HomeMy WebLinkAboutSSP America FAT LLC Concession Agreement Food & Beverage Concessions (FYI) 9-28-231
CONCESSION AGREEMENT
FOOD & BEVERAGE CONCESSIONS
P ARTIES A ND A DDRESSES:
C ITY OF F RESNO:
Airports Department
4995 East Clinton Way
Fresno, California 93727
Telephone: (559) 621-4500
Fax: (559) 251-4825
C ONCESSIONAIRE:
SSP AMERICA FAT, LLC.
1209 Orange Street
Wilmington, Delaware 19801
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Contents
RECITALS ....................................................................................................... 7
ARTICLE I. DEFINITIONS .................................................................................. 8
Section 1.01 Definitions ........................................................................................ 8
ARTICLE II. PREMISES .................................................................................... 16
Section 2.01 Premises Description ..................................................................... 16
Section 2.02 Additions to and Deletions from the Premises ............................... 16
Section 2.03 Reclaiming of Premises for Airport Purposes ................................ 17
Section 2.04 Modifications to Premises, Tenant Improvements ......................... 18
Section 2.05 Ingress and Egress ........................................................................ 18
Section 2.06 Premises Acceptance As Is ........................................................... 18
Section 2.07 No Warranty of Economic Viability ................................................ 19
ARTICLE III. TERM ............................................................................................ 19
Section 3.01 Term .............................................................................................. 19
Section 3.02 Holdover ........................................................................................ 19
Section 3.03 Rights and Obligations Upon Expiration Or Termination ............... 20
Section 3.04 End of Term Transition .................................................................. 20
ARTICLE IV. RENTALS, FEES, OTHER CHARGES, REPORTING, AND
ACCOUNTING RECORDS .......................................................... 21
Section 4.01 Definition of Gross Receipts .......................................................... 21
Section 4.02 Concession Space Rent ................................................................ 22
Section 4.03 Support Space Rent ...................................................................... 22
Section 4.05 Annual Rental Adjustments ........................................................... 22
Section 4.06 Percentage Rent ............................................................................ 22
Section 4.07 Airport Charges ............................................................................. 23
Section 4.08 Screening ...................................................................................... 23
Section 4.09 Additional Rent .............................................................................. 23
Section 4.10 Failure to Make Timely Payments ................................................. 24
Section 4.11 Off Set Credits on Account ............................................................ 24
Section 4.12 City’s Lien ...................................................................................... 24
Section 4.13 Record Keeping, Reports, Annual Audit, & End of Year Adjustment25
A. Generally Accepted Accounting Principles ------------------------------ 25
B. Financial Reports --------------------------------------------------------------- 25
C. Findings --------------------------------------------------------------------------- 26
D. End of Year Adjustment------------------------------------------------------- 26
E. Form, Frequency, and Method of Reporting ---------------------------- 26
Section 4.14 Payment Provisions/Interest on Overdue Amounts ....................... 27
Section 4.15 Form of Payment ........................................................................... 28
Section 4.16 City’s Right to Perform Audits, Inspections, or Attestations ........... 28
Section 4.17 Severe Decline in Enplanements ................................................... 30
A. Concession Space Rent Reduction/Suspension ........................... 30
B. Concession Space Rent Reinstatement ........................................ 30
C. Determination of Total Enplanements and “True-Ups” .................. 30
D. Total Enplanement Determinations ............................................... 31
E. No Effect ........................................................................................ 31
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F. Effect of Default ............................................................................. 31
G. Sub-Concessionaires .................................................................... 31
Section 4.18 Due Date, Type, Form and Amount of Security Deposit ............... 31
Section 4.19 Drawdown by the City .................................................................... 32
Section 4.20 Return/Surrender/Release of Security Deposit by City ....................... 32
ARTICLE V. PERMITTED USES ....................................................................... 33
Section 5.01 Permitted Use ................................................................................ 33
A. Uses .............................................................................................. 33
B. Concession Locations ................................................................... 33
C. Permitted Products, Services and Prices ...................................... 33
Section 5.02 Non-Exclusive Rights .................................................................... 34
Section 5.03 Restrictions .................................................................................... 34
Section 5.04 Permits and Licenses .................................................................... 34
ARTICLE VI. OPERATIONS AND PERFORMANCE STANDARDS ................... 34
Section 6.01 City’s Right to Monitor Performance .............................................. 34
A. Performance Audits ....................................................................... 34
B. Annual Review ............................................................................... 35
C. Remediation Plan .......................................................................... 36
Section 6.02 Quality of Products and Services ................................................... 37
Section 6.03 Pricing ........................................................................................... 38
A. Products & Pricing ......................................................................... 38
B. Pricing Models ............................................................................... 38
C. Pricing Policy ................................................................................. 39
D. Policy Adherence ........................................................................... 41
E. Airport Employee Discount ............................................................ 41
Section 6.04 Hours of Operation ........................................................................ 41
A. Store Hours ................................................................................... 41
B. Extension of Store Hours ............................................................... 42
C. Failure to Open .............................................................................. 42
D. Posted Hours ................................................................................. 42
Section 6.05 Personnel ...................................................................................... 42
A. Staffing .......................................................................................... 42
B. General Manager/Director of Operations ....................................... 43
C. Business Developer ....................................................................... 43
D. Additional Personnel Requirements .............................................. 43
E. Compliance with Immigration Law ...................................................................... 44
F. City’s Right to Object ........................................................................................... 44
Section 6.06 Delivery of Goods .......................................................................... 44
Section 6.07 Badging and Security Requirements ............................................. 44
Section 6.08 Employee Parking ........................................................................ 47
Section 6.09 Point of Sale (POS) Terminals ....................................................... 47
Section 6.10 Cash Handling and Credit Card Requirements.............................. 48
Section 6.11 Advertised Sales or Promotions .................................................... 48
Section 6.12 Complaints..................................................................................... 49
Section 6.13 Operating Procedures and Standards ........................................... 49
Section 6.14 Comprehensive Management Operations Plan and Manual. ........ 50
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Section 6.15 Cleaning and Routine Maintenance ............................................... 52
A. General Obligations ....................................................................... 52
B. Preventive and Routine Cleaning and Maintenance Program ....... 52
1. Janitorial Service ........................................................................... 52
2. Pest Control ................................................................................... 52
3. Plumbing ....................................................................................... 53
4. Electricity ....................................................................................... 53
5. HVAC ............................................................................................ 53
6. Grease Removal Systems ............................................................. 54
7. Trash, Waste, and Refuse ............................................................. 54
8. Lighting .......................................................................................... 54
C. Maintenance Personnel and Program ........................................... 55
D. City Sole Judge of Maintenance .................................................... 55
E. Emergency Repairs ....................................................................... 55
Section 6.16 Common Maintenance .................................................................. 55
A. Electricity Systems ........................................................................ 56
B. HVAC Systems .............................................................................. 56
C. Life Safety Systems ....................................................................... 56
D. Sanitary Sewer System ................................................................. 56
E. Trash, Waste and Refuse .............................................................. 56
F. Exterior Windows and Structures .................................................. 57
Section 6.17 Paging, Audio, Video Systems and Frequency Protection ............ 57
Section 6.18 Prohibited Acts .............................................................................. 57
ARTICLE VII. FAILURE TO COMPLY WITH PERFORMANCE/OPERATING
STANDARDS ............................................................................... 58
Section 7.01 Violations ....................................................................................... 58
Section 7.02 Multiple Violations .......................................................................... 59
Section 7.03 Section Payment ........................................................................... 59
ARTICLE VIII. FEDERAL AID REQUIREMENTS ................................................. 60
Section 8.01 Non-Discrimination ........................................................................ 60
Section 8.02 City’s Airport Concession Disadvantaged Business Enterprise (ACDBE)
Policy ............................................................................................. 61
Section 8.03 ACDBE Non-Discrimination ........................................................... 62
Section 8.04 ACDBE Participation and Compliance ........................................... 62
A. ACDBE Goal.................................................................................. 62
B. ACDBE Termination and Substitution ............................................ 62
C. Reporting Requirements ................................................................ 63
D. Monitoring ...................................................................................... 63
E. Prompt Payment ............................................................................ 64
F. Other Requirements ...................................................................... 64
G. Non-Compliance ............................................................................ 64
ARTICLE IX. CONSTRUCTION AND CAPITAL INVESTMENT ......................... 64
Section 9.01 Construction by Concessionaire .................................................... 64
Section 9.02 Design and Construction Standards .............................................. 65
Section 9.03 Initial Capital Investment ............................................................... 65
Section 9.04 Development Schedule ................................................................. 65
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Section 9.05 Submittal and Approval of Plans .................................................... 66
A. Submittal of Plans ......................................................................................... 66
B. Disclaimer of Compliance with Laws or Codes .............................. 66
C. Approvals Extend to Architectural and Aesthetic Matters .............. 67
D. Design and Permitting ................................................................... 67
Section 9.06 Construction .................................................................................. 67
Section 9.07 Completion of Construction ........................................................... 68
Section 9.08 Title to Improvements .................................................................... 68
Section 9.09 Signage ......................................................................................... 69
Section 9.10 Mid-Term Refurbishment ............................................................... 69
ARTICLE X. DISCLAIMER OF LIENS ..................................................................... 69
ARTICLE XI. MAINTENANCE UTILITIES AND REPAIRS ..................................... 70
Section 11.01 Concessionaire’s Maintenance Obligations ................................... 70
Section 11.02 City’s Maintenance and Utility Obligations ..................................... 71
Section 11.03 City’s Performance of Concessionaire’s Operating Obligations .... 72
ARTICLE XII. DEFAULT, REMEDIES, AND TERMINATION RIGHTS .................. 73
Section 12.01 Events of Default ........................................................................... 73
Section 12.02 City’s Remedies ............................................................................. 74
ARTICLE XIII. INDEMNIFICATION AND RELEASE .............................................. 75
ARTICLE XIV. INSURANCE .................................................................................. 76
Section 14.01 Insurance Requirements ............................................................... 76
Section 14.02 Minimum Limits of Insurance Concessionaire ............................... 78
Section 14.03 Umbrella or Excess Insurance ....................................................... 79
Section 14.04 Deductibles and Self-Insured Retentions ...................................... 79
Section 14.05 Other Insurance Provisions/Endorsements ................................... 79
Section 14.06 Providing of Documents ................................................................ 80
Section 14.07 Maintenance of Coverage ............................................................. 81
Section 14.08 Subcontractors .............................................................................. 81
ARTICLE XV. SURETY FOR PERFORMANCE .................................................... 81
Section 15.01 Form of Surety ............................................................................... 81
Section 15.02 Application of Surety ...................................................................... 82
Section 15.03 Release of Surety .......................................................................... 82
ARTICLE XVI. PROPERTY DAMAGE ................................................................... 83
Section 16.01 Complete Destruction .................................................................... 83
Section 16.02 Limits of City’s Obligations Defined ............................................... 83
Section 16.03 Alternate Space ............................................................................. 84
ARTICLE XVII. DAMAGING ACTIVITIES .............................................................. 84
ARTICLE XVIII. COMPLIANCE WITH LAWS, REGULATIONS, ............................ 85
ORDINANCES, AND RULES .................................................................................. 85
Section 18.01 Minimum Compensation / Living Wage ......................................... 86
ARTICLE XIX. AIRPORT SECURITY .................................................................... 86
ARTICLE XX. AMERICANS WITH DISABILITIES ACT ......................................... 86
ARTICLE XXI. FAA APPROVAL ............................................................................ 87
ARTICLE XXII. RIGHT OF FLIGHT ........................................................................ 87
ARTICLE XXIII. FEDERAL RIGHT TO RECLAIM .................................................. 87
ARTICLE XXIV. PROPERTY RIGHTS RESERVED .............................................. 87
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ARTICLE XXV. ASSIGNMENT AND SUBCONTRACT .......................................... 88
ARTICLE XXVI. CORPORATE TENANCY ............................................................ 89
ARTICLE XXVII. RIGHT TO DEVELOP AIRPORT ................................................ 89
ARTICLE XXVIII. ATTORNEY’S FEES AND COSTS ............................................ 89
ARTICLE XXIX. RIGHT TO AMEND ...................................................................... 89
ARTICLE XXXI. NOTICES AND COMMUNICATIONS .......................................... 89
ARTICLE XXXII. BOND ORDINANCES .................................................................. 90
ARTICLE XXXIII. FORCE MAJEURE .................................................................... 90
ARTICLE XXXIV. RELATIONSHIP OF THE PARTIES .......................................... 91
ARTICLE XXXV. CITY APPROVALS ..................................................................... 91
ARTICLE XXXVI. INVALIDITY OF CLAUSES ....................................................... 91
ARTICLE XXXVII. TIME IS OF THE ESSENCE .................................................... 91
ARTICLE XXXVIII. TAXES ..................................................................................... 92
ARTICLE XXXIX. PATENTS AND TRADEMARKS ................................................ 92
ARTICLE XL. AGENT FOR SERVICE OF PROCESS ........................................... 93
ARTICLE XLI. COMPLIANCE WITH PUBLIC RECORDS LAW ............................ 93
Section 41.01 Agreement Subject to California Public Records Act ..................... 93
Section 41.02 Indemnification in Event of Intervention ......................................... 93
ARTICLE XLII. DATA SECURITY .......................................................................... 94
ARTICLE XLIII. USE, POSSESSION, OR SALE OF ALCOHOL OR DRUGS ....... 94
ARTICLE XLIV. HAZARDOUS SUBSTANCES AND OSHA COMPLIANCE ......... 94
ARTICLE XLV. CITY’S SMOKING/VAPING POLICY............................................. 95
ARTICLE XLVI. WAIVERS ..................................................................................... 95
ARTICLE XLVII. COMPLETE AGREEMENT ......................................................... 95
ARTICLE XLVIII. ORDER PRECEDENCE ............................................................. 95
ARTICLE XLIX. BROKER'S COMMISSION ........................................................... 96
ARTICLE L. ANTI-BRIBERY AND ANTI-CORRUPTION ........................................ 96
ARTILCE LI. NO LIMIT ON CITY’S POWERS ....................................................... 97
ARTILCE LII. SIGNATURES .................................................................................. 98
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FOOD & BEVERAGE/NEWS & CONVENIENCE CONCESSION AGREEMENT
This Concessions Agreement (hereinafter, Agreement) is made and entered into this 1st
day of July, 2023 (Effective Date), by and between the City of Fresno, a California
municipal corporation (hereinafter referred to as, City or a Party), and SSP America FAT,
LLC., a Limited Liability Company, authorized to conduct business in the State of
Delaware, (hereinafter referred to as, Concessionaire or a Party), (collectively, hereinafter
referred to as, Parties).
RECITALS
WHEREAS, City is the owner and operator of Fresno Yosemite International Airport
(Airport), which is located in the City of Fresno, County of Fresno, State of California; and
WHEREAS, City issued a Request for Proposals (Proposal No. 12300507), the terms of
which are incorporated by reference herein) for “Food & Beverage Concessions and
News & Convenience Concessions” on October 5, 2022, to solicit written proposals; and
WHEREAS, pursuant to such solicitation, Concessionaire submitted a written proposal,
dated January 17, 2023, which is incorporated herein by this reference to the extent
consistent with this Agreement; and
WHEREAS, on the basis of City’s evaluation of such proposal, City selected
Concessionaire for the award of this Agreement; and
WHEREAS, on April 27, 2023, the City Council awarded Concessionaire the Request for
Proposals (RFP) for “Food & Beverage Concessions”; and
WHEREAS, Concessionaire desires and is ready, willing and able to establish the
Concessions at the Airport upon the terms and conditions herein; and
WHEREAS, Under the Surplus Land Act, Government Code Section 54220-54234,
surplus land is defined as “land owned in fee simple by any local agency for which the
local agency’s governing body takes formal action in a regular public meeting declaring
that the land is surplus and is not necessary for the agency’s use,”; and
WHEREAS, Subject space (see Exhibit B) of the Airport Passenger Terminal is not a
disposition of surplus land pursuant to the Surplus Land Act, because no development or
demolition will occur; and
NOW THEREFORE, in accordance with Chapter 5, Article 4, of the Fresno Municipal
Code, and subject to all the terms, conditions and limitations contained within said
Chapter of said Article, all of which are incorporated herein by reference, and in
consideration of the above recitals, which recitals are contractual in nature, the mutual
promises herein contained, and for such other good and valuable consideration hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I - DEFINITIONS
SECTION 1.01 DEFINITIONS
As referred to or used herein the following terms have the following meanings:
The following terms shall have the meanings set forth below:
Additional Rent: Refers to all sums of money required to be paid by Concessionaire to
City hereunder, including, but not limited to: Support Space Rent (if any), Miscellaneous
Charges, Concessionaire’s share of taxes assessed against City, operating costs and
expenses, utility charges, and any other sums or charges which may be due from
Concessionaire hereunder.
Agreement: Refers to this Concession Agreement, including all exhibits, appendices,
schedules, attachments, and subsequent amendments thereto, as the same may be
amended from time-to-time.
Agreement Year: (a) With respect to the first Agreement Year during the Term, the period
commencing on the commencement date and continuing through the end of City’s Fiscal
Year in which the commencement date occurs, and (b) with respect to each Agreement
Year thereafter during the Term, each twelve-month period commencing on the first day
of City’s Fiscal Year and ending on the last day of City’s Fiscal Year, provided that if the
Term expires or is terminated on a day other than the last day of an Agreement Year, the
last Agreement Year will then end as of the date of such expiration or termination.
Airport Concession Disadvantaged Business Enterprise (“ACDBE”): Refers to a
business, whether it is a corporation, sole proprietorship, partnership or joint venture
certified as an ACDBE by City, of which at least fifty-one percent (51%) of the interest is
owned and controlled by one or more socially and economically disadvantaged
individuals as defined in the Airport and Airways Safety and Capacity Expansion Act of
1987 and the regulations promulgated pursuant hereto at 49 CFR Part 23.
Airport: Refers to Fresno Yosemite International Airport, which is located at 5175 E
Clinton Way, Fresno, CA 93727.
Airport Terminal(s): The passenger transportation facilities at the Airport, existing or
under construction as of the Effective Date of this Agreement, or to be constructed during
the Term of this Agreement, known individually as Terminal A, Terminal B, and Federal
Inspection Station, including all user movement areas, areas leased exclusively or
preferentially to any third party or parties, common areas and baggage claim areas
therein and interconnecting hallways, concourses, and bridges.
Alcoholic Beverage Control (ABC) Type 47 (On Sale General Eating Place) License:
Refers to a permit authorizing the sale of all types of alcoholic beverages: namely, beer,
wine, and distilled spirits, for consumption on the premises, and the sale of beer and wine
for consumption off the premises.
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Annual Report: An audit report prepared annually by an Independent Certified Public
Accountant (CPA), in accordance with Generally Accepted Auditing Standards
expressing an opinion from the Independent CPA on whether the Schedule of Gross
Receipts, Rent and all other fees and charges payable under this Agreement have been
completely and accurately presented, calculated, reported, and paid according to the
terms of this Agreement.
Approved Project: Refers to any portion of the Premises, Concessionaire’s construction,
furnishing, fixturing, and remodeling of such portion of the Premises as reviewed and
approved by City in accordance with the Tenant Handbook.
As Built Drawings: Refers to record documents of the construction, additions, and other
modifications constructed by Concessionaire on the Premises including but not limited to
Concessionaire’s Agreement, as built models, and drawings in the format as required by
City.
Assigned Premises: Refers to specific areas of the Airport Terminals, or elsewhere at
the Airport, that are assigned (or leased to Concessionaire to occupy) and use for the
purposes set forth herein. Concession may be conducted pursuant to this Agreement,
including those City owned fixtures and properties therein more specifically described in
Exhibit B hereto incorporated herein, which Concessionaire, at its sole cost, expense
and liability may use solely in its pursuit of this Agreement and upon the terms and
conditions therein provided that title thereto shall at all times be and remain in City and
further provided that such fixtures and equipment shall be returned to City along with the
Assigned Premises in the manner and according to the terms and conditions in this
Agreement.
Base Building Work: Refers to the sub-floor, structural elements, demising walls at the
exterior of the Premises, utilities infrastructure, and other base building improvements,
structures, and fixtures that City installs at the Premises. Base Building Work includes
preparation of portions of the Premises designated for concessions activities in Shell
condition.
Capital Investment: Refers to the dollars spent by Concessionaire in the actual
construction, remodeling, furnishing, fixturing, and equipping of any portion of the
Premises, in connection with an Approved Project for such portion of the Premises.
Capital Investment includes:
1. Architectural and Engineering fees: All soft costs associated with designing the
approved project.
2. Leasehold Improvements: All improvements and equipment that are structural in
nature or are affixed to the Premises and cannot be removed without material
damage to the Premises including, but not limited to, mechanical, electrical, and
plumbing work, floors, ceilings, demising walls, store fronts, lighting fixtures, and
built-in shelving.
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3. Furniture, Trade Fixtures, and Equipment (FF&E): All furniture, fixtures and major
equipment installed by Concessionaire within the Premises for use in its
performance of the Concession which may be removed from the Premises without
causing material damage to the Premises.
Certificate of Occupancy: Refers to a document issued by the City of Fresno stating
that the building or proposed use of a building or land has complied with all laws and
ordinances, and with an approved site plan and any conditions required by the
Commission or Board, relative to the proposed building or use.
City’s Work: Refers to any work to be done by or on behalf of City to prepare the
Premises for Concessionaire.
Claim: Refers to any demand, action, cause of action, suit, proceeding, arbitration, claim,
judgment or settlement or compromise relating thereto which may give rise to a right to
indemnification and defense under Article XIII of this Agreement
Common Use Areas: Refers to the areas of the Airport Terminals that are not leased,
licensed, or otherwise designated or made available by City for exclusive or preferential
use by a specific party or parties.
Comprehensive Management Operations Plan & Manual: Refers to a comprehensive
manual of standard operating procedures outlining measures designed to promote
meeting Concessionaire's responsibilities under this Agreement, to include performance
targets, goals, and measures. Concessionaire shall maintain such Manual during the
Term of this Agreement and any extensions.
Concession: Refers to the rights granted to Concessionaire by City to develop and
operate a business to sell food & beverage, retail, or passenger services products to the
public and related operations thereto, in accordance with the terms and conditions of this
Agreement.
Concession Location(s): Refers to the locations, individually or collectively, within the
Premises which are intended for the sale of Concessionaire’s goods and services.
Concessionaire: Refers to the legal entity that is party to this Agreement who is bound
by this Agreement to develop and operate the Concession at the Airport. Concessionaire
shall include all approved sub-concessionaires of Concessionaire who are operating
within the Premises pursuant to subleases with Concessionaire. In all provisions of this
Agreement that require a person to comply with a specific provision requiring
representation of Concessionaire, this person shall be an authorized official of
Concessionaire.
Concessionaire Improvement: Refers to any modifications or improvements made to
the Concession Location from time to time as determined by Article IX of this Agreement
by the Concessionaire at their sole cost.
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Concessionaire’s Operating Obligations: Refers to the various maintenance, repair,
and operating duties hereunder to be performed by Concessionaire, at its own cost and
expense, in the performance of the Concession. The performance of the obligation by the
Concessionaire, or payment to a third party for the performance of these obligations, are
not rental payments or other considerations for the right to occupy real property but are
acknowledgements by the Concessionaire of its obligation to maintain, repair, and
otherwise keep the Premises in optimal condition.
Concessions Design Criteria: The compilation of City’s design and construction
standards governing all aspects of the Concessionaire’s design and construction of the
Premises. City reserves the right to amend the Concessions Design Criteria during the
Term.
Concessions Services: Refers to the certain Concessionaire’s Operating Obligations
and other maintenance and repair performed by City on behalf of and for the benefit of
Concessionaire as further described in Article XI hereunder.
Concessions Services Fee: Refers to the amounts paid to City by Concessionaire as
payment for Concessions Services as further described in Article XI hereunder.
Concession Space Rent: Refers to the annual rent payable, paid in twelve (12) equal
monthly installments, by Concessionaire to City each Agreement Year based on the total
square footage amount of the Premises as further described in Section 4.02.
Concession Space Rental Rate: Initially $40 per square foot/year, adjusted on the first
annual anniversary of the Date of Beneficial Occupancy and each year thereafter, based
on the annual percentage change in the CPI-U Index. The annual adjustment result in
Rent will not be less than the amount charged during the prior contract year, or more than
five percent (5%) above the prior year’s rate.
Critical Dates:
1. Commencement date or Date of Beneficial Occupancy (“DBO”): The day the first
Concession Location under this Agreement opens for business.
2. Effective Date: The date of full execution of this Agreement by the Parties.
3. Expiration Date: The 15th anniversary of the Premises Completion Date.
4. Premises Completion Date: The earlier to occur of (a) the opening for business of
all Concession Locations following completion of all Approved Projects, or (b) the
latest of the dates established under this Agreement for completion of all Approved
Projects for all Concession Locations.
5. Required Completion Date: Refers to the date set forth in a Notice to Proceed by
which Concessionaire must achieve Substantial Completion of an Approved
Project, except as such date may be extended in accordance with the provisions
herein.
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6. Required Opening Date: Refers to the date set forth in the Development Schedule
by which Concessionaire must open each Concession Location for business as
defined in the Tenant Handbook, except as such date may be extended in
accordance with the provisions herein.
7. Space Turnover Date: The date provided in a Notice to Proceed, which makes a
portion of the Premises available to Concessionaire to commence the Approved
Project in such portion of the Premises.
DBE Coordinator: Refers to the City of Fresno’s DBE/Small Business Program
Coordinator, a single position supervisory class responsible for developing and
implementing the Federal Disadvantaged Business Enterprise Program certification
procedures and for investigating and monitoring contracts for utilization of minority and
disadvantaged business enterprise participation for compliance by contractors.
Department of Transportation (DOT): Refers to The United States Department of
Transportation (USDOT or DOT), one of the executive departments of the U.S. federal
government.
Deplanements or Deplaned Passengers: Refers to all passengers’ arriving on flights at
the Airport from scheduled or chartered flights, whether domestic or international,
including non-revenue passengers (but excluding airline crew for the flight), and including
those passengers connecting from arriving flights of same or another airline. Deplaned
Passengers shall generally be measured for the entire Airport by Airline.
Director of Aviation or Director: Shall mean the Director of Aviation, or designee of
the Airport as from time to time appointed by the City.
Enplanement Stabilization for Three Consecutive Months: Refers to the actual
Enplanements for a particular month equaling or exceeding 75% of the actual
Enplanements of the same reference month in the reference year, and such threshold is
achieved for three (3) consecutive months.
Enplanements or Enplaned Passengers: Refers to all passengers’ boarding flights at
the Airport from scheduled or chartered flights, whether domestic or international,
including non-revenue passengers (but excluding airline crew for the flight), and including
those passengers connecting from arriving flights of same or another airline. Enplaned
Passengers shall generally be measured for the entire Airport by Airline.
FAA: The Federal Aviation Administration or any successor thereto.
Fresno-Madera Metropolitan Statistical Area: Refers to the metropolitan area in the
San Joaquin (Central) Valley of California consisting of Fresno and Madera counties as
defined by the U.S. Office of Management and Budget.
Generally Accepted Accounting Principles: Refers to a common set of accounting
principles, standards, and procedures issued by the Financial Accounting Standards
Board.
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Generally Accepted Auditing Standards: Refers to a set of systematic guidelines used
by auditors when conducting audits on companies' financial records issued by The
Auditing Standards Board (ASB) of the American Institute of Certified Public Accountants
(AICPA).
Gross Receipts/Revenues/Sales: Refers to the total amount of monies paid or earned
by Concessionaire at or from the Premises in its performance of the Concession, as
further described in Section 4.01.
Joint Venture: Refers to a partnership between two or more companies to form a new
business entity.
Jurisdiction: Refers to the Superior Court of the State of California, County of Fresno,
where this Agreement is performed.
Liquidated Damages: Refers to the liquidated damages and not a penalty, to be paid by
the Concessionaire to the City for failure to fulfill obligations set forth in this Agreement
and which specifically identifies Liquidated Damages associated with such obligations.
The Liquidated Damages amount shall be assessed at one hundred dollars ($100.00) per
day under this Agreement.
Master Fee Schedule: Refers to the annual schedule of fees published by the City of
Fresno, which can be modified from time to time.
Monthly Concession Report: Refers to report (in a form as set forth in Exhibit C
attached hereto) certified by Concessionaire and that Concessionaire shall deliver to City
no later than fifteen (15) days after the end of each month during the Term, stating Gross
Receipts (with any and all sales of liquor separately identified) for said month for each
Concession Location, sales for said month by each Concessions Location with subtotals
by type of Concession, calculation of Percentage Fee payable for said month, sales per
square foot and per Enplaned Passenger with subtotals by type of Concession, and
receipts per square and per Enplaned Passenger with subtotals by type of concession
when information available.
Notice to Proceed: Refers to any portion of the Premises, the written notice from City to
Concessionaire delivering possession of such portion of the Premises to Concessionaire
to commence the initial Approved Project for such portion of the Premises, and which
establishes the Space Turnover Date and Required Completion Date for such portion of
the Premises.
Party/Parties: Shall have the meanings set forth in the Recitals to this Agreement.
Past Due Interest Rate: Refers to 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, which, at any time and from time to time
during the life of the Agreement, be changed by action of the City Council of City when,
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in said Council’s opinion, economic conditions and/or other relevant facts and/or
circumstances may reasonable warrant such action.
Personal Property: Refers to Trade Fixtures, including Concessionaire's nonattached
removable decorations, detached floor coverings, and furnishings that are not in any way
attached to the Premises, inventory, and other nonattached personal items.
Percentage Rent: Refers to the rent paid by Concessionaire to City, on a monthly basis
based on a percentage calculated in accordance with Section 4.06.
Point of Sale (POS): Refers to the place where a customer executes the payment for
goods or services and where sales taxes may become payable, including both the
physical concession location or a virtual sales point including (but not limited to)
computers or mobile electronic devices.
Premises: Refers to the portion(s) within the Airport consisting of the Concession
Locations and Support Spaces depicted on Exhibit B attached hereto containing
approximately 9,772 Square Feet, including any improvements to be made or
modifications to be made thereto.
Product Price List: Refers to a listing, substantially consistent with Exhibit G, of the
goods and services to be sold from the Concession Location which must include the
prices to be charged to the public for said goods and services.
Public Areas: Refers to certain areas of the Terminal designated by City to be public or
to be used in common, including, but not limited to, the walkways, streets, roadways,
waiting rooms, hallways, restrooms and other passenger conveniences.
Remediation Plan: Refers to a written plan developed by Concessionaire to improve the
performance of Concession Location(s) including, but not limited to, proposed remedial
activities such as employee training, staffing changes, merchandise and service
modifications, facility refurbishment and repair, and/or replacement of concept or brand.
Replacement Premises: Shall mean other location(s) within the Airport Terminals
containing substantially the same area, visibility, and exposure to passenger traffic as the
portion(s) of the Premises being reclaimed by City.
Severe Decline in Enplanements for Three Consecutive Months: Refers to the actual
Enplanements achieved during a one-month period is less than 75% of the actual
Enplanements of the same reference month in the same reference year, and such
shortfall continues for three (3) consecutive months.
Substantial Completion: Refers to the stage in the process of any construction or other
work when such work is sufficiently complete, as reasonably determined by City, so that
(i) in the case of City’s Work, Concessionaire is able to take possession of the Premises
for the purpose of performing the Approved Project, or (ii) in the case of Approved Project
work, Concessionaire has received a Certificate of Occupancy and/or a Temporary
Certificate of Occupancy from City and is able to occupy the Premises for the purpose of
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opening for business. In no event shall Substantial Completion of any work occur prior to
the issuance by City of the Notice to Proceed. It is the intent of the Parties that the
application of the term Substantial Completion in the context of this Agreement shall
coincide with the application of that term in Fresno, California, under State of California
laws, so that the date on which Substantial Completion occurs under this Agreement shall
be the same date relative to the imposition and levy of local ad valorem taxes.
Support Space(s): Refers to the non-selling locations, individually or collectively, within
the Premises which are intended for the support of Concessionaire’s operation of the
Concession including, but not limited to, offices, commissary, and storage spaces.
Support Space Rent: Refers to the annual amount payable by Concessionaire to City
for the use and occupancy of the Support Spaces, as further described in Section 4.03.
Support Space Rent Rate: Refers to the fair market rental rate per square foot for the
Support Spaces, as further described in Section 4.03.
Surety: Refers to the guarantee of the debts of one party by another. An organization or
person that assumes the responsibility of paying debt in case the debtor defaults or is
unable to make the payments.
Tenant Handbook: The compilation of City’s standards, procedures, construction
activities, requirements, directives, and rules and regulations governing the operations of
concessionaires and actions of their employees, representatives, agents, and vendors,
which is incorporated herein by reference. City reserves the right to amend the Tenant
Handbook during the Term. City shall provide a proposed copy of the Tenant Handbook
upon completion to the tenants prior to its implementation. Upon final implementation,
any amendment of the Tenant Handbook will be binding on Concessionaire without
amendment to this Agreement, provided that the amendment of the Tenant Handbook
does not conflict with other terms and conditions of this Agreement.
Tenant Improvement Request: Refers to any requests made by Concessionaire for
modifications or improvements made to the Concession Spaces from time to time as
determined by Article IX of this Agreement.
Term: Refers to the period beginning on the commencement date and ending on the
Expiration Date.
Term Options: Refers to the number of years the Term may be extended at the sole
discretion of the Airport.
Title VI List of Pertinent Nondiscrimination Statutes and Authorities: Refers to a
series of regulations under Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d, which
provides that: “No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance”.
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Total Passengers: Refers to the complete number of passengers enplaning and
deplaning airline carriers at Fresno Yosemite International Airport total number of
Enplaned Passengers.
Trade Fixtures: Refers to all furniture, fixtures, and major equipment installed by
Concessionaire, for use in its performance of the Concession, removable from the
Premises without causing material damage to the Premises.
TSA: The U.S. Department of Homeland Security Transportation Security Administration
or any successor thereto.
Unamortized Investment: Refers to the unamortized amount, for that portion of the
Premises at the time such amount is referred to herein, of Concessionaire’s Capital
Investment or portion thereof, using straight line amortization, calculated daily, over the
period beginning on the latter of: (i) the Premises Completion Date or (ii) the completion
of an Approved Project to which such Capital Investment refers, and ending on the
Expiration Date.
ARTICLE II - PREMISES
SECTION 2.01 PREMISES DESCRIPTION
City hereby leases to Concessionaire and Concessionaire hereby agrees to lease from
City the Premises within the Airport consisting of the Concession Locations and Support
Spaces as listed and depicted on Exhibit B, attached hereto, and incorporated herein,
including any improvements to be made or modifications to be made thereto. No other
part of the Airport Terminals or the Airport shall be part of the Premises.
The total estimated areas of the Premises, Concessions Locations, and Support Spaces
are incorporated in Exhibit B.
If the Premises is not fully constructed at the time of Agreement execution, then the actual
square footage determined after completion of construction shall be adjusted and
acknowledged by the parties. No later than 30 days after the City, Concessionaire shall
certify in writing the actual as-built areas of the Premises, Concession Locations, and
Support Spaces. The Parties agree to modify Exhibit B to incorporate such as-built
areas, such modifications to be confirmed by letter executed by City, without need for
formal amendment to the Agreement.
SECTION 2.02 ADDITIONS TO AND DELETIONS FROM THE PREMISES
City and Concessionaire may, during the Term and by mutual agreement, add additional
space(s) or delete space(s) from the Premises. All space(s) added to the Premises
pursuant to this Section 2.02 shall be subject to all the terms, conditions, and other
provisions of this Agreement and Concessionaire shall pay to City all rents, fees, and
charges applicable to the additional space(s) in accordance with this Agreement. In the
case of deletions of space(s) from the Premises, rents, fees, and charges paid to City by
Concessionaire shall be appropriately adjusted. The Parties agree to modify Exhibit B,
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as necessary, to incorporate space additions to the Premises and space deletions from
the Premises by letter executed by the Director of Aviation or designee and acknowledged
by Concessionaire, without need for formal amendment to this Agreement.
SECTION 2.03 RECLAIMING OF PREMISES FOR AIRPORT PURPOSES
City reserves the right to reclaim the Premises when, in the sole discretion of City, such
reclaiming is necessary for the development or operations of the Airport or is in the best
interest of City. City will make a reasonable effort to identify other location(s) within the
Airport Terminals containing substantially the same area, visibility, and exposure to
passenger traffic as the portion(s) of the Premises being reclaimed (such other
location(s), if any, hereinafter referred to as, the Replacement Premises).
City shall exercise such right to reclaim by giving Concessionaire not less than 120 days
prior written “Notice of Intent to Reclaim Premises” specifying the effective date of the
reclaiming and identifying Replacement Premises, if any. Concessionaire shall, by written
notice given to City no later than 90 days after receipt of Notice of Intent to Reclaim
Premises, notify City of its acceptance of the Replacement Premises, if any, whereupon,
as of the effective date provided in City’s Notice of Intent to Reclaim Premises:
1. All the terms, covenants, conditions, and provisions of this Agreement shall
continue in full force and effect and apply to the Replacement Premises.
2. Concessionaire shall move from the Premises, or portion(s) thereof being
reclaimed by City, into the Replacement Premises on or before the effective date
stated in the City’s Notice of Intent to Reclaim Premises and shall vacate and
surrender possession of the Premises or portion(s) thereof being reclaimed by
City.
3. Subject to the other provisions of this Agreement, Concessionaire shall be deemed
to have accepted possession of the Replacement Premises in its “as is” condition
as of the effective date stated in City’s Notice of Intent to Reclaim Premises.
4. City will pay to Concessionaire reasonable and proper moving expenses to include
moving of furniture, equipment, and other personal property into the Replacement
Premises. Concessionaire shall pay all other costs to improve and fit out the
Replacement Premises.
In addition, City will pay to Concessionaire, within 15 days of the effective date stated in
City’s Notice of Intent to Reclaim Premises, an amount equal to the Unamortized
Investment in the portion(s) of the Premises being reclaimed less any of the Unamortized
Investment attributable to Trade Fixtures moved to the Replacement Premises.
Concessionaire may be compensated based on potential losses as mutually agreed to by
the parties. City shall not be liable for any inconvenience to Concessionaire or for any
interruption of Concessionaire’s business, because of moving to Replacement Premises.
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If no Replacement Premises are available, as determined solely by City, if Concessionaire
fails to respond to City’s Notice of Intent to Reclaim Premises within 30 days after receipt
of such notice or otherwise rejects the Replacement Premises, or if City deems the use(s)
or concept(s) are not appropriate at the Replacement Premises, then the Agreement for
the Premises or portion(s) thereof being reclaimed will terminate on the Effective Date
provided in the Notice of Intent to Reclaim Premises, and City will pay to Concessionaire,
within 15 days of the Effective Date stated in City’s Notice of Intent to Reclaim Premises,
an amount equal to the Unamortized Investment in the portion(s) of the Premises being
reclaimed. In such event, the provisions of this Agreement related to termination shall
apply.
The Parties agree to modify, within ten (10) days of the Effective Date stated in the Notice
of Intent to Reclaim Premises, Exhibit B, as necessary, to delete the portion(s) of the
Premises being vacated and incorporate the Replacement Premises, if any. These
modifications will be confirmed by letter executed by the Director of Aviation or designee
and acknowledged by Concessionaire, without need for formal amendment to this
Agreement.
SECTION 2.04 MODIFICATIONS TO PREMISES, TENANT IMPROVEMENTS
City shall have the right to make minor modifications to any portion of the Premises at the
sole discretion of City to accommodate Airport operations, security renovations,
maintenance, or other work to be completed in the Airport Terminals. Minor modifications
are subject to all provisions in Section 2.02.
Minor modifications are those that may affect the Premises, but which do not have any
material effect in the Concessionaire activities.
SECTION 2.05 INGRESS AND EGRESS
Subject to all applicable rules, regulations, or City policies governing the use of the Airport,
City grants to Concessionaire the non-exclusive right to use, in common with others,
certain areas of the Airport Terminals designated by City to be public or to be used in
common, including, but not limited to, the walkways, streets, roadways, waiting rooms,
hallways, restrooms and other passenger conveniences (Public Areas) for
Concessionaire's employees, customers, contractors, agents, invitees and suppliers for
the uses for which those Public Areas were designed. Concessionaire's rights under this
Section shall include the right of ingress and egress to and from the Premises. City
reserves the right to modify the Public Areas at any time and in any way, it deems
appropriate, including, but not limited to, reconfiguration of the Public Areas, expansion,
or contraction of the Public Areas, or changing access points to and from the Public Areas.
Access to some Public Areas will be restricted to Concessionaire’s employees who
display valid security access badges issued by City.
SECTION 2.06 PREMISES ACCEPTANCE AS IS
Concessionaire understands, acknowledges, and accepts the Premises in its present
condition, “As Is” with all faults and with absolutely no warranties as to condition or
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suitability for use being given by City. City shall have no obligation, liability, or
responsibility to construct additional improvements or to modify existing conditions, nor
to provide services of any type, character, or nature (including any obligation to maintain,
repair, or replace utilities or telephone/data service) on or to the Premises during the Term
other than as explicitly stated in this Agreement.
SECTION 2.07 NO WARRANTY OF ECONOMIC VIABILITY
City makes no warranty, promises or representations as to the economic viability of the
Premises or Concessionaire’s business concept(s) or any other matter pertinent to the
potential or likelihood for success or failure of Concessionaire business operations.
Concessionaire acknowledges that airline gate usage and other aspects of Airport
operations are subject to change during the Term without notice and that City makes no
warranty regarding the location of airline gate usage. Except as is specifically set forth
herein, City shall not, by virtue of the existence of this Agreement, be constrained in
connection with its operation of the Airport.
ARTICLE III - TERM
SECTION 3.01 TERM
This Agreement shall be effective and binding upon the Parties as of the Effective Date.
The Term of this Agreement shall begin on the commencement date and continue through
the Expiration Date, as stated in this Agreement, unless sooner terminated as herein
provided.
SECTION 3.02 HOLDOVER
Any occupancy of Premises by Concessionaire with the written consent of City after the
Expiration Date shall be on a month-to-month basis with all provisions of this Agreement,
including rent, fees and charges, remaining in place until such time that City gives notice
to Concessionaire to surrender the Premises. Notice to surrender premises will be
provided not less than 30 days prior to the anticipated surrender date.
Any occupancy of Premises by Concessionaire after the termination of this Agreement
without the written approval of City constitutes a month-to-month lease on the same terms
and conditions as this Agreement. Concessionaire must pay Concession Space Rent,
Support Space Rent, and Percentage Rent for the entire holdover period for that portion
of Premises where the Agreement has expired or been terminated. No occupancy of any
portion of the Premises by Concessionaire after the expiration or other termination of this
Agreement with respect to such portion of the Premises extends the Term, except as a
holdover tenancy. In the event of such holdover tenancy, Concessionaire shall indemnify
City against all damages arising out of the Concessionaire’s holdover tenancy, including
but not limited to, any costs incurred by City to evict Concessionaire, and all insurance
policies and Security Deposits required to be obtained and maintained by Concessionaire
as set forth in this Agreement shall continue in full force and effect.
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SECTION 3.03 RIGHTS AND OBLIGATIONS UPON EXPIRATION OR TERMINATION
Concessionaire shall, upon termination of this Agreement, with or without cause,
surrender the Premises to City peaceably, quietly and in as good order and condition as
the same now are or may be hereafter improved by Concessionaire or City, reasonable
use and wear thereof and damage by casualty, which damage Concessionaire did not
cause and is not required to repair or restore, excepted. Concessionaire shall remove all
signage and provide temporary walls to seal all openings of premises that meet the
guidelines outlined in the Tenant Handbook. Concessionaire shall also provide to City all
keys to doors, window displays or any area of controlled access within the footprint of the
Premises. City shall be entitled to exercise the non-judicial remedy of locking
Concessionaire out of the Premises as a means of enforcing City’s right of possession,
regardless of whether Concessionaire is delinquent in rental payments, including without
limitation the de-activation of Concessionaire’s security badges or credentials; and this
right of de-activation shall not, and legally cannot, limit or otherwise affect City’s
governmental police powers to de-activate security credentials for security or other
governmental reasons.
Upon expiration or termination of this Agreement, Concessionaire shall, subject to City’s
lien described in Section 4.12, remove all furniture, fixtures and equipment installed by
Concessionaire and Concessionaire or brand proprietary property, inventory, and other
personal property, and leave the Premises in broom clean condition. Any damage to the
Premises caused by Concessionaire’s removal of such furniture, fixtures, equipment, or
property shall be immediately repaired by Concessionaire at Concessionaire’s expense
and to the satisfaction of City. Notwithstanding the foregoing, if Concessionaire fails to
remove such furniture, fixtures, equipment or property within ten (10) days from the date
of termination of this Agreement, then Concessionaire shall be deemed to have
abandoned same and City shall have the right, at its option, and in its sole discretion, to
take title to said furniture, fixtures, equipment and/or property and sell, Agreement,
salvage, or dispose of the same in any manner permitted by law. Concessionaire shall
have no right, interest, or claim in or to any proceeds of the sale or other disposition of
such items. Any net expense City incurs in disposing of such items shall be immediately
reimbursed by Concessionaire. No act by City shall be deemed an acceptance of a
surrender of the Premises. No acceptance of a surrender of the Premises shall be valid
unless it is in writing and signed by City.
SECTION 3.04 END OF TERM TRANSITION
During the final Agreement Year, City plans to award and transition to a new agreement
for concessions services that may include rights to the Premises or portions thereof. If
Concessionaire is not selected for the new agreement, City will notify Concessionaire in
writing of the exact dates of a transition period. Concessionaire will cooperate fully with
City and Concessionaire’s successor to ensure an effective and efficient transition of the
Premises and concession operations to the successor. Concessionaire acknowledges its
responsibility to continuously perform the Concession in a professional, high-quality, and
customer-centric manner during the transition to the successor.
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ARTICLE IV - RENTALS, FEES, OTHER CHARGES, REPORTING, AND
ACCOUNTING RECORDS
SECTION 4.01 DEFINITION OF GROSS RECEIPTS
Gross Receipts (sometimes referred to as Gross Revenues or Gross Sales) include all
monies paid or payable to Concessionaire for sales made, services rendered, and
customer orders fulfilled at or from the Premises, regardless of when or where the
customer order is placed (including outside the Premises), and any other receipts, credits,
internet sales, mobile app sales (owned or third-party), or revenues of any type arising
out of or in connection with Concessionaire’s or Concessionaire’s sub-concessionaires’
or agents’ operations at the Premises, including, but not limited to, branding fees,
marketing fees, merchandising fees, promotional allowances, performance allowances,
retail display allowances (RDAs), and any other type of ancillary advertising or product
placement fees, and other allowances and fees. Gross Receipts shall not include:
• Any taxes imposed by law that are separately stated to and paid by a
customer and directly payable to the taxing authority by Concessionaire.
• Amounts and credits received from suppliers for products and merchandise
returned by concessionaire.
• Cash and credit card refunds to customers for merchandise returned.
• Amounts and credits received in settlement of claims for loss of, or damage
to, merchandise.
• Insurance proceeds received from the settlement of claims for the loss of or
damages to Concessionaire’s property at or on the Premises other than the
proceeds from business interruption insurance.
• Inter-company store transfers.
• United States Postal Service stamp sales.
• Uniforms or clothing purchased by employees where such uniforms or
clothing are required to be worn by employees.
• Reimbursements from Concessionaire’s sub-concessionaires for any taxes,
fees, franchise or license fees, utilities or other services paid or provided by
Concessionaire for or on behalf of its sub-concessionaires; provided,
however, that any reimbursement more than the actual cost of such taxes,
fees, franchise or license fees, utilities or other services shall be included in
Gross Receipts.
• Rental, fees, and charges paid to Concessionaire by its sub-
concessionaires pursuant to the provisions of this Contract; provided,
however, that any such payment more than the amounts required
hereunder shall be included in Gross Receipts.
• Gift cards sold at the Premises. When a gift card is redeemed or accepted
as payment for a purchase at the Premises, the transaction must be
reported as part of Gross Receipts.
• Amounts for coupons and other forms of discounts (including Airport but not
limited to, employee meals, complimentary customer meals, and the Airport
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employee discount described in Section 6.03), such that only the amounts
received are ultimately included in Gross Receipts.
• National rebates and National volume allowances.
• Gratuities for services performed by employees paid by Concessionaire or
by its customers except to the extent Concessionaire may be entitled to
receive a portion of the gratuities.
SECTION 4.02 CONCESSION SPACE RENT
Commencing on the Date of Beneficial Occupancy, Concessionaire covenants and
agrees for each contract year of the Term to pay to City Concession Space Rent,
calculated in advance and without demand or invoice. Concession Space Rent is payable
in 12 monthly equal payments, beginning on the commencement date and on the first day
of each month thereafter throughout the Term of this Agreement. Concession Locations
are shown in Exhibit B and attached and incorporated herein, as set forth in sub-
paragraph 1 of this Section below:
1. Concession Space Rent shall consist of an annual sum calculated on the basis
of forty dollars ($40.00) per square foot for the area of the Concession Locations.
SECTION 4.03 SUPPORT SPACE RENT
As consideration for the right and privilege to Support Space as granted herein,
Concessionaire agrees for each contract year of the Term to pay to City Support Space
Rent, calculated in advance and without demand or invoice. Concession Space Rent is
payable in 12 monthly equal payments, beginning on the commencement date and on
the first day of each month thereafter throughout the Term of this Agreement. Support
Spaces are shown in Exhibit B and attached and incorporated herein, as set forth in sub-
paragraph 1 of this Section below:
1. Support Space Rent shall consist of an annual sum calculated on the basis of
twenty dollars ($20.00) per square foot for the area of the Concessionaire’s Support
Space.
SECTION 4.05 ANNUAL RENTAL ADJUSTMENTS
The Concession Space Rent and Support Space Rent will be adjusted on the first annual
anniversary of the Date of Beneficial Occupancy and each year thereafter, based on the
annual percentage change in the CPI-U Index. However, in no event will the annual
adjustment result in Rent being less than the amount charged during the prior contract
year or more than five percent (5%) above.
SECTION 4.06 PERCENTAGE RENT
At all times while Gross Receipts are being generated from the Premises, Concessionaire
shall calculate Percentage Rent each month, which Percentage Rent shall be equal to
the product of the applicable Percentage Rent Rate(s) times the amount of
Concessionaire’s Gross Receipts during such month. The Percentage Rent Rate(s) shall
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be ten percent (10%) for the term of this Agreement. Concessionaire shall pay
Percentage Rent to City monthly without prior notice or demand within fifteen (15) days
after the expiration of each month. All Percentage Rent payments shall be computed
based on all Gross Receipts made during the previous month as all such Gross Receipts
are indicated on Concessionaire’s Monthly Concession Report.
SECTION 4.07 AIRPORT CHARGES
Concessionaire shall pay to City any other fees and charges assessed by City relating to
City’s operation and maintenance of the Airport, including without limitation, for
segregation and/or removal of garbage and refuse, in accordance with standard rates or
nondiscriminatory prorated charges, established by City from time to time, as well as any
additional charges assessed by City relating to Concessionaire’s activities or operations
at the Airport, which charges shall equal Concessionaire’s proportionate share. Such
other fees and charges may include, but shall not be limited to, fees for security badges
and charges to account for additional expenses City incurs in operating the Facilities due
to Concessionaire’s operations. All persons employed at the Terminal are required to
obtain background checks, security clearances and identification security badges from
City and City has the right to institute a charge for the processing, issuance and reviews
and renewals. All security badges must be properly accounted for by Concessionaire and
promptly returned in accordance with City’s and all other applicable rules, policies and
regulations.
SECTION 4.08 SCREENING
If applicable as may be required by local, state, or federal Law, including, but not limited
to, the Federal Aviation Administration’s (FAA), the Transportation Security
Administration’s (TSA), City’s or any other applicable rules and regulations now in effect
or hereinafter enacted, costs incurred for the screening of Concessionaire’s goods,
merchandise, products, equipment, materials and supplies, which shall be paid by
Concessionaire directly to City.
SECTION 4.09 ADDITIONAL RENT
In addition to Concession Space Rent, Support Space Rent and Percentage Rent,
Concessionaire shall pay, as Additional Rent, all sums of money required to be paid by
Concessionaire to City hereunder, including, but not limited to: Concessionaire’s share of
taxes assessed against City, operating costs and expenses, utility charges, and any other
sums or charges which may be due from Concessionaire hereunder. If such amounts or
charges are not paid at the time and in the manner as provided herein, they shall
nevertheless be collectible as Additional Rent with the next payment of Concession
Space Rent thereafter falling due, but nothing herein shall be deemed to suspend or delay
the payment of any amount of money or charge at the time the same becomes due and
payable hereunder or to limit any other remedy of City. All amounts of rentals payable in
each month shall be deemed to comprise a single rental obligation of Concessionaire.
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SECTION 4.10 FAILURE TO MAKE TIMELY PAYMENTS
Without waiving any other right or action available to City, in the event Concessionaire is
delinquent in the payment of rents, fees, or charges hereunder or rightly due and owing
by an audit of Concessionaire’s books and records as provided in Section 4.13, and in
the event Concessionaire is delinquent in paying to City any such rents, fees, or charges
for a period of six (6) days after the payment is due, City reserves the right to charge
Concessionaire interest thereon, from the date such rents, fees, or charges became due
to the date of payment, and shall accrue interest at the Past Due Interest Rate from the
due date until paid in full, or the maximum rate allowed by law.
In the event of a dispute as to the amount to be paid, City shall accept the sum tendered
without prejudice and, if a deficiency is determined to exist, interest shall apply only to the
deficiency.
The right of City to require payment of interest and the obligation of the Concessionaire
to pay same shall be in addition to and not in lieu of the right of City to enforce other
provisions herein, including termination of this Agreement, and to pursue other remedies
provided by law.
The failure of City to act in the event of a delinquent payment or series of payments shall
in no way waive the right of City to act at a subsequent time. City expects all rents, fees,
and charges to be paid on time and Concessionaire agrees to pay on time.
Notwithstanding other provisions of this Agreement, and without limiting the other
provisions of this Agreement concerning, among other things, events deemed to
constitute default of Concessionaire, City may, in City ’s reasonably exercised discretion,
terminate this Agreement upon written notice to Concessionaire if (i) there are recurring
instances in which Concessionaire’s payments required hereunder are not timely or are
insufficient to cover sums actually due and payable; or (ii) Concessionaire fails to maintain
adequate records and accounts reflecting its business operations at the Airport and
calculation of Gross Receipts/Revenues under this Agreement; or (iii) Concessionaire
fails or refuses to submit the formal supporting paperwork as required herein.
SECTION 4.11 OFF SET CREDITS ON ACCOUNT
If any credit on Concessionaire’s account is 180 days or older, the City has the right to
apply such credit to the outstanding balance without prior written consent from the
Concessionaire and which invoice to apply the credit to.
SECTION 4.12 CITY’S LIEN
City shall have a lien upon all Trade Fixtures and Personal Property of the Concessionaire
placed in or on the Premises, to the extent permitted by law, for the purpose of securing
the payment of all sums of money that may be due to City from Concessionaire under this
Agreement.
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This lien shall supersede any other lien including any lien created in connection with
Concessionaire’s financing. Concessionaire is prohibited from pledging any Trade
Fixtures and/or Personal Property without prior, written permission of City.
SECTION 4.13 RECORD KEEPING, REPORTS, ANNUAL AUDIT, & END OF YEAR ADJUSTMENT
A. Generally Accepted Accounting Principles
Concessionaire shall prepare and maintain, in accordance with Generally
Accepted Accounting Principles, complete and accurate books and records that
include all financial transactions in the performance of this Agreement.
Concessionaire’s system of accounts shall allow each Concession Location to be
distinguished from all other Concession Locations. Concessionaire shall maintain
source documents sufficient to support its books, records, and reports. The books
and source documents to be kept by Concessionaire must include records of
inventories and receipts of merchandise, daily receipts from all sales and other
pertinent original sales records and records of any other transactions conducted in
or from the Premises by all persons or entities conducting business in or from the
Premises. Pertinent original sales records include: (i) cash register tapes, including
tapes from temporary registers, (ii) serially prenumbered sales slips, (iii) the
original records of all mail and telephone orders at and to the Premises, (iv)
settlement report sheets of transactions with subtenants, concessionaires,
licensees and assignees, (v) original records indicating that merchandise returned
by customers was purchased at the Premises by such customers, (vi)
memorandum receipts or other records of merchandise taken out on approval, (vii)
detailed original records or any exclusions or deductions from Gross
Receipts/Revenues, (viii) sales tax records, and (ix) all other sales records, if any,
that would normally be examined by an independent accountant pursuant to
generally accepted auditing standards in performing an audit of Gross
Receipts/Revenues. All monies related to this Agreement shall be deposited to and
paid from a business bank account(s), the records for which shall be subject to
review and audit in accordance with the provisions hereof.
B. Financial Reports
1. Daily Gross Receipts/Revenues: Upon request of the City, Concessionaire
agrees to report Gross Receipts/Revenues for periods of less than one month
in a format and frequency as requested by City.
2. Monthly Concession Report: No later than fifteen (15) days after the end of
each month during the Term, Concessionaire shall deliver to City a certified
Monthly Concession Report, in a form as set forth in Exhibit C attached hereto,
stating Gross Receipts/Revenues for said month for each Concession Location
and the calculation of Percentage Fee payable for said month.
3. Annual Audit: No later than 90 days after the end of each Agreement Year during
the Term, Concessionaire shall, at its sole cost and expense, provide an annual
audit report by an independent Certified Public Accountant, licensed in the
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State of California and acceptable to City, of Concessionaire’s monthly Gross
Receipts/Revenues and the amounts paid to City as Rent for the subject
Agreement Year, or part thereof (said annual audit report hereinafter referred
to as Annual Report). There may be no limitation on the scope of the
engagement that would preclude the auditor from expressing an unqualified
opinion as to the correctness and completeness of the reported Gross
Receipts/Revenues. The engagement will include a Schedule of Gross
Receipts, Rent and all other fees and charges for each month of the
Concessionaire’s operations in the Agreement Year, prepared in accordance
with the comprehensive basis of accounting defined herein and reported in a
format acceptable to City. The engagement will be conducted in accordance
with Generally Accepted Auditing Standards and shall include an opinion on
whether the Schedule of Gross Receipts, Rent and all other fees and charges
has been completely and accurately presented, calculated, and reported
according to the terms of this Agreement.
C. Findings
City reserves the right to challenge any findings or conclusions of the Annual
Report if it believes an error may have occurred. In such event, City may conduct
its own audit under the provisions in Section 4.16 or may require production of the
supporting documentation used to reach the finding or conclusion in question. The
resolution by City of any dispute will be final. Delivery of an Annual Report
containing a qualified opinion, or an adverse opinion, or a disclaimer of opinion as
defined in the Statements on Auditing Standards, as may from time to time be
amended or superseded, issued by the Auditing Standards Board of the American
Institute of Certified Public Accountants, or any successor board or agency thereto,
will be deemed a material breach of this Agreement and, in addition to all other
remedies available to City, City may, in its sole discretion, terminate this
Agreement.
D. End of Year Adjustment
If Concessionaire has paid to City an amount greater than Concessionaire is
required to pay as Rent for an Agreement Year under the terms hereof,
Concessionaire shall be entitled to a credit against Concessionaire’s MAG for the
amount of the overpayment. If Concessionaire has paid less than the amount
required to be paid as Rent for such Agreement Year, then Concessionaire shall
pay the difference to City in the next payment of the MAG.
E. Form, Frequency, and Method of Reporting
Acceptance of monthly reports and payments by City does not constitute
agreement by City with the amounts reported and paid. City reserves the right to
change the form and frequency of reports and statements, including, but not limited
to, the Monthly Concession Report, and to require the submission by
Concessionaire of other statistics and information pertaining to the Gross
Receipts/Revenues hereunder. Concessionaire agrees to change the form of the
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required reports and statements as requested by City and to provide any additional
statistics and information City may request.
City shall have the right at any time to require that reports be delivered
electronically using technology and procedures designated by City. If City instructs
Concessionaire to deliver any reports and statements required hereunder by
computer, e-mail, internet website, or transmission, City shall not be obligated to
furnish Concessionaire with the equipment or systems necessary to do so.
SECTION 4.14 PAYMENT PROVISIONS/INTEREST ON OVERDUE AMOUNTS A. Unless otherwise provided in this Agreement, fixed (i.e. non-activity based) Airport
rentals, fees and charges shall be due and payable the first (1st) day of each
month, in advance, without invoice.
B. Unless otherwise provided in this Agreement, variable (i.e. activity based) Airport
rentals, fees, and charges shall be due and payable the fifteenth (15th) day of each
month following the month in which assessed, without invoice.
C. Unless otherwise provided in this Agreement, all other rentals, fees, and charges
shall be due and payable on invoice within thirty (30) days of the date of the invoice.
D. The acceptance by City of any payment by Concessionaire shall neither constitute
City’s approval of, nor preclude City from questioning the accuracy of,
computations in Monthly Activity Report, submitted to City as provided in this
Agreement, or from recovering any additional payment actually due from
Concessionaire.
E. Any payment not received by the due date shall be deemed delinquent and shall
accrue interest at the Past Due Interest Rate from the due date until paid in full, or
the maximum rate allowed by law.
F. All payments due and payable herein shall be paid in lawful money of the United
States of America, without set off, by check or wire transfer made payable to City
and delivered or wired, as applicable, to the following address or account, or to
such other address or account as City by service of written notice upon
Concessionaire, may otherwise direct the payment thereof from time to time during
the term hereof:
Via Mail/Express
City of Fresno - Airports
Fresno Yosemite International Airport
Attn: Airport Accounting
4995 East Clinton Way
Fresno, CA 93727-1504
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SECTION 4.15 FORM OF PAYMENT
City reserves the right to require other methods of payment as designated in writing by
City. Concessionaire shall provide City with necessary information and authorizations as
needed to facilitate such payments.
SECTION 4.16 CITY’S RIGHT TO PERFORM AUDITS, INSPECTIONS, OR ATTESTATIONS
Notwithstanding Concessionaire’s requirement to submit the Annual Report set forth
herein, Concessionaire shall make available to City, upon the written request of the City,
at the offices of the Concessionaire at the Airport such books, records and accounts, or
photocopies thereof, that are relevant to payment of rentals, fees and charges required
under this Agreement for the current year and the preceding calendar year, and shall
make such records, or photocopies thereof, available for inspection and audit by City or
its authorized representative at reasonable and mutually agreed upon hours and times
during the entire term of this Agreement and for two (2) years thereafter.
This includes, but is not limited to, financial statements, general ledgers, sales journals,
daily or periodic summary reports, inventory and purchasing records, cash register or
computer terminal tapes or reports, bank deposit slips, bank statements, cancelled
checks, tax reports/returns filed with state or federal entities, discount or rebate/allowance
agreements, records of refunds or voids, and joint venture or partnership agreements.
Such right of examination shall include cooperation by Concessionaire personnel
(including, but not limited to, cooperation in sending confirmations to Concessionaire’s
suppliers or others, assisting City in obtaining from governmental entities official copies
of tax reports/returns, and disclosing all bank or other accounts into which Gross
Receipts/Revenues are deposited) as reasonably considered necessary by City, or its
representative, to complete the audit/inspection. There may be no limitation in the scope
of the audit, inspection or attestation that would hinder City in testing the accuracy and
completeness of the reported Gross Receipts/Revenues. All such books, records, and
agreements shall be kept for a minimum period of five (5) years after the close of each
Agreement Year.
Audits and inspections will be conducted at the Airport. However, if agreed to by City, the
audit or inspection can be conducted at another location, in which event Concessionaire
shall reimburse City for reasonable transportation, food and lodging costs associated with
the audit or inspection, accrued in accordance with City’s Policy and Standard Procedure
relating to travel expenses. Concessionaire shall allow City’s representatives to
photocopy any records the representatives determine to be necessary to conduct and
support the audit or inspection. Concessionaire shall provide City’s representatives with
retrievals of computer-based record or transactions the representatives determine to be
necessary to conduct the audit or inspection. Concessionaire shall not charge City for
reasonable use of Concessionaire’s photocopy machine while conducting the audit or
inspection, nor for any cost of retrieving, downloading to storage media and/or printing
any records or transactions stored in magnetic, optical microform or other media.
Concessionaire shall provide all records and retrievals requested within seven (7) days
of the request. The Parties recognize that City will incur additional costs if records
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requested are not provided in a timely manner and that the amount of those costs is
difficult to determine with certainty. Consequently, the Parties agree that City may assess
liquidated damages in the amount of $100 per day for each record requested that is not
received. Such damages may be assessed beginning on the eighth (8th) day following
the date the request was made. Accrual of such damages will continue until specific
performance is accomplished.
If, because of any audit or inspection, it is established that Concessionaire owes
additional rents, fees, or charges to City, Concessionaire will pay such additional rents,
fees and charges and City may assess interest in accordance with Section 4.10. If it is
established that Concessionaire underreported Gross Receipts/Revenues or underpaid
fees related to Gross Receipts/Revenues by three percent (3%) or more for the period
under consideration, the entire expense of the engagement may be billed to
Concessionaire. Any additional payments due shall be paid, no later than
Concessionaire’s next payment of the Guaranteed Rent, by Concessionaire to City. If it
is established that Concessionaire underreported Gross Receipts/Revenues or underpaid
fees related to Gross Receipts/Revenues by five percent (5%) or more for the period
under consideration, City shall be entitled to terminate this Agreement for cause upon
thirty (30) days’ written notice, regardless of whether the deficiency is paid. If because of
any audit or inspection, it is established that Concessionaire has correctly reported or
over reported Gross Receipts/Revenues or has paid fees related to Gross
Receipts/Revenues equivalent to or greater than the sum due, City shall refund
Concessionaire and the entire expense of the audit or inspection shall be paid by City.
Concessionaire will include a provision providing City the same rights to initiate and
perform audits, inspections, or attestations in any sub-concessionaire agreement that it
enters and cause its sub-concessionaires to similarly include the statements in further
sub-concessionaire agreements.
Record Retention. The Concessionaire will retain, and will require its subcontractors of
all tiers to retain, complete and readily accessible records related in whole or in part to
the Agreement, including, but not limited to, data, documents, reports, statistics, sub-
agreements, leases, subcontracts, arrangements, other third-party agreements of any
type, and supporting materials related to those records.
Retention Period. The Concessionaire agrees to comply with the record retention
requirements in accordance with 2 C.F.R. section 200.333. The Concessionaire shall
maintain all books, records, accounts and reports required under this Agreement for a
period of at not less than three (3) years after the date of termination or expiration of this
Agreement, except in the event of litigation or settlement of claims arising from the
performance of this Agreement, in which case records shall be maintained until the
disposition of all such litigation, appeals, claims or exceptions related thereto.
Access to Records. The Concessionaire agrees to provide sufficient access to City to
inspect and audit records and information related to performance of this contract as
reasonably may be required.
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Access to the Sites of Performance. The Concessionaire agrees to permit City access to
the sites of performance under this Agreement as reasonably may be required.
SECTION 4.17 SEVERE DECLINE IN ENPLANEMENTS
A. Concession Space Rent Reduction/Suspension
If at any time during the Term, there is a Severe Decline in Enplanements for Three
Consecutive Months as compared to same time period in the previous year, then the
Concession Space Rent shall be temporarily suspended (or may be reduced in proportion
to the enplanement decline) as follows:
1. The Concession Space Rent reduction/suspension shall be effective on the first
day of the month immediately following the Severe Decline in Enplanements
for Three Consecutive Months.
2. During such Concession Space Rent reduction/suspension period,
Concessionaire shall be required to pay the greater of the Percentage Rent or
reduced Concession Space Rent, unless and until the Concession Space Rent
is fully reinstated as provided below. On or before the 10th day of each month,
Concessionaire will submit to City a Sales Report showing Concessionaire’s
Gross Revenues achieved with respect to the prior month, together with the
Percentage Rent calculated on such Gross Revenues, cumulated by
Agreement Year.
3. If this Agreement provides that the Percentage Rent is based on a tiered gross
revenue structure, for purposes of determining the Percentage Rent payable,
the annual Gross Revenues shall continue to cumulate as provided in this
Agreement. For example, if Concessionaire’s Agreement Year is November 1
through October 31, then for purposes of calculating Percentage Rent for April,
all gross revenues achieved to date (from November 1 through April 30) will be
cumulated.
B. Concession Space Rent Reinstatement
Once Enplanement Stabilization for Three Consecutive Months has been achieved, then
the Concession Space Rent is reinstated, and will continue unless and until there is
another Severe Decline in Enplanements for Three Consecutive Months, as follows:
1. Such Concession Space Rent reinstatement will be effective on the first day of the
month following an Enplanement Stabilization for Three Consecutive Months.
2. In the event the Concession Space Rent is reinstated after the commencement of
an Agreement Year or other period for annual gross revenue accumulation
specified in this Agreement, the Concession Space Rent will be pro-rated
accordingly.
C. Determination of Total Enplanements and “True-Ups”
The parties acknowledge that Total Enplanements for a particular month are not usually
determined as of the first day of the following month. Accordingly, unless and until the
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Concession Space Rent is suspended as provided herein, Concessionaire shall continue
to pay the Percentage Fee as and when required hereunder. When Concession Space
Rent is later suspended pursuant to Section 4.17(A), then City shall issue a rent credit to
reflect any resulting overpayment in rent. If and to the extent Concessionaire has any
outstanding obligations to City hereunder, City may decline to issue such rent credit or
reduce the rent credit by the amount outstanding. When the Concession Space Rent is
reinstated, Concessionaire shall pay to City within five (5) days after City shall have given
notice to Concessionaire of such reinstatement, the deficiency, if any, between the
Percentage Rent paid by Concessionaire and the Concession Space Rent, for the
month(s) following such reinstatement.
D. Total Enplanement Determinations
Director of Aviation or designee shall have the sole discretion as to the Total Enplanement
calculations, and whether there exists a Severe Decline in Enplanements for Three
Consecutive Months and/or an Enplanement Stabilization for Three Consecutive Months.
E. No Effect
The Concession Space Rent suspension shall have no effect on (i) any adjustments
specified in this Agreement to be made to the Concession Space Rent; or (ii) the Deposit
Amount.
F. Effect of Default
Notwithstanding anything to the contrary herein, in the event Concessionaire shall default
under this Agreement, the Director of Aviation or designee may immediately reinstate the
Concession Space Rent, upon providing seven (7) days’ written notice to Concessionaire
and an opportunity to cure.
G. Sub-Concessionaires
Without limiting the provisions of Article XXV (Assignment and Subcontract) if
Concessionaire subleases any portion of the Premises, Concessionaire shall offer to such
sublessor(s) the same types of Concession Space Rent suspension as are provided
herein.
H. Example of Severe Decline in Enplanements Calculation
For purposes of this Section, please refer to Exhibit I for an example of how the Severe
Decline in Enplanements for Three Consecutive Months clause is calculated.
SECTION 4.18 DUE DATE, TYPE, FORM AND AMOUNT OF SECURITY DEPOSIT
Concessionaire shall provide to City a Security Deposit in an amount equal to three (3)
months Agreement Rents, Fees, and Charges. Such deposit shall be in the form of: (i)
cash; (ii) a Surety Bond issued by an insurance company authorized to do business in
the State of California and authorized to write such bonds in said State; or (iii) a non-
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revocable Letter of Credit established in favor of City for the account of Concessionaire
by a federally chartered bank acceptable to City, guaranteeing the faithful performance
of all of the covenants and conditions herein to be performed by Concessionaire. Upon
the expiration or termination of this Agreement, and the payment of all fees and charges
due to the City for the privileges granted in this Agreement, the Security Deposit shall be
refunded or the surety instrument returned to Concessionaire, provided there are no other
outstanding claims or charges against Concessionaire by City. City shall not be required
to pay, and City shall not pay, any interest on this Security Deposit.
SECTION 4.19 DRAWDOWN BY THE CITY
A. If Concessionaire defaults with respect to any provision of this Agreement (and
such default extends beyond any applicable cure period provided in this Agreement),
including but not limited to the provisions relating to payment of rentals, fees and charges
or any other sums due and owing, City may, to the extent allowed by law, with or without
prior notice to Concessionaire (except as otherwise required herein), draw down on the
surety provided by Concessionaire, up to the full amount thereof, and apply such draw on
amount(s) to correct any default by Concessionaire, to pay any rentals or other sums in
default by Concessionaire, to reimburse City for any amount(s) which City may spend or
become obligated to spend by reason of Concessionaire's default, to compensate City for
any other loss or damage which City may suffer by reason of Concessionaire's default,
or to pay any amount due or owing upon expiration or earlier termination of this
Agreement.
B. Within fifteen (15) calendar days following any draw on and application by City of
any part or the entire surety amount provided by Concessionaire, City shall provide
Concessionaire with notice of such draw on and application, in writing.
C. In the event the amount of surety provided to City by Concessionaire shall, at
any time and from time to time during the life hereof be reduced pursuant to the draw
down provisions of this Agreement, Concessionaire shall, within ten (10) days after written
demand therefore is served upon Concessionaire by City, deposit additional surety with
City in a sum sufficient to restore the required surety to its currently obligatory amount.
D. In the event City finds it necessary to draw down on the surety instrument more
than two times for any reason, the third draw down shall itself constitute grounds for
default and breach of this Agreement by Concessionaire.
SECTION 4.20 RETURN/SURRENDER/RELEASE OF SECURITY DEPOSIT BY CITY
The surety instrument shall be returned to Concessionaire not later than sixty (60) days
after termination of this Agreement, provided there are no outstanding claims against
the Concessionaire by City.
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ARTICLE V - PERMITTED USES
SECTION 5.01 PERMITTED USE
A. Uses
The Premises shall be used by Concessionaire only for the purposes of performing the
Concession, as further described in this Agreement and for such other uses as City may
agree to in writing. Concessionaire recognizes that the specific limited use prescribed
herein is a material consideration to City in order that the Airport will, in City’s sole
discretion, maintain an appropriate concession mix to efficiently serve the traveling public
and to produce the maximum Gross Sales possible for all Concessionaires.
The Support Spaces shall be used by Concessionaire only for office and administrative
purposes related to the operation of the Concession and the storage and preparation of
products necessary for the operation of the Concession. No portion of the Premises shall
be used to warehouse, stock, or store any goods, wares or merchandise not intended to
be offered for sale at or from the Premises.
B. Concession Locations
Exhibits A and G, which are attached hereto and made a part hereof, sets forth the trade
name for each Concession Location and a listing, by general category, of goods and
services that Concessionaire is allowed to sell from each Concession Location. Such list
of the Permitted Uses shall constitute a limitation of the goods and services, which may
be sold at each Concession Location.
Concessionaire’s Permitted Uses will be limited to its proposed and approved concepts
and uses within the Food & Beverage categories, as further described in Exhibit A.
Notwithstanding the foregoing, Concessionaire and City may mutually agree to different
concepts within the Food & Beverage Categories.
C. Permitted Products, Services and Prices
No later than 30 days prior to the opening of a Concession Location, Concessionaire must
submit to City, for its written approval, a listing, substantially consistent with Exhibit G
and as requested by City, of the goods and services to be sold from the Concession
Location. Such listing (hereinafter referred to as the Product Price List) must include the
prices to be charged to the public for the goods and services.
Once approved by City, the Product Price List for each Concession Location shall remain
in effect through the first year of this Agreement. Concessionaire shall not add, delete, or
sell any goods or services not included on the Product Price List, nor change the price of
any good or service, without first receiving written approval from City, which approval shall
not be unreasonably withheld or delayed. Written approval shall serve to modify the
Product Price List without need for amendment of this Agreement.
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City may, at its discretion, require Concessionaire to reasonably add goods or services
that are in public demand to the Product Price List for any Concession Location.
Within ten (10) business days of a written request by City, Concessionaire shall provide
a current Product Price List.
SECTION 5.02 NON-EXCLUSIVE RIGHTS
The rights granted herein for the performance of the Concession shall be non-exclusive.
City may, at any time, award space (existing or newly created) to other parties who may
have rights or may sell goods or products like those non-exclusively granted herein. City
may, in its sole discretion, grant exclusive rights to other concessionaires to sell goods or
services that Concessionaire is not authorized to sell, whether such agreements are
awarded competitively or through negotiations and regardless of whether the terms of
such agreements are favorable than the terms of this Agreement.
In the event of a dispute between Concessionaire and any other party operating at the
Airport as to the rights of the parties under their respective contracts, City shall determine
the rights of each party and Concessionaire agrees to be bound by City’s decision.
SECTION 5.03 RESTRICTIONS
Nothing in this Section/Article will be construed as authorizing Concessionaire to conduct
any business separate and apart from this Agreement or in areas at the Airport other than
the Premises.
All rights and privileges not specifically granted to Concessionaire for its use of and
operations at the Airport pursuant to this Agreement are hereby reserved for and to City.
SECTION 5.04 PERMITS AND LICENSES
Concessionaire will obtain and maintain throughout the Term all permits, certificates,
licenses, or other authorizations required in connection with the operation of the
Concession. Copies of all required permits, certificates, licenses, or other authorizations
will be appropriately displayed within the Premises and forwarded to City upon issuance
and each renewal.
In the event, City is required or has obtained any of the necessary permits,
Concessionaire will reimburse City for any permit fees and associated costs in obtaining
said permits.
ARTICLE VI - OPERATIONS AND PERFORMANCE STANDARDS
SECTION 6.01 CITY’S RIGHT TO MONITOR PERFORMANCE
A. Performance Audits
It is City’s intention that Concessionaire’s business be conducted in a manner to meet the
needs of the Airport’s patrons and employees and in a manner that will reflect positively
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upon the Concessionaire and City. The Concessionaire shall equip, organize, and
efficiently manage the Concession to provide exemplary service and products in a clean,
attractive, and pleasant atmosphere.
City in its sole discretion shall have the right to raise reasonable objections to the condition
of the Premises, the quality and quantity of merchandise, the character of the service, the
hours of operation, and/or the appearance and performance of service personnel, and to
require any such conditions or practices objectionable to City to be promptly remedied by
Concessionaire. If requested by Concessionaire, City shall submit its objections in writing
and provide Concessionaire an opportunity to reply to the objections. Such reply will be
given consideration by City.
City reserves the right to conduct periodic performance audits of the Premises to assure
that all the operational, safety and compliance standards of this Agreement are
consistently performed by Concessionaire. Concessionaire acknowledges that
performance audits will be conducted by City, or its representative, and hereby agrees to
cooperate with all performance audits.
1. Performance audits may include minimum objective standards in any or all the
areas of (i) product quality; (ii) customer service; and (iii) cleanliness and
maintenance. If Concessionaire fails to meet minimum standards in any of these
areas, City may, at its discretion, assess fines as set forth in the Tenant
Handbook. City representatives may also take photographs as deemed
necessary during inspection of premises. City representatives will make best
efforts not to interfere with Concessionaire's business operation.
2. To assure consistent adherence to performance standards throughout the Term,
City will use the Agreement Year 12-month cycle in the recording of incidents of
failure to meet standards. City reserves the right to assess fines for violations of
performance standards as set forth in the Tenant Handbook.
3. If Concessionaire fails to address repeated violations and deficiencies in
performance standards by either Concessionaire or any of its sub-lessee(s), City,
at its sole discretion, reserves the right to trigger remedies available to City, which
depending on the severity of the repeated violations and deficiencies may include
the termination of this Agreement.
B. Annual Review
No later than 90 days after the end of the first full Agreement Year after the Premises
Completion Date, and the end of each Agreement Year thereafter, in City’s sole
discretion, Concessionaire and City may meet to review and evaluate the financial,
customer service, and operational performance of each Concession Location. During the
review, City may determine, in its sole discretion, that the performance of one or more of
the Concession Locations is unsatisfactory if one or more of the following occurred during
the prior Agreement Year:
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1. Sales per Enplaned Passenger were less than seventy-five percent (75%) of the
Projected Sales per Enplaned Passenger for the Concession Location, as set
forth in Concessionaire’s response to REQUEST FOR PROPOSALS FOR
FOOD & BEVERAGE CONCESSIONS AND NEWS & CONVENIENCE
CONCESSIONS AT FRESNO YOSEMITE INTERNATIONAL AIRPORT
TERMINAL (notwithstanding any incidence of Exceptional
Circumstances/Severe Decline in Enplanements within the Agreement Year).
2. Sales per Enplaned Passenger were less than seventy-five percent (75%) of
Sales per Enplaned Passenger for the same Concession Location during each
of the two (2) preceding Agreement Years (notwithstanding any incidence of
Severe Decline in Enplanements within the Agreement Year).
3. Scores on any secret shopper survey(s) conducted by City or its representative
were less than seventy-five percent (75%) of the maximum achievable scores for
the survey(s).
4. Scores on any operational survey(s) conducted by City or its representative were
less than seventy-five percent (75%) of the maximum achievable scores for the
survey(s).
C. Remediation Plan
If City determines, based on the performance criteria specified in this Section 6.01(B),
that a Concession Location performed unsatisfactorily during the prior Agreement Year,
City will provide written notice to Concessionaire. Within 30 days of receipt of such written
notice, Concessionaire shall prepare and submit to City, for its approval, a Remediation
Plan, as described below, to improve the performance of the Concession Location.
The Remediation Plan shall include, but not be limited to, proposed remedial activities
such as employee training, staffing changes, merchandise and service modifications,
facility refurbishment and repair, and/or replacement of concept or brand. Upon approval
by City, Concessionaire agrees to diligently implement the approved Remediation Plan
and further agrees to submit to City monthly reports on the progress of such
implementation. If the approved Remediation Plan includes the replacement of a concept
or brand, then City and Concessionaire will enter good faith negotiations concerning a
concept or replacement brand. If the concept or brand replacement is mutually agreed to,
the reimbursement for Unamortized Investment and the Capital Investment required for
the concept or brand substitution will be a component of the good faith negotiations.
In the event City determines, after six (6) months of implementation of a Remediation
Plan, the subject Concession Location is still performing in an unsatisfactory manner, City
reserves the right to require Concessionaire to replace the underperforming concept or
brand, if not already replaced by the Remediation Plan. Within 90 days of receipt of written
notice from City requiring a replacement, Concessionaire shall submit to City a proposal
for a brand or concept replacement plan. Such replacement plan shall include, but not be
limited to, a detailed description of the brand or concept, capital expense required to re-
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brand, sales projections, and the specific timetable to replace the brand or concept. City,
in its sole discretion, reserves the right to approve or deny the replacement plan and
require Concessionaire to submit another replacement plan.
SECTION 6.02 QUALITY OF PRODUCTS AND SERVICES
Concessionaire shall ensure that all customers are provided the optimum quality of food,
products and services, and Concessionaire shall keep in stock and have ready for sale
at all times of operation, a sufficient supply and variety of food, beverage, articles, and
goods offered for sale at each Concession Location, consistent with the Product Price
List, to meet the demand of customers at the Airport.
If City identifies any deficiencies with respect to the operations, including, without
limitation, quality, variety, and quantity of goods or services offered, Concessionaire shall
be notified in writing by City and shall correct, or cause to be corrected, such problem or
problems within seven (7) days, unless City authorizes in writing a longer period. If
Concessionaire fails to correct within seven (7) days after written notice is given by City,
City may assess fines as described in the Tenant Handbook.
Concessionaire shall develop and implement creative merchandising techniques and
displays to optimize customer satisfaction and Gross Receipts/Revenues, including
without limitation, food and beverage displays; retail merchandise displays; display cases;
promotional displays; attractive and durable packaging; menu boards or table-top menus;
and pictures of food and beverages or retail merchandise. Prices for all food and
beverages, including alcoholic beverages, shall be prominently displayed on menus or
menu boards and available to all customers. All food, beverages, retail merchandise and
other items sold or kept for sale shall be of high quality and wholesome and must comply
with and conform to all present and future statutes and ordinances, rules and regulations
promulgated thereunder, of all federal, state, local and other governmental bodies of
competent jurisdiction that apply in any manner to Concessionaire or Concessionaire's
operations and activities under this Agreement. Concessionaire’s printed or digital menus
and/or price lists shall include the appropriate use of descriptive terminology that
accurately and truthfully describes the food, beverages, services, or products being
offered.
City reserves the right to approve all merchandising displays. Concessionaire hereby
affirms that City, in its sole discretion, has the absolute right to require that Concessionaire
discontinue the sale of any product City deems unsatisfactory, distasteful, or
inappropriate for any reason and to require Concessionaire to modify merchandising
displays for any reason. If Concessionaire fails to comply with any such City request within
one (1) day after written notice from City, City may assess fines as described in the Tenant
Handbook.
All franchise and/or license standards applicable to a Concession Location shall be met
or exceeded. Copies of the franchise/license standards and performance audit forms shall
be sent to City prior to the first day of business at such Concession Location.
Concessionaire shall submit to City copies of all inspections conducted by the franchisor,
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licensor or mystery shopper service hired by the franchisor or licensor within ten (10) days
of receipt by Concessionaire.
All food and non-alcoholic beverages available for sale should be made available for
customers to carry out if they so request. The containers and plasticware for carry out
should be recyclable, made of sustainable materials, high quality, and substantial enough
for the customer to take on an airplane. All carry out packaging must be approved by City
for quality, usefulness, and durability.
SECTION 6.03 PRICING
A. Products & Pricing
Concessionaire has caused to be attached hereto as Exhibit G a complete listing of
all goods, menu items and/or services Concessionaire is allowed to sell from the
Premises as well as the prices to be charged to the public. The execution of this
Agreement constitutes acceptance by City of the merchandise, services, and pricing
as reflected on the referenced exhibit. Prices must be visibly displayed to customers
for all products. For merchandise with a pre-printed price affixed by the manufacturer
or distributor, the selling price shall not exceed the pre-printed price.
Concessionaire shall not add, delete or sell merchandise categories, menu items
and/or services not reflected on the aforesaid exhibit without first receiving written
approval from City, which shall not be unreasonably withheld or delayed. It is agreed
that in the event of any conflict between Concessionaire and another Concessionaire
as to specific items sold, City shall have the sole authority to resolve the conflict as it
deems appropriate.
B. Pricing Models
Concessionaire shall comply with one or more of the pricing models listed below. The
pricing model(s) applicable to this Agreement shall be selected by City and
communicated to Concessionaire.
1. Airport Brands (concessions located exclusively at airports):
Concessionaire shall price its products and services at or below the average
price charged at other U.S. airports for the same product or service. To
determine the average price charged for a product or service, Concessionaire
shall use pricing from same-brand concessions at the three U.S. airports (other
than FAT) most similar in passenger volume to FAT.
2. Franchise or Corporate-Owned Brands (concessions with same-brand “street-
side” locations in the Fresno-Madera Metropolitan Statistical Area):
Concessionaire shall price its products and services no more than ten (10)
percent above the average price charged at other Fresno-Madera Metropolitan
Statistical Area locations for the same product or service. To determine the
average price charged for a product or service, Concessionaire shall use pricing
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from three same-brand locations in the Fresno-Madera Metropolitan Statistical
Area.
3. Custom Brands (concessions with no same-brand “street-side” locations in the
Fresno-Madera Metropolitan Statistical Area): Concessionaire shall price its
products and services no more than ten (10) percent above the average price
charged at other Fresno-Madera Metropolitan Statistical Area locations, within
five (5) miles of the Airport, selling similar products and services. To determine
the average price charged for a product or service, Concessionaire shall use
pricing from three locations selling similar products and services in the Fresno-
Madera Metropolitan Statistical Area and within five (5) miles of the Airport.
4. Unique Brands (concessions with same-brand “street-side” locations; however,
the locations are not comparable based on product offerings, pricing strategies,
or other differences): Concessionaire shall price its products and services no
more than ten (10) percent above the average price charged at other Fresno-
Madera Metropolitan Statistical Area locations within five (5) miles of the Airport
selling similar products and services. To determine the average price charged
for a product or service, Concessionaire shall use pricing from three locations
selling similar products and services within five (5) miles of the Airport in the
Fresno-Madera Metropolitan Statistical Area.
5. Local Brands (concessions with same-brand locations only in California):
Concessionaire shall price its products and services no more than ten (10)
percent above the average price charged at other locations for the same product
or service. To determine the average price charged for a product or service,
Concessionaire shall use pricing from three same-brand locations in the Fresno-
Madera Metropolitan Statistical Area; same-brand locations in California may be
used to the extent that there are not enough locations in the Fresno-Madera
Metropolitan Statistical Area.
6. Other Brands (concessions that, in the City’s opinion, do not meet one of the
pricing models listed above): Concessionaire shall price its products and services
using a pricing model separately stated and agreed to by City and
Concessionaire.
7. No earlier than, July 1, 2028, the parties may meet to discuss percentage price
above street pricing to determine whether a modification is necessary.
C. Pricing Policy
Concessionaire agrees to the following provisions with respect to products and pricing:
1. Except as indicated in Section 6.03, paragraph B.1 (Airport Brands), institutional,
event, sporting, and other non-“street-side” locations (e.g., schools, hospitals,
airports, arenas, stadiums, amusement parks, convention centers, and hotels)
may not be used to determine the average price charged for a product or service.
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2. Upon receiving a Certificate of Occupancy, Concessionaire shall provide to City
an updated list of products and services it proposes to sell, along with the proposed
price for each item. Prior to completing any pricing model, Concessionaire shall
submit to City a listing of potential comparable locations, products, and services to
be approved by the Director or designee. Once a preapproved list is determined,
if an established location no longer exists, Concessionaire may propose a
replacement comparable location (as described for the applicable pricing model in
Section 6.01, paragraph B) to be used to determine the average price charged for
each listed product or service, along with the specific products and services that
Concessionaire believes to be comparable. Parties shall mutually discuss
replacement brand or service, but City shall have sole discretion to determine
whether the replacement comparable location (as well as the particular products
or services to be compared) are similar. City will review the replacement
comparable location (and the products and services to be compared) and either
approve them or direct Concessionaire to use other locations and/or products and
services.
3. On July 1st of each year thereafter, Concessionaire shall provide an updated
products and services list with current prices.
4. Parties shall mutually discuss what items should be bundled together, but City shall
have sole discretion to determine what constitutes an individual product or service,
including, for example, products or services sold in combination or bundled
together.
5. City may grant exceptions(s) to the pricing provisions; however, any such
exception or determination must be in writing and signed by Airport Director or
designee. Under no circumstances shall Concessionaire be entitled to any such
exception without the appropriate approval.
6. Concessionaire shall at all times and for all products and services sold comply with
the applicable pricing model. City may at any time compel Concessionaire to,
within two (2) business days, lower prices on specific items to bring them into
compliance with Section 6.03, but nothing herein shall negate the general default
and remedies provisions of this Agreement.
7. City may at its discretion require Concessionaire to submit documentation verifying
compliance with the pricing requirements herein. For such evaluations, market
basket pricing of the top three selling SKUs (based on revenue) per product
category needing verification will be used; products and services price-controlled
by MSRP shall not be included in the market basket. City may require
Concessionaire to submit its price comparison using an automated process. If
Concessionaire fails to submit said documentation of compliance within the time
specified by City, or if documentation submitted is erroneous, Concessionaire may
be charged Liquidated Damages per the Concessions Handbook.
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8. At any time during the Term hereof City may make or cause to be made a survey
of prices being charged for products and services offered by Concessionaire from
the Premises hereunder. If the survey concludes that any prices being charged by
Concessionaire on the Premises are not in accordance with the terms of this
Agreement, Concessionaire may be charged Liquidated Damages per the
Concessions Handbook.
9. Failure to comply with the provisions of Section 6.01 shall constitute a material
default. If Concessionaire, after receiving notice to reduce prices and/or
application of any penalty, is later found to have again violated the pricing policies
within the same Agreement Year, City shall have the right to collect Liquidated
Damages and/or terminate this Agreement for cause by giving thirty (30) days
written notice. Failure of City to exercise its right to terminate this Agreement shall
not constitute a waiver of City’s right to terminate at a later date for the same,
similar or continued violation of the pricing policies.
D. Policy Adherence
Failure to comply with the provisions of Section 6.03 shall constitute a material
default. If Concessionaire, after receiving notice to reduce prices and/or application
of any penalty, is later found to have again violated the pricing policies within the
same Agreement Year, City shall have the right to collect Liquidated Damages per
the Concessions Handbook and/or terminate this Agreement for cause by giving
thirty (30) days written notice. Failure of City to exercise its right to terminate this
Agreement shall not constitute a waiver of the City's right to terminate at a later date
for the same, similar or continued violation of the pricing policies.
E. Airport Employee Discount
Concessionaire shall offer a minimum ten percent (10%) discount on all food &
beverage, retail, passenger services, and non-alcoholic beverages purchased by
Airport employees and employees of airlines operating at Airport who have been
issued (and show at the time the discount is requested) appropriate identification
badges. The discount shall be based on Concessionaire’s normal non-sale or non-
promotional prices. No discount shall be given on value meals, as well as food and
non-alcoholic beverages with a manufacturer pre-printed price.
SECTION 6.04 HOURS OF OPERATION
A. Store Hours
Concessionaire shall ensure that each Concession Location is open for business
without interruption from not less than one (1) hour before the first scheduled
departure each day to thirty (30) minutes prior to the last departure of the day, unless
there are delayed flights, wherein the Concessionaire shall be required to remain
open until 30 minutes prior to the last delayed flight and is providing all goods and
services as required by this Agreement.
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City may, in its sole discretion, require store hours to change during the Term.
Concessionaire hereby acknowledges and agrees to operate the Concession
Locations as required which, if requested by City, may be twenty- four (24) hours
per day seven (7) days per week, including all holidays. Concessionaire may request
changes to Store Hours after six (6) full months of operations under this Agreement.
City may, in its sole discretion, approve or deny such requested changes.
B. Extension of Store Hours
Concessionaire agrees to remain open beyond store hours for certain events
including, but not limited to, the following:
1. In the event of a delayed flight in the Terminal in which any Concession
Location(s) is located, Concessionaire shall remain continuously open and
provide all goods and services as required by this Agreement beyond the then
current store hours for the Concession Location(s) in the affected Terminal and
until the delayed flight departs the gate or City otherwise instructs.
2. In the event of an emergency, as determined by City, Concessionaire shall
remain continuously open and provide all goods and services as required by
this Agreement for the Concession Locations beyond the then current Store
Hours as instructed by City.
C. Failure to Open
Failing to open for business, without prior written communication by the
Concessionaire to the Director or designee, within thirty (30) minutes of the
required opening time or closing more than thirty (30) minutes early, shall
constitute a violation of this Section for which City may collect Liquidated Damages
as set forth in this Agreement.
D. Posted Hours
The Concessionaire will prominently post store hours in a professional manner for
each Concession Location at the Concession Location and in a format approved
by City.
SECTION 6.05 PERSONNEL
A. Staffing
Concessionaire shall hire, train, supervise, and deploy a sufficient number of personnel
to service customers in a timely and efficient manner and to properly meet
Concessionaire’s obligations herein. If replacing an existing concession, the new
concessionaire shall make every effort to hire and train the previous concession
employees subject to the concessionaire hiring policies and procedures.
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Concessionaire shall closely monitor personnel to ensure first class service to customers
in compliance with this Agreement. The satisfactory performance of the obligation
hereunder shall be determined in the sole discretion of City. Concessionaire shall take all
proper steps to discipline personnel who participate in acts of misconduct on or about the
Premises.
B. General Manager/Director of Operations
Concessionaire shall appoint a General Manager/Director of Operations to oversee and
manage the performance of the Concession and represent and act on behalf of
Concessionaire. The General Manager/Director of Operations shall have full authority to
make day-to-day business decisions on behalf of Concessionaire with respect to the
Concession including, but not limited to, authority to control the conduct and demeanor
of Concessionaire’s personnel. The General Manager/Director of Operations shall
represent the Concessionaire in dealings with City and shall coordinate all concession
activities with City. The General Manager/Director of Operations shall be assigned to an
office at the Airport and shall be available during City’s regular business hours. The
General Manager/Director of Operations shall designate a qualified, competent, and
experienced subordinate to be in charge and available during its absence during
Concessionaire’s regular operating hours.
C. Business Developer
Concessionaire shall appoint a Business Developer at the corporate level to oversee and
manage the performance of the Concession and represent and act on behalf of
Concessionaire. The Business Developer shall work with the General Manager/Director
of Operations, to make day-to-day business decisions on behalf of Concessionaire with
respect to the Concession including, but not limited to, authority to control the conduct
and demeanor of Concessionaire’s personnel. The Business Developer shall be informed
of dealings with City and shall coordinate all concession activities with City. The Business
Developer shall be assigned at the corporate level and shall be available during City’s
regular business hours. The Business Developer shall designate a qualified, competent,
and experienced subordinate to be in charge and available during its absence during
Concessionaire’s regular operating hours. The Business Developer shall represent the
Concessionaire in dealing with City and shall coordinate all concessions activities with
City. Business Developer is the primary point of contact for all contractual related
activities.
D. Additional Personnel Requirements
In addition to the personnel requirements set forth herein, Concessionaire shall ensure
that all personnel engaged in the operation of the Concession shall comply with and
conform to all present and future statutes and ordinances, rules and regulations
promulgated thereunder, of all federal, state, local and other governmental bodies of
competent jurisdiction that apply in any manner to Concessionaire or Concessionaire's
operations and activities under this Agreement.
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E. Compliance with Immigration Law
Concessionaire shall employ only individuals who are in compliance with any and all
current laws and regulations of the U. S. Immigration and Naturalization Service.
F. City’s Right to Object
City shall have the right to object to the demeanor, conduct, and appearance of any
personnel of Concessionaire or any of its invitees or those doing business with it.
Immediately upon notice of objection by City, Concessionaire shall take all steps
necessary to remedy the cause of the objection. If requested by Concessionaire, City
shall present its objections in writing and provide Concessionaire the opportunity to reply
to the objections and such reply will be given consideration by City.
SECTION 6.06 DELIVERY OF GOODS
1. The General Manager/Director of Operations (as defined in Section 6.05(B)) will
make deliveries to Concession Locations and Concessionaire’s Support Spaces
as stated below. Concessionaire shall transport inventory among Concession
Locations and Support Spaces in the same building at such times and by such
routes stated below. Concessionaire shall make every effort to avoid using the
Common Areas for large quantity deliveries during peak periods. Concessionaire
shall be responsible for the return of all pallets, storage containers and other
equipment belonging to its suppliers to locations designated for return by the
General Manager.
2. Delivery Locations: All deliveries shall be made through the loading dock at the
front of the Airport Terminal Security Identification Display Area (SIDA). All
deliveries must be broken down in the adjacent Support Space and then
transported to the appropriate Concession Locations.
3. Concessionaire shall use only carts or conveyances for transporting goods that
are sealed, leak-proof, and equipped with pneumatic wheels suitable for operating
on carpet or other flooring without damage thereto, and which are approved by
City. Additionally, Concessionaire shall have at a minimum one (1) vehicle
dedicated to the Airport that is capable of moving products and disposing of large
items. The vehicle must be affixed with the company logo and a blinking beacon
for airfield driving purposes.
SECTION 6.07 BADGING AND SECURITY REQUIREMENTS
All employees and staff will be required to pass a TSA mandated security background
check and attend various training classes. All employees and staff must adhere to all
security rules and regulations and be properly badged at all times. All concession
employees and staff will be required to wear an easily identifiable uniform representing
its trade name, and otherwise in compliance with Fresno Yosemite International Airport
requirements, at all times.
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Concessionaire must conduct pre-employment background checks on each of its
employees assigned to work under this Agreement prior to any employee being assigned
to work at Fresno Yosemite International Airport. Concessionaire shall be responsible for
the cost of the pre-employment background check.
At a minimum, the pre-employment background check for each of Concessionaire's
employees must include:
i. Prior employment reference checks;
ii. Both felony and misdemeanor criminal records checks for each location
at which the prospective employee has resided during the past seven (7)
years:
iii. Driving records checks for all employees operating vehicles in the
performance of the work under this Contract.
Concessionaire must provide the City with the background check findings upon request.
The City requires Concessionaire’s employees who work at Fresno Yosemite
International Airport included under the terms of this Agreement to undergo additional
background checks, including a Department of Motor Vehicles - DDL check, Department
of Justice - Bureau of Criminal Identification (BCID) fingerprint check, Customs and
Boarder Protection (CBP) check, and a FBI fingerprint check; such services, however, will
be performed at no cost to Concessionaire. The City’s Badging Application and list of
disqualifying crimes is included in this Agreement as Exhibit H.
The Concessionaire's employees shall be subject to and shall at all times conform to the
City's security rules and requirements and shall cooperate with City Police and Security
personnel. Any violations or disregard of these rules may be cause for denial of access
to the City of Fresno's property.
All of Concessionaire's personnel must undergo an identification procedure by the City
prior to beginning the work. Concessionaire's employees will be issued Airport security
badges which must be visibly worn above the belt at all times during performance of the
work. Concessionaire shall be responsible for all costs relating to the preparation of
identification badges for each employee. Concessionaire shall be billed by the City at the
applicable rate (currently $63.75 for each new badge with prints and $25.00 for each lost
badge).
All Concessionaires are required to perform a quarterly badge audit for all employees at
Airport. During the audit, each badge that is lost or non-returned is subject to a fee as
listed in the Master Fee Schedule. Said fees are due 30 days from notice by the City.
Lunch boxes, thermos bottles and other personal packages may be subject to Police or
Security inspection upon entering and leaving Fresno Yosemite International Airport’s
premises.
Concessionaire's employees must remain in their assigned work areas, except when
taking an authorized break in a designated break area.
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Concessionaire's employees admitted to the City's property (i.e., Fresno Yosemite
International Airport) must conduct themselves in an orderly and safe manner. Fighting
or engaging in horseplay, being under the influence of alcohol or drugs or bringing alcohol
or drugs onto the City's property, gambling, soliciting, stealing, taking pictures or bringing
cameras or other photographic devices anywhere on City property, and any immoral or
otherwise undesirable conduct will not be permitted.
Firearms, weapons and/or explosives may not be brought onto the City's property (i.e.,
Fresno Yosemite International Airport).
The operation of the Concessionaire's vehicles or private vehicles by Concessionaire's
employees on the City's property (i.e., Fresno Yosemite International Airport’s premises)
shall conform to posted regulations and safe driving practices.
Aisles, passageways, alleyways, driveways, entrances or exits and access to fire
protection equipment must be kept unobstructed at all times.
Concessionaire shall maintain clearance space around all electrical and mechanical
panels and equipment as required by applicable City codes.
Concessionaire must take adequate measures to reasonably ensure the confidentiality of
records, information and persons observed at City facilities (i.e., Fresno Yosemite
International Airport). All employees must be trained by the Concessionaire regarding the
rules and use of badge prior to assignment at Fresno Yosemite International Airport, and
refresher training provided every year.
Concessionaire shall establish and maintain a comprehensive drug screening and
monitoring program for all assigned employees. This program must include, at minimum:
A. Mandatory pre-employment drug and substance abuse testing;
B. A program of continuous observation and verification whenever employee
substance abuse is suspected. This program should be consistent with all aspects
of the City of Fresno's Policy on Drug and Substance Abuse (Administrative Order
2-25 of December 15, 2015; revised September 13, 2019) hereto attached as
Appendix O, including specific guidelines on:
a. The need for drug and alcohol testing;
b. The circumstances under which testing may be required;
c. The procedure for confirming an initial positive drug test result;
d. The consequences of refusing to undergo a drug and alcohol test;
e. Drug testing procedures and interpretive guidelines for positive/negative
results (by substance);
f. Concessionaire employee training as part of a Drug Free Awareness
Program;
g. Supervisory training in identification of drug and alcohol abuse which
constitutes reasonable cause for drug testing;
C. The availability of employee counseling for drug or alcohol abuse. This program
will include mandatory pre-employment drug testing, as well as system of
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continuous observation and verification whenever employee substance abuse is
suspected.
SECTION 6.08 EMPLOYEE PARKING
Concessionaire employees working at the Terminal Building shall have the right to the
use of vehicular parking facilities in common with other employees. Such facilities shall
be located in an area designated by City. City reserves the right to assess a reasonable
charge to recover the costs of providing such space to such Concessionaire employees,
in common with other Airport/tenant employees, for such parking facilities.
Concessionaires are encouraged to incentivize employees to utilize alternative, more
environmentally friendly modes of transportation including mass transit, ride sharing, etc.
SECTION 6.09 POINT OF SALE (POS) TERMINALS
Concessionaire must install a Point of Sale (POS) Terminal(s) to accurately record all
business transactions occurring in each Concession Location for accounting, reporting,
and auditing purposes as set forth herein.
All POS Terminals used at the Airport must have at a minimum, the following features:
1. Multiple segregated category addresses to allow for accurate and complete
reporting of Gross Receipts/Revenues by various goods and services categories.
2. The capability of recording transactions by sequential control number to an audit
tape or computer file.
3. Mobile POS payment capabilities or other similar electronic devices.
4. The capability of recording any discounts that are applied to a transaction.
5. The capability of printing a transaction history to tape or computer file by category
of goods or services, time of day, day, month, and year by category.
6. The capability of printing customer receipts showing the transaction amount, the
amount tendered, the amount of change due to the customer, and the time and
date of the transaction. Additionally, the customer receipt must show
Concessionaire’s contact information including name, phone number and email
address for any customer concerns, complaints, or questions.
7. A fee display of sufficient size and legibility that is placed in a location visible to the
customer during a transaction.
8. A secure transaction audit tape or ASCII transaction file on a removable storage
device.
9. Such terminal will be non-re-settable.
10. The capability to capture passenger data and flight scanning boarding card on
every transaction. This passenger/flight data should be associated/added to a
transaction record.
11. The capability to capture basic survey information from passengers (i.e.,
measuring customer satisfaction from 1 to 5). This information should be
associated/added to a transaction record.
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12. The capability to generate log file for audit purposes including transaction creation,
delete or modification. This log entry should be controlled by a sequential control
number.
13. Concessionaire will ensure that POS terminals comply at all times with the
requirements set forth within this Agreement and, if necessary to allow for a
customer experience that meets or exceeds good industry practice and the
customer service standards set forth in this Agreement, and that they are refreshed
and modernized whenever refurbishments are required under this Agreement.
14. Concessionaire has confirmed in the Concessionaire’s Response that it will meet
the criteria specified herein. Failure to comply will become apparent through City
not receiving all the required data and through the financial audits.
City shall have the right to: (a) examine during business hours the totals of any POS used
on the Premises and to inspect such POS for compliance with this Section; and (b)
implement an hourly or daily reporting system with which Concessionaire shall comply;
and Additionally, Concessionaire shall ensure a capability within its mobile POS for the
installation of Airport and Airport partner applications that can be integrated with Tenant’s
POS to exchange data and make possible future opportunities to support passengers and
airlines with vouchers, coupons, and other mutually beneficial marketing programs.
SECTION 6.10 CASH HANDLING AND CREDIT CARD REQUIREMENTS
Concessionaire shall always observe cash-handling and record-handling procedures in
accordance with sound accounting and financial control practices and as necessary to
provide timely and accurate reports to City. City may at any time during the Term request
a copy of these procedures. City shall have the right to monitor and test all of
Concessionaire’s procedures and controls and require Concessionaire to make changes
to its procedures.
Concessionaire must accept, but is not limited to, the following cash and non-cash
payment options: US currency and at least three (3) major accepted credit cards.
Concessionaire may also accept electronic payment options.
Concessionaire shall always comply with the most recent payment card industry data
security standard requirements. No minimum credit card or debit card purchase amount
or charge for credit card purchases is allowed. Concessionaire’s Independent CPA must
yearly certify Concessionaire’s operations are compliant with Payment Card Industry Data
Security Standards. City reserves the right to receive reports required by the Payment
Card Industry Security Standards Council. Concessionaire must report any breach of its
payment card industry data to the City within 24 hours of its finding of the breach.
SECTION 6.11 ADVERTISED SALES OR PROMOTIONS
Concessionaire is required to participate in all advertised sales or promotions, by
whatever media outlet, conducted by its parent corporation, its franchisor, or its selected
operating brands. Concessionaire is not permitted to (a) use or permit the use of the
Premises for the conduct of an outlet store or a second-hand store; or (b) advertise any
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distress, fire, bankruptcy, liquidation, relocation, closing, closeouts of goods or services
or going-out-of-business sales.
Concessionaire must make a reasonable effort to ensure that all corporate
advertisements that list multiple locations will list the Airport as a participating location of
the promotion or sales. If participation in a sale or promotion harms Concessionaire,
Concessionaire may request, in advance of the sale or promotion, in writing to City to be
exempted from participation.
Concessionaire may not advertise in the Airport, except with City’s advertising
Concessionaire who sells advertising at the Airport. Permission will not be granted to
Concessionaire for any other advertising at the Airport. Concessionaire shall not use nor
permit Premises to be used as a medium for third party paid advertising, including
sponsorships or any advertising material, sign, fixture, or equipment, whether paid for in-
kind, by cash, or by credit. Concessionaire shall not use any advertising or promotional
medium that may be seen, heard, or otherwise experienced outside the Premises (such
as searchlights, barkers, or loudspeakers); distribute handbills or circulars to Airport
patrons or to cars in the parking lots, or engage in any other advertising in the Airport; or
engage in any activity on the Airport outside the Premises for the recruitment or
solicitation of business.
SECTION 6.12 COMPLAINTS
All customer complaints, written or oral, received directly or referred to Concessionaire
by City must be responded to by Concessionaire within 48 hours of notice.
Concessionaire shall make a reasonable attempt to explain, resolve or rectify the cause
of the complaint. A written copy of Concessionaire’s response shall be delivered to City
within the 48-hour period.
If City establishes a toll-free customer complaint telephone number or online submission
form for customer complaints, Concessionaire shall be required to participate and shall
respond to complaints immediately. All other issues regarding the quality of service and/or
prices raised on City’s own initiative may be submitted to Concessionaire for response,
which response shall be provided by Concessionaire to the Airport Director within 48
hours.
SECTION 6.13 OPERATING PROCEDURES AND STANDARDS
A. City Requirements. The occupancy and use by Concessionaire of the Premises and
the rights herein conferred upon Concessionaire shall be conditioned upon and
subject to all present and future statutes and ordinances, rules and regulations
promulgated thereunder, of all federal, state, local and other governmental bodies
of competent jurisdiction that apply in any manner to Concessionaire or
Concessionaire's operations and activities under this Agreement as are now or may
hereafter be prescribed by City through the lawful exercise of its powers.
Concessionaire covenants to operate the Concession in accordance with the Tenant
Handbook.
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B. Health and Safety Standards. Concessionaire shall comply with all health and
sanitary regulations adopted by City, State of California, and any other governmental
authority with jurisdiction. Concessionaire shall give access for inspection purposes
to any duly authorized representatives of all such governing bodies. Concessionaire
shall provide City with copies of all inspection reports by other health and sanitary
governing bodies within 48 hours of receipt. This paragraph does not require
Concessionaire to waive any applicable attorney-client or attorney work product
privileges.
C. Sustainability. City is committed to incorporating sustainable practices into all
aspects of Airport operations. Concessionaire shall operate in a manner consistent
with any current or future sustainability policies and participate in any sustainability
programs outlined in this Agreement at its own cost and expense.
D. Additional Compliance. Concessionaire shall comply with all applicable
governmental laws, ordinances, regulations, codes and permits in the conduct of its
operations under this Agreement including, but not limited to, TSA regulations
regarding products or procedures.
E. Concessionaire’s Standards. Concessionaire shall submit to City a copy of its
standards, plans and manuals for customer service and operation, at least thirty (30)
days prior to commencement date, and as updated during the Term. Concessionaire
shall ensure continuous adherence to Concessionaire’s own standards in addition
to other standards as set forth herein.
SECTION 6.14 COMPREHENSIVE MANAGEMENT OPERATIONS PLAN AND MANUAL.
Concessionaire shall, within thirty (30) days of the Effective Date of this Agreement,
prepare and submit to Director or designee for approval a Comprehensive Management
Operations Plan and Manual (Operations Manual) for meeting Concessionaire's
responsibilities under this Agreement, to include performance targets, goals and
measures. Concessionaire shall maintain such Operations Manual during the Term of this
Agreement and any extensions thereof pursuant to the following conditions:
A. The Operations Manual shall include, but not be limited to, an identification of each
of Concessionaire's performance responsibilities as set forth by this Agreement,
and an identification of Concessionaire's other legal obligations, pursuant to
applicable provisions of law and relevant to Concessionaire's performance at the
Airport under this Agreement.
B. The Operations Manual shall further include a comprehensive summary of the
means, methods, procedures, and controls which Concessionaire will employ to
satisfy its contractual obligations to City, as set forth in this Agreement, and to
satisfy Concessionaire's other legal obligations, pursuant to applicable provisions
of law and relevant to Concessionaire's performance at the Airport under this
Agreement.
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C. The Operations Manual shall specifically include safety and emergency action
plans for the employees of the Concessionaire’s facilities.
D. This Agreement shall take precedence over the Operations Manual where any
provision or interpretation of the Operations Manual is in any way inconsistent with
the terms of this Agreement.
E. Concessionaire shall review the Operations Manual frequently and thoroughly for
needed revisions in response to changing conditions or for operational
improvements. Concessionaire shall revise the Operations Manual periodically, as
necessary, to reflect current operating procedures as approved by Director or
designee. Revisions of the Operations Manual must be approved in writing by
Director or designee prior to implementation by Concessionaire.
F. Concessionaire shall incorporate and issue any revisions to the Operations Manual
as Director or designee may specify to Concessionaire from time to time in writing.
Should Concessionaire consider any such revisions to be in conflict with the terms
of this Agreement, Concessionaire shall promptly inform Director or designee in
writing of the potential conflict. Concessionaire agrees that in such event, the
instructions of Director or designee shall be implemented for a minimum of ten (10)
business days while awaiting a response and resolution from Director or designee
unless such action would hazard the health or safety of the public or of
Concessionaire’s employees, or result in Concessionaire’s violation of applicable
laws or ordinances. In such case Concessionaire shall include such notification of
potential hazard or violation of the law when initially informing Director or designee
of the conflict or as soon as it is determined that such potential may exist.
G. Concessionaire shall ensure that a current, complete, and correct copy of the
Operations Manual is continuously maintained on file with Director or designee.
H. Copies of the Operations Manual shall be kept constantly available on-site by
Concessionaire for Concessionaire and City's reference and use, and shall be
accessible to Concessionaire's employees during the Term of this Agreement, and
any extensions thereof. To the extent that portions of the Manual might
compromise revenue control or relate to other sensitive matters, such portions may
be withheld from copies provided for general use of employees. The specific
material to be withheld from copies provided for general employee use shall be
submitted for approval by Director or designee prior to issue of those copies.
I. Concessionaire shall conform all issued copies of the Operations Manual,
including any revisions, with the exception of the withholding of material (related
to revenue control or other sensitive areas) from copies provided for general
employee use, as previously described in this Section.
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SECTION 6.15 CLEANING AND ROUTINE MAINTENANCE
A. General Obligations
Concessionaire shall ensure that the Concession is maintained and operated in an
optimal manner and that the Premises are kept in a safe, clean, orderly, and inviting
condition always in a manner satisfactory to City. To comply with these requirements,
Concessionaire must regularly review or cause to be reviewed the Premises and its
operations at the Airport.
B. Preventive and Routine Cleaning and Maintenance Program
Concessionaire shall be responsible for preventive and routine cleaning and maintenance
of all assets within the Premises, whether built by Concessionaire or City, from the
commencement date through the expiration of the Term. No less than thirty (30) days
prior to the opening of any portion of the Premises, Concessionaire shall establish a
preventive and routine cleaning and maintenance program for the Premises, including but
not limited to the list of items below. This maintenance program must meet or exceed the
cleaning and maintenance requirements of the manufacture's equipment manuals a copy
of which shall be provided at the request of the airport within ten (10) business day of the
request. The provisions of the program shall be subject to the initial written approval of
and periodic review by City. Upon request by City, Concessionaire shall provide City a
written schedule of Concessionaire’s cleaning and maintenance program.
For Concessions with terms greater than five (5) years and or extended or held over, in
the fifth year of operation, the concessionaire agrees to hire a third-party cleaning
company and conduct a full-store cleaning either during the overnight hours or close the
store for 24 hours during the lowest passenger period of the year, as outlined in the
Tenant Handbook. The extent of the cleaning and certification of the cleaning must be
provided and agreed to in writing by City.
1. Janitorial Service. Concessionaire, at its own cost and expense in all
Concession Spaces and Support Space locations. Concessionaire shall ensure
that the Premises and the Common Use Areas adjacent to the Premises are
kept clean and free from all rubbish and refuse.
2. Pest Control. Concessionaire, at its own cost and expense, is responsible for
pest control within the Premises. Concessionaire will contract with a
professional pest control service to provide pest control services on a regular
basis and at any other times as needed. Concessionaire will coordinate its pest
control service with third parties as directed by City. Upon request,
Concessionaire must furnish City a copy of its pest control contract, monthly
service schedule, and monthly service reports. Concessionaire agrees to
coordinate with City and other concessionaires to provide the most effective
pest control services for the Airport.
City, in its sole discretion, may elect to provide or contract for pest control
services on Concessionaire’s behalf. If City elects to provide or contract for pest
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control services on Concessionaire’s behalf, Concessionaire covenants to pay
its share of the cost of such services, in an amount determined by City. In such
cases, Concessionaire must cooperate with City’s chosen pest control
contractor.
3. Plumbing. Concessionaire, at its own cost and expense, shall provide routine
plumbing services for the Premises in accordance with the Tenant Handbook.
Concessionaire shall ensure that activities within the Premises do not damage
or harm the central water, plumbing, and sewer infrastructure at the Airport.
Concessionaire shall properly maintain all water hook-ups within the Premises.
Concessionaire must furnish City a copy of its plumbing contract, monthly
service schedule, and monthly service reports, as directed by City.
Concessionaire agrees to coordinate with City and other concessionaires to
provide the most effective plumbing services for the Airport. Concessionaire
shall coordinate and comply with the cleaning and routine maintenance
recommendations of City.
City, in its sole discretion, may elect to provide or contract for plumbing services
on Concessionaire’s behalf. If City elects to provide or contract for plumbing
services on Concessionaire’s behalf, Concessionaire covenants to pay its
share of the cost of such services, in an amount determined by City. In such
cases, Concessionaire must cooperate with City’s chosen plumbing
Contractor.
The plumbing facilities within the Premises and elsewhere in the Airport shall
not be used for any purpose other than for the purposes for which they were
constructed, and no foreign substance of any kind shall be thrown therein. The
expense to repair any breakage, stoppage, or damage resulting from a violation
of this paragraph, wherever the breakage, stoppage or damage occurs, shall
be charged by City to Concessionaire, regardless of the cause.
4. Electricity. Concessionaire, at its own cost and expense, shall install and
maintain an electric meter and a gas meter for each Concessions Location in
accordance with the Tenant Handbook. Concessionaire, at its own cost and
expense, shall install and maintain all power circuits and connections required
for equipment and mechanical systems used within the Premises.
Concessionaire shall ensure that activities within the Premises do not damage
or harm the central electricity or natural gas infrastructure at the Airport.
Concessionaire shall coordinate and comply with the cleaning and routine
maintenance recommendations of City.
5. HVAC. Concessionaire, at its own cost and expense, shall install and maintain
any ductwork and other HVAC connections for the Premises in accordance with
the Tenant Handbook. Should the concessionaire add equipment to the
Concession Space which increases heat in the space beyond the design of the
central HVAC system of the airport, Concessionaire is required to add HVAC
to accommodate the change in condition at their own expense. Concessionaire
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agrees to properly maintain the ductwork and other connections within the
Premises. Concessionaire shall ensure that activities within the Premises do
not damage or harm the central HVAC infrastructure at the Airport. Subject to
conditions beyond its control, City shall maintain under normal conditions a
temperature adequate for comfortable occupancy according to the season;
provided, that Concessionaire properly maintains the ductwork and other
connections within or leading into the Premises and complies with the
recommendations of City regarding reasonable occupancy and use of the
Premises. Concessionaire shall coordinate and comply with the cleaning and
routine maintenance recommendations of City.
6. Grease Removal Systems. If Concessionaire installs grease removal systems
in addition to those provided and maintained by City and used only by
Concessionaire, Concessionaire shall, at its own expense, regularly, but not
less than four (4) times per year, check and clean its grease removal systems,
whether located within the Premises or elsewhere in the Airport.
Concessionaire agrees to properly maintain all installed grease removal
systems within the Premises. Concessionaire must maintain the grease traps
in accordance with the manufacturer's specifications to allow for the optimal
efficiency in removing fats, oils, and grease from the waste stream before it
enters the systems provided by City. Concessionaire must also maintain its
used cooking oil/liquefied grease collection systems in accordance with the
manufacturer's specifications to allow for optimum efficiency in the recovery,
transfer, containment, and collection of used cooking oil/liquefied grease
suitable for reclaim. Concessionaire shall ensure that activities within the
Premises do not damage or harm the central grease removal infrastructure at
the Airport. Concessionaire shall coordinate and comply with the cleaning and
routine maintenance recommendations of City.
7. Trash, Waste, and Refuse. Concessionaire, at its own cost and expense, shall
comply with any Airport-wide waste diversion programs, including but not
limited to recycling, composting, or any future programs for removal and
disposal of all trash, waste and other refuse caused because of performance
of this Agreement. Concessionaire shall use designated locations, containers
and transport routes for trash, waste and refuse removal and disposal as set
forth in the Tenant Handbook. Concessionaire may not place or leave or permit
to be placed or left in or upon any part of the common areas or corridors
adjacent to the Premises any trash, waste, or refuse. Concessionaire shall
ensure that storage, transportation, and disposal of all trash, waste, and other
refuse does not damage or harm any structures or infrastructure at the Airport.
8. Lighting. Concessionaire, at its own costs and expense, shall install and
maintain all lighting fixtures and wiring for general illumination of the Premises
in accordance with the Tenant Handbook. Concessionaire agrees to properly
maintain the lighting fixtures wiring used for general illumination within the
Premises. Concessionaire shall ensure that activities within the Premises do
not damage or harm the central electricity infrastructure at the Airport.
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Concessionaire shall coordinate and comply with the cleaning and routine
maintenance recommendations of City.
C. Maintenance Personnel and Program
Concessionaire covenants to employ or contract with sufficient personnel and provide
necessary equipment to keep the Premises and all furniture, furnishings, fixtures, and
equipment clean, neat, safe, sanitary, and in good working order and condition always
pursuant to the maintenance requirements of this Agreement.
D. City Sole Judge of Maintenance
City shall be the sole and absolute judge of the quality of Concessionaire’s maintenance
of the Premises. City or its representative may at any time, without notice, enter the
Premises to determine if maintenance satisfactory to City is being performed.
Performance by Concessionaire of maintenance pursuant to a written maintenance plan
previously approved by City shall be conclusive evidence of satisfactory maintenance
unless City determines that there is a present danger or safety hazard within the
Premises. If City determines that maintenance is not satisfactory, City shall notify
Concessionaire in writing. Concessionaire will perform the required maintenance, to City’s
satisfaction, within fifteen (15) days after receipt of written notice or City or its
representative shall have the right to enter upon the Premises and perform the
maintenance. However, where unsatisfactory maintenance threatens the safety, health,
or welfare of the traveling public and/or Airport’s facilities, Concessionaire shall
immediately perform the maintenance. Where City or its representative performs
maintenance, Concessionaire agrees to promptly reimburse City for the cost thereof, plus
an administrative fee of fifteen percent (15%) of the maintenance costs without prior
quote.
E. Emergency Repairs
In the event of an emergency repair is required, Concessionaire shall notify City of the
repair situation as soon as possible. Following such notice, City may inspect the repair
work and require alterations if the repair is not satisfactory to City. In the event of an after-
hours emergency repair, Concessionaire agrees City shall have the right to enter any
affected portion of the Premises and preform the emergency repair. Concessionaire
covenants to promptly pay to City the costs associated with any after-hours emergency
repair. All emergency repairs requiring shutdown of any Airport system or utility require
prior written approval of City. If any emergency repair affects other tenants at Airport, City
may, at in its sole discretion, fix the problem immediately and invoice Concessionaire.
Concessionaire covenants to promptly pay to City any proportional costs of emergency
repairs completed by City, which Concessionaire may have contributed to the cause of
the incident.
SECTION 6.16 COMMON MAINTENANCE
City shall be responsible for common maintenance of the following central systems
located throughout Airport, except for assets, connections, or systems located within the
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Premises. Concessionaire waives all claims against City for performance of common
maintenance at Airport.
A. Electricity Systems
City will furnish normal and reasonable quantities of electricity and gas to the Premises.
Concessionaire covenants to pay to City, Concessionaire’s share of the costs of such
cleaning, maintenance, and repair, in an amount determined by City. City will clean,
maintain, and repair, for the benefit of Concessionaire, central electricity, and natural gas
systems at Airport.
B. HVAC Systems
City will furnish normal and reasonable quantities of central air from the central HVAC
system at Airport to the Premises and all necessary power and electricity for such central
air circulation. City will maintain under normal conditions a temperature adequate for
comfortable occupancy according to the season. City will clean, maintain, and repair, for
the benefit of Concessionaire, central HVAC infrastructure and systems at Airport.
Concessionaire covenants to pay to City Concessionaire’s share of the costs of such
cleaning, maintenance, and repair, in an amount determined by City.
C. Life Safety Systems
City will maintain and repair, for the benefit of Concessionaire, life safety systems at
Airport. Concessionaire covenants to pay to City Concessionaire’s share of the costs of
such maintenance and repair, in an amount determined by City.
D. Sanitary Sewer System
City will furnish water from the central water source to the Premises in reasonable
quantities; provided that Concessionaire must comply with all water conservation
programs in effect or as adopted. City will clean, maintain, and repair, for the benefit of
Concessionaire, central water, plumbing, and sewer infrastructure and systems at Airport.
Concessionaire covenants to pay to City, Concessionaire’s share of the costs of such
cleaning, maintenance, and repair, in an amount determined by City.
E. Trash, Waste and Refuse
City reserves the right, if deemed to be in its best interests, to provide trash, waste and
other refuse receptacles and pick up services. Concessionaire shall be solely responsible
for removing all trash, waste, and recycling from each Premises location to the allotted
area. Concessionaire covenants and agrees to participate in any Airport-wide trash,
waste, and other refuse removal, disposal, or recycling program for any type of trash,
waste, and refuse at its own cost. In the event, City elects to provide these services on
behalf of Concessionaire, Concessionaire covenants to pay its share of the cost of such
trash, waste and other refuse removal, disposal, and recycling services, in an amount
determined by City.
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F. Exterior Windows and Structures
City will clean, maintain, and repair, for the benefit of Concessionaire, exterior windows,
and all structural parts of the Airport. City’s maintenance shall include exterior glass,
walls, and roof but specifically excludes Concessionaire Improvements and Trade
Fixtures. Concessionaire covenants to pay to City Concessionaire’s share of the costs of
such cleaning, maintenance, and repair, in an amount determined by City.
SECTION 6.17 PAGING, AUDIO, VIDEO SYSTEMS AND FREQUENCY PROTECTION
If Concessionaire installs, with City’s approval, any type of radio transceiver or other
wireless communications equipment, Concessionaire will provide frequency protection
within the aviation air/ground VHF frequency band and the UHF frequency band in
accordance with restrictions promulgated by the FAA for the vicinity of FAA Transmitter
or Receiver facilities. City requires Concessionaire to submit a completed FAA Form
7460-1 (Notice of Proposed Construction or Alteration) and receive FAA approval prior to
installation based upon the notice to file requirements under 14 CFR Part 77.
Frequency protection will also be provided for all other frequency bands operating in the
vicinity of Concessionaire’s equipment. If frequency interference occurs because of
Concessionaire’s installation, City reserves the right to shut down Concessionaire’s
installation until appropriate remedies to the frequency interference are made by
Concessionaire. Remedies may include relocation of Concessionaire’s equipment to
another site. The cost to remedy the frequency interference will be solely at
Concessionaire’s expense. Concessionaire acknowledges and accepts that any paging
or audio systems installed by Concessionaire may be used by City to announce any
notification or emergency at the Airport. City shall not be liable to Concessionaire for any
use of the paging or audio systems installed by Concessionaire.
SECTION 6.18 PROHIBITED ACTS
Unless approved in writing in advance by City, in its sole discretion, Concessionaire shall
not install or permit to be installed coin-operated vending machines on the Premises.
Concessionaire will not place excessive loads on the walls, ceilings, and floor or
pavement areas of Airport and will repair any area damaged by excessive loading to the
satisfaction of City.
Unless approved in writing in advance by City, in its sole discretion, Concessionaire will
not permit the active display or operation on the Premises of any display that flies, flashes,
or emits a noise or odor.
Unless approved in writing in advance by City, in its sole discretion, Concessionaire will
not keep or display any merchandise on or within, or otherwise obstruct, any part of the
Airport outside of the Premises. Concessionaire shall keep all service corridors, hallways,
stairways, doorways, or loading docks leading to and from the Premises free and clear of
all obstructions.
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Concessionaire will not interfere or permit interference with the use, operation, or
maintenance of the Airport, including but not limited to, the effectiveness or accessibility
of the drainage, sewerage, water, communications, fire protection, utility, electrical or
other systems installed or located from time to time at the Airport. Concessionaire will not
do or permit to be done anything that may interfere with free access and passage on the
Premises or the public areas adjacent thereto, or hinder police, firefighters, or other
emergency personnel in the discharge of their duties. Further, Concessionaire shall not
do or permit to be done anything that might interfere with the effectiveness or accessibility
of elevators or escalators in or adjacent to the Premises, including lines, pipes, wires,
conduits, and equipment connected with or appurtenant thereto.
Concessionaire shall not place any additional lock of any kind upon any window or interior
or exterior door in the Premises or make any change in any existing door or window lock
or the mechanism thereof, unless a key therefor is maintained on the portion of the
Premises were furnished to or otherwise procured by Concessionaire. If any keys
furnished to Concessionaire by City are lost, Concessionaire shall pay City, on demand,
the cost for replacement thereof.
Concessionaire will comply with and conform to all present and future statutes and
ordinances, rules and regulations promulgated thereunder, of all federal, state, local and
other governmental bodies of competent jurisdiction that apply in any manner to
Concessionaire or Concessionaire's operations and activities under this Agreement. In
the event Concessionaire fails to adhere to all present and future statutes and ordinances,
rules and regulations promulgated thereunder, of all federal, state, local and other
governmental bodies of competent jurisdiction that apply in any manner to
Concessionaire or Concessionaire's operations and activities under this Agreement or
fails to prevent any other of the prohibited acts set forth in this Section, City may collect
Liquidated Damages as set forth in this Agreement until such prohibited act is ended.
Payment of Liquidated Damages will be due within fifteen (15) days from the date of
invoice. Moreover, if the prohibited act is not corrected as directed by City, City or its
representative shall have the right to enter upon the Premises and take corrective action,
and Concessionaire agrees to promptly reimburse City for any related costs, plus an
administrative fee equal to fifteen percent (15%) of the corrective action costs.
ARTICLE VII - FAILURE TO COMPLY WITH PERFORMANCE/OPERATING
STANDARDS
SECTION 7.01 VIOLATIONS
Concessionaire acknowledges City’s objective to provide the public and air travelers with
the level and quality of service as described herein. Accordingly, City has established a
series of liquidated damages, as set forth in the Tenant Handbook that it may assess, in
its sole discretion, as liquidated damages for various violations of the provisions of this
Agreement, the Tenant Handbook, and/or City’s Rules and Regulations. Concessionaire
and City agree that the damages set forth herein are reasonable estimates of the
significant but difficult to predict harm, and Concessionaire further agrees to pay to City
such liquidated damages in accordance with the rates or in the amounts specified herein
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upon each occurrence of the specified violation or written demand by City. City will, in its
sole discretion, determine the classification of each violation as per day or per occurrence.
Concessionaire further acknowledges that the Liquidated Damages are not exclusive
remedies and City may pursue other additional remedies as allowed for in this Agreement
and/or at law, in City’s sole discretion. City’s waiver of any payment provided for in this
Section shall not be construed as a waiver of the violation or Concessionaire’s obligation
to remedy the violation.
SECTION 7.02 MULTIPLE VIOLATIONS
Except for violations of requirements regarding construction, health and safety, delivery
and vendor access infractions, Liquidated Damages for which shall accrue and be
assessed immediately and without notice upon violation, all other Liquidated Damages
shall accrue immediately and assessed as follows:
A. For the first and second violation of a requirement during any twelve (12) month
rolling year, City will provide notice to Concessionaire to correct the violation within
thirty (30) days or other the time specified in the notice. After the time specified by
City for cure, Liquidated Damages shall be assessed until the violation is corrected
by Concessionaire. In the event, the violation is not corrected within thirty (30) days
of the time specified by City for cure, then such violation will be treated as a breach
of this Agreement entitling City the right to seek any other remedies available under
this Agreement including, but not limited to, termination.
B. For the third and subsequent violations of the same requirement during any twelve
(12) month rolling year commencing upon the first notice of violation, the liquidated
damage shall be immediately assessed with no grace period.
C. Further, after two (2) violations of the same requirement within any twelve (12)
month rolling year, City reserves the right, in its sole discretion, to deem the
repeated violations a material breach of this Agreement and to seek any other
remedies available to it under this Agreement including, but not limited to,
termination of this Agreement.
D. For those violations where a plan is required to correct the violation, then
Concessionaire and City shall develop such plan, including a time schedule under
which resolution can be achieved.
SECTION 7.03 SECTION PAYMENT
Payment of Liquidated Damages will be due within fifteen (15) days from the date of
invoice.
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ARTICLE VIII - FEDERAL AID REQUIREMENTS
SECTION 8.01 NON-DISCRIMINATION
Concessionaire covenants it will comply with the Title VI List of Pertinent
Nondiscrimination Statutes and Authorities, as they may be amended from time to time,
which are attached hereto and herein incorporated as Appendix D.
Concessionaire covenants, regarding the work performed under this Agreement, it will
not discriminate on the grounds of race, color, or national origin in the selection and
retention of subcontractors, including procurements of materials and leases of equipment.
Concessionaire covenants it will not participate directly or indirectly in the discrimination
prohibited by any federal acts and or regulations, including employment practices when
the Agreement covers any activity, project, or program set forth in Appendix B of 49 CFR
part 21.
In all solicitations, either by competitive bidding, or negotiation made by Concessionaire
for work to be performed under a subcontract, including procurements of materials, or
leases of equipment, each potential subcontractor or supplier will be notified by
Concessionaire of the Contractor’s obligations under this Agreement and the Federal Acts
and Regulations relative to Non-discrimination on the grounds of race, color, or national
origin.
Concessionaire covenants it will provide all information and reports required by the
Federal Acts, Regulations, and directives issued pursuant thereto and will permit access
to its books, records, accounts, other sources of information, and its facilities as may be
determined by City or the FAA to be pertinent to ascertain compliance with such Acts,
Regulations, and instructions. Where any information required of Concessionaire is in the
exclusive possession of another who fails or refuses to furnish the information,
Concessionaire will so certify to City or the FAA, as appropriate, and will set forth what
efforts it has made to obtain the information.
In the event, of Concessionaire’s noncompliance with the non-discrimination provisions
of this Agreement, City will impose such sanctions as it or the FAA may determine to be
appropriate, including, but not limited to:
A. Withholding payments to Concessionaire under this Agreement until the
Concessionaire complies.
B. Cancelling, terminating, or suspending this Agreement, in whole or in part, and re-
enter the Premises as if this Agreement had never been made or issued.
This provision will not be effective until the procedures of 49 CFR Part 21 are followed
and completed, including exercise or expiration of appeal rights.
Concessionaire covenants it will include the provisions of this section in every
subcontract, including procurements of materials and leases of equipment, unless exempt
by the Federal Acts, Regulations and directives issued pursuant thereto. Concessionaire
covenants it will act with respect to any subcontract or procurement as City or the FAA
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may direct as a means of enforcing such provisions including sanctions for
noncompliance. Provided, that if Concessionaire becomes involved in, or is threatened
with litigation by a subcontractor, or supplier because of such direction, Concessionaire
may request City to enter into any litigation to protect the interests of City. In addition,
Concessionaire may request the United States to enter into the litigation to protect the
interests of the United States.
Further, in connection with the performance of work under this Agreement,
Concessionaire agrees not to refuse to hire, discharge, promote, demote, or to
discriminate in matters of compensation against any person otherwise qualified solely
because of race, creed, color, religion, national origin, gender, age, military status, sexual
orientation, gender variance, marital status, and/or physical and mental disability.
Concessionaire further agrees to insert the foregoing provision in all subcontracts
hereunder.
SECTION 8.02 CITY’S AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE
(ACDBE) POLICY
As a condition of eligibility for financial assistance from the FAA, City developed and
implemented an Airport Concession Disadvantaged Business Enterprise (ACDBE) Policy
and Program for the Airport. The ACDBE Program was developed and implemented in
accordance with the U.S. Department of Transportation’s (DOT) Final Rule 49 CFR Part
23.
Director or designee is responsible for compliance with all aspects of the ACDBE
program. The City of Fresno, DBE Coordinator has established ACDBE program goals
for the Airport and may also establish ACDBE concession specific goals as a percentage
of annual Gross Receipts/Revenues for this Agreement. The applicable concession
specific ACDBE program’s goal, if any, is stated in this Agreement. The stated goal was
included in a competitive solicitation process in which Concessionaire was recommended
to operate in the Premises. During that process, Concessionaire submitted its required
Exhibit E to meet the ACDBE program’s goal. The Airport found the required Exhibit E
to be responsive and thus, required Exhibit E is attached to this Agreement. During the
Term of this Agreement, Concessionaire agrees that it shall in good faith make every
effort to meet the stated ACDBE program’s goal.
To carry out its ACDBE program responsibilities as they are described in this Agreement
and in the required Exhibit E, Concessionaire agrees to assign this responsibility to a
high-level company official accountable directly to Concessionaire’s chief executive
officer. Concessionaire acknowledges that if its actions or failure to act violates its ACDBE
program responsibilities under this Agreement or the ACDBE regulations of the DOT as
they may be adopted or amended from time to time, such actions shall constitute a
material breach by Concessionaire of this Agreement and, in addition to all other
remedies available to City, City may, in its sole discretion, terminate this Agreement.
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SECTION 8.03 ACDBE NON-DISCRIMINATION
A. Concessionaire and any subcontractor of Concessionaire will not discriminate
based on race, color, national origin, or sex in performance of this Agreement.
Concessionaire will carry out applicable requirements of 49 CFR Part 23 and 26 in
the award and administration of agreements. Failure by Concessionaire to carry
out these requirements is a material breach of this Agreement, in addition to all
other remedies available to City, City may, in its sole discretion, terminate this
Agreement.
B. This Agreement is subject to the requirements of the DOT’s regulations 49 CFR
Part 23 and 26. Concessionaire agrees that it will not discriminate against any
business owner because of the owner’s race, color, national origin, or sex in
connection with the award or performance of any concession agreement,
management contract, or subcontract, purchase or lease agreement, or other
agreement covered by 49 CFR Part 23 and 26.
Concessionaire agrees to include the statements in the above paragraphs in any
subsequent concessions agreement or contracts covered by 49 CFR Part 23 and
26 that it enters and cause those businesses to similarly include the statements in
further agreements.
SECTION 8.04 ACDBE PARTICIPATION AND COMPLIANCE
A. ACDBE Goal
Concessionaire agrees that it will provide for a level of ACDBE participation in this
Agreement equal to or greater than Thirty percent (30 %) of the total annual Gross
Receipts/Revenues, or clearly demonstrate in a manner acceptable to City its good faith
efforts to do so. Concessionaire will contract with those ACDBEs as identified in Exhibit
E for each ACDBE presented with Concessionaire’s Response and approved by City, or
such other ACDBEs certified with City and as may be approved by City. Concessionaire
is required to make good faith efforts to explore all available options to meet the goal to
the maximum extent practicable through direct ownership arrangements with ACDBEs.
Concessionaire shall not take any action during the Term of this Agreement that may
have a materially negative impact upon the Concessionaire’s ability to meet its stated
ACDBE program goal.
B. ACDBE Termination and Substitution
Concessionaire will not terminate an ACDBE for convenience without City's prior written
consent. If an ACDBE is terminated by Concessionaire with City's consent or, if an
ACDBE fails to complete its work on this Agreement for any reason, Concessionaire must
make good faith efforts, in accordance with the requirements of 49 CFR Part 23.25(e) (1)
(iii) and (iv), to find another ACDBE to substitute for the original ACDBE to provide the
same amount of ACDBE participation. Concessionaire shall forthwith submit to the Airport
and to the Director or designee a modified ACDBE Good Faith Effort together with a
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written request for review and approval, setting forth the circumstances in sufficient detail
and with appropriate documentation to explain the necessity for the change. In every
case, Concessionaire shall substitute a City certified ACDBE, and if it cannot, then
Concessionaire shall be required to document that it made good faith efforts to do so.
C. Reporting Requirements
No later than fifteen (15) days after the end of each calendar month during the Term,
Concessionaire will submit to Airport, in Airport’s online system or on Airport’s monthly
ACDBE Utilization Report form, a report of Concessionaire’s total Gross
Receipts/Revenues during the month and the total dollar value of Gross
Receipts/Revenues earned by an ACDBE under this Agreement or the total dollar value
of goods and services purchased or leased from each ACDBE during the month, in each
case calculated in accordance with the requirements of 49 CFR Part 23. If any reported
ACDBE participation is from the purchase and/or lease of goods and services,
Concessionaire must submit to Airport, on Airport’s monthly ACDBE Utilization Report
form, a report of the total dollar value of goods and services procured by the
Concessionaire from ACDBE and non-ACDBE (non-minority/woman- owned) firms.
Whenever a Joint Venture is used to meet ACDBE program goals, Concessionaire shall
submit to Airport an annual financial statement for the preceding year indicating
compensation, profit sharing, capital contributions of ACDBE partners, or any other
financial information as requested by Airport relevant to determining ACDBE program
compliance. Concessionaire shall also disclose annually the ACDBE partner’s
management involvement and its role in decision making. The annual financial statement
shall be on a form satisfactory to Airport and delivered to Airport no later than ninety (90)
days of the following year. Concessionaire further agrees to submit any other report(s) or
information that City is required by law or regulation to obtain from Concessionaire, or
which the Director of Aviation or designee may request relating to Concessionaire’s
operations.
D. Monitoring
Airport will monitor the compliance and good faith efforts of Concessionaire in meeting
the requirements of this Article. Concessionaire covenants to grant City and Airport
access to the necessary records to examine such information as may be appropriate for
the purpose of investigating and determining compliance with this Article , including, but
not limited to, records, records of expenditures, contracts between Concessionaire and
the ACDBE program participants, and other records pertaining to the ACDBE program
participation plan, which Concessionaire will maintain for a minimum of three (3) years
following the termination of this Agreement. Concessionaire covenants to grant City and
Airport site access to each Concession Location under this Agreement for purposes of
Airport monitoring. The extent of ACDBE program participation will be reviewed prior to
the exercise of any renewal, extension, or material amendment of this Agreement to
consider whether an adjustment in the ACDBE program requirement is warranted.
Without limiting the requirements of this Agreement, City reserves the right to review and
approve all sub-leases or subcontracts utilized by Concessionaire for the achievement of
these goals.
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E. Prompt Payment
Concessionaire agrees to pay each subcontractor under this Agreement for satisfactory
performance of its contract no later than ten (10) calendar days from the receipt of each
invoice and acceptance of work or services. Concessionaire agrees further to release
retainage payments to each subcontractor within ten (10) calendar days after the
subcontractor’s work is satisfactorily completed. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
approval of City. This clause applies to both Minority/Women Business Enterprise / Small
Business Enterprise (MWBE/SBE) and non-MWBE/SBE subcontractors.
F. Other Requirements
Concessionaire agrees to comply with Federal, State, and Local Disadvantaged Business
Programs as fully set forth in Exhibit E. Concessionaire’s failure to comply with Federal,
State, and Local Disadvantaged Business Programs shall constitute a material breach by
Concessionaire of this Agreement and, in addition to all other remedies available to City,
City may, in its sole discretion, terminate this Agreement.
G. Non-Compliance
In the event of Concessionaire’s non-compliance with the ACDBE program or failure to
meet the ACDBE program goal set forth in Section 8.03(A), or to demonstrate a good
faith effort to do so, City may, in addition to pursuing any other available legal remedy,
terminate, suspend or cancel this Agreement in whole or in part; and/or suspend or debar
Concessionaire from eligibility to contract with City in the future or to receive bid packages
or request for proposal packages or other solicitations, unless Concessionaire
demonstrates, within a reasonable time as determined by City, its compliance with the
terms of the ACDBE program or this Article or its good faith efforts to comply.
ARTICLE IX - CONSTRUCTION AND CAPITAL INVESTMENT
SECTION 9.01 CONSTRUCTION BY CONCESSIONAIRE
Concessionaire shall not make any improvements or modifications, do any construction
work on the Premises, or alter, modify, or make additions, improvements, replacements,
or repairs, except emergency repairs, to any structure now existing or built without prior
written approval of City. Concessionaire shall not install any fixtures, other than Trade
Fixtures, without the prior written approval of City. In the event, that any construction,
improvement, alteration, modification, addition, repair, excluding emergency repairs, or
replacement is made without City approval, or done in a manner other than as approved,
City may, at its discretion, (i) terminate this Agreement in accordance with the provisions
herein; or (ii) require Concessionaire to remove the same; or (iii) require Concessionaire
to change the same to the satisfaction of City. In case of any failure on the part of
Concessionaire to comply, City may, in addition to any other remedies available to it at
law or in equity, effect the removal or change referenced above in this Section and
Concessionaire shall pay the cost thereof to City plus fifteen percent (15%) of the costs
for administration.
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SECTION 9.02 DESIGN AND CONSTRUCTION STANDARDS
In its design and construction work on the Premises, Concessionaire will fully comply with
the standards and development guidelines in the Tenant Handbook. City reserves the
right to amend Tenant Work Permit Handbook during the Term. Concessionaire
covenants to comply with Tenant Work Permit Handbook in effect as of the date of any
construction it undertakes.
SECTION 9.03 INITIAL CAPITAL INVESTMENT
A. As a valuable consideration for City entering into this Agreement, but not as a
payment of rent or a form of consideration for the right to occupy space at the
Airport, but rather to relieve City from making expenditures for Premises occupied
by Concessionaire for the Term of this Agreement, Concessionaire’s Capital
Investment expended in the initial construction, furnishing and equipping of the
Premises shall not be less than the Minimum Capital Investment set forth in the
Response to the Request for Proposals, attached hereto and incorporated herein
as Exhibit K. If the actual Capital Investment, as certified by the Concessionaire,
is less than the Minimum Capital Investment, Concessionaire agrees to pay to City,
within thirty (30) days of such determination, the difference between the actual
Capital Investment and the Minimum Capital Investment. However, if the actual
Capital Investment, as certified by Concessionaire, is less than the Minimum
Capital Investment and Concessionaire delivers to City the initial construction,
furnishings, and equipment of the Premises, as reflected in the Approved Project,
City agrees to waive its right to the difference between the actual Capital
Investment and Minimum Capital Investment. Any amounts paid to City because
of this provision shall not be deemed a Capital Investment for any purpose under
this Agreement nor shall it be deemed payment of any rent or other fees due under
this Agreement.
B. For the purposes of this Agreement the City agrees to make the following changes to each
of the following Concession Spaces to make them available to the Concessionaire:
Space C-120, Space C203A, and Expansion location, as mutually agreed, to
by the parties, as expressed in a side letter, but not to exceed a basic shell
consisting of permanent walls, cement flooring, stubbed out utilizes and a
power panel
SECTION 9.04 DEVELOPMENT SCHEDULE
No later than thirty (30) days after the Effective Date, or at such later date as City may
designate, Concessionaire must submit to City, for its approval, a proposed schedule that
sets forth the following for each of the Concession Locations:
A. The anticipated date(s) of design submittals and reviews for each Concession
Location.
B. Concessionaire’s plan for temporary concessions locations to optimally service
passengers during development and construction.
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C. The anticipated Space Turnover Date(s) for each Concession Location.
D. The anticipated date of Substantial Completion of each Approved Project.
E. The anticipated opening date(s) for each Concession Location.
F. The expected Premises Completion Date for the entire Premises.
Upon approval by City, the Development Schedule will be attached hereto as Exhibit D,
Development Schedule, and will be confirmed by letter executed by the Director or
designee, without need for formal amendment to this Agreement.
If for any reason City does not deliver possession of a Concession Location to
Concessionaire on or after the approved Space Turnover Date, City shall not be subject
to any liability therefor. Such failure to deliver possession of a Concessions Location by
the time provided in the Development Schedule will not give rise to any claim for damages
by Concessionaire against City or against City’s contractor; nor shall such failure affect
the validity of this Agreement or Concessionaire’s obligations hereunder. Additionally, the
Required Opening Date(s) and expected Premises Completion Date, as stated in the
Development Schedule, shall be adjusted day for day, as mutually agreed upon by the
City and Concessionaire.
SECTION 9.05 SUBMITTAL AND APPROVAL OF PLANS
A. Submittal of Plans
Prior to Concessionaire’s commencement of any construction activities on the Premises
at any time during the Term, Concessionaire shall submit plans and specifications that
conform to all the requirements of Tenant Handbook to City for review and approval. No
construction work shall commence until City has approved the plans and specifications
and has issued a Notice to Proceed.
Concessionaire shall submit plans and specifications, in the form and number identified
in Tenant Handbook, for each of the Concession Locations and Support Spaces in
accordance with the Development Schedule. City will review and respond to submittals
of plans and specifications within ten (10) days or provide notice to Concessionaire that
the review time has been extended. In the event of disapproval by City of any portion of
any submittal of plans and specifications, Concessionaire shall promptly make
modifications and revisions and re-submit for approval by City.
B. Disclaimer of Compliance with Laws or Codes
The approval by City of any plans and specifications refers to the conformity of such plans
and specifications to City standards. Approval of any plans and specifications by City
does not constitute its representation or warranty as to their conformity with applicable
laws, statutes, codes, or permits and responsibility therefore always remains with
Concessionaire.
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C. Approvals Extend to Architectural and Aesthetic Matters
Required approval of City will extend to and include architectural and aesthetic matters.
City reserves the right to reject any designs submitted by Concessionaire and to require
Concessionaire, at Concessionaire’s expense, to make modifications and revisions and
to resubmit designs until designs are deemed acceptable and subsequently approved in
writing by City.
D. Design and Permitting
Concessionaire shall be responsible, at its sole cost and expense, for the costs of design
and permitting of all improvements within the Premises and shall not commence any work
with respect to an Approved Project until all governmental permits and approvals with
respect to the Approved Project have been obtained. At no cost or liability to City, City
shall cooperate in all reasonable respects with Concessionaire’s efforts to obtain such
permits and approvals, which cooperation shall include, without limitation, the execution
of such instruments as may be required by governmental authorities for Concessionaire
to apply for and obtain such permits and approvals.
SECTION 9.06 CONSTRUCTION
Concessionaire shall, at its own cost and expense, commence construction of an
Approved Project within ten (10) days of the later to occur of: (i) the Space Turnover Date
stated in the Notice to Proceed for such Approved Project; or (ii) receipt of all permits.
Concessionaire agrees that all construction work to be performed, including all
workmanship and materials, shall be of optimal quality and in accordance with the
Approved Project and the Development Schedule. All construction shall be performed in
accordance with the requirements of this Agreement, the Tenant Handbook, and all
applicable laws, regulations, ordinances, codes and permits. City and its designees shall
have the right from time to time to inspect each Approved Project.
Concessionaire must complete an Approved Project and open for business no later than
the Required Opening Date, for initial construction, and the Required Completion Date
for all other Approved Projects, as set forth in the Notice to Proceed for the Approved
Project, subject to any extensions that may be approved by City. Concessionaire
acknowledges that if it fails to open for business by the Required Opening Date or
Required Completion Date, the delay may cause City to suffer substantial damages that
are extremely difficult to ascertain or prove. Therefore, if Concessionaire fails to either
complete the Approved Project or open the Concession Location for business by the
Required Opening Date or Required Completion Date, the following will apply:
A. Concessionaire shall pay Liquidated Damages to City, as set forth in Article VII,
from the Required Completion Date until the date on which the Concession
Location opens to the public for business.
B. If the Concession Location is not open for business within thirty (30) days after the
Required Completion Date, the failure is an Event of Default (as defined in Section
12.01) and City has the right to exercise all remedies herein, at law or in equity,
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including but not limited to, the option to terminate this Agreement or to remove
the applicable Concession Location from the Premises. Notwithstanding the
foregoing, the Parties agree that any delay in construction of any improvements
due to force majeure or acts solely attributable to City shall extend the Required
Opening Date and/or Required Completion Date for an Approved Project.
Additionally, the initial Premises Completion Date, as stated in the Development
Schedule, shall be extended if affected by such event, in City’s sole discretion. City
shall have no liability to Concessionaire for compensation or damages for any such
delay.
SECTION 9.07 COMPLETION OF CONSTRUCTION
For each Approved Project, Concessionaire shall conform to project closeout activities
set forth in Tenant Handbook. Concessionaire further agrees that it shall deliver to City
within one hundred (120) days of the Premises Completion Date the following:
A. As Built record documents (in a form(s) acceptable by the Airport) of the
construction, additions and other modifications constructed by Concessionaire on
the Premises. Any Airport maintained assets or systems shall be fully connected
and include system and equipment loads on and all facility information.
Concessionaire shall provide connections and service loads at the point of
connection to all Airport systems. During the Term, Concessionaire shall keep said
documents current, with all changes or modifications made by Concessionaire in
or to the Premises or additions thereto. Documents shall be forwarded to Airport
upon request within fourteen (14) calendar days.
B. A statement certified by Concessionaire’s chief financial officer specifying the final
Capital Investment and final design related to each of the Approved Project(s) with
the level of detail as requested by City. This includes an amortization schedule of
the initial Capital Investment.
C. A certification that construction has been completed in accordance with the
approved plans and specifications and in compliance with all laws and other
governmental rules, regulations, and orders, including but not limited to City of
Fresno, State of California.
D. Certified proof demonstrating that no liens exist on the Premises, including but not
limited to, a waiver of lien from all construction contractors and signed releases
from all subcontractors that indicate receipt of payment in full for all work performed
or Trade Fixtures delivered.
SECTION 9.08 TITLE TO IMPROVEMENTS
All leasehold improvements made to the Premises by Concessionaire, and any additions
and alterations thereto made by Concessionaire, including approved changes and
renovations that are affixed to the realty, shall become the property of City upon their
completion and acceptance by City.
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SECTION 9.09 SIGNAGE
Subject to the terms and conditions of Section 9.05, Concessionaire shall have the right
to install and maintain signs on the Premises, provided that the design, installation, and
maintenance of all signs shall be subject to the terms of this Section and comply with the
Tenant Handbook. Concessionaire further acknowledges City’s desire to maintain a high
level of aesthetic quality in all concession facilities throughout the Airport. Therefore,
Concessionaire covenants and agrees that in the exercise of its privilege to install and
maintain appropriate signs on the Premises, as provided herein, it will submit to City, for
its review and approval, the size, design, content, construction, or fabrication and
intended location of each and every sign it proposes to install on or within the Premises.
Concessionaire shall not install signs of any type on or within the Premises without prior
written approval of City, which approval shall not be unreasonably withheld or denied if
the proposal is in compliance with the Tenant Handbook and all other present and future
statutes and ordinances, rules and regulations promulgated thereunder, of all federal,
state, local and other governmental bodies.
SECTION 9.10 MID-TERM REFURBISHMENT
In addition to the ongoing, routine maintenance described in Section 6.15,
Concessionaire shall, at its sole cost and expense, commence Mid-Term Refurbishment.
Concessionaire shall commencing in the seventh year of the Term of this Agreement
submit a scope of work for refurbishment of each of the occupied concession Premises.
Concessionaire shall submit to the City on July 1 of the seventh year of the Term, a
schedule of refurbishments and improvements to be completed by Concessionaire in the
Assigned Premises for the Mid-Term requirement. Such refurbishment shall include
painting and repair attributable to ordinary wear and tear, and replacement of furnishings
and fixtures. Such refurbishment shall be required to be spent on those areas visible to
and utilized by the customer (i.e.; "selling area"). Concessionaire shall refurbish the
Assigned Premises promptly upon the observation of any damage or deterioration of the
original materials/workmanship or as reasonably required by the Director. Failure to
complete any required refurbishment within the time specified by the director shall be in
default under this Agreement, and in addition to all other remedies available under this
Agreement, Concessionaire shall pay, as Liquidated Damages, One Hundred and No
Cents ($100.00) per day until such required refurbishment is completed. Concessionaire
agrees and acknowledges that the failure to refurbish is detrimental to the image of the
Facilities and results in lost percentage rent, the exact loss and injury is extremely difficult
to fix. Therefore, the parties agree that the above-described amount represents a fair and
reasonable estimate of the monetary losses and damages incurred by the City.
ARTICLE X - DISCLAIMER OF LIENS
The interest of City in the Premises will not be subject to liens for any work, labor,
materials, or improvements made by or for Concessionaire to the Premises, whether the
same is made or done in accordance with an agreement between City and
Concessionaire. It is specifically understood and agreed by Concessionaire that in no
event will City or the interest of City in the Premises be liable for or subject to any
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mechanic’s, laborers or materialmen’s liens for materials furnished, improvements, labor
or work made by or for Concessionaire to the Premises. Concessionaire is specifically
prohibited from pledging, liening, or otherwise encumbering any assets located at the
Airport or any interest in this Agreement without prior, written approval by City.
Concessionaire is specifically prohibited from subjecting City's interest in the Premises to
any mechanic’s, materialmen’s, or laborers’ liens for improvements made by or for
Concessionaire or for any materials, improvements or work for which Concessionaire is
responsible for payment. Concessionaire will indemnify, defend, and hold City harmless
for any expense or cost associated with any lien or claim of lien that may be filed against
the Premises or City, including attorney fees incurred by City. Concessionaire will provide
notice of this disclaimer of liens to all contractors or subcontractors providing any
materials or making any improvements to the Premises.
In the event any construction, mechanic’s, laborer’s, materialmen’s or other lien or notice
of lien is filed against any portion of the Premises for any work, labor or materials
furnished to the Premises, whether or not the same is made or done in accordance with
an agreement between City and Concessionaire, Concessionaire will cause any such lien
to be discharged of record within thirty (30) days after notice of filing thereof by payment
bond or otherwise or by posting with a reputable title company or other escrow agent
acceptable to City, security satisfactory to City to secure payment of such lien, if
requested by City, while Concessionaire contests to conclusion the claim giving rise to
such lien.
ARTICLE XI - MAINTENANCE UTILITIES AND REPAIRS
SECTION 11.01 CONCESSIONAIRE’S MAINTENANCE OBLIGATIONS
Except for such maintenance of the Premises as is to be provided by City hereunder,
Concessionaire shall, at its own cost and expense, maintain the Premises and every part
thereof, including Trade Fixtures and/or personal property, in good appearance and
repair, in a safe and optimal condition, and in accordance with this Agreement.
Concessionaire shall maintain, repair, replace, paint, or otherwise finish all Leasehold
Improvements within the lease lines of the Premises, including, without limitation, walls,
partitions, floors, ceilings, windows, doors, glass and all furnishings, fixtures, and
equipment therein, whether installed by Concessionaire or by City. All the maintenance,
repairs, finishing and replacements shall be of quality equal to or better than the original
in materials and workmanship. All work, including finishing colors, shall be subject to the
prior written approval of City.
Concessionaire’s compliance obligations shall include, without limitation, the obligation to
make substantial repairs and alterations to the Premises (including any initial capital
improvements), regardless of, among other factors, the relationship of the cost of curative
action to the Rent under this Agreement, the length of the then remaining Term hereof,
the relative benefit of the repairs to Concessionaire or City, the degree to which curative
action may interfere with Concessionaire’s use or enjoyment of the Premises, the
likelihood that the parties contemplated the particular requirement involved, or the
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relationship between the requirement involved and Concessionaire’s particular use of the
Premises.
If it is determined that the maintenance is not in compliance with this Agreement, City
shall so notify Concessionaire in writing. If the maintenance required to be performed as
provided in City’s notice to Concessionaire is not commenced by Concessionaire within
five (5) days after receipt of notice, or is thereafter not diligently executed to completion,
City or its representative shall have the right to enter upon the Premises and perform the
maintenance, and Concessionaire agrees to promptly reimburse City for the cost thereof,
plus an administrative fee equal to fifteen percent (15%) of the maintenance costs.
Concessionaire covenants and agrees that nothing shall be done or kept in the Premises
that might impair the value of City’s property or that would constitute waste. Any
hazardous or potentially hazardous condition on the Premises shall be corrected
immediately upon receipt of a verbal or written notice from City. At the sole discretion of
City, Concessionaire shall close the Premises or affected portion thereof until the
hazardous or potentially hazardous condition is corrected.
Concessionaire covenants to comply with all present and future laws, orders, and
regulations, including any rules, regulations and procedures promulgated by City
regarding City provided maintenance within the Airport. When any system for City
provided maintenance is put in place that can allocate to Concessionaire its proportional
share of the cost, Concessionaire must pay its proportional share of the actual costs.
SECTION 11.02 CITY’S MAINTENANCE AND UTILITY OBLIGATIONS
City shall provide structural maintenance of the Airport and, except as provided below,
maintain, and repair the exterior windows and walls of the Premises in the Airport.
However, maintenance of all interior and exterior walls constructed or remodeled by
Concessionaire shall be Concessionaire’s responsibility. Further, if City establishes
Common Maintenance Services at the Airport, including but not limited to those services
identified in this Agreement, Concessionaire convents to pay its proportionate share of
the Common Maintenance Services provided by City.
City provides utility mains and lines throughout the Airport. Concessionaire, at its sole
cost, shall tie into the utility mains and lines at the locations as specified by City.
Supplemental heated or cooled air, electrical or other utilities required by Concessionaire
more than what is customarily available in the Airport will be, if approved by City, at the
expense of Concessionaire.
City may, at City’s sole discretion, maintain the utilities within the Premises and in doing
so shall be permitted to enter upon the Premises at all times to make any repairs,
replacements, and alterations when and as may, in the opinion of City, be deemed
necessary. Furthermore, Concessionaire will permit City or its representatives’ access to
construct or install over, on, in, or under the Premises, new systems, pipes, lines, mains,
wires, conduits, ducts and equipment; provided, however, that City shall exercise such
right in a manner that minimizes interference with Concessionaire’s operations. Moreover,
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during an emergency, City, or its agents, may enter the Premises forcibly, if necessary.
No such reasonable entry by or on behalf of City shall constitute or cause a termination
of this Agreement by Concessionaire.
City agrees that it will always maintain and keep utility mains and lines in good repair in
the Airport and all appurtenances, facilities, and services now or hereafter connected
therewith. Concessionaire understands, accepts, and agrees that City shall not be liable
for Concessionaire's loss for failure to supply any utility services. City reserves the right
to temporarily discontinue utility services at such time as may be necessary by reason of
accident, unavailability of employees, repairs, alterations, or improvements or whenever
by reason of strikes, lockouts, riots, acts of God, or any other happenings beyond the
control of City and causes City to be unable to furnish such utility services. City shall not
be liable for damages to persons or property for any such discontinuance due to causes
beyond the control of City, nor shall such discontinuance in any way be construed as
cause for abatement of compensation or operate to release Concessionaire from any of
its obligations hereunder.
SECTION 11.03 CITY’S PERFORMANCE OF CONCESSIONAIRE’S OPERATING OBLIGATIONS
City has determined, in consideration of Airport security, public safety, and operating
efficiency, that it may be in City’s best interest to perform Concessions Services. City
reserves the right to establish a Concessions Services Fee based upon documented
actual costs of providing Concessions Services.
City may, in its sole discretion, add to, delete from, or otherwise modify the Concessions
Services during the Term. City will provide thirty (30) days written notice of the effective
date of any modification to the Concessions Services to Concessionaire. Concessionaire
agrees to cooperate with City in the implementation and performance of the Concessions
Services.
Concessionaire agrees that City shall not be liable for Concessionaire's loss for failure to
supply any Concessions or Common Maintenance Services. City reserves the right to
temporarily discontinue any Concessions or Common Maintenance Services at such time
as may be necessary by reason of accident, unavailability of employees, repairs,
alterations, or improvements or whenever by reason of strikes, lockouts, riots, acts of
God, or any other happenings beyond the control of City and causes City to be unable to
furnish such services. City shall not be liable for damages to persons or property for any
such discontinuance due to causes beyond the control of City, nor shall such
discontinuance in any way be construed as cause for abatement of compensation or
operate to release Concessionaire from any of its obligations hereunder, except as
otherwise provided in this Agreement.
The Parties agree to modify to reflect modifications in the Concessions Services and
Common Maintenance Services. Any such modification will be confirmed by side letter
executed by the Director or designee, without need for formal amendment to this
Agreement.
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ARTICLE XII - DEFAULT, REMEDIES, AND TERMINATION RIGHTS
SECTION 12.01 EVENTS OF DEFAULT
Concessionaire will be deemed to be in default of this Agreement upon the occurrence of
any of the following:
1. The failure or omission by Concessionaire to perform its obligations under this
Agreement or the breach of any terms, conditions and covenants required herein.
2. The failure to pay, in full, to City within five (5) days of when due any fees, costs,
expenses damages, or other charges applicable hereunder except where such
failure is cured within (10) days after written notice by City of Concessionaire’s
failure to pay.
3. Concessionaire’s default under any other agreement with City at the Airport.
4. The appointment of a Trustee, custodian, or receiver of all or a substantial portion
of Concessionaire’s assets.
5. The divestiture of Concessionaire’s estate herein by operation of law, by
dissolution, or by liquidation, not including a merger or sale of assets.
6. The insolvency of Concessionaire; or if Concessionaire will take the benefit of any
present or future insolvency statute, will make a general assignment for the benefit
of creditors, or will seek a reorganization or the readjustment of its indebtedness
under any law or statute of the United States or of any state thereof including the
filing by Concessionaire of a voluntary petition of bankruptcy or the institution of
proceedings against Concessionaire for the adjudication of Concessionaire as
bankrupt pursuant thereto.
7. Concessionaire’s cancellation of its Surety without City’s prior written consent and
does not reestablish it promptly after written notice by City.
8. An assignment, sublease, or transfers of Concessionaire’s interest under this
Agreement by reason of death, operation of law, assignment, sublease, sale in
bulk of any of its assets, or otherwise to any other person or business entity other
than in compliance with the provisions of this Agreement.
9. If Concessionaire abandons, deserts, vacates, or ceases operations under this
Agreement for five (5) consecutive business days, unless undergoing repairs or
renovations which have first been approved by City.
10. Concessionaire’s failure to maintain any type of insurance or level of insurance
coverage required hereunder (and in the event Concessionaire has failed to
remedy such failure within ten (10) days after notice thereof from City, City may
affect such coverage and recover the cost thereof immediately from the Surety or
from Concessionaire).
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11. Any lien or attachment to be filed against the Premises, the Airport, or other City
property because of any act or omission of Concessionaire, and such lien or
attachment is not discharged or contested by Concessionaire in good faith by
proper legal proceedings within fifteen (15) days after receipt of notice thereof by
Concessionaire.
12. Concessionaire use, permission to use, or failure to promptly prevent use of any
portion of the Airport made available to Concessionaire for its use under this
Agreement for any illegal purpose.
13. Concessionaire’s license or franchise agreement related to the Concession it is
authorized to operate at the Airport is terminated, expires, or is amended so that
compliance with the amended provisions will cause Concessionaire to be in breach
of its obligations under this Agreement.
14. Concessionaire’s failure to pay any fees or charges required hereunder after the
expiration of the (10) day cure period as proscribed hereunder.
15. The conduct of any business or performance of any acts at the Airport not
specifically authorized in this Agreement or by any other agreement between City
and Concessionaire, and Concessionaire’s failure to discontinue that business or
those acts within thirty (30) days of receipt by Concessionaire of City’s written
notice to cease said business or acts (which thirty [30] day notice and remedy
period shall also satisfy the notice requirement of Section 12.02 below). Nothing in
this Section 12.01 shall be construed to grant a right to Concessionaire to cure a
default, which by its nature is not capable of being cured.
City reserves the right, in its sole discretion, to treat each Concessions Location
individually for the purpose of declaring defaults and exercising remedies under this
Agreement.
SECTION 12.02 CITY’S REMEDIES
In the event of any of the foregoing events of default of Concessionaire and following
thirty (30) days’ notice by City and Concessionaire’s failure to remedy, City, at its election,
may exercise any one or more of the following options or remedies, the exercise of any
of which will not be deemed to preclude the exercise of any other remedy herein listed or
otherwise provided by statute or general law. Unless the default, stated in such notice, is
by its nature curable and shall have been cured within such thirty (30) days. Nothing in
this Section 12.02 shall be construed to grant a right to Concessionaire to cure a default,
which by its nature is not capable of being cured. City remedies are as follows:
1. Allow this Agreement to continue in full force and effect and enforce City’s right to
collect compensation as it becomes due together with past due interest and draw
upon the Surety in any amount necessary to satisfy the damages sustained or
reasonably expected from Concessionaire’s default.
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2. Upon thirty (30) days’ notice terminate Concessionaire’s rights under this
Agreement. This notice shall be final and shall at the option of City terminate all
the rights hereunder of Concessionaire, and City may upon the date in the notice
take possession of the Premises, and expel Concessionaire with or without
process of law, without liability for trespass, and using such force as may be
necessary, and without prejudice to any remedies for damages or breach. In doing
so, City will not be deemed to have thereby accepted a surrender of the Premises,
and Concessionaire will remain liable for all payments or other sums due under
this Agreement up to and including the date of termination, and for all damages
suffered by City because of Concessionaire’s breach of any of the covenants of
this Agreement, including but not limited to, all cost of reletting, reasonable
attorney’s fees, repairs, and improvements; or
3. Treat this Agreement as remaining in existence, and reenter and take possession
of the Premises and expel Concessionaire and those claiming through or under
Concessionaire and remove the effects of as may be necessary with or without
process of law, without liability for trespass, using such force as may be necessary,
and without prejudice to any remedies for damages or breach. No such reentry
shall be construed as an election on City’s part to terminate this Agreement. City
reserves the right to terminate the Agreement at any time after reentry. Following
reentry, City may relet the Premises, and make alterations, repairs, or
improvements as City deems appropriate for reletting. City shall not be responsible
for any failure to relet the Premises or any failure to collect compensation due for
such reletting. City shall not be liable to Concessionaire for any claim for damages
resulting from remedial action by City. Concessionaire shall continue to be liable
for all amounts due as under this Agreement on the dates specified plus interest
thereon at the Past Due Interest Rate together with such amounts as would be
payable, including costs, attorney's fees, repairs, and improvements.
No delay, failure, or omission of City to re-enter the Premises or to exercise any right,
power, privilege, or option arising from any default nor subsequent acceptance of fees or
charges then or thereafter accrued will impair any such right, power, privilege, or option,
or be construed to be a waiver of any such default or relinquishment, or acquiescence of
the Premises. No option, right, power, remedy, or privilege of City will be construed as
being exhausted or discharged by the exercise thereof in one or more instances. It is
agreed that each and all of the rights, powers, options, or remedies given to City by this
Agreement are cumulative and that the exercise of one right, power, option, or remedy by
City will not impair its rights to any other right, power, option, or remedy available under
this Agreement or provided by law. In the event, City terminates this Agreement or
reclaims the Premises under this Section 12.02, City has no liability to Concessionaire for
any Unamortized Investment.
ARTICLE XIII - INDEMNIFICATION AND RELEASE
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,
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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 their 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.
The provisions of this Section shall survive termination or expiration of this Agreement.
ARTICLE XIV - INSURANCE
SECTION 14.01 INSURANCE REQUIREMENTS
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 its
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
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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.
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 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.
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
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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.
SECTION 14.02 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:
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. LIQUOR LIABILITY INSURANCE (if applicable) for alcoholic beverages
that are to be sold, served or furnished, Liquor Liability coverage is required
with limits of liability of not less than:
(i) $1,000,000 per occurrence;
(ii) $2,000,000 aggregate for bodily injury and property damage;
5. PROPERTY: (if operating within the airport) Limits of insurance in an
amount equal to the full (100%) replacement cost (without deduction for
depreciation) of Concessionaire’s business property.
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SECTION 14.03 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.
SECTION 14.04 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. Any deductibles or self-insured retentions must
be declared on the Certificate of Insurance, and approved by, the City’s Risk Manager or
designee. At the option of the City’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City, its officers, officials, employees, agents, and
volunteers; or
(ii) Concessionaire shall provide a financial guarantee, satisfactory to City’s
Risk Manager or designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall
the City be responsible for the payment of any deductibles or self-insured
retentions.
SECTION 14.05 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
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, Liquor Liability 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.
A. Concessionaire shall establish additional insured status for the City and for all ongoing
and completed operations by use of ISO Form CG 20 26, CG 20 11 or similar by an
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executed manuscript insurance company endorsement providing additional insured
status as broad as that contained in ISO Forms CG 20 26 or CG 20 11.
The Commercial General, Liquor Liability 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.
B. 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.
SECTION 14.06 PROVIDING OF DOCUMENTS
Concessionaire shall furnish City with all certificates and applicable endorsements
effecting coverage required herein 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 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 Concessionaire shall also
be required to provide all documents noted herein.
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SECTION 14.07 MAINTENANCE OF COVERAGE
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 work
under this Agreement shall be discontinued immediately 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 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 hereunder 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.
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, its principals, officers,
agents, employees, persons under the supervision of Concessionaire, vendors, suppliers,
invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or
indirectly by any of them.
SECTION 14.08 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.
ARTICLE XV - SURETY FOR PERFORMANCE
SECTION 15.01 FORM OF SURETY
To secure payment for rents, fees, charges, and other payments required hereunder,
Concessionaire will post with City a Surety. The Surety will be maintained throughout the
Term of this Agreement and any holdover or extension and will be in an amount equal to
three (3) times the monthly rental payment payable to City hereunder for a period of six
(6) months. The Surety will be issued by a bank or surety provider acceptable to City and
authorized to do business in the State of California and will be in a form and content
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satisfactory to City. The Surety may be issued for a one (1) year period, provided
however, Concessionaire covenants and agrees that evidence of renewal or replacement
of the Surety must be submitted annually by Concessionaire to City, without prompt, at
least sixty (60) days prior to the expiration date of the instrument. The Surety shall contain
language that the issuing financial institution shall notify City in writing within forty-five
(45) days of a determination that the Surety is to be terminated and or is not going to be
renewed.
Notwithstanding any provision herein to the contrary, if at any time during the Term City
deems the amount of Surety insufficient to properly protect City from loss hereunder
because Concessionaire is or has been in arrears with respect to such monetary
obligations or because Concessionaire has, in the opinion of City, violated other terms of
this Agreement, Concessionaire covenants that after receiving notice and an opportunity
to remedy, it will increase the Surety to the amount required by City, provided however,
the percentage increase shall not exceed the annual percentage increase that has
occurred with respect to Concessionaire’s rent, fees, and charges.
Concessionaire shall furnish the Surety within ten (10) days of the Effective Date as
security for the full performance of every provision of this Agreement by Concessionaire.
Failure to maintain the Surety as set forth herein shall be an event of default hereunder.
SECTION 15.02 APPLICATION OF SURETY
In the event Concessionaire fails to perform the payment terms and conditions of this
Agreement, City, in addition to any other rights and remedies available by law or in equity,
may, at any time, apply the Surety or any part thereof toward the payment of
Concessionaire’s obligations under this Agreement. In such an event, within thirty (30)
days after notice, Concessionaire will restore the Surety to its original amount. City will
not be required to pay Concessionaire any interest on the Surety. Concessionaire
understands and agrees that failure to maintain or replenish the Surety shall constitute a
material breach of this Agreement and, in addition to all other remedies available to City,
City may, in its sole discretion, terminate this Agreement.
SECTION 15.03 RELEASE OF SURETY
The release of the Surety will be subject to the satisfactory performance by
Concessionaire of all terms, conditions, and covenants contained herein throughout the
entire Term. Upon termination of this Agreement, the release of Surety will not occur until
all rents, fees, charges, and other payments due to City are satisfied and City has
accepted the findings of Concessionaire’s audit or has successfully conducted an audit
in accordance with the provisions of this Agreement. In the event of a dispute as to the
condition of the Premises, only the amount in dispute will be retained for remedy. City
shall release the Surety without interest within thirty (30) days of meeting the above
requirements.
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ARTICLE XVI - PROPERTY DAMAGE
SECTION 16.01 COMPLETE DESTRUCTION
If Premises, the Terminal in which the Premises is located, or any portion thereof is
destroyed or damaged to an extent that renders it unusable, City may rebuild or repair
any portions of the building structure destroyed or damaged, and if the cause was beyond
the control of Concessionaire, Concessionaire’s obligation to pay the compensation
hereunder shall abate as to such damaged or destroyed portions during the time they are
unusable. If City elects not to proceed with the rebuilding or repair of the building structure,
it shall give notice of its intent within ninety (90) days after the destruction or damage, and
Concessionaire may elect to initiate Section 16.03. If Concessionaire elects not to initiate
Section 16.03, Concessionaire may then terminate this Agreement effective as of the date
of such event.
If City elects to rebuild, Concessionaire must replace all Leasehold Improvements at its
sole cost and in accordance with the Capital Investment, subject to increase for inflation.
Such replacements must be in accordance with the performance standards set forth
herein. City and Concessionaire shall cooperate with each other in the collection of any
insurance proceeds that may be payable in the event of any loss or damage.
If during the last year of the Term the improvements on the Premises are partially
destroyed or damaged, City may at City’s option terminates this Lease as of the date of
occurrence of such damage by giving written notice to Concessionaire of City’s election
to do so within thirty (30) days after the date of occurrence of such damage. In the event,
City elects to terminate this Agreement pursuant hereto, Concessionaire shall have the
right within ten (10) days after receipt of the required notice to notify City in writing of
Concessionaire’s intention to repair such damage at Concessionaire’s expense, without
reimbursement from City, in which event this Agreement shall continue in full force and
effect and Concessionaire shall proceed to make such repairs as soon as reasonably
possible.
SECTION 16.02 LIMITS OF CITY’S OBLIGATIONS DEFINED
City shall not be liable for the following: (i) any damage to property of Concessionaire or
others located on the Premises or in the Airport; (ii) the loss of or damage to any property
of Concessionaire or of others by theft or otherwise; (iii) any injury or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain,
or snow; (iv) leaks from any part of the Premises or the Airport; from the pipes, appliances,
or plumbing works; from the roof, street, subsurface, or from any other place; or from
dampness or by any other cause of whatsoever nature; (v) any such damage caused by
other Concessionaires, persons in the Premises, occupants of adjacent property, of the
Airport, or of the public; (vi) damages caused by operations in construction of any private,
public, or quasi-public work; (vii) any latent defect in the Premises or in the building of
which they form a part; and (viii) all property of Concessionaire kept or stored on the
Premises is at the risk of Concessionaire only.
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Further, Concessionaire shall defend and hold City harmless from and hereby waives any
claims arising out of damage to the same or damage to Concessionaire's business,
including subrogation claims by Concessionaire's insurance carrier. Concessionaire shall
give immediate telephone notice to City in case of fire, casualty, or accidents in the
Premises or in the building of which the Premises is a part, of defects therein, or in any
fixtures or equipment. Concessionaire shall promptly thereafter confirm such notice in
writing.
Redecoration, replacement, and refurbishment of furniture, fixtures, equipment, and
supplies will be the responsibility of and paid for by Concessionaire and will be of
equivalent quality to that originally installed hereunder. City will not be responsible to
Concessionaire for any claims related to loss of use, loss of profits, or loss of business
resulting from any partial, extensive, or complete destruction of the Premises regardless
of the cause of damage.
SECTION 16.03 ALTERNATE SPACE
City will use its best efforts to provide Concessionaire with alternate areas acceptable to
Concessionaire to continue its operation while City makes repairs to the Premises or if
City elects not to proceed with rebuilding or repairing the unusable space, in accordance
with the terms of this Article, except for damages caused by Concessionaire’s acts,
omissions or negligence.
ARTICLE XVII - DAMAGING ACTIVITIES
No goods or materials will be kept, stored, or used in or on the Premises that are
flammable, explosive, hazardous (as defined below) or that may be offensive or cause
harm to the public or cause damage to the Premises. Concessionaire is responsible for
compliance and shall require its contractors to comply with all federal, state, and local
environmental rules, regulations, and requirements. This includes compliance with all
rules and regulations and Tenant Handbook incorporated hereto by reference.
Concessionaire shall obtain all necessary federal, state, local, and Airport permits and
comply with all permit requirements. Nothing will be done on the Premises other than as
provided in this Agreement that will increase the rate of or suspend the insurance on the
Premises or on any structure of City. No machinery or apparatus will be used or operated
on the Premises that will damage the Premises or adjacent areas; provided, however,
that nothing in this Article will preclude Concessionaire from bringing or using on or about
the Premises, with approval by City, such materials, supplies, equipment, and machinery
as are appropriate or customary in the operation of Concessionaire's business under this
Agreement. Concessionaire agrees that nothing shall be done or kept on the Premises
that might impair the value of City’s property or that would constitute waste.
The term “Hazardous” will mean:
A. Any substance the presence of which requires or may later require notification,
investigation, or remediation under any environmental law.
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B. Any substance that is or becomes defined as a “hazardous waste”, “hazardous
material”, “hazardous substance”, “pollutant” or “contaminant” under any federal,
state, or local environmental law, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et
seq.), the Resources Conservation and Recovery Act (42 U.S.C. §6901 et seq.)
and the associated regulations.
C. Any substance that is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise harmful and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, any state of the United States, or
any political subdivision within any state.
D. Any substance that contains gasoline, diesel fuel or other petroleum hydrocarbons
or volatile organic compounds.
E. Any substance that contains polychlorinated biphenyls, asbestos, or urea
formaldehyde foam insulation.
F. Any substance that contains or emits radioactive particles, waves, or materials,
including, without limitation, radon gas.
Concessionaire agrees that nothing shall be done or kept on the Premises and no
improvements, changes, alterations, additions, maintenance, or repairs made that might
impair the structural soundness of the building; result in an overload of utility, plumbing,
or HVAC systems serving the Terminals or interfere with electric, electronic, or other
equipment at the Airport. In the event of violations hereof, Concessionaire agrees
immediately to remedy the violation at Concessionaire's own cost and expense.
Concessionaire shall be responsible for any damage caused by Concessionaire to the
Premises, Airport, any City property or operations, or the property of any other
concessionaire, person, or entity, either by act, omission, or because of the operations of
Concessionaire. In the event, of such damage, Concessionaire will give City immediate
notice thereof, and Concessionaire will immediately make the necessary repairs at its
own cost and expense. Concessionaire shall be required to comply with the obligations
set forth in Article IX with respect to all work required to be performed in accordance with
this Section. City reserves the right, if in the best interest of City, to perform the necessary
repairs immediately itself. Concessionaire covenants to reimburse City, for the costs and
expenses associated with necessary repairs plus an administrative fee of fifteen percent
(15%). If the same type of damage is caused by Concessionaire more than once in a
twelve (12) month period, such as a water leakage, electrical service interruption, or other
damage, Concessionaire shall submit a Remediation Plan, as set forth in Section 6.01.C.
ARTICLE XVIII - COMPLIANCE WITH LAWS, REGULATIONS, ORDINANCES, AND
RULES
Concessionaire, its officers, authorized officials, employees, agents, subcontractors, or
those under its control, will at all times comply with applicable federal, state, and local
laws and regulations, present and future statutes and ordinances, rules and regulations
promulgated thereunder, of all federal, state, local and other governmental bodies,, all
applicable health rules and regulations and other mandates whether existing or as
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promulgated from time to time by the federal, state, or local government, or City including,
but not limited to, permitted and restricted activities, security matters, parking, ingress and
egress, environmental and storm water regulations and any other operational matters
related to the operation of the Airport. Concessionaire’s failure to keep and observe said
laws, regulations, ordinances, and rules shall constitute a material breach of the terms of
this Agreement in the manner as if the same were contained herein as covenants.
SECTION 18.01 MINIMUM COMPENSATION / LIVING WAGE
Concessionaire agrees to comply fully with and be bound by all present or future minimum
compensation regulations, as set forth by City or the State of California.
ARTICLE XIX - AIRPORT SECURITY
Concessionaire, its officers, authorized officials, employees, agents, subcontractors, and
those under its control, will comply with safety, operational, or security measures required
of Concessionaire or City by the FAA or TSA. If Concessionaire, its officers, authorized
officials, employees, agents, subcontractors or those under its control fail or refuse to
comply with said measures and such non-compliance results in a monetary penalty being
assessed against City, then, in addition to any other remedies available to City,
Concessionaire covenants to fully reimburse City any fines or penalties levied against
City, and any attorney fees or related costs paid by City as a result of any such violation.
This amount must be paid by Concessionaire within fifteen (15) days from the date of the
invoice or written notice.
Concessionaire understands and acknowledges that its ability to remain open and
conduct operations under this Agreement is subject to changes in alert status as
determined by TSA, which is subject to change without notice. If the security status of the
Airport changes at any time during the Term of this Agreement, Concessionaire shall take
immediate steps to comply and assist its employees, agents, independent Contractors,
invitees, successors, and assigns in complying with security modifications that occur
because of the changed status. At any time, Concessionaire may obtain current
information from the Airport’s Public Safety Office regarding the Airport’s security status
in relation to Concessionaire’s operations at the Airport.
ARTICLE XX - AMERICANS WITH DISABILITIES ACT
Concessionaire will comply with the applicable requirements of the Americans with
Disabilities Act (ADA) 42 USC § 12000 et seq. and any similar or successor laws,
ordinances, rules, standards, codes, guidelines, and regulations and will cooperate with
City concerning the same subject matter. If compliance cannot be achieved,
Concessionaire shall proceed formally to the federal, state, or local agency having
jurisdiction for a waiver of compliance.
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
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prohibit the Concessionaire from obtaining a CASp inspection of the subject premises for
the occupancy or potential occupancy of the Concessionaire, if requested by the
Concessionaire. 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.
ARTICLE XXI - FAA APPROVAL
This Agreement may be subject to approval of the FAA. If the FAA disapproves this
Agreement, it will become null and void, and both Parties will bear their own expenses
relative to this Agreement, up to the date of disapproval.
ARTICLE XXII - RIGHT OF FLIGHT
Concessionaire's right to use the Premises for the purposes set forth in this Agreement
shall be secondary and subordinate to the operation of the Airport. Concessionaire
acknowledges that because of the location of the Premises at the Airport, noise,
vibrations, fumes, debris, and other interference with the Permitted Use(s) will be caused
by Airport operations. Concessionaire hereby waives all rights or remedies against City
arising out of any noise, vibration, fumes, debris, and/or interference that is caused by the
operation of the Airport. City specifically reserves for itself and for the public a right of
flight for the passage of aircraft in the airspace above the surface of the Airport.
Additionally, City reserves for itself the right to cause in said airspace such noise,
vibration, fumes, debris, and other interference as may be inherent in the present and
future operation of aircraft. Concessionaire expressly agrees for itself, its successors and
assigns, to prevent any use of the Premises, which would interfere with or adversely affect
the operation or maintenance of the Airport, or otherwise constitute an airport hazard.
ARTICLE XXIII - FEDERAL RIGHT TO RECLAIM
In the event, a United States governmental agency demands and takes over the entire
facilities of the Airport or the portion thereof wherein the Premises are located, for public
purposes, for a period more than ninety (90) consecutive days, then this Agreement will
terminate and City will be released and fully discharged from all liability hereunder. In the
event, of such termination, Concessionaire’s obligation to pay rent will cease; however,
nothing herein will be construed as relieving either Party from any of its liabilities relating
to events or claims of any kind whatsoever prior to this termination.
ARTICLE XXIV - PROPERTY RIGHTS RESERVED
This Agreement is subject and subordinate to the terms, reservations, restrictions, and
conditions of any existing or future agreements between City and the United States, when
the execution of such agreements has been or may be required as a condition precedent
to the transfer of federal rights or property to City for Airport purposes and the expenditure
of federal funds for the extension, expansion, or development of the Airport. The
provisions of the attached Appendix E and Appendix F are incorporated herein by
reference and if the FAA or its successors requires modifications or changes to this
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Agreement as a condition precedent to the granting of funds for the improvement of the
Airport, or otherwise. Concessionaire understands, accepts, and agrees to consent to
such amendments, modifications, revisions, supplements, or deletions of any of the
terms, conditions, or requirements of this Agreement as may be reasonably required to
satisfy the FAA requirements.
ARTICLE XXV - ASSIGNMENT AND SUBCONTRACT
Concessionaire may not assign, subcontract and/or sublease its rights, interests or
obligations in whole or in part under this Agreement without the prior written consent of
City, in City’s sole and absolute discretion which consent shall not be unreasonably
withheld or delayed. Concessionaire shall not grant any license or concession hereunder,
or permit any other person or persons, company, or corporation to occupy the Premises
without first obtaining written consent of City, in City’s sole and absolute discretion. Any
attempt by Concessionaire to in any way directly transfer all or part of its interest in this
Agreement (including any attempt to transfer ownership of the equity or voting interest in
the stock of Concessionaire if Concessionaire is a corporate entity or the ownership
interest in such other entity or control of Concessionaire or Concessionaire’s operations
through sale, exchange, merger, consolidation, or other such transfer) without prior
written consent of City shall, at the option of the Director or designee, automatically
terminate this Agreement and all rights of Concessionaire hereunder. Subject to the terms
and conditions set forth in this Section, and only after it has received City’s written
approval and consent, Concessionaire shall be permitted to subcontract with respect to
all or any portions of the Premises. City’s consent to one
assignment/subcontract/sublease shall not be deemed a consent to subsequent
assignments/subcontracts/subleases.
Each party to a subcontract and each subcontract, and any contemporaneous or
subsequent addendum, amendment, modification, or other agreement relating to any
such subcontract, must be approved in advance by City. The subcontract must contain
substantially the same business terms and conditions as those found in this Agreement,
and the subcontract must acknowledge the existence of this Agreement and that the
subcontracting parties are jointly bound by the terms and conditions of this Agreement,
and state that the subcontracting parties shall comply with and satisfy the requirements
and obligations of Concessionaire hereunder. All rent, fees, charges, or other monies due
and payable hereunder which are, pursuant to any subcontract, to be paid by a
subcontractor shall not be marked-up by Concessionaire. Sub-lessees must
independently operate any subcontracted premises and adhere to and comply with all the
terms, conditions, requirements, restrictions, obligations, and standards set forth herein,
including without limitation, all audit standards incorporated herein. Subleasing parties
shall be jointly bound by the terms and conditions of this Agreement, and the
subcontracting parties shall comply with the requirements and obligations of
Concessionaire hereunder.
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ARTICLE XXVI - CORPORATE TENANCY
If Concessionaire is a corporation, partnership, or limited liability business organization,
the undersigned officer of Concessionaire hereby warrants and certifies to City that
Concessionaire is a corporation in good standing, is authorized to do business in the State
of California, and the undersigned officer is authorized and empowered to bind the
corporation to the terms of this Agreement by his or her signature thereto.
Further, If Concessionaire is a partnership or other business organization, each member
shall be deemed to be jointly and severally liable if such members are subject to personal
liability.
No director, officer, or employee of City shall be held personally liable under this
Agreement because of its good faith execution or attempted execution.
ARTICLE XXVII - RIGHT TO DEVELOP AIRPORT
Concessionaire acknowledges City's responsibility to the public to prudently operate,
maintain and develop the City's facilities. In executing this responsibility, City shall have
the right to undertake developments, renewals, and replacements which the City deems
prudent or necessary. Such right shall include the right of City to terminate this
Agreement early in the event that Concessionaire's possession of the Premises conflicts
with, limits or interferes with proposed City development, renewal, replacement or
expansion of City properties or operation of the Airport, subject to the notice requirements
contained in Section 2.04.
ARTICLE XXVIII - ATTORNEY’S FEES AND COSTS
In the event legal action is required by City to enforce this Agreement, City will be entitled
to recover costs and attorneys’ fees, including in-house attorney time (fees) and appellate
fees.
ARTICLE XXIX - RIGHT TO AMEND
If the FAA or its successors requires amendments, modifications, revisions, supplements,
or deletions in this Agreement as a condition precedent to the granting of funds for the
improvement of the Airport, Concessionaire agrees to consent to such amendments,
modifications, revisions, supplements, or deletions to this Agreement as may be required
to obtain such funds.
ARTICLE XXXI - NOTICES AND COMMUNICATIONS
All notices or communication, whether to City or to Concessionaire pursuant hereto, will
be deemed validly given, served, or delivered upon receipt by the Party by hand delivery,
or three (3) days after depositing such notice or communication in a postal receptacle,
return receipt requested, or one (1) day after depositing such notice or communication
with a reputable overnight courier service, and addressed as follows:
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Concessionaire
SSP America FAT, LLC.
ATTN: Legal Department
20408 Bashan Dr., Ste. 300
Ashburn, VA 20147
City of Fresno, Airports Department
Attn. Director of Aviation
4995 E. Clinton Way
Fresno, CA 93727
or to such other address or parties within the State of California as either party may
designate in writing by notice to the other Party delivered in accordance with the
provisions of this Article. If the notice is sent through a mail system, a verifiable tracking
documentation, such as a certified return receipt or overnight mail tracking receipt, is
encouraged. Either Party may, however, designate a different address from time to time
by providing written notice thereof.
ARTICLE XXXII - BOND ORDINANCES
This Agreement is in all respects subject and subordinate to any City bond ordinances
applicable to the Airport, and to any other bond ordinances, which should amend,
supplement, or replace such bond ordinances. The Parties to this Agreement
acknowledge and agree that all property subject to this Agreement that was financed by
the net proceeds of tax-exempt bonds is owned by City. Concessionaire agrees not to
take any action that would impair or omit to take any action required to confirm the
treatment of such property as owned by City for purposes of §142(b) of the Internal
Revenue Code of 1986, as amended. Concessionaire agrees to make and hereby makes
an irrevocable election (binding on itself and all successors in interest under this
Agreement) not to claim depreciation or an investment credit with respect to any property
subject to this Agreement that was financed by the net proceeds of tax-exempt bonds.
Concessionaire shall execute such forms and take such other action as City may request
to implement such election.
ARTICLE XXXIII - FORCE MAJEURE
Neither Party hereto shall be liable to the other for any failure, delay, or interruption in the
performance of any of the terms, covenants, understandings, or conditions of this
Agreement due to causes beyond the control of that Party, including without limitation
strikes, boycotts, labor disputes, embargoes, shortages of materials, acts of God, acts of
the public enemy, acts of superior governmental authority, weather conditions, floods,
riots, rebellion, sabotage, Pandemics as declared by the Centers for Diseases Control
and Prevention, the World Health Organization, and the United States Government, or
any other circumstance for which such Party is not responsible or which is not in its power
to control (collectively referred to as "Force Majeure"). A lack of funds, however, will never
be deemed beyond a Party’s power to control, and in no event shall this paragraph be
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construed to allow Concessionaire to reduce or abate its obligation to pay any obligation
due herein.
This relief is not applicable unless the affected Party does the following:
A. Uses due diligence to remove the Force Majeure as quickly as possible.
B. Provides the other Party with prompt written notice of the cause and its anticipated
effect.
C. Provides the other Party with written notice describing the actual delay or non-
performance incurred within seven days after the Force Majeure ceases.
ARTICLE XXXIV - RELATIONSHIP OF THE PARTIES
Concessionaire is and will be deemed to be an independent contractor and operator
responsible to all parties for its respective acts or omissions, and City will in no way be
responsible, therefore. Nothing contained in this Agreement shall be deemed or
construed by the City or Concessionaire, or by any third party, as creating the relationship
of principal and agent, partners, joint venturers, or any other similar such relationship,
between the City and Concessionaire. It is understood and agreed that neither the method
of computation of Rent or any other payments, nor any other provision contained in this
Agreement, nor any acts of the City or Concessionaire creates a relationship other than
the relationship of the City and Concessionaire as described in this Lease.
ARTICLE XXXV - CITY APPROVALS
Except as otherwise indicated elsewhere in this Agreement, wherever in this Agreement
approvals are required to be given or received by City, it is understood that the Director
or designee, is hereby empowered to act on behalf of City. Further, except as otherwise
indicated elsewhere in this Agreement, wherever in this Agreement approvals are
required to be given by the Director or designee, it is understood that the Director or
designee may further delegate such authority through the Tenant Handbook.
ARTICLE XXXVI - INVALIDITY OF CLAUSES
The invalidity of any part, portion, article, paragraph, provision, or clause of this
Agreement will not have the effect of invalidating any other part, portion, article,
paragraph, provision, or clause thereof, and the remainder of this Agreement will be valid
and enforced to the fullest extent permitted by law, provided that such invalidity does not
materially prejudice either Concessionaire or the City in their respective rights and
obligations contained in the valid terms, covenants, or conditions hereof.
ARTICLE XXXVII - TIME IS OF THE ESSENCE
Time is of the essence of this Agreement.
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ARTICLE XXXVIII - TAXES
Concessionaire will bear, at its own expense, all costs of operating its business including
all applicable sales, use, intangible and possessory interest taxes of any kind, against
Concessionaire’s Premises, the real property and any improvements thereto, Trade
Fixtures and other personal property used in the performance of the Concession or estate
which are created herein, or which result from Concessionaire’s occupancy or use of the
Premises or assessed on any payments made by Concessionaire hereunder, whether
levied against Concessionaire or City. Concessionaire will also pay any other taxes, fees,
or assessments against the Premises or estate created herein. Concessionaire will pay
the taxes, fees, or assessments reflected in a notice Concessionaire receives from City
within thirty (30) days after Concessionaire’s receipt of that notice or within the time period
prescribed in the tax bill. City will attempt to cause the taxing authority to send the
applicable tax bills directly to Concessionaire and Concessionaire will remit payment
directly to the taxing authority, in such instance. Concessionaire may reserve the right to
contest such taxes, fees, or assessments and withhold payment upon written notice to
City of its intent to do so, so long as the nonpayment does not result in a lien against the
real property or any improvements thereon or a direct liability on the part of City.
Concessionaire shall pay to City, with each payment of Concessions Space Rent, Support
Space Rent, and Percentage Rent and all other fees to City, all sales or other taxes which
may be due with respect to such payments, and upon receipt, City shall remit such taxes
to the applicable taxing authorities.1
ARTICLE XXXIX - PATENTS AND TRADEMARKS
Concessionaire covenants, warrants, and represents that it is the owner of or fully
authorized to use any services, processes, machines, articles, marks, names, or slogans
used by it in its operations under this Agreement. Concessionaire will not utilize any
protected patent, trademark, or copyright, including any patents, trademarks, or
copyrights owned by City, in its operations under this Agreement, unless it has obtained
prior proper permission, all releases, and other necessary documents. Concessionaire
agrees to indemnify, defend, and hold harmless City, its officers, employees, agents, and
representatives from any loss, liability, expense, suit, or claim for damages in connection
with any actual or alleged infringement of any patent, trademark, or copyright arising from
any alleged or actual unfair competition or other similar claim arising out of the operations
of Concessionaire under this Agreement.
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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ARTICLE XL - AGENT FOR SERVICE OF PROCESS
It is expressly agreed and understood that if Concessionaire is not a resident of the State
of California, or is an association or partnership without a member or partner resident of
said State, or is a foreign corporation, then in any such event Concessionaire does
designate the Secretary of State, State of California, as its agent for the purpose of service
of process in any court action between it and City arising out of or based upon this
Agreement, and the service will be made as provided by the laws of the State of California
for service upon a non-resident. It is further expressly agreed, covenanted, and stipulated
that if for any reason service of such process is not possible, and Concessionaire does
not have a duly noted resident agent for service of process, as an alternative method of
service of process, Concessionaire may be personally served with such process out of
this State, by the registered mailing of such complaint and process to Concessionaire at
the address set out in this Agreement. Such service will constitute valid service upon
Concessionaire as of the date of mailing. Concessionaire will have thirty (30) days from
date of mailing to respond thereto. It is further expressly understood that Concessionaire
hereby agrees to the process so served, submits to the jurisdiction of the court, and
waives all obligation and protest thereto, any laws to the contrary notwithstanding.
ARTICLE XLI - COMPLIANCE WITH PUBLIC RECORDS LAW
SECTION 41.01 AGREEMENT SUBJECT TO CALIFORNIA PUBLIC RECORDS ACT
Concessionaire acknowledges, understands, and accepts that City is subject to the
provisions of the California Public Records Act (CPRA), California Government Code
Section 6250 et. seq. Concessionaire acknowledges that all documents prepared or
provided by Concessionaire under this Agreement may be subject to the provisions of the
CPRA. Any other provision of this Agreement notwithstanding, including Exhibits,
Attachments, and other documents incorporated into this Agreement by reference, all
materials, records, and information provided by Concessionaire to City shall be
considered confidential by City only to the extent provided in the CPRA, and
Concessionaire agrees that any disclosure of information by City consistent with the
provisions of the CPRA shall result in no liability of City. Concessionaire agrees to defend,
indemnify, hold harmless, and fully cooperate with City in the event of a request for
disclosure or a lawsuit arising under such act for the disclosure of any documents or
information, which Concessionaire asserts is confidential and exempt from disclosure.
SECTION 41.02 INDEMNIFICATION IN EVENT OF INTERVENTION
In the event of a request to City for disclosure of such information, time, and
circumstances permitting, City will make a good faith effort to advise Concessionaire of
such request to give Concessionaire the opportunity to object to the disclosure of any
material Concessionaire may consider confidential, proprietary, or otherwise exempt from
disclosure. In the event of the filing of a lawsuit to compel disclosure, City will tender all
such material to the court for judicial determination of the issue of disclosure.
Concessionaire agrees it will either waive any claim of privilege or confidentiality or
intervene in such lawsuit to protect materials Concessionaire does not wish disclosed. If
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Concessionaire chooses to intervene in such a lawsuit and oppose disclosure of any
materials, Concessionaire agrees to defend, indemnify, and hold harmless City, its
officers, agents, and employees from any claim, damages, expense, loss, or costs arising
out of Concessionaire’s intervention including prompt reimbursement to City of all
reasonable attorney fees, costs, and damages that City may incur directly or may be
ordered to pay by such court.
ARTICLE XLII - DATA SECURITY
Concessionaire will establish and maintain safeguards against the destruction, loss, or
alteration of City data or third-party data that Concessionaire may gain access to or be in
possession of in the performance of this Agreement. Concessionaire will not attempt to
access, and will not allow its personnel access to, City data or third-party data that is not
require for the performance of the services of this Agreement by such personnel.
Concessionaire will adhere to and abide by the security measures and procedures
established by City. In the event, Concessionaire or Concessionaire’s subcontractor (if
any) discovers or is notified of a breach or potential breach of security relating to City data
or third party data, Concessionaire will promptly: (i) notify City of such breach or potential
breach; and ii) if the applicable City data or third party data was in the possession of
Concessionaire at the time of such breach or potential breach, Concessionaire will
investigate and cure the breach or potential breach.
ARTICLE XLIII - USE, POSSESSION, OR SALE OF ALCOHOL OR DRUGS
Concessionaire, its officers, agents, and employees shall cooperate and comply with the
provisions of the Federal Drug-Free Workplace Act of 1988 and State of California,
County and City of Fresno laws and statutes, or any successor thereto, concerning the
use, possession, or sale of alcohol or drugs. Except as may be otherwise authorized by
this Agreement, Concessionaire shall prohibit consumption of alcohol within those areas
that are not covered by Concessionaire’s California Department of Alcoholic Beverage
Control Type 47 (On Sale General Eating Place) License. Violation of these provisions or
refusal to cooperate with implementing this alcohol and drug policy can result in City
barring Concessionaire from City facilities or participating in City operations.
ARTICLE XLIV - HAZARDOUS SUBSTANCES AND OSHA COMPLIANCE
No goods, merchandise or material will be kept or stored by Concessionaire at Airport
which are explosive or hazardous; and no offensive or dangerous trade, business or
occupation will be carried on therein or thereon. Nothing will be done in the performance
of this Agreement which will increase the rate of or suspend any insurance policy or
coverage of City and/or Airport.
Concessionaire covenants that all materials, equipment, and all other items used in the
performance of this Agreement are in compliance with Occupational Safety and Health
Administration (OSHA).
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ARTICLE XLV - CITY’S SMOKING/VAPING POLICY
Concessionaire agrees that it will prohibit smoking/vaping by its employees and the public
in the Premises. Concessionaire further agrees to not sell or advertise tobacco products.
Concessionaire acknowledges that smoking/vaping is not permitted in the Airport’s
buildings and facilities except for designated areas. Concessionaire and its officers,
agents, and employees shall cooperate and comply with the provisions of State of
California and City of Fresno laws and statutes. See Appendix P (City’s Smoking/Vaping
Policy) for further details.
ARTICLE XLVI - WAIVERS
No waiver by City at any time of any of the terms, conditions, covenants, or agreements
of this Agreement, or noncompliance therewith, will be deemed or taken as a waiver at
any time thereafter of the same or any other term, condition, covenant, or agreement
herein contained, nor of the strict and prompt performance thereof by Concessionaire. No
delay, failure, or omission of City to exercise any right, power, privilege or option arising
from any default nor subsequent payment of charges then or thereafter accrued, will
impair any such right, power, privilege, or option, or be construed to be a waiver of any
such default or relinquishment thereof or acquiescence therein. No notice by City will be
required to restore or revive time as being of the essence hereof after waiver by City or
default in one or more instances. No option, right, power, remedy, or privilege of City will
be construed as being exhausted or discharged by the exercise thereof in one or more
instances. It is agreed that each and all the rights, powers, options, or remedies given to
City by this Agreement are cumulative and no one of them will be exclusive of the other
or exclusive of any remedies provided by law, and that the exercise of one right, power,
option, or remedy by City will not impair its rights to any other right, power, option or
remedy.
ARTICLE XLVII - COMPLETE AGREEMENT
This Agreement represents the complete understanding between the Parties, and any
prior agreements or representations, whether written or verbal, are hereby superseded.
This Agreement may subsequently be amended only by written instrument signed by the
Parties hereto, unless provided otherwise within the terms and conditions of this
Agreement.
ARTICLE XLVIII - ORDER PRECEDENCE
The documents listed below are a part of this Agreement and are hereby incorporated by
reference. In the event of inconsistency between the documents, unless otherwise
provided herein, the terms of the following documents will govern in the following order of
precedence:
A. Terms and Conditions as contained in this Agreement.
B. RFP No. 12300507.
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C. Concessionaire’s Response to RFP No. 12300507, and any subsequent
information submitted by Concessionaire during the evaluation process, as
modified and accepted by City.
ARTICLE XLIX - BROKER'S COMMISSION
Concessionaire represents and warrants that it has not caused nor incurred any claims
for brokerage commissions or finder's fees in connection with the execution of this
Agreement. Concessionaire shall defend, indemnify, and hold City harmless against all
liabilities arising from any such claims caused or incurred by it (including the cost of
attorney fees in connection therewith).
This Agreement does not, and shall not be deemed or construed to, confer upon or grant
to any Third Party or parties (except parties to whom the Concessionaire may assign this
Agreement in accordance with the terms hereof, and except any successor to City) any
right to claim damages or to bring any suit, action or other proceeding against either City
or Concessionaire because of any breach hereof or because of any of the terms,
covenants, agreements and conditions herein.
ARTICLE L - ANTI-BRIBERY AND ANTI-CORRUPTION
Each of Concessionaire and the City agrees that it shall, and shall ensure that its
employees, subsidiaries, agents, and any other person providing services on its
behalf in connection with this Agreement shall:
(i) comply with applicable anti-bribery and corruption laws
including, without limitation, the U.S. Foreign Corrupt Practices Act and the U.K.
Bribery Act 2010, and in particular, shall not, either directly or indirectly, offer, promise,
give, authorize the payment of, or transfer, a financial or other advantage:
(A) to any public or government official in order to obtain or
retain business and with the intention of influencing such official in his or her capacity
as an official where such official is not permitted by law to be influenced by the offer,
promise or gift; or
(B) any other person with the intention of inducing or
rewarding the improper performance of a function or activity;
(ii) maintain adequate policies and procedures designed to prevent
any activity, practice or conduct prohibited by this Section, or that would constitute an
offense under any applicable anti-bribery and anti-corruption laws; and
(iii) disclose to the other in writing immediately on such party’s
becoming aware of the same, full details of any matter, event or circumstance which
does or might constitute a breach of Article L.
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ARTICLE LI - NO LIMIT ON CITY’S POWERS
Nothing in this Agreement shall limit in any way the power and right of City to exercise its
governmental rights and powers, including its powers of eminent domain.
[Signatures on the following page]
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ARTICLE LII - SIGNATURES
This Agreement may be executed in one or more counterparts, each of which will be
deemed an original and all of which will be taken together and deemed to be one
instrument. This Agreement is expressly subject to and shall not be or become effective
or binding on City until approved by City, if so required, and fully executed by all
signatories of City. This Agreement may be signed electronically by the Parties in the
manner specified by City.
CITY OF FRESNO, CALIFORNIA
A Municipal Corporation
By:
Henry Thompson, A.A.E., C.A.E., IAP
Director of Aviation
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By: _____________________________
Brandon M. Collet, Date
Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By: ____________________________
Deputy
Address for Notice:
City of Fresno
Airports Department
4995 E. Clinton Way
Fresno, CA 93727
SSP AMERICA FAT, LLC.
A Delaware Limited Liability Company
By:
Patrick Murray
Title: Deputy Chief Executive Officer
(If corporation or LLC., Board
Chair, Pres. or Vice Pres.)
Address for Notice:
SSP America FAT, LLC.
ATTN: Legal Department
20408 Bashan Dr., Ste. 300
Ashburn, VA 20147
Exhibits and Attachments:
Exhibit A – Response to Request for Proposals
Exhibit B – Concession Use Premises and Support Space locations
Exhibit C – Monthly Concessions Report
Exhibit D – Development Schedule
Exhibit E – ACDBE Participation Requirement
Exhibit F – Conflict of Interest Form
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Exhibit G – Product and Price List
Exhibit H – City of Fresno, Airports Department Badging Application Package
Exhibit I – Example of Severe Decline in Enplanements Calculation
Exhibit J – Annual Rental Adjustment Calculation
Exhibit K – Initial Capital Investment
Exhibit L – FAA Grants and Assurances
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EXHIBIT E
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AIRPORT CONCESSIONS DISADVANTAGED BUSINESS ENTERPRISE (ACDBE)
COMMITMENT FORM
The ACDBE goal for this concession package is ____%
NOTE: The City will only credit ACDBE participation that is certified by an approved
certification entity at the time of proposal submission.
The undersigned concessionaire/vendor has satisfied the requirements of the proposal
specifications in the following manner (Please check () only one box):
100% Self-Performance: The proposer, a certified ACDBE firm and sole concessionaire,
is committed to meeting or exceeding the ACDBE goal through 100% self-performance.
(If checked, must submit required ACDBE certificate).
Percentage Participation: The proposer is committed to meeting or exceeding the
ACDBE goal, with a minimum of ____% ACDBE participation on this concessions
package.
The proposer is unable to meet the ACDBE goal and is committed to a minimum of
_____% ACDBE participation on this concessions package and submits documentation
demonstrating good faith efforts.
The proposer is unable to meet the ACDBE goal and submits documentation
demonstrating good faith efforts.
NOTE: Based on the response provided above by Proposer, City may require the submission of
additional clarifying information upon notification of award or during the evaluation process.
Name of Proposing Entity: ______________________________________________________________
Name of Authorized Representative or Designee: ____________________________________________
Title: _______________________________________________________________________________
Signature____________________________________________________________________________
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30
Patrick Murray
Executive Vice President
SSP America FAT, LLC
30
EXHIBIT F
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DISCLOSURE OF CONFLICT OF INTEREST
between City of Fresno (“Fresno”)
(“ ”)
YES*NO
1 Are you currently in litigation with the City of Fresno or any of its
agents?
2 Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with the
City of Fresno, or in a business which is in litigation with the City of
Fresno?
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
(name)
(company)
(address)
Additional page(s) attached.
(city state zip)
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Food and Beverage Concession Agreement
X
X
SSP America FAT, LLC
Patrick Murray
X
X
20408 Bashan drive, Suite 300
X
SSP
Ashburn, VA 20147
N/A
SSP America FAT, LLC