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HomeMy WebLinkAboutResolution - 2016-R0326 - Concession Agreement - Interspace/Clear Channel - 09/22/2016Resolution No. 2016-RO326 Item No. 6.10 September 22, 2016 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Concession Agreement by and between the City of Lubbock and Interspace d/b/a Clear Channel, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on _ September 22. 2016 DANIEL M. POPE, MAYOR ATTEST: 1� AOAA��- Reb cca Garza, City Secretaj',') APPROVED AS TO CONTENT: r 1 Kelly Campbell, Executive Director of Aviation APP TO FORM: rtchell Satterwhite, first Assistant City Attorney RBS.Concession Agrmt-Interspace dba Clear Channel 8.10.16 Resolution No. 2016-RO326 THE STATE OF TEXAS § CITY OF LUBBOCK § CONCESSION AGREEMENT This Concession Agreement, hereinafter referred to as the "Agreement," made and entered into this 22nd day of September-, 2016, by and between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, hereinafter referred to as the "City," and In -Ter -Space Services, Inc. dba Clear Channel Airports, a corporation which is, or will be, qualified to do business in the State of Texas, hereinafter referred to as the "Concessionaire." WITNESSETH WHEREAS, the City owns and operates the Lubbock Preston Smith International Airport, hereinafter referred to as the "Airport;" and WHEREAS, the Concessionaire is a corporation engaged in the business of operating airport terminal advertising concessions similar in nature to that proposed at the Airport; and WHEREAS, the City deems it advantageous to itself and to the operation of the Airport to grant to Concessionaire the right to operate the Airport Terminal's advertising concession under an Agreement containing mutually satisfactory conditions and covenants; and WHEREAS, the Airport Board of the City of Lubbock accepts the recommendation of the Airport Staff and finds that execution of this Agreement with Concessionaire for the term hereinafter designated; and WHEREAS, the City Council of the City of Lubbock accepts the recommendation of the Airport Board and finds that execution of this Agreement will properly serve the public interest of the citizens of the City of Lubbock; NOW THEREFORE, in consideration of the mutual covenants, terms, conditions, privileges, obligations, and agreements herein contained, the City and the Concessionaire hereby mutually undertake, promise, and agree, each for itself, and its successors and assigns, as follows: ARTICLE ONE DEFINITIONS 1.1 "Agreement Year" means the twelve (12) month period immediately following the Commencement Date. 1.2 "Airport Terminal" or "Terminal" means the Terminal Building and any future terminal(s) built to expand or replace the existing Terminal at the Airport in use as of the date of the execution of this Agreement. 1.3 "Assigned Areas" are the areas of the Airport Terminal designated by this Agreement and the Exhibits thereto as the places where the business of Concessionaire may be conducted. Assigned Areas will be confined to the Terminal Building. 1.4 `Beneficial Occupancy" shall occur when the Concessionaire has occupied the Assigned Area in the Terminal. 1.5 "Effective Date" means the date of execution of the Agreement by both parties hereto. 1.6 "Commencement Date" means the 120th day immediately following the Effective Date to allow for the new advertising program transition. 1.7 "Director" means the Executive Director of Aviation of Lubbock Preston Smith International Airport and shall include such person or persons as may from time to time be authorized in writing by the City or by the Executive Director of Aviation to act for him with respect to any or all matters pertaining to this Agreement. 1.8 "Gross Revenue" as used herein shall be construed to include all monies paid to or payable to Concessionaire for sales made and for services rendered for advertising displayed in the Assigned Areas of the Airport, regardless of when or where orders therefore are received, or delivered, whether on a cash or credit basis; provided, however, that the term "Gross Revenue" shall exclude the following: a. Any amount paid by advertisers in connection with the design, fabrication, or installation of the advertisers' displays. b. Any amount paid by the advertisers to Concessionaire for telephone service. C. The 15% commission for the sale of advertising in the Terminal. d. Quantity purchase discounts allowed. e. Amounts owed which are deemed uncollectible by Concessionaire after prudent collection efforts, but which shall not exceed three and one-half percent (3 ''/z%) of gross sales. f. Any and all taxes imposed upon Concessionaire by law during the term of the contract. 2 1.9 "Percentage Payment" is the sum of money due the City as its share of Gross Revenue as hereinafter provided. ARTICLE TWO TERM 2.1 This Agreement shall become effective upon execution by both parties hereto. The term of this Agreement shall be for ten (10) years from the Commencement Date. ARTICLE THREE PRIVILEGES AND OBLIGATION OF THE CONCESSIONAIRE 3.1 The City hereby grants to Concessionaire the exclusive right to operate, maintain, and provide the Airport's Terminal advertising concession in the Assigned Areas, as shown on Exhibit "A" attached hereto and incorporated herein. 3.2 Concessionaire shall develop and maintain a comprehensive advertising program totally integrated and coordinated as to design, quality, and content for the Airport Terminal. Under this program, Concessionaire shall establish, operate, service, and maintain prime quality, expertly -designed commercial advertising displays including, but not limited to, self-contained floor exhibits, wall and floor back -lit units, showcases, posters, expo space, car and boat displays, telephone kiosk for hotel and transportation displays, electronic, computer and video displays, and other forms of advertising which may be approved to provide, continuously during the term of this Agreement, an attractive and profitable means for the graphic display of materials, articles, and services of various manufacturers, industries, companies, and persons. 3.3 All installations shall be in good taste, professionally developed, and presented so as to contribute to the establishment of the Airport's facilities as prestigious locations for commercial advertising media. 3.4 The specific locations for displays, dioramas, poster boards, and telephone kiosks will be selected and approved by the Director as indicated on Exhibit "A." All locations selected are subject to relocation at any time at the Director's discretion. Should the Director and the Concessionaire disagree on any advertising locations, the Director's decision shall be final. However, it is the intention of the parties that the Director shall provide a sufficient number of acceptable advertising locations to allow Concessionaire to meet its Airport, equipment, and service costs. 3 3.5 Concessionaire shall be responsible for the commercial advertising program within the Assigned Areas at the Airport and shall apply to that program the fiscal and administrative resources of its sales organization. Through its national and regional organization, concessionaire shall use its best efforts to: a. Develop, on a continuing basis, integrated master plans for advertising at the Airport. b. Follow quality criteria which will recognize the need for integrity of design and advertising content appropriate to the prestige and dignity of the Airport. C. Practice space utilization planning which will recognize and meet the needs of all advertising classifications and ensure maximum revenue return to the City consistent with the scope and integrity of the advertising master plan. d. Provide, through its local and regional representative, and perform continuing liaison between the national sales staff and the Airport staff to assure that the Airport program is an integral part of Concessionaire's national commercial advertising master plan. e. Provide a sales team with ability and experience of sufficient scope to solicit and sell local, regional, and national advertising for display at the Airport with a primary emphasis on local advertising. f. Supply and disseminate promotional material for the sale and use of display media for local and national advertising. g. Supply advertising and display units and facilities which are consistent with the approved architectural design plan for advertising in the Airport's Terminal Building. Concessionaire will provide, at its sole cost and expense, the new equipment set out in future agreed upon plans and specifications. 3.6 Concessionaire shall pay all expenses associated with planning, implementing, and operating the program provided for this Agreement; except as may be set forth elsewhere herein. 3.7 No advertising or displays reasonably considered offensive by the Director may be presented to the public. The Concessionaire will promptly remove or modify the presentation of any advertising or display items if so directed by the Director. 3.8 The Concessionaire has the right to ingress and egress from the Assigned Areas by common use roadways, subject to any rules or regulations which may have been established or shall be established in the future by the local, state, or federal laws, orders, or regulations. Such rights of ingress and egress shall apply to the Concessionaire's employees, invitees, suppliers, and other authorized individuals. 3.9 The Airport shall provide parking accommodations to the Concessionaire's employees. Visiting service personnel shall park in the short term parking lot. 3.10 The Concessionaire may utilize additional storage space if space is available and at the Director's approval. 3.11 The Concessionaire has the right to install and maintain appropriate signs in the Assigned Areas provided that the design, installation, and maintenance of such signs shall be consistent with the City Code of Ordinances as they may be developed and amended; provided Concessionaire has written approval of the Director prior to installation. 3.12 The Concessionaire will provide an experienced sales team adequate to maintain maximum rental and occupancy of all available advertising display space covered by this Agreement. 3.13 Concessionaire will provide at no cost to the City or users mutually agreed upon advertising space via Concessionaire's digital media, advertiser demand and inventory availability, to be used for civic messages which will not divert revenue and/or conflict with Concessionaire's sales and marketing efforts. Such cases will be identical to those used for commercial advertising unless other displays offered are approved by the Director. Concessionaire shall maintain these civic display cases to the same extent as other displays. Concessionaire will not be required to obtain or determine the users of the civic messages, nor be required to create, publish or maintain the message content. The Director will be responsible for designating which organizations may place civic messages and the length of time they may be used. ARTICLE FOUR ADVERTISING STANDARDS 4.1 The Concessionaire agrees to use the Assigned Areas solely for the sale, placement, and display of advertising products and shall use its best efforts in every proper manner to maintain, develop, and increase the sales of advertising developed hereunder. 4.2 The Concessionaire shall submit annually to the Director, upon request, a schedule of monthly rates to be applied to the advertising locations, which will be subject to revision by Concessionaire only with concurrence of the Director, with the understanding that advertising locations shall be subject to quantity purchase discounts and to the standard sales/advertising agency deduction or commission. 4.3 All advertising material, advertisements, and manner of presentations shall be subject to approval by the Director. Upon written demand of the Director, Concessionaire shall immediately remove from the Airport premises at its sole cost and expense any material or display which is disapproved. In the 5 event that such disapproved material or display is not removed immediately upon receipt of written demand, the Director may remove such item and Concessionaire shall pay any warehouse or storage rental incurred as a result of such action. The Director shall not in any way be held responsible or liable for any damage to the material or display so removed. Such refusal on the part of Concessionaire to remove said material or display may at the option of the Director be considered a default under this Agreement, which shall not be considered as waived by the action of removal on the part of the Director. 4.4 Questions or complaints regarding the quality of service and/or prices, whether raised by patron complaints, client complaints, or on the Director's own initiative or otherwise, may be submitted to Concessionaire for response. Such response shall be provided by Concessionaire within ten working days. 4.5 At the Director's request, Concessionaire shall meet with Airport staff to review any complaints or concerns and to promptly correct any deficiencies. The Director's reasonable determination as to quality of operation or services shall be conclusive and curative measures shall be implemented by Concessionaire as expeditiously as possible. 4.6 All advertising copy, equipment, and other items used in the Concessionaire's operations shall conform in all respects to federal, state, and local laws, orders, and regulations. 4.7 The Director may request the names of all suppliers used by the Concessionaire. 4.8 Concessionaire must, at its own expense, identify, provide, and maintain in force any and all licenses and permits for the legal operation of all aspects of the Concession. 4.9 Should a conflict arise between the Concessionaire and other concession operators at the Airport regarding the scope of concession privileges, the Director's decision on the matter shall be final and conclusive. The Concessionaire agrees to abide by the Director's decision. ARTICLE FIVE IMPROVEMENTS BY CITY 5.1 The City shall provide unfinished floors, walls, and ceilings for the Assigned Areas at the Airport. 5.2 All permanent improvements made by the City to the Assigned Areas will be considered an integral part of the Terminal and title to such permanent improvements will immediately vest in the City. Upon termination or expiration of this Agreement, Concessionaire will surrender possession of these improvements to the City free and clear of liens or encumbrances whatsoever. 5.3 The City will be responsible for the following: t� a. All partitions about the perimeter of the Assigned Areas, all structural walls and supports, all structural roof construction, all floor construction, and all exterior window walls designed about the perimeter of the Assigned Areas. b. All required electricity to all approved sign and display locations indicated in the attached layout to this Agreement and any added or amended locations agreed upon by both parties. An abatement fee will apply if there is a loss of electricity for more than seven days or a display case is visually obstructed and Concessionaire credits advertisers for loss of exposure. Concessionaire will be responsible for the internal connections of signs and displays only. ARTICLE SIX IMPROVEMENTS BY CONCESSIONAIRE 6.1 Prior to Beneficial Occupancy, and upon approval from the Director, the Concessionaire may enter the Assigned Areas in the Terminal. The Concessionaire shall, without cost to the City, provide the Assigned Areas with all improvements necessary for the customary operation of advertising services in a first class manner. 6.2 All structural improvements, equipment, and interior design and decor constructed or installed by the Concessionaire, its agents, or contractors, including the plans and specifications, shall conform to all applicable statutes, City Code of Ordinances, building codes, rules, and regulations. 6.3 One set of final plans and specifications as approved for the Assigned Areas within the Terminal must be submitted to the Director. Work or construction shall not commence until written approval from the Director is received and the plans are approved. 6.4 The Director shall within fourteen (14) days of receipt of any plans, either approve or disapprove the plans and/or specifications submitted by the Concessionaire. Approval by the Director of any plans and specifications refers only to the conformity of such plans and specifications to the general architectural and aesthetic plan for the Assigned Areas and such approval shall not be unreasonably withheld. Such plans and specifications are not approved for architectural or engineering design or compliance with applicable laws or codes, and neither the City nor the Director, by approving such plans and specifications, assume any liability or responsibility hereof or for any defect in any structure or improvement constructed according to such plans and specifications. The Director reserves the right to reject any designs submitted and shall state the reasons for such action. 6.5 In the event of rejection by the Director, the Concessionaire shall have fourteen (14) days to submit necessary modifications and revisions. 6.6 No changes or alterations shall be made to said plans and specifications after approval by the Director. No structural alterations or improvements shall be made to or upon the Assigned Areas without the prior written approval of the Director. One reproducible final copy of the plans for all improvements, or subsequent changes therein, or alterations thereof to the Assigned Areas shall be signed by the Concessionaire and submitted to the Director within ninety (90) days following installation completion. 6.7 All improvements made by the Concessionaire to the Assigned Areas shall be of high quality. Furthermore, they shall be safe, fire resistant, attractive in appearance, and shall require written approval of the Director prior to installation. 6.8 The Concessionaire shall submit a schedule depicting the estimated time required to complete the construction and installation of approved improvements, facilities, and equipment for the Terminal advertising concession herein granted. 6.9 Upon written consent from the Director, the Concessionaire shall immediately begin construction and installation of the improvements, facilities, furnishings, and equipment in the Assigned Areas and pursue the same to completion within one hundred twenty (120) days of such approval. However, any delay in construction due to fire, earthquake, wars, acts of the City, or one of the Airport's contractors, or other calamity beyond the control of the Concessionaire shall reasonably extend the time within which such construction and installation shall be completed. 6.10 The Concessionaire shall, in conjunction with its architect and/or engineering and the Director, develop a project schedule for the Terminal advertising improvements to assist in the incorporation of the schedule into the overall Terminal operation. 6.11 The Concessionaire and its architect and/or engineer shall meet with the Director in periodically scheduled meetings to assess the current status of completion. 6.12 All permanent improvements, additions, and alterations made to the Assigned Areas by the Concessionaire shall be and remain the property of the Concessionaire until the expiration of the term of this Agreement or upon termination by cancellation, forfeiture, or otherwise, whichever occurs first, at which time said improvements shall become property of the City. Any trade fixtures, displays, and other possessions of Concessionaire not permanently affixed to the Assigned Areas, which shall include telephone kiosks and freestanding displays, shall remain the property of Concessionaire. Concessionaire shall within six (60) days following the termination of this Agreement remove its trade fixtures, signs, and 8 other possessions not permanently affixed to the Assigned Areas. If Concessionaire fails to remove the fixtures within the time period stated, title to same shall vest in the City at no cost to the City at the option of the Director. Director may elect to exercise on behalf of the City any of the rights set forth in Paragraph 14.6 of this Agreement. 6.13 Upon completion of improvements to the Assigned Areas outlined herein, the Concessionaire shall have the right to install or erect additional, non-structural improvements in the Assigned Areas; provided, however, that all such improvements shall be commenced only after plans and specifications have been approved in writing by the Director. Any such improvements shall be without cost to the City and shall be constructed within the time specified in the written approval and with the least disturbance possible to the operation of the Terminal and to the public. 6.14 The ultimate control over the quality and acceptability of the finishes in the Assigned Areas will be retained by the Airport. All improvements and finishes shall require the written approval of the Director prior to installation. 6.15 Upon construction completion, the Concessionaire must provide the Airport with a certification that the improvements have been constructed in accordance with the approved plans and specifications, and in strict compliance with all applicable City Code of Ordinances, building codes, laws, rules, and regulations. 6.16 The Concessionaire shall not remove or demolish, in whole or in part, any improvements upon the Assigned Areas without prior written consent of the Director. 6.17 Concessionaire shall provide all labor, supervision, material, supplies, and transportation. The Concessionaire shall have the right to negotiate the location for advertising displays in the Terminal. 6.18 Concessionaire shall not bind or attempt to bind the City for payment of any money in connection with installations, alterations, additions, or repairs to the Assigned Areas or to any of Concessionaire's equipment or facilities located on the Assigned Areas. Concessionaire shall not permit any mechanic's, materialman's, or contractor's liens to arise against the City, the Assigned Areas, or any improvements, equipment, machinery, or fixtures thereon belonging to the City. Concessionaire expressly agrees to keep and save the City harmless from all costs and damages resulting from any lien or liens of any character created or that may be asserted through any act or thing done by Concessionaire. In the event any mechanic's or other liens or orders for payment shall be filed against the City, the Assigned Areas, improvements, or property of the City located thereon, during the term of this Agreement, or during any extension thereof, Concessionaire shall within ten (10) days cause the same to be canceled and discharged of record by bond or otherwise, at the election and expense of Concessionaire, and shall also defend on W behalf of the City, at Concessionaire's sole cost and expense, any action, suit or proceeding which may be brought thereon or for the enforcement of such liens or orders. ARTICLE SEVEN PERCENTAGE PAYMENTS, CHARGES, AND ACCOUNTABILITY 7.1 Concessionaire agrees to pay 50% of the Gross Revenue derived from the sale of advertising and advertising space in the Terminal Building, notwithstanding the above language, in no event will the annual fee be less than $75,000 for each Agreement Year (the "Minimum Annual Guarantee"). This percentage payment will be paid to the office of the Director by the tenth (10`x') day of the month following each calendar quarter of service, beginning with the month following the first quarter of Beneficial Occupancy. 7.2 Concessionaire shall furnish to the Director each quarter a statement showing total Gross Revenue, as defined herein, for the preceding quarter. With each quarterly statement, the Concessionaire shall remit to the Director the above stated percentage of its Gross Revenue derived through the end of the last month of the quarter. 7.3 Concessionaire agrees to provide all customized display cases and a capital commitment of $98,000 during the first two years from the Effective Date of this Agreement. Concessionaire shall also furnish the Director a schedule identifying such capital expenditures ninety (90) days after the execution date and, subsequently, at the end of the second full contract year. 7.4 The City shall pay for all electrical service provided to the Assigned Areas. Concessionaire shall pay for all telephone service to Assigned Areas. It is the understanding of the parties that no other utilities shall be necessary. 7.5 The Concessionaire shall keep complete and accurate books and records showing transactions, sales, and income from the concession rights herein granted. City shall have the right, through its representatives, at reasonable times, to inspect such records as may be necessary to verify Gross Revenue reported. The Concessionaire agrees such records and instruments are and shall be made available at Concessionaire's office location for at least four (4) years following the end of each annual period of this Agreement. 7.6 The Concessionaire shall furnish a written statement to the Director stating the percentage payment made by the Concessionaire to the City during each of Concessionaire's fiscal years pursuant to this Agreement. Such statement shall contain Gross Revenues as shown on the books and records of Concessionaire that were used to compute the Percentage Payment made to the City during the period H covered by the statement. Within ninety (90) days of the last day of the Concessionaire's fiscal year, this statement shall be completed and furnished to the Director. 7.7 Without waiving any other right or action to the City or Director in the event of a default in payment of any Percentage Payments and Concessionaire is delinquent for a period of fifteen (15) days or more, the Concessionaire shall pay the City interest at 5% per annum from the date such sums were due until paid. Such interest shall not accrue with respect to disputed items being contested in good faith by Concessionaire. 7.8 The City reserves the right to audit Concessionaire's books and records of Gross Revenue at any time for the purpose of verifying the Gross Revenue reported. If, as a result of such an audit, it is established the Concessionaire has understated the Gross Revenue received from all operations related to the Assigned Areas by ten percent or more during previous annual reporting periods, the entire expense of said audit shall be paid by the Concessionaire. Any additional percentage fee due shall be paid without delay with interest thereon at 5% per annum from the date such additional percentage fee became due. 7.9 Notwithstanding the fact it is the practice of the industry for subscribers to render payment in arrears, Concessionaire shall render payment on the basis of gross revenues due or to become due rather than on the basis of amounts received by Concessionaire. However, in the event Concessionaire is unable to collect amounts due from a subscriber for which Concessionaire has previously rendered payment to the City, after a diligent effort is made to collect such amounts by Concessionaire, such "bad debts" shall be deemed uncollectible and the appropriate adjustments made in submission of subsequent statements and Percentage Payments. These "bad debts" shall not exceed two and one-half percent (2 %%) of Gross Revenue. 7.10 In addition to the Percentage Payments described in this Article, the Director may require Concessionaire to pay the City a processing fee and a deposit for security badges for each of Concessionaire's employees on Airport premises. The Director shall determine the time of payment and the amount of both the processing fee and deposit, each of which shall be reasonable and uniform for all similarly situated Concessionaires at the Airport. Said deposit shall be refundable upon return of the badges to the Director. 7.11 The acceptance of Percentage Payments or fees by the Director for any period or periods after a default of any of the terms, covenants, or conditions herein contained and to be performed, kept, or observed by Concessionaire shall not be deemed a waiver of any rights on the part of the Director to cancel this Agreement for failure by Concessionaire to so perform, keep, and observe. No waiver by the Director of any of the terms, covenants, or conditions of this Agreement to be kept, performed, or observed by the M Concessionaire shall be construed to be or act as a waiver by the Director of any subsequent default by the Concessionaire. ARTICLE EIGHT OPERATIONAL STANDARDS 8.1 Concessionaire agrees to implement the Marketing and Management Plans developed as part of the original proposal submitted by Concessionaire and further agrees to submit updated plans for approval by the Director. The burden of proving compliance with the Management Plans and with the Marketing Plan rests with the Concessionaire. 8.2 The management, maintenance, and operation of the Assigned Areas shall at all times be under supervision and direction of an active, qualified, competent manager who shall at all times be employed by and subject to the direction and control of the Concessionaire. 8.3 The Concessionaire agrees to develop a policy outlining the rules, regulations, and operating procedures which apply to the performance of the covenants and conditions contained in this Agreement. 8.4 The operations of Concessionaire, its employees, invitees, suppliers, and contractors shall be conducted in an orderly and proper manner so as not to annoy, disturb, or be offensive to others. All employees of the Concessionaire must conduct themselves at all times in a courteous manner toward the public and in accordance with the rules, regulations, and policies developed by the Concessionaire and approved by the Director. 8.5 The Concessionaire agrees its employees shall be of sufficient number so as to properly conduct the Concessionaire's operations. The Concessionaire shall provide its employees with identification tags with the Concessionaire's logo and Airport identification badges as required, subject to approval by the Director. ARTICLE NINE MAINTENANCE 9.1 City shall not be required to make repairs or improvements of any kind to the Concessionaire's Assigned Areas if said repairs or improvements are the result of any willful or negligent act of Concessionaire, its employees, patrons, or those under the control of Concessionaire. Furthermore, 12 the City shall not be required to make repairs or improvements of any kind at the Concessionaire's Assigned Areas except as follows: a. Structural repairs to the roof, floor, walls, and windows of the Terminal. b. The City is to provide adequate heating and air conditioning to the Assigned Areas. C. General maintenance and upkeep of the Airport's interior common use areas and external areas. d. Should City be required to make repairs or improvements under the provisions herein, City shall not be liable for any damage caused by disrepair of any kind until City has had a reasonable opportunity to perform repairs after being notified in writing by Concessionaire. Furthermore, City shall not be liable to Concessionaire, its employees, patrons, or vendors for any damage to merchandise, trade fixtures, or possessions in the Assigned Areas caused by water leakage from the roof, water lines, sprinkler, or heating and air conditioning equipment unless caused by the sole negligence of the City. e. The City shall have the right to construct or install new lines, pipes, mains, wires, conduits, and equipment over, in, under, or through the Assigned Areas. Such repair, alteration, replacement, or construction shall not unreasonably interfere with Concessionaire's use of the Assigned Areas. The City will repair, at its sole cost, any damage resulting from such activities. 9.2 The Concessionaire agrees to provide at its own expense, janitorial, cleaning services, and supplies as may be necessary or required in the operation and maintenance of its Assigned Areas. The Concessionaire also agrees to keep and maintain its Assigned Areas in a clean, neat, sanitary condition, and attractive in appearance. 9.3 The Concessionaire agrees to maintain and make repairs, structural, or otherwise, to all of its fixtures and equipment including, without limitation, signs, showcases, displays, telephone kiosks, adjacent walls and ceilings, partitions, and lighting within the Assigned Areas. Concessionaire agrees to keep and maintain in good condition the electrical equipment located at or on its Assigned Areas. 9.4 Prior to making any structural repairs, the Concessionaire shall discuss with the Director whether the Airport wishes to make the repairs with its own personnel and to charge the Concessionaire for such service, including any overhead charges. All work performed by the Concessionaire must be inspected and approved by the Director. 13 9.5 All repairs done by the Concessionaire or on its behalf shall be of first class quality in both materials and workmanship. All repairs shall be made in conformity with all applicable statutes, City Code of Ordinances, building codes, rules, and regulations. 9.6 The Director shall have the right to enter the Concessionaire's Assigned Areas to: a. Inspect the Assigned Areas to determine whether the Concessionaire is complying with the terms and conditions of this Agreement. The Director may require Concessionaire to make repairs required of Concessionaire at the Concessionaire's own cost. b. Perform items which the Concessionaire is obligated to perform but has failed to do so after reasonable notice, including: maintenance, repairs, and replacements to the Concessionaire's Assigned Areas. The cost of all labor and materials required to complete the work will be paid by the Concessionaire to the City within ten (10) days following demand for said payment by the Director. 9.7 The Concessionaire shall, in a timely manner, provide for the adequate sanitary handling and removal of all trash, garbage, and other refuse caused as a result of the Concessionaire's operations. The Concessionaire agrees to provide and use suitable covered or sealed receptacles for all garbage, trash, and other refuse from its Assigned Areas. Piling of boxes, cartons, barrels, or similar items shall not be permitted in a public area. 9.8 The City shall provide security protection similar to that afforded to other Concessionaires in the Terminal. City will issue and enforce rules and regulations with respect to all portions of the Terminal. The Concessionaire shall have the right, but shall not be obligated, to provide additional or supplemental security as it may desire at its own cost. Such right, whether or not exercised by the Concessionaire, shall not in any way be construed to limit or reduce the obligations of the Concessionaire hereunder. Any extra security protection shall in no way hinder or interfere with local, state, or federal laws, statutes, orders, rules, and regulations. 9.9 All Terminal advertising deliveries, if required, shall be in a manner and location established by the Director. 9.10 Except as provided herein, if any property of the City, or for which Concessionaire may be responsible, is damaged or destroyed by the negligence of Concessionaire, its employees, agents, patrons, or invitees, it shall be properly repaired or replaced by Concessionaire to the satisfaction of the Director. In lieu of such repair or replacement, Concessionaire shall, if so required by the Director, pay the City the amount deemed sufficient to compensate the City for the loss sustained or expense incurred plus interest as a result of the loss of, damage to, or destruction of such property. 14 ARTICLE TEN COMPLIANCE 10.1 The Concessionaire, its officers, agents, servants, employees, contractors, licensees, and any other persons whom the Concessionaire controls or has the right to control, shall comply with all federal, state, or local laws, ordinances, orders, directives, rules and regulations, in connection with its Assigned Areas at the Airport. 10.2 Concessionaire shall pay, or in good faith contest, on or before respective due dates, to the appropriate collecting authority, all federal, state, and local taxes and assessments which may be levied upon the Assigned Areas, or upon Concessionaire, or upon the business conducted on the Assigned Areas. Concessionaire shall maintain current status with all federal, state, and local licenses and permits required for the operations of the business conducted by Concessionaire. 10.3 Concessionaire shall pay wages not less than the minimum wages required by law to persons employed in its operations herein. 10.4 This Agreement is governed by the laws of Texas. Any disputes relating to this Agreement must be resolved in accordance with the laws of Texas. Venue shall be in Lubbock County Texas. ARTICLE ELEVEN ASSIGNMENT AND SUBLEASING 11.1 The provisions contained in this Agreement shall be binding on all sublessees. 11.2 Concessionaire shall not assign this Agreement or allow same to be assigned by operation of law or otherwise, or sublet the Assigned Areas without the prior written consent of the Director. Any purported assignment or sublease in violation hereof shall be void. 11.3 In no case may the activities, uses, privileges, and obligations authorized herein be assigned for any period or periods after a default of any of the terms, covenants, or conditions herein contained to be performed, kept, and observed by the Concessionaire. 11.4 The Concessionaire must obtain the consent of the Director to keep this Agreement in effect prior to any consolidation, transfer, or merger of ownership between the Concessionaire and any other corporation or company. 11.5 In the event the Director consents to any assignment or subletting on the part of the Concessionaire of any rights or privileges granted in this Agreement, Concessionaire shall remain responsible for any and all payments due the City as a result of operations conducted by the assignee or sublessee. 15 ARTICLE TWELVE INSURANCE AND INDEMNIFICATION 12.1 The City, its officers, agents, and employees shall stand indemnified by the Concessionaire as provided by this Agreement. The Concessionaire shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the City shall in no way be responsible thereof. In the exercise of the obligations and in the enjoyment of the privileges granted by this Agreement, the Concessionaire shall indemnify and save harmless the City, its officers, agents, and employees from any and all losses that result from any fault or negligence on the part of the Concessionaire, its agents, employees, or invitees, and shall indemnify the City, its officers, agents, and employees against any and all claims, demands, suits, judgements, and losses in connection therewith, except for losses resulting from the City's negligence and willful misconduct. The Concessionaire shall maintain insurance at all times this lease is in effect, at Concessionaire's sole expense and with an underwriter, with an A or Best Rating, authorized to do business in the State of Texas and acceptable to the City, against claims of general liability, automobile liability, and worker's compensation resulting from Concessionaire's business activities at the Airport. General Liability and Auto Liability Insurance — The amount of insurance coverage shall not be less than ONE MILLION AND NO/100 DOLLARS ($1,000,000) for combined single limit general liability insurance per occurrence; or less than ONE MILLION AND NO/100 ($1,000,000) for combined single limit auto liability insurance per occurrence. Workers Compensation and Occupational Medical and Disability — The Concessionaire shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Concessionaire shall maintain said coverage throughout the term of the agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Concessionaire maintains said coverage. Concessionaire shall carry and maintain coverage in an amount no less than FIVE HUNDRED THOUSAND AND NO/ 100 DOLLARS ($500,000). Any termination of worker's compensation insurance coverage by contractor or any cancellation or nonrenewal of worker's compensation insurance coverage for the Concessionaire shall be a material breach of this Agreement. The above mentioned policies shall all include a waiver of subrogation. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the Director prior to entry upon the premises by the Concessionaire. The Auto Liability policy shall name the City as a primary additional insured, require the insurer to notify the Director of any alteration, renewal, or cancellation, and remain in full force and 16 effect until at least ten days after such notice of alteration, renewal, or cancellation is received by the Director. The Concessionaire will provide copies of all relevant policy forms, declarations pages and endorsements on the required polices without expense to the City and may make any reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations, or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any of such policies.) Upon such request by the City, Concessionaire shall exercise reasonable efforts to accomplish such changes in policy coverages, and shall pay the cost thereof. Any costs will be paid by the Concessionaire. ARTICLE THIRTEEN CANCELLATION BY CONCESSIONAIRE 13.1 This Agreement shall be subject to cancellation by the Concessionaire, without further liability to the City, should any one or more of the following events occur: a. The abandonment of the Airport by the City for longer than sixty (60) days; or b. The issuance by any court of competent jurisdiction of an injunction preventing or restraining the use of the Airport in such a manner as to substantially restrict the Concessionaire through no fault of its own from exercising its rights or privileges under this Agreement and the remaining in force of such injunction for at least sixty (60) days; or C. The breach by the City of any of the material terms, covenants, or conditions of this Agreement to be kept, performed and observed by the City, and the failure of the City to remedy such breach, within thirty (30) days of receipt of written notice from the Concessionaire of the existence of such breach, if City shall fail within said thirty (30) day period to commence and thereafter diligently proceed to cure such default; or d. The assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport and its facilities in such a manner as to substantially restrict the Concessionaire from exercising its rights or privileges under this Agreement if such restriction continues for a period of one month or more. 13.2 In the event of default by the City, the Concessionaire shall be eligible for an abatement in its privileges, fees, and charges identified in Article Seven from the time of default until the cessation of such default, or the cancellation of this Agreement by the Concessionaire. 17 13.3 In the event any condition of default shall occur (notwithstanding any waiver, license, or indulgence granted to the City with respect to any condition of default in any form or instance), Concessionaire, then or at any time thereafter, while such breach is continuing, shall have the right, at its election, to terminate this Agreement by giving at least five days written notice to the City, at which time Concessionaire will then quit and surrender the Assigned Areas. ARTICLE FOURTEEN CANCELLATION BY CITY 14.1 This Agreement shall be subject to cancellation by the Director, without further liability to Concessionaire, if one or more of the following conditions of default by Concessionaire occur: a. If Concessionaire neglects or fails to perform or observe any of the terms, provisions, conditions, or covenants herein contained. If such neglect or failure should continue for a period of thirty (30) days after receipt of written notice of such neglect or failure (or if the nature of default would require more than thirty (30) days) and fails to diligently cure such default; or b. If the Concessionaire makes an assignment for the benefit of creditors; or files a voluntary petition of bankruptcy; or if proceedings in bankruptcy shall be instituted against Concessionaire and Concessionaire is thereafter adjudicated as bankrupt pursuant to such proceedings; or if a court shall take jurisdiction of Concessionaire and its assets pursuant to proceedings brought under the provisions of any federal reorganization act; or if a receiver for Concessionaire's assets is appointed; or if Concessionaire petitions or applies to any tribunal for the appointment of a trustee or receiver for Concessionaire under any bankruptcy, reorganization arrangement, insolvency, readjustment of debt, dissolution, or liquidation law of any jurisdiction, whether now or hereafter in effect; or C. If the Concessionaire shall default in or fail to make any Percentage Payments or fees to the City at the time and in the amount required of Concessionaire under this Agreement; or d. If Concessionaire shall fail to abide by all applicable laws, ordinances, rules, and regulations of the United States, State of Texas, or the City of Lubbock; or e. If Concessionaire shall fail to take possession of its Assigned Areas; or f. If Concessionaire shall abandon all or any part of its Assigned Areas or shall discontinue the conduct of its operations in all or any part of its Assigned Areas. 18 14.2 Except where this Agreement provides for immediate termination, in the event any condition of default shall occur (notwithstanding any waiver, license, or indulgence granted by the Director with respect to any condition of default in any form or instance) the Director, then, or at any time thereafter, while such breach is continuing, shall have the right, at his election, either to terminate this Agreement by giving at least five days written notice to Concessionaire, at which time the Concessionaire will then quit and surrender the Assigned Areas to the Director, or, to enter upon and take possession of the Assigned Areas (or any part thereof in the name of the whole), without demand or notice and repossess the same, expelling all those claiming under Concessionaire, forcibly, if necessary, without prejudice to any remedy for Percentage Payments in arrears or preceding the condition of default, and without any liability to Concessionaire or those claiming under Concessionaire for such repossession. 14.3 Upon the occurrence of any one or more of the contingencies enumerated in Section 14. 1, b. of this Article, this Agreement shall be deemed to be breached by Concessionaire and thereupon as a result, and without entry or any other action by the City, this Agreement shall automatically terminate, and be reinstated only if such involuntary bankruptcy or insolvency proceedings, petition for reorganization, trusteeship, receivership, or other legal act divesting Concessionaire's favor within thirty (30) days from the happening of the contingencies. Upon the happening of said latter events, this Agreement shall be reinstated as if there had been no breach occasioned by the happening of the contingencies, provided that Concessionaire shall, within ten days after the final denial, vacating, or setting aside of such petition or vacating, terminating, or setting aside of such appointment, pay, or discharge any and all sums of money which may have become due the City under this Agreement in the interim and remain unpaid, and shall likewise fully perform and discharge all other obligations which may have accrued and become payable in the interim. 14.4 The Director's repossession of the Assigned Areas shall not be construed as an election to terminate this Agreement nor shall it cause a forfeiture of Percentage Payments or other charges remaining to be paid during the balance of the term hereof, unless a written notice of such intention is given to Concessionaire, or unless such termination is decreed by a court of competent jurisdiction. Notwithstanding any reletting without termination because of any default by Concessionaire, the Director may at any time after such reletting elect to terminate this Agreement for any such default. 14.5 The City shall not be liable and Concessionaire's liability shall not be affected or diminished in any way whatsoever for failure to relet the Assigned Areas, or in the event the same are relet, for failure to collect any fees or other sums due under such reletting. 19 14.6 If the Director shall terminate this Agreement or take possession of the Assigned Areas by reason of a condition of default, Concessionaire, and those holding under Concessionaire, shall forthwith remove their goods and effects from the Assigned Areas. If Concessionaire or any such claimant shall fail to effect such removal forthwith, the Director may, in his discretion, exercise the rights set forth in Paragraph 16.1 herein or may, without liability to Concessionaire or those claiming under Concessionaire, remove such goods and effects and may store the same for the account of Concessionaire or of the owner thereof at any place selected by the Director, or at his election, and upon giving fifteen days written notice to Concessionaire of the date, time, and location of sale, may sell the same at public auction or private sale on such terms and conditions as to price, payment, and otherwise as the Director may in good faith deem advisable. If, in the Director's judgment, the cost of removing and storing or the cost or removing and selling any such goods and effects exceeds the value thereof or the probable sale price thereof, as the case may be, he shall have the right to dispose of such goods in any manner he may deem advisable. 14.7 Concessionaire shall be responsible for all costs of removal, storage, and sale, and the City shall have the right to reimburse itself from the proceeds of any sale for all such costs paid or incurred by the City. If any surplus sale proceeds shall remain after such reimbursement, the Director may deduct from such surplus any other sum due to the City hereunder and shall pay over to Concessionaire any remaining balance of such surplus sale proceeds. 14.8 If the Director shall enter into and repossess the Assigned Areas by reason of the default of Concessionaire in the performance of any of the terms, covenants, or conditions herein contained, then and in that event Concessionaire hereby covenants and agrees that Concessionaire will not claim the right to redeem or re-enter the Assigned Areas to restore its operations hereunder, and Concessionaire hereby waives the right to such redemption and re-entrance under any present or future law, and hereby further, for any party claiming through or under Concessionaire, expressly waives its right, if any, to make payment of any sum or sums of rent, or otherwise, of which Concessionaire shall have made default under any of the covenants of this Agreement and to claim any subrogation of the rights of Concessionaire under these presents, or any of the covenants thereof, by reason of such payment. 14.9 All rights and remedies of the City herein created or otherwise existing at law are cumulative, and the exercise of one or more rights or remedies shall not be taken to exclude or waive the right to the exercise of any other. All such rights and remedies may be exercised and enforced concurrently and whenever and as often as deemed advisable. 14.10 If proceedings shall at any time be commenced for recovery of possession as aforesaid and compromise or settlement shall be effected either before or after judgment whereby Concessionaire shall 20 be permitted to retain possession of the Assigned Areas, then such proceeding shall not constitute a waiver of any condition or agreement contained herein or of any subsequent breach thereof. 14.11 Any amount paid or expense or liability incurred by the City for the account of Concessionaire may be deemed to be additional revenue and the same may, at the option of the Director, be added to any revenue then due or thereafter falling due hereunder. 14.12 Concessionaire herby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Concessionaire being evicted or dispossessed for any cause, or in the event of the City obtaining possession of the Assigned Areas by reason of the violation by Concessionaire of any of the covenants or conditions of this Agreement or otherwise. The rights given to the City herein are in addition to any rights that may be given to the City by any statute or otherwise. 14.13 Upon termination of this Agreement, through passage of time or otherwise, the Concessionaire shall aid the Director in all ways possible in continuing the Terminal Advertising Concession in the Terminal Building uninterruptedly. Specifically, the Concessionaire, if required by the Director, shall continue its advertising operations beyond the term of this Agreement in order to coordinate the removal of its possessions with the installation of replacement property by a replacement Concessionaire. Such extension of operations beyond the term of this Agreement shall be under the same terms and conditions as stated herein. 14.14 The Concessionaire agrees to keep all insurance policies and/or self-insurance in effect through surrender of its Assigned Areas. ARTICLE FIFTEEN SECURITY 15.1 Concessionaire agrees to observe all security requirements of Transportation Security Administration (TSA) Code of Federal Regulations (CFR) Part 1542, and the Airport Security Program, and all other applicable regulations, as the same may be from time to time amended, and to take such steps as may be necessary or directed by the Director to ensure that sublessees, employees, invitees, suppliers, vendors, and contractors observe these requirements. 15.2 If the City or the Airport incurs any fines and/or penalties imposed by the TSA or any expense in enforcing the regulations of TSA, the Airport Security Program, or other applicable regulations, as a result of the acts or omissions of the Concessionaire, Concessionaire agrees to pay and/or reimburse all such costs and expense. Concessionaire further agrees to rectify any security deficiency as may be 21 determined as such by the Director or the TSA. The Director reserves the right to take whatever action necessary to rectify any security deficiency in the event Concessionaire fails to remedy the same. 15.3 Upon execution of this Agreement, the Director may require Concessionaire to provide the Airport with a Security Plan which is acceptable to the Director, the Airport's Security Coordinator, and the TSA. Failure to submit an acceptable Security Plan within a reasonable time shall be grounds for immediate termination of this Agreement. ARTICLE SIXTEEN ADVERSE TENANCY 16.1 Any unauthorized holding over by the Concessionaire after the termination of this Agreement or the expiration of its term without the written consent of the Director, except for the period authorized and required for removal of Concessionaire's property upon the expiration or termination hereof, shall entitle the Director to collect from the Concessionaire as liquidated damages for such holding over double the amount of the quarterly revenue in effect immediately prior to the commencing of such holding over. The City may perfect a lien on the property of Concessionaire as security for the payment of any damages or unpaid fees and shall be entitled to collect the same by foreclosure of such lien and sale of such property. ARTICLE SEVENTEEN FIRE AND OTHER DAMAGE 17.1 In the event that structural or permanent portions of the Assigned Areas shall be partially damaged by fire or other casualty through no fault of Concessionaire, the Concessionaire shall give irmnediate notice thereof to the Director and the same shall be repaired at the expense of the City without unreasonable delay unless the City determines that the damage is so extensive that repair or rebuilding is not feasible. From the date of such casualty until said area is so repaired, payment hereunder shall abate in such amount as may be reasonably determined by the Director; provided, however, that if an area shall be so slightly damaged as not to be rendered unfit for occupancy, the fees hereunder shall not cease or be abated during any repair period. In the event the damage to the area should be so extensive as to render it untenable, the fees for such areas shall cease until such time it shall again be put in repair, but in the event of the area being damaged by fire or other casualty to such an extent as to render it necessary in the exclusive judgment of the City not to rebuild the same, then, at the option of the City or Concessionaire, `% and upon thirty (30) days written notice to the other, this Agreement as it applies to said area shall cease and come to an end, and the fees hereunder shall be apportioned and paid up to the date of such damage. If the City elects to rebuild said areas, the Director shall notify Concessionaire of such intention within thirty (30) days of the date of the damage; otherwise, the Agreement as it applies to said area shall be deemed canceled and of no further force or effect. The City's obligations to repair or rebuild under this Article shall in any event be limited to restoring said area to substantially the condition that existed prior to the commencement of improvements by Concessionaire and shall further be limited to the extent of the insurance proceeds available to the City for such restoration. Concessionaire agrees that if the City elects to totally repair or rebuild as provided in this Article, then Concessionaire will proceed with reasonable diligence and at its sole cost and expense (unless such damage is caused by the sole negligence of the City) to rebuild, repair, and restore its signs, fixtures, furnishings, equipment, improvements, and other items provided or installed by Concessionaire in or about the Assigned Areas in a manner and to a condition at least equal to that which existed prior to its damage or destruction. The City reserves all legal rights to sue Concessionaire for any fire or casualty caused in whole or in part by Concessionaire. ARTICLE EIGHTEEN GENERAL PROVISIONS 18.1 Attorney's Fees — In case the City brings any action under this Agreement, and prevails in said action, then the City shall be entitled to recover from Concessionaire its reasonable fees incurred as a result of said action. Such fees shall include, but not be limited to, expert witness fees, court costs, and attorneys' fees. 18.2 Amendment — This Agreement constitutes the entire Agreement between the parties. No amendment, modification, or alteration of the terms, covenants, and conditions contained in this Agreement shall be binding unless the same shall be in writing, dated subsequent to the date hereof and duly executed by the parties hereto. 18.3 Relationship of Parties — Concessionaire is an independent contractor and nothing contained herein shall be deemed or construed as creating the relationship of principal and agent, partners, joint ventures, or any other similar relationship between the parties. The parties shall understand and agree that neither the method of computation of percentage payments nor any other provision contained herein creates a relationship other than that of an independent contractor. 23 18.4 Environmental Protection — Concessionaire agrees to comply with all laws, and to obey all rules, regulations, and administrative orders of the City of Lubbock, the State of Texas, and the United States as these laws, rules, regulations, and administrative orders may now exist and as they may be hereafter adopted. Concessionaire further agrees to abide by all rules and regulations adopted by the Airport relating to protection of the environment. 18.5 Federal Aviation Act — Nothing herein contained shall be deemed to grant the Concessionaire any exclusive right or privilege within the meaning of Section 308 of the Federal Aviation Act. Any activity on the Airport is subject to the terms and provisions hereof, the Concessionaire shall have the right to possess the Assigned Areas under the provisions of this Agreement. 18.6 Sponsor's Assurance Subordination — This Agreement shall be subordinate to the provisions of any existing or future agreement between the City and the United States concerning the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. Should the effect of such agreement with the United States be to take any of the property under this Lease or otherwise diminish the commercial value of this Lease, the City shall not be held liable therefor. The City covenants and agrees it will during the term of this Agreement operate and maintain the Airport as a public facility consistent with and pursuant to the Assurances given by the City to the United States Government under federal law. 18.7 Non -waiver of Rights — No waiver of default by either party of any of the terms, covenants, or conditions hereof to be performed, kept, and observed by the other party shall be construed as a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained and to be performed, kept, and observed by the other party. 18.8 Notices - Notices may be given by registered, certified, or express mail by the US Postal Service or by courier. Either party shall have the right, by giving written notice to the other, to change the address at which its notices are to be received. Until any such change is made, notices to Airport shall be delivered as follows: Kelly Campbell, Executive Director of Aviation Lubbock Preston Smith International Airport 5401 N. Martin Luther King Blvd., Unit 389 Lubbock, TX 79403 24 Until any such change is made, notices to Concessionaire shall be delivered as follows: Toby Sturek, EVP, Specialty Businesses In -Ter -Space Services, Inc. d/b/a Clear Channel Airports 7450 Tilghman Street, Suite 104 Allentown, PA 18106 18.9 Captions — The headings of sections or articles of this Agreement are inserted only as a matter of convenience and reference and in no way defines, limits, or describes the scope or intent of any provisions or terms of this Agreement. 18.10 Severability — If one or more clauses, sections, or provisions of this Agreement is determined to be unlawful, invalid, or unenforceable, the parties hereto agree the material rights of either party shall not be affected. 18.11 Right to Develop Airport — Concessionaire agrees the City has the right to further develop or improve the Airport Tenninal and airfield, regardless of the desires or views of the Concessionaire. All rights, privileges, and interests of Concessionaire, may be suspended if necessary to secure federal financial aid for the development of the Airport. 18.12 Incorporation of Required Provisions — The parties incorporate herein by this reference all provisions lawfully required to be contained herein by any governmental body or agency. 18.13 Non -liability of Agents and Employees — No member, officer, agent, or employee of the City or Concessionaire shall be charged personally or held contractually liable by or to the other party under any of the terms or provisions of this Agreement or because of any breach thereof. 18.14 Successors and Assigns Bound — This Agreement shall be binding upon and serve to the benefit of the successors and assigns of the parties hereto. 18.15 Right to Amend — In the event the Federal Aviation Administration or its successors requires modifications or changes in this Agreement as a condition precedent to the granting funds for the improvement of the Airport, or otherwise, the Concessionaire 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. 18.16 Time of Essence — Time is expressed to be of the essence of this Agreement. 18.17 Gender - Words of any gender used in this Agreement shall be held and construed to include any gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. 25 18.18 Force Majeure — Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if prevented from performing any of the obligations hereunder by reason of strikes, boycotts, labor disputes, declared economic recessions or depressions as declared by the National Bureau of Economic Research or other recognized subject matter expert, embargos, shortage of material, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, riots, rebellions, sabotage, or any other circumstances for which the parties are not responsible or which are not within their control. 18.19 Right of Relocation — The Director reserves the right to relocate areas in which Concessionaire is granted the privilege to conduct its business in the Terminal. Such relocation demands shall be provided to Concessionaire in writing from the Director within sixty (60) days of such needed action. Subsequent costs of such relocation shall be borne by the City. City shall make best faith efforts to keep available for the use of Concessionaire during the term advertising locations of at least equal number, passenger exposure and commercial advertising value as those in the original Exhibit "A". In the event that an Assigned Area is required to be deleted which represents ten percent (10%) or more of Concessionaire's original Exhibit "A", Concessionaire's Minimum Annual Guarantee shall be proportionally reduced. 18.20 Rules, Regulations, and Procedures — City reserves the right to issue through the Director such rules, regulations, and procedures for activities and operations conducted at the Airport as deemed necessary to protect and preserve the safety, security, and welfare of the Airport and all persons, property, and facilities located thereon. ARTICLE NINETEEN DISADVANTAGED BUSINESS ENTERPRISE 19.1 The City is committed to a policy and program for the participation of Airport Concession Disadvantage Business Enterprise (ACDBE) in concession -related contracting opportunities in accordance with U.S. Department of Transportation's (DOT) 49 Code of Federal Regulations (CFR) Part 23 as may be amended. In advancing City's policy, the Concessionaire agrees to ensure that ACDBEs, as defined in 49 CFR Part 23 and City's ACDBE Program, have the maximum opportunity to participate in the performance of the Agreement. The Concessionaire will take all necessary and reasonable steps in accordance therewith to ensure that ACDBEs are encouraged to compete for goods and services offered under the Agreement. 19.2 ACDBE Participation and Compliance 26 a. ACDBE Goal: The Concessionaire agrees it will pursue contracting opportunities with ACDBE firms, certified with the State of Texas Uniform Certification Program, to provide goods and services to be purchased under the Agreement for each year of the term, or clearly demonstrate in a manner acceptable to City its good faith efforts to do so. b. ACDBE Termination and Substitution: The Concessionaire will not terminate an ACDBE for convenience without the City's prior written consent. If an ACDBE is terminated by the Concessionaire with the City's consent or because of the ACDBE's default, then Concessionaire must make a good faith effort, in accordance with the requirements of 49 CFR Part 23.25 to find another ACDBE to substitute for the original ACDBE to provide the same amount of ACDBE participation. C. Reporting Requirements: The Concessionaire agrees within thirty (30) days after the City's Fiscal Year (October -September) during the tern of the Agreement, it will provide an ACDBE Utilization Activity Report to the Airport, in a form acceptable to the Airport, the total actual dollars payed to each ACDBE contractor, number of total contracts, and total dollar amount of all contracts. If the ACDBE participation required is not met, the Concessionaire will explain in its report the reason for its failure to meet the prescribed goal and the corrective action(s) the Concessionaire proposes to take in the next fiscal year(s) to meet said goal. d. Monitoring: Airport will monitor the compliance and good faith efforts of the Concessionaire in meeting the requirements of this Article. City will have 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 the Concessionaire and the ACDBE participant, and other records pertaining to the ACDBE participation plan. e. Prompt Payment: The Concessionaire agrees to pay each contract for satisfactory performance no later than thirty (30) calendar days from the receipt of invoice or statement. Any delay or postponement of payment from the above referenced time frame may occur only for good cause. This clause applies to ACDBE contracts. f. Sanctions for Non -Compliance: City may, in addition to pursuing any other available legal remedy for the Concessionaire's failure to comply with this Article, terminate, suspend or cancel the Agreement in whole or in part; and/or suspend the Concessionaire from future Agreements. 27 ARTICLE TWENTY NONDISCRIMINATION 20.1 Concessionaire, its agents, and employees will not discriminate against any person or class of persons by reason of race, creed, color, national origin, age, sex, or disability in providing any services or in the use of any of its facilities provided for the public. Concessionaire further agrees to comply with such enforcement procedures as the United States Government might demand that the Concessionaire take in order to comply with the Sponsor's Assurances. 20.2 Concessionaire agrees not to illegally discriminate against any employee or applicant for employment because of race, creed, color, national origin, age, sex, or disability in the requirements of 49 CFR Part 23. ARTICLE TWENTY-ONE CONFLICT OF INTEREST AND NON -ARBITRATION 21.1 The Concessionaire acknowledges that it is informed that Texas law prohibits contracts between the City and its "officers" and "employees," and the prohibition extends to officers and employees of City agencies, such as City -owned utilities, and certain City boards and commissions, and to contract with any partnership, corporation, or other organization in which the officers or employees have a substantial interest. Concessionaire certifies (and this agreement is made in reliance thereon) that neither the Concessionaire nor any person having an interest in this agreement is an officer or employee of the City or any of its agencies, boards, or commissions. 22.2 The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. ?s ARTICLE TWENTY-THREE ENTIRE AGREEMENT 23.1 This contract constitutes the entire Agreement between the City and Concessionaire, and any other written or parole agreement with the City is expressly waived by Concessionaire. IN WITNESS WHEREOF, the parties have executed this Agreement, this 22nd day of September—, 2016. CITY OF LUBBOCK BY: DANIEL M. POPE, r4ayor ATTEST: '0 4 _eA=:& -eE Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: + (l Kelly Campbell, Executive Director of Aviation APPROVED AS TO FORM: ih e, first Assistant City Attorney CONCESSIONAIRE r' BY: / TITLE: Toby Sturek, EVP Specialty Businesses 29 N N 0 m T� fol c a gg 2 0$B LL� 98 m co LL 89 88 c m �' :2 c=ry =t =r m m o'm� 333 � m = a��eE�E � `h'�aa���� D_ !� 99. . ,.,zzxzz zzzzz D ea 3 3333 3 a` Vf . Q66666t, v«6�666GA T 6< ♦ Q'o • QGQQ 0 6668 MA C A AA N N 0 m 11111111 �so999-AA �'88888� U 0000 1 � 21 mm • m�m�m��mmmmmmmmmmmm mm mmmmmm N io 0 _LM N Q L X W 1� r r i 1� d a Y 1� Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.1021 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos.1- 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2016-51716 Date Filed: Date Acknowledged: 06/27/2016 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. In -Ter -Space Services, Inc. Allentown, PA United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is05/09/2016 being filed. City of Lubbock 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. RFP -16 -12728 -SS Airport Advertising 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary 5 Check only if there is NO Interested Party. ❑ X 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the day of 20 to certify which, witness my hand and seal of office. Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.1021 CERTIFICATE OF INTERESTED PARTIES FORM 1295 lcfi Complete Nos.1- 4 and 6 if there are Interested parties. OFFICE USE: ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2016-51716 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. In -Ter -Space Services, Inc. Allentown, PA United States Date Filed: 05/09/2016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. RFP -16 -12728 -SS Airport Advertising 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary S Check only if there is NO Interested Party. X 6J�QDA1WMMONWEALJH OF PENNSYLVANIA I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. NOTARIAL SEAL ELIZABETH HANNAH OIMOPOULOS Notary Public UPPER MACUNGIE TWP, LEHIGH COUNTY / My Commission Expires Oct 20, 2019 g ure of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE /2 Sworn to and subscribed before me, by the said Toby Sturek this the day of May 20� 16 . to cer0y which, witness my hand and seal of office. _ Elizabeth Hannah Dimo oulos Not Public LfhlV SignatLre of er administering cath Printed name of officer administering oath Title of officer administering oath [-oris prowaea oy i exas tinics uommission www.ethirs.state.tx.us Version V1.0.1021