breach of the same of any other provision. City's
consent to any act by Concessionaire requiring City's consent shall not be deemed to
render unnecessary the obtaining of City's consent to any subsequent act by
Concessionaire, whether or not similar to the act so consented. The subsequent
acceptance by City of any Concession Fee payment or other consideration required to
be paid by Concessionaire under this Agreement shall not be deemed to be a waiver of
any preceding breach by Concessionaire of any provision of this Agreement, other than
the failure of Concessionaire to pay the particular fee so accepted, regardless of City's
knowledge of such preceding breach at the time of acceptance of such payment.
Section 15.8 Successors and Assi ns
The provisions contained in this Agreement shall bind and inure to the benefit of City
and Concessionaire and, except as otherwise provided in this Agreement, their
respective successors and assigns.
Section 15.9 Rules and Regulations
Concessionaire shall comply with all uniform rules and regulations established by City
for use of the Assigned Area or the other areas of the Airport as the same may be
amended from time to time by City. City shall not be responsible to Concessionaire for
the nonperformance by any tenant, permittee, invitee or other concessionaire of City of
any of said rules and regulations.
Section 15.10 Notices
All notices required to be served by City and Concessionaire; one upon the other, under
the terms of this Agreement shall be in writing.
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A. Concessionaire's Address for Notices. All notices or demands of any kind of
which City shall have cause to serve upon Concessionaire under the terms of
this Agreement shall be served upon Concessionaire by mailing a copy thereof
by certified or registered mail, return receipt requested, to Concessionaire at the
address shown below or to such other address as Concessionaire may, from
time to time, specify to City in writing.
Smarte Carte, Inc.
4455 White Bear Parkway
St. Paul, MN 55110-7641
B. Cit 's Address for Notices. All notices or demands of any kind which
Concessionaire shall have cause to serve upon City under the terms of this
Agreement shall be served upon City by mailing a copy thereof by certified or
registered mail, return receipt requested, to City at the address shown below or
to such other address as City may, from time to time, specify to Concessionaire
in writing.
City of Fresno — Airports Department
Attn: "Properties Manager"
4995 E. Clinton Way
Fresno, CA 93727
C. Time and Date of Service. In the event of any service of notice or demand by
mail, as aforesaid, such notice or demand shall be deemed to have been
sufficiently served as of 12:00:01 A.M., on the fourth (4t") calendar day following
the date of deposit in the United States mail of such certified or registered mail
properly addressed and postage prepaid.
Section 15.11 Headings
The Section headings contained in this Agreement are for convenience only and shall
have no effect in the construction or interpretation of any provision hereof.
Section 15.12 Governing Law
This Agreement shall be construed, interpreted and applied pursuant to the laws of the
State of California, and exclusive venue in any and all actions arising under this
Agreement shall be laid in the Judicial District of Fresno County, California.
Section 15.13 Time of Essence
Time is of the essence of this Agreement.
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Section 15.14 Attorney's Fees and Costs
In the event of any action or proceeding to construe or enforce any provision of this
Agreement, the prevailing party in such action or proceeding shall be entitled to recover
its costs, and reasonable attorneys' fees.
Section 15.15 Holding Over
In the event Concessionaire shall remain in possession of the Assigned Area or any
part thereof following the end of the life of this Agreement, and thus hold over the term
hereof with or without the express written consent of City, such holding -over occupancy
shall be a tenancy from month to month only, terminable by either party hereto upon
service of a minimum of thirty (30) days advance written notice upon the other party.
During any holding -over -month -to -month tenancy period, Concessionaire shall pay to
City all fees required by this Agreement at the rates in effect as of the date immediately
preceding the date on which such month -to -month tenancy commences. Unless herein
elsewhere provided, any holding over by Concessionaire shall be subject to all the
terms and conditions of this Agreement.
Section 15.16 Redelivery
Upon the expiration of the term of this Agreement, or upon earlier termination as
provided in this Agreement, Concessionaire shall have no further interest in the
Assigned Area or the rights granted herein, and Concessionaire shall deliver up the
Assigned Area to City in as good order and condition as when received, except for
reasonable wear and tear.
Section 15.17 Disadvantaged Business Enterprise Plan DBE
City's DBE Plan: City has developed and maintains a "Disadvantaged Business
Enterprise Concession Plan" for Airport in accordance with U.S. Department of
Transportation regulations 49 CFR Part 23, Subpart F, and Part 26, which plan
establishes policies and procedures designed to promote City's interest in establishing
Airport concession opportunities for Disadvantaged Business Enterprises and sets
lawful, realistic, and reasonable goals therefore.
Nan -Discrimination by Concessionaire
(1) This Agreement is subject to the requirements of the U.S. Department
of Transportation's regulations 49 CFR Part 23, Subpart F, and Part 26.
Concessionaire agrees that it will not discriminate against any business
owner because of the owner's race, color, national origin, or gender in
connection with the award or performance of any agreement covered
by 49 CFR Part 23, Subpart F, and Part 26.
(2) Concessionaire agrees to include the above statements in any
agreement between Concessionaire and its subcontractors which is in
25
UUI:UJIIJ.I I CI IVCIUyI IU. Ol.. lO IU04-DODU--F/1UU-D4GV-U4U IrrYJC'FOF1
any way related to, subsequent to, or derived from this Agreement; and
to cause the other parties to such agreement to similarly include the
statements in further agreements.
Definitions: The definitions set forth in 49 United States Code Section 2204(d) and in
49 Code of Federal Regulations, Subtitle A, Part 23 and Part 26, as such Code and
Regulations existed on the commencement date hereof or as they may be amended
from time to time during the life hereof, are incorporated herein by reference.
Section 15.18 Signs and Displays
Concessionaire may place such signs and displays within the Assigned Area as are
deemed appropriate to the business, providing that all such signs and displays shall be
in good taste and be compatible with the decor of the Terminal Building, and further
provided that all such sign or display installations shall be approved in advance by
Director. In the event of any complaint about any sign or display, Director shall have the
authority to decide whether such sign or display is acceptable, and to require that such
sign or display be removed, and Concessionaire agrees that Director's decision shall be
binding, subject to any available appeal pursuant to the provisions of Chapter 1, Article
4, of the Fresno Municipal Code, or any other available recourse. Concessionaire
agrees to abide by Director's decision pending any such appeal.
Section 15.19 Interpretation of Provisions
Nothing herein contained shall be construed or interpreted, in any manner whatsoever,
as limiting, relinquishing or waiving any of the rights of ownership enjoyed by City in and
to Airport property, or in any manner waiving or limiting City's control over the operation,
maintenance, etc., of Airport property or in derogation of such governmental rights as
City possesses, except as is specifically set forth herein.
Section 15.20 Invalid Provisions
In the event any term, covenant, condition or provision of this Agreement, or the
application thereof to any person, entity, or circumstance, shall to any extent be held by
a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, covenants, conditions or provisions of this Agreement, or the application
thereof to any person, entity, or circumstance, shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, provided that such invalidity, voiding
or unenforceability of such covenant, condition or provision does not materially
prejudice either party in its respective rights and obligations contained in the then
remaining valid covenants, conditions or provisions of this Agreement.
Section 15.21 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
c
UUUUOjyII CI IVCIUYI IU. 0%, 101 U04-DODU-'4MVU-DLLU-UHU Irr'4JC40M
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 15.22 Provision of Keys to City
Concessionaire shall ensure that City is in possession of a functional key for each cart
management unit installed at Airport at all times. Such key shall be used by the City
and in the City's discretion to unlock a malfunctioning unit and manually release a cart
in the event it does not release a cart automatically after payment of the rental fee, and
Concessionaire's on -Airport employee is not available to immediately respond.
Section 15.23 Counterparts
This Agreement may be executed in any number of counterparts and any party may
execute any counterpart, each of which when executed and delivered will be deemed to
be an original and all of which counterparts taken together will be deemed to be but one
and the same instrument. The execution of this Agreement by any party hereto will not
become effective until counterparts hereof have been executed by all parties hereto.
[Signatures follow on the next page.]
27
L 1UUUJIyII CI IVC Upt; IU. OL, to l VOL-DODU-+MVU-OGGV-VYJ Irr4JC'YOM
ARTICLE IX — SIGNATURES
IN WITNESS WHEREOF, City has caused this Lease to be executed and issued by its
Director of Aviation, and Lessee, by the signature(s) of its duly authorized officer(s)
hereunto below affixed, has accepted this Lease and acknowledged and/or agreed to all
of the terms, covenants, conditions, warranties, agreements, and provisions herein
contained, as of the day and year first above written.
CITY OF FRESNO
A M '"".rporation
Bf 6►MpSft, 12/15/2022
y:
Henry Thompson, A.A.E., C.A.E.,
IAP
Director of Aviation
APPROVED AS TO FORM:
Rina M. Gonzales
Interi��y9,,�#�grney
12/7/2022
By:
Brandon M. Collet Date
Senior Deputy City Attorney
ATTEST:
Todd Stermer, CMC
City mcu5ignedby:
"r'(VA q6W 12/16/2022
By:
Deputy
Address for Notice:
City of Fresno
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
4 Attachments -
SMARTE CARTE, INC.
A M' �]8,9tte0orporation
'! Nu%"t ` 12/7/2022
By: 8370859C397D40C .
Name: ineyev
Title: CEO
(If corporation or LLC., must be
CEO/President of BoardNice President
Of GOned by:
J � aA) 12/7/2022
By. A5i58A5 494..
Name:
Title:
CLO
(If corporation or LLC., must be
CFO/Treasurer/Secretary
Address for Notice:
4455 white Bear Pkwy
white Bear Lake, MN 55110
Exhibit A - Description of Leased Premises
Exhibit B - Assurances Required by The Federal Aviation Administration
Exhibit C — Gross Receipts Report
Exhibit D - Conflict of Interest Form
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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
Airport Sponsor Assurances 5/2022
Page 1 of 19
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assurances of this Grant Agreement shall remain in full force and effect during the life of the
project; there shall be no limit on the duration of the assurances regarding Exclusive Rights and
Airport Revenue so long as the airport is used as an airport.
C. Sponsor Certification.
The sponsor hereby assures and certifies, with respect to this grant that:
1. General Federal Requirements
It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and
requirements as they relate to the application, acceptance, and use of Federal funds for this Grant
including but not limited to the following:
FEDERAL LEGISLATION
a. 49 U.S.C. subtitle VII, as amended.
b. Davis -Bacon Act, as amended — 40 U.S.C. §§ 3141-3144, 3146, and 3147, et seq.'
c. Federal Fair Labor Standards Act — 29 U.S.C. § 201, et seq.
d. Hatch Act — 5 U.S.C. § 1501, et seq.Z
e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C.
§ 4601, et seq.l z
f. National Historic Preservation Act of 1966 — Section 106 — 54 U.S.C. § 306108.'
g. Archeological and Historic Preservation Act of 1974 — 54 U.S.C. § 312501, et seq.'
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.'
I. 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.'
s. Powerplant and Industrial Fuel Use Act of 1978 — Section 403 — 42 U.S.C. § 8373.'
t. Contract Work Hours and Safety Standards Act —40 U.S.C. § 3701, et seq.'
u. Copeland Anti -kickback Act — 18 U.S.C. § 874.'
Airport Sponsor Assurances 5/2022 Page 2 of 19
L/UUu JIlJ.11 CI IVCIUptC IU. 0%, 10 I U0L-D0DLI-1+MUU-D4GU-U'+U Irr,+JG•FOH
v. National Environmental Policy Act of 1969-42 U.S.C. § 4321, et seq.'
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 Opportunity'
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
Construction'
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.
Airport Sponsor Assurances 5/2022
Page 3 of 19
LJUL;U01y II CI IVCIUPU IU. 0l, I01 VOG-DODLI-YMUU-DGGU-U+U Irr'Fa C4oM
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.
29 CFR Part 1— Procedures for Predetermination of Wage Rates.'
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.'
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).'
41 CFR Part 60 — Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Federal and Federally -assisted contracting requirements).'
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.l. 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.'
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)
These laws do not apply to airport planning sponsors.
These laws do not apply to private sponsors.
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
Airport Sponsor Assurances 5/2022
Page 4 of 19
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apply where applicable to private sponsors receiving Federal assistance under Title 49, United
States Code.
Cost principles established in 2 CFR part 200 subpart E must be used as guidelines for
determining the eligibility of specific types of expenses.
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.
S. 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
Airport Sponsor Assurances 5/2022 Page S of 19
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with such performance by the sponsor. This shall be done in a manner acceptable to the
Secretary.
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.
Airport Sponsor Assurances 5/2022
Page 6 of 19
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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.
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.
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.
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.
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.
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
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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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 seekjudicial enforcement with regard to any
matter arising under the acts, the regulations, and this assurance.
31. Disposal of Land.
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.
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.
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/airr)orts/aip/media/aip-pfc-checklist. df) for
AIP projects as of [Selection Criteria: Project Application Date].
35. Relocation and Real Property Acquisition.
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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