HomeMy WebLinkAboutResolution - 5149 - Concession Agreement - Interspace Advertising Services Inc - LIA - 03/28/1996RESOLUTION Na. 5149
March 28, 1996
Item #15
i
RESOLUTION
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BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and 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 Advertising Services, Inc., d/b/a Interspace Airport Advertising,
attached hereto, and which shall be spread upon the minutes of the Council and as spread upon
the minutes of this Council shall constitute and be a part of this Resolution as if fully copied
herein in detail.1
Passed by the City Council this
ATTEST:
Betty A4 . JohnsA, City Secretary
APPROVED AS TO CONTENT:
Maro. Earle, Aviation Manager
APPROVED AS TO FORM:
Harold Willard, Assistant City Attorney
dp\ccdocs\iasi.res
Marach 14, 1996
RESOLUTION NO.5149
March 28, 1996
Item #15
CONCESSION AGREEMENT
BY AND BETWEEN
THE CITY OF LUBBOCK, TEXAS
AND
INTERSPACE ADVERTISING SERVICES, INC.
D/B/A/ INTERSPACE AIRPORT ADVERTISING
CONTENTS
ARTICLE
PAGE NO.
I.
Definitions
2
11.
Term
3
Ill,
Privileges and Obligations of the Concessionaire
4
IV.
Advertising Standards
8
V.
Improvements by City
10
V1.
Improvements by Concessionaire
11
VII.
Percentage Payments,Charges and Accountability
16
VIII.
Operational Standards
20
IX.
Maintenance
21
X.
Compliance
25
XI.
Assignment and Subleasing
26
XII.
Insurance and Indemnification
27
XIII.
Cancellation by Concessionaire
30
XIV.
Cancellation by City
31
XV.
Security
37
XVI.
Adverse Tenancy
38
XVII.
Fire and Other Damage
39
XVIII.
Attorneys' Fees
40
XIX.
Amendment
40
XX.
Relationships of Parties
41
XXI.
Environmental Protection
41
=I.
General Provisions
41
XXIIi.
Disadvantaged Business Enterprise
and Nondiscrimination
46
XXIV.
Entire Agreement
48
HW:dp/ISI-T0C.D0C
D5-ContsAgmts/November 28, 1995
CONCESSION AGREEMENT
This Concession Agreement, hereinafter referred to as the "Agreement," made and
entered into this day of 19 , by and between the CITY OF
LUBBOCK, TEXAS, a home rule municipal corporation, hereinafter referred to as the "City,"
and INTERSPACE ADVERTISING SERVICES, INC. d/b/a INTERSPACE AIRPORT
ADVERTISING, a Pennsylvania 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 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 has approved and recommends
that the City enter into 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 this City;
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 I
DEFINITIONS
1.1 "Agreement", as used herein, shall mean this entire written contract and the Exhibits
thereto made by and between the City of Lubbock and Interspace Advertising Services,
Inc. d/b/a Interspace Airport Advertising.
1.2 "Airport Terminal" or "Terminal" shall mean the Terminal Building and any future
terminals(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 "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:
1. Any amount paid by advertisers in connection with the design, fabrication or
installation of the advertisers' displays.
2. Any amount paid by the advertisers to Concessionaire for telephone service.
3. Standard fifteen percent (15%) selling commissions for sales/advertising agencies.
4. Quantity purchase discounts allowed.
5. Amounts owed which are deemed uncollectible by Concessionaire after prudent
collection efforts, but which shall not exceed three and one-half per cent (3'/z%) of
gross sales.
6. Any and all taxes imposed upon Concessionaire by law during the term of the
contract.
1.6 "Percentage Payment" is the sum of money due the City as its share of Gross Revenue as
hereinafter provided.
1.7 "Airport Manager" shall mean the Airport Manager of the Lubbock International Airport
and shall include such person or persons as may from time to time be authorized in
writing by the City of Lubbock or by the Airport Manager to act for him with respect to
any or all matters pertaining to this Agreement.
ARTICLE II
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 date of execution. The City and
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Concessionaire may mutually agree in writing to extend this Agreement for one
additional ten-year term, subject to all the other terms and conditions of this Agreement.
ARTICLE III
PRIVILEGES AND OBLIGATIONS OF THE CONCESSIONAIRE
3.1 The City hereby grants to Concessionaire the exclusive right to operate, maintain and
provide the Airport Terminal's advertising concession in the Assigned Areas, as shown
on Exhibit "A" attached hereto and incorporated herein as if set forth in full in the body
of this Agreement.
).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 display, direct telephone line hotel and transportation displays,
directional clocks, 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
be inoffensive to the general public and of such high caliber 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 boards will be
selected and approved by the Airport Manager, as indicated on Exhibit "A" attached
hereto and incorporated herein as if set forth in full in the body of this Agreement. All
locations selected are subject to relocation at anytime at the Airport Manager's discretion.
Should the Airport Manager and the Concessionaire disagree on any advertising
locations, the Airport Manager's decision shall be final. However, it is the intention of
the parties that the Airport Manager shall provide a sufficient number of acceptable
advertising locations to allow Concessionaire to meet its Airport, equipment and service
costs.
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:
1. Develop, on a continuing basis, integrated master plans for advertising at the
Airport.
2. Follow quality criteria which will recognize the need for integrity of design and
advertising content appropriate to the prestige and dignity of the Airport.
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.
4. 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.
5. Provide a sales organization 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.
6. Supply and disseminate promotional material for the sale and use of display
media for local and national advertising.
7. 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 in this Agreement; EXCEPT as may be set forth
elsewhere herein.
3.7 No advertising or displays reasonably considered offensive by the Airport Manager 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 Airport Manager.
3.8 The Concessionaire has the rights to ingress and egress from its Assigned Areas over
Airport roadways, including common use roadways, subject to any rules or regulations
which may have been established or shall be established in the future by the Airport, the
City, the State of Texas, or the Federal Government. Such rights of ingress and egress
shall apply to the Concessionaire's employees, guests, patrons, invitees, suppliers and
other authorized individuals.
3.9 The Airport shall provide parking facilities to the Concessionaire's employees in
common with employees of other concessionaires and users of the Airport. Visiting
service personnel shall park in areas designated for temporary vendor parking.
3.10 The Concessionaire may utilize additional storage space identified by the Airport
Manager as available for such purposes if space is available and at the Airport Manager's
option.
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 Ordinances of the City as they may be developed and amended and
provided Concessionaire has written approval of the Airport Manager prior to installation.
3.12 The Concessionaire will provide an experienced sales farce 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 three (3) display cases to be
used for civic displays. Such cases will be identical to those used for commercial
advertising unless other displays offered by Concessionaire for civic displays are
approved by the Airport Manager. Concessionaire shall maintain these civic display
cases to the same extent as other displays, provided, however, Concessionaire will not be
required to obtain or determine the users of the civic display cases, nor be required to
install, prepare or maintain the actual display items placed in such cases. The Airport
Manager will be responsible for designating which organizations may use the civic
display cases and the length of time they may be used.
ARTICLE IV
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 Airport Manager, 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 Airport Manager, 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 Airport Manager in so far as he may legally do so. Upon written demand
of the Airport Manager, Concessionaire shall immediately remove from the Airport
premises at its sole cost and expense any material or display which is disapproved. In the
event that such disapproved material or display is not removed immediately upon receipt
of written demand, the Airport Manager may remove such item and Concessionaire shall
pay any warehouse or storage rental incurred as a result of such action. The Airport
Manager 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 Airport Manager be considered a default
under this Agreement, which shall not be considered as waived by the action of self-help
on the part of the Airport Manager.
4.4 Questions or complaints regarding the quality of service and/or prices, whether raised by
patrons' complaints, clients' complaints or on the Airport Manager's own initiative or
otherwise, may be submitted to Concessionaire for response. Such response shall be
provided by Concessionaire within ten (10) working days.
4.5 At the Airport Manager's request, Concessionaire shall meet with Airport staff to review
any complaints or concerns and to promptly correct any deficiencies. The Airport
Manager'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 Airport Manager may, in his discretion, request the names of all purveyors 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 Airport Manager's decision on
the matter shall be final and conclusive. The Concessionaire agrees to abide by the
Airport Manager's decision.
ARTICLE V
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 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 any liens or
encumbrances whatsoever.
5.3 The City will be responsible for the following:
a. All partitions about the perimeter of the Assigned Areas, all structural walls and
supports, all structural roof construction, all structural 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 of fees will apply if there is a loss of
electricity for more than seven (7) 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.
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ARTICLE VI
IMPROVEMENTS BY CONCESSIONAIRE
6.1 Prior to Beneficial Occupancy, and upon approval from the Airport Manager, the
Concessionaire may enter the Assigned Areas in the Terminal or any portion thereof.
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, ordinances, building codes, rules
and regulations.
6.3 One (1) set of final plans and specifications as approved for the Assigned Areas within
the Terminal must be submitted to the Airport Manager. Work or construction shall not
commence until written approval from the Airport Manager is received and the plans are
approved.
6.4 The Airport Manager shall, within fourteen (14) days of receipt of any such plans, either
approve or disapprove the plans and/or specifications submitted by the Concessionaire.
Approval by the Airport Manager 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 Airport Manager by approving
I1
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 Airport Manager 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 Airport Manager, 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 Airport Manager. No structural alterations or improvements shall be made to or upon
the Assigned Areas without the prior written approval of the Airport Manager. 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 Airport Manager within ninety (90) days following completion of the
installation.
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 Airport Manager prior to installation.
6.8 The Concessionaire shall submit a schedule depicting the estimated time required to
complete the construction or installation of approved improvements, facilities and
equipment for the Terminal advertising concession herein granted.
6.9 Upon written "Notice to Proceed" from the Airport Manager, the Concessionaire shall
immediately begin construction and installation of the approved improvements, facilities,
furnishings and equipment in the Assigned Areas and pursue the same to completion
within one hundred eighty (184) days of such approval. However, any delay in
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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 -engineer and the Airport
Manager, 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 -engineer shall meet with the Airport Manager in
periodically scheduled meetings to assess the current status of completion.
6.12 All permanent improvements made to the Assigned Areas and additions and alterations
thereto 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, as set
forth in Article II, or upon termination of this Agreement (whether by expiration of the
term, cancellation, forfeiture or otherwise, whichever first occurs); at which time the said
improvements shall become the property of the City, provided, however, that any trade
fixtures, displays and other possessions of Concessionaire not permanently affixed to the
Assigned Areas, which shall include telephone boards and wall and freestanding displays,
shall remain the property of Concessionaire, unless Concessionaire shall fail within thirty
(30) days following the termination of this Agreement or at the expiration of the
extension period of this Agreement, described in Paragraph 14.13, as the case may be, to
remove its trade fixtures, signs and other possessions not permanently affixed to the
Assigned Areas in which event, at the option of the Airport Manager, title to same shall
vest in the City at no cost to the City, or the Airport Manager may elect to exercise on
behalf of the City any of the rights set forth in Paragraph 14.6 of this Agreement.
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6.13 Upon completion of improvements to the Assigned Areas outlined hereinabove, 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 thereof have been submitted to
and approved in writing by the Airport Manager. 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, and all improvements and finishes shall require the
written approval of the Airport Manager prior to installation.
6.15 Upon completion of construction, the Concessionaire must provide the Airport Manager
with a certification that the improvements have been constructed in accordance with the
approved plans and specifications, and in strict compliance with all applicable building
codes, laws, rules, ordinances and regulations.
6.16 The Concessionaire shall not remove or demolish, in whole or in part, any improvements
upon the Assigned Areas without the prior written consent of the Airport Manager, which
may be conditioned upon the obligation of Concessionaire to replace the same by
improvements specified in such consent upon termination or expiration of this
Agreement. The Airport Manager shall not withhold consent unreasonably or impose
unreasonable conditions on his consent and shall state the reasons for withholding
consent.
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6.17 For the work contemplated under this Agreement, the Concessionaire shall provide all
labor, supervision, materials, supplies and transportation necessary to supply wall
mounted dioramas, freestanding displays and hotel/motel reservation boards. The
Concessionaire shall have the right to negotiate and have input as to 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 and shall
not permit any mechanic's, materialman's or contractor's liens to arise against the
Airport, the Assigned Areas, or any improvements, equipment, machinery or fixtures
thereon belonging to the City, and Concessionaire expressly agrees that it will 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 Airport, the Assigned Areas, or improvements thereon, or the property of
the City located thereon, during the term of this Agreement, or during any extension
thereof, Concessionaire shall with 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 behalf of the City, at Concessionaire's sole cost and expense,
any action, suit or procceeding which may be brought thereon or for the enforcement of
such liens or orders.
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ARTICLE VII
PERCENTAGE PAYMENTS, CHARGES AND ACCOUNTABILITY
7.1 Concessionaire agrees to pay to the City THIRTY PERCENT (30%) of the Gross
Revenue derived from the sale of advertising and advertising space in the Terminal
Building. This Percentage Payment will be paid to the office of the Airport Manager by
the twentieth (20th) day of the month following each calendar quarter of service,
beginning with the month following the first quarter of Beneficial Occupancy. Such
payment will be made for the previous calendar quarter on or about April 20th, July 20th,
October 20th and January 20th of each calendar year. Upon written notice from the
Airport Manager to Concessionaire, the percentage of Gross Revenue payable to the City
shall increase to THIRTY-FIVE PERCENT (35%) following any twelve (12) month
calendar period in which enplanements exceed ONE MILLION FIVE HUNDRED
THOUSAND (1,500,000) passengers. If the number of passenger enplanements and
deplanements at the Airport in any calendar quarter during the term of this Agreement
declines ten percent (10%) or more from the number of passenger enplanements and
deplanements for the same calendar quarter in 1994, the amount of Gross Revenue
payable to the City for the calendar quarter in which the decline occurs shall be reduced
by the same percentage as the decline (but shall not be less than zero). If the number of
passenger enplanements during a calendar quarter declines more than twenty percent
(20%) from the number of passenger enplanements during the same calendar quarter in
1994, Concessionaire may elect to terminate this Agreement pursuant to paragraph a of
Section 13.1 hereof. If this Agreement is extended for an additional ten-year term
16
pursuant to Section 2. 1, the amount of Gross Revenue payable to the City shall be
subject to renegotiation.
7.2 Concessionaire shall furnish to the Airport Manager 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 Airport Manager 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 ONE HUNDRED FORTY-FOUR THOUSAND AND NO/100 DOLLARS
($144,000.00) during the first two contract years, with ONE HUNDRED THOUSAND
AND NO/100 DOLLARS ($100,00.00) of that capital being provided within one hundred
twenty (120) days of execution of this Agreement. Concessionaire shall also furnish the
Airport Manager 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 the Assigned Areas. It is the
understanding of the parties that no other utilities shall be necessary for the Assigned
Areas.
7.5 The Concessionaire shall keep full and accurate books and records showing all of its
transactions, sales and income from the concession rights herein granted, and the City
shall have the right, through its representatives, and at all reasonable times, to inspect all
such records as may be necessary to verify the Gross Revenue, as reported, including
State of Texas sales tax return records. The Concessionaire agrees that all such records
17
and instruments are and shall be made available at Concessionaire's office location for at
least a four (4) year period following the end of each annual period of this Agreement.
7.6 The Concessionaire shall furnish a written statement to the Airport Manager stating that
the Percentage Payment paid by the Concessionaire to the City during each of
Concessionaire's fiscal years pursuant to this Agreement is appropriate. Such statement
shall also 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
covered by the statement. Within ninety (90) days of the last day of the Concessionaire's
fiscal year, this statement shall be completed and a copy shall be furnished to the Airport
Manager.
7.7 Without waiving any other right of action available to the City or Airport Manager in the
event of default in payment of any and all Percentage Payments or charges hereunder, in
the event that Concessionaire is delinquent for a period of fifteen (15) days or more in
paying to the Airport any sums due pursuant to this Agreement, the Concessionaire shall
pay the City interest thereon at the maximum rate allowable by law 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 the Concessionaire's books and records of Gross
Revenue at any time for the purpose of verifying the Gross Revenue hereunder. If, as a
result of such an audit, it is established that the Concessionaire has understated the Gross
Revenue received by it from all operations related to the Assigned Areas by ten percent
(10%) or more (after the deductions and exclusions provided for herein) during the
previous annual reporting period under this Agreement, the entire expense of said audit
18
shall be paid by the Concessionaire. Any additional percentage fee due shall forthwith be
paid by the Concessionaire to the Airport Manager with interest thereon at the maximum
rate allowable by law per annum from the date such additional percentage fee became
due.
7.9 Notwithstanding the fact that it is the practice of the industry for subscribers to render
payment in arrears, Concessionaire shall render payment to the City on the basis of gross
revenues due or to become due rather than on the basis of amounts received by
Concessionaire; provided, however, that 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 three and one-half percent (3Ya%) of Gross Revenue.
7.10 In addition to the Percentage Payments described in this Article, the Airport Manager
may require Concessionaire to pay City a processing fee and a deposit for security badges
for each of Concessionaire's employees on Airport premises. The Aviation Manager
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 Airport Manager.
7.11 The acceptance of Percentage Payments or fees by the Airport Manager 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
19
rights on the part of the Airport Manager to cancel this Agreement for failure by
Concessionaire to so perform, keep and observe any of the terms, covenants or conditions
hereof to performed, kept or observed. No waiver by the Airport Manager of any of the
terms, covenants or conditions of this Agreement to be kept, performed or observed by
the Concessionaire shall be construed to be or act as a waiver by the Airport Manager of
any subsequent default by the Concessionaire.
ARTICLE VIII
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 Airport Manager. 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 the 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.
83 The Concessionaire agrees to develop a policy outlining the rules, regulations and
operating procedures which apply to its 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
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courteous manner toward the public and in accordance with the rules, regulations and
policies developed by the Concessionaire and approved by the Airport Manager.
8.5 The Concessionaire agrees that 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 Airport Manager.
ARTICLE IX
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, its patrons, or those under the
control of Concessionaire. Furthermore, 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 any repairs or improvements under the
provisions herein contained, City shall not be liable to Concessionaire for any
damage caused by disrepair of any kind until City has had a reasonable
opportunity to perform repairs after being notified in writing of the need for same
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by Concessionaire. Furthermore, City shall not be liable to Concessionaire, the
Concessionaire's employees, patrons or vendors for any damage to their
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, its employees or
agents.
The City shall have the right to construct or install over, in, under or through the
Assigned Areas new lines, pipes, mains, wires, conduits and equipment; provided,
however, that 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, such janitorial and 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 and sanitary condition, and attractive in appearance.
9.3 The Concessionaire agrees to maintain and make necessary repairs, structural or
otherwise, to all of its Assigned Areas and the fixtures and equipment therein and
appurtenances thereto, including, without limitation, signs, showcases, displays,
telephone boards, 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 other than to its own equipment, the Concessionaire
shall discuss with the Airport Manager whether the Airport wishes to make the repairs
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with its own personnel and to charge the Concessionaire its standard rates for such
service, including any overhead charges. All work performed by the Concessionaire must
be inspected and approved by the Airport Manager or his representative.
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 the rules
and regulations prescribed from time to time by federal, state or local authorities having
jurisdiction over the work in the Concessionaire's Assigned Areas.
9.6 The Airport Manager or his duly appointed representatives shall have the right to enter
the Concessionaire's Assigned Areas to:
a. Inspect the Assigned Areas to determine whether the Concessionaire has complied
with and is complying with the terms and conditions of this Agreement. The
Airport Manager may, in his discretion, require the Concessionaire to effect
repairs required of Concessionaire at the Concessionaire's own cost.
b. Perform any and all things 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 by the Airport Manager for said
payment.
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
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Areas. Piling of boxes, cartons, barrels or similar items shall not be permitted in a public
area.
9.8 The City shall provide, or cause to be provided, during the term of this Agreement,
security protection similar to that afforded to other concessionaires at the Airport, and
City will issue and enforce rules and regulations with respect to all portions of the
Airport. 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 be subject to the Airport's Safety and Security section and FAA rules and
regulations and shall in no way hinder or interfere with their Airport's rules or FAA rules
and regulations.
9.9 All Terminal advertising deliveries, if required, shall be in a manner and location
established by the Airport Manager. All vendors traveling on the apron area must be
escorted by Airport security. All deliveries to the Assigned Areas on the enplaning levels
of the Terminal shall be conducted through the appropriate accesses.
9.10 The Concessionaire agrees to provide adequate control of rodents and insects and other
pests in its Assigned Areas. In the event that the Airport Manager determines that the
Concessionaire's rodent, insect and pest control program is not acceptable or sufficient,
he may, after reasonable notice, seek to control such rodents, insect and pests by other
means. The Concessionaire agrees to reimburse the City no later than ten (10) days
following demand by the Airport Manager for such expenses as the City may incur due to
conditions within the Concessionaire's Assigned Areas.
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9.11 Except as provided herein, any property of the City, or for which Concessionaire may be
responsible, which is damaged or destroyed incident to the exercise of the rights or
privileges herein granted, or which damage or destruction is occasioned by the negligence
of Concessionaire, its employees, agents, servants, patrons or invitees, shall be properly
repaired or replaced by Concessionaire to the satisfaction of the Airport Manager, or in
lieu of such repair or replacement, Concessionaire shall, if so required by the Airport
Manager, pay the City money in any amount deemed sufficient by him to compensate the
City for the loss sustained or expense incurred by the City as a result of the loss of,
damage to, or destruction of such property.
ARTICLE X
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 present and future laws, ordinances, orders, directives, rules and
regulations of the United States of America, the State of Texas and City of Lubbock and
their respective agencies, departments, authorities and commissions which may either
directly or indirectly affect the Concessionaire or its operations on or in connection with
its Assigned Areas at the Airport.
10.2 Concessionaire shall pay, or in good faith contest, on or before their 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 in current
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status all federal, state and local licenses and permits required for the operations of the
business conducted by Concessionaire.
10.3 Concessionaire shall pay wages that are not less than the minimum wages required by law
to persons employed in its operations hereunder.
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.
ARTICLE XI
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 or any part thereof without the prior
written consent of the Airport Manager. 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 Airport Manager 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 Airport Manager consents to any assignment or subletting on the part of
the Concessionaire of any rights or privileges granted in this Agreement, Concessionaire
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shall remain responsible for any and all payments due the City as a result of operations
conducted by the assignee or sublessee.
ARTICLE XII
INSURANCE AND INDEMNIFICATION
12.1 Concessionaire shall protect, defend, indemnify and hold the City, it officers and
employees completely harmless from and against any and all liabilities, demands, suits,
claims, losses, fines and judgments arising by reason of the injury or death of any person
or damage to any property, including all reasonable costs from investigation and defense
thereof (including but not limited to attorneys' fees, court costs, and expert fees), of any
nature whatsoever arising out of or incident to this Agreement or the acts or omissions of
Concessionaire's officers, employees, agents, contractors, subcontractors, licensees and
invitees regardless of where the injury, death or damage may occur, unless such injury,
death or damage is caused by the sole negligence of the City. The Airport Manager shall
give Concessionaire reasonable notice of any such claims or actions. Concessionaire, in
carrying out is obligations hereunder, shall use counsel reasonably acceptable to the City
Attorney of the City. The provisions of this section shall survive the expiration or earlier
termination of this Agreement.
12.2 Concessionaire agrees to maintain comprehensive public liability and fro eeM damage
insurance in an amount of not less than ONE MILLION DOLLARS ($1,000,000)
combined single limit during the term of the Agreement and any renewal thereof. Such
insurance policies must name the City, its officers and employees as additional insureds
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to the full extent of Concessionaire's insurance coverage but in no event less than the
required minimum coverage limit amount.
12.3 Concessionaire agrees that all insurance policies shall contain a severability of interest or
cross liability provision endorsement which shall read generally as follows:
In the event of one of the insured incurring liability to any other of the insured,
this policy shall cover the insured against whom claim is or may be made in the
same manner as if separate policies had been issued to each insured. Nothing
contained herein shall operate to increase the limits of liability.
12.4 Concessionaire agrees that all insurance polices shall provide that they will not be altered
or canceled without thirty (30) days advance written notice to the Airport Manager. Such
insurance must provide that it will be considered primary insurance as respects any other
valid and collectible insurance, or self-insured retention, or deductible the City may
possess. Any other insurance or self-insured retention of the City shall be considered
excess insurance only.
12.5 The City shall have the right to change the insurance coverage and the insurance limits
required of Concessionaire, without any adjustment of the Percentage Payments paid by
Concessionaire or any cost to the City, if such changes are reasonably recommended by
the Airport's insurers or imposed on the City by law or otherwise.
12.6 Concessionaire shall obtain all insurance required under this Agreement from an
insurance company or companies licensed to do business in the State of Texas. The
insurance company or companies must be acceptable to the Airport Manager; approval
may be denied based on a company's Best rating or other indication of financial
inadequacy.
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12.7 Concessionaire shall provide to the Airport Manager such evidence of compliance with
the Airport's insurance requirements as he may from time to time request. At a minimum
the Concessionaire shall provide, at the commencement of this Agreement, a certificate of
insurance. All such certificates shall be completed to show compliance with
Concessionaire's obligations hereunder, specifically as to the indemnification and notice
provisions. The Airport Manager may also require copies of the declaration page,
insurance policy, and endorsements thereto.
12.8 If Concessionaire or its insurance company fails to promptly respond to the Airport
Manager's request for adequate evidence of compliance with the insurance provisions,
the Airport Manager may collect from Concessionaire additional revenue in an amount
equal to ten percent (10%) of the Gross Revenue paid to the Airport each quarter required
hereunder until such evidence is provided.
12.9 If Concessionaire shall at any time fail to insure or maintain insurance as aforesaid, the
Airport Manager may do all things necessary to effect or maintain such insurance and all
monies expended by him for that purpose shall be repayable by the Concessionaire as
additional revenue in the quarter the premium or premiums are paid by the Airport
Manager. If any insurance policies required hereunder cannot be obtained for any reason,
the Airport Manager may require Concessionaire to cease any and all operations until
coverage is obtained. If such insurance coverage is not obtained within a reasonable
period of time, to be determined solely by the Airport Manager, the City may terminate
this Agreement.
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ARTICLE XIII
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, or if more than thirty
(30) days shall be required because of the nature of such breach, if City shall fail
within said thirty (30) days 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
(1) month or more; or
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If the number of passenger enplanements at the Airport during a quarterly period
declines more than twenty percent (20%) from the number of passenger
enplanements during the same quarterly period in 1994, Concessionaire may elect
to terminate the contract and the City agrees to buy out the undepreciated portion
of the display equipment per the schedule supplied.
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 VII from the time of default until
the cessation of such default, or the cancellation of this Agreement by the Concessionaire.
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 (5)
days written notice to the City, at which time Concessionaire will then quit and surrender
the Assigned Areas to the City.
ARTICLE XIV
CANCELLATION BY CITY
14.1 This Agreement shall be subject to cancellation by the Aviation Manager of the City,
without further liability to Concessionaire, if one or more of the following conditions of
default by Concessionaire occur:
a. If Concessionaire shall neglect or fail to perform or observe any of the terms,
provisions, conditions or covenants herein contained and to be performed or
observed by Concessionaire and if such neglect or failure should continue for a
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period of thirty (30) days after receipt by Concessionaire of written notice of such
neglect or failure or, if more than thirty (30) days shall be required because of the
nature of the default, if Concessionaire shall fail within said thirty (30) day period
to commence and thereafter diligently proceed to 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
C. If Concessionaire shall fail to take possession of its Assigned Areas; or
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.
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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 Airport Manager with respect to any condition of default in any form or
instance) the Airport Manager, 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 (5) days written notice to Concessionaire, at which time the
Concessionaire will then quit and surrender the Assigned Areas to the Airport Manager,
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 paragraph b
of Section 14.1 of this Article, this Agreement shall be deemed to be breached by
Concessionaire and thereupon "ipso facto," 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 of its rights under this
Agreement shall be denied, set aside, vacated or terminated in 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 (10) days after the final denial, vacating or setting aside of such petition or
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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 Airport Manager'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 Airport
Manager 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.
14.6 If the Airport Manager 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
Airport Manager 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 Airport Manager, or
34
at his election, and upon giving fifteen (15) 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 Airport Manager may in
good faith deem advisable. If, in the Airport Manager'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 Airport Manager 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 Airport Manager 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
35
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.
14.1 Q 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 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 Airport Manager, be added to any revenue then due or thereafter falling due
hereunder.
14.12 Concessionaire hereby 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 the termination of this Agreement, through passage of time or otherwise, the
Concessionaire shall aid the Airport Manager in all ways possible in continuing the
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Terminal Advertising Concession in the Terminal Building uninterruptedly. Specifically,
the Concessionaire, if required by the Airport Manager, 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 XV
SECURITY
15.1 Concessionaire agrees to observe all security requirements of Federal Aviation
Regulations Part 107, 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 Airport Manager to ensure that sublessees,
employees, invitees and guests observe these requirements.
15.2 If the City or the Airport incurs any fines and/or penalties imposed by the Federal
Aviation Administration or any expense in enforcing the regulations of Federal Aviation
Regulations Part 107, 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 determined as such by the Airport Manager or the Federal
Aviation Administration. The Airport Manager reserves the right to take whatever action
37
necessary to rectify any security deficiency in the event Concessionaire fails to remedy
the same.
15.3 Upon execution of this Agreement, the Aviation Manager may require Concessionaire to
provide the Airport with a Security Plan which is acceptable to the Aviation Manager, the
Airport's Security Coordinator and the Federal Aviation Administration. Failure to
submit an acceptable Security Plan within a reasonable time shall be grounds for
immediate termination of this Agreement.
ARTICLE XVI
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 Airport
Manager, except for the period authorized and required for removal of Concessionaire's
property upon the expiration or termination hereof, shall entitle the Airport Manager 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.
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ARTICLE XVII
r
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 immediate notice thereof to the Airport Manager 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, payments hereunder shall abate in such amount as
may be reasonably determined by the Airport Manager; 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 that the damage to the
area should be so extensive as to render it untenantable, 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 Airport Manager 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
39
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 pari by
Concessionaire.
ARTICLE XVIII
ATTORNEYS' FEES
18.1 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.
ARTICLE XIX
19.1 This Agreement constitutes the entire Agreement between the parties. No amendment,
modification or alteration of the terms, covenants and conditions contained in this
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Agreement shall be binding unless the same shall be in writing, dated subsequent to the
date hereof and duly executed by the parties hereto.
ARTICLE XX
RELATIONSHIP OF PARTIES
20.1 Concessionaire is an independent contractor and nothing contained herein shall be
deemed or construed by the parties hereto, or by any third parry, as creating the
relationship of principal and agent, partners, joint venturers or any other similar such
relationship between the parties hereto. The parties shall understand and agree that
neither the method of computation of Percentage Payments nor any other provision
contained herein or acts of the parties hereto creates a relationship other than that of
independent contractor.
ARTICLE XXI
ENVIRONMENTAL PROTECTION
21.1 Concessionaire agrees to comply with all laws, and to obey all rules, regulations and
administrative orders of agencies 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.
ARTICLE XXII
GENERAL PROVISIONS
22.1 Federal Aviation Act, Section 308 - Nothing herein contained shall be deemed to grant
the Concessionaire any exclusive right or privilege within the meaning of Section 308 of
41
the Federal Aviation Act or the conduct of any activity on the Airport, except that, subject
to the terms and provisions hereof, the Concessionaire shall have the right to possess the
Assigned Areas under the provisions of this Agreement.
22.2 Subordination to Agreements With the United States Government - This Agreement is
subject and subordinate to the provisions of any agreement heretofore or hereafter made
between the City and the United States Government relative to the operation or
maintenance of the Airport, the execution of which has been required as a condition
precedent to the transfer of federal rights or property to the City for Airport purposes, or
the expenditure of federal funds for the improvement or development of the Airport,
including the expenditure of federal funds for the development of the Airport in
accordance with the provisions of the Federal Aviation Act of 1958, as it has been
amended from time to time. Furthermore, during time of war or national emergency, the
City shall have the right to enter into an agreement with the United States Government
for military or naval use of all or part of the landing area, the publicly -owned air
navigation facilities, and any other area or facilities of the Airport. If any such agreement
is executed, the provisions of this Concession Agreement, insofar as they are inconsistent
with the provisions of the agreement with the Government, shall be suspended. However,
the term of this Agreement shall be extended by the amount of the period of such
suspension.
22.3 Nonwaiver of_RiNo 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, or shall operate as, a waiver of any subsequent default of any of the terms,
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covenants or conditions herein contained and to be performed, kept and observed by the
other party.
22.4 Notices - Notices required herein may be given by registered or certified or express mail
by depositing the same in the United States Mail or by private courier in the continental
United States, postage prepaid. 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:
Name Airport Manager
City of Lubbock
Address 5401 N. Martin Luther King Blvd.
Lubbock, Texas 79402
Until any such change is made, notices to Concessionaire shall be delivered as follows:
Marianne Lieberman
President, Chief Executive Officer
Interspace Airport Advertising
4635 Crackersport Road
Allentown, PA 18104
22.5 Captions - The headings of the several articles of this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe the scope
or intent of any provisions of this Agreement and shall not be construed to affect in any
manner the terms and provisions hereof or the interpretation or construction thereof.
22.6 Severability - if one or more clauses, sections or provisions of this Agreement shall be
held to be unlawful, invalid or unenforceable, the parties hereto agree that the material
rights of either party shall not be affected thereby.
22.7 Agent for Service of Pmcess - Concessionaire hereby expressly agrees, covenants and
stipulates that its President and Chief Executive Officer shall be Concessionaire's agent
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for the purpose of service of process in any court action between Concessionaire and the
City arising out of or based upon this Agreement, and that Concessionaire may be
personally served with process at the address set forth herein. Any such service shall
constitute valid service upon the Concessionaire as of the date of receipt thereof. The
parties hereto further expressly agree that the Concessionaire is amenable to and hereby
agrees to the process so served, submits to the jurisdiction, and waives any all obligations
and protest thereto, any laws to the contrary notwithstanding.
22.8 Right to Develop Airport - The parties hereto further covenant and agree that the City
reserves the right to further develop or improve the Airport Terminal and all landing areas
and taxiways as it may see fit, regardless of the desires or views of the Concessionaire
and without interference or hindrance therefrom. Furthermore, all rights, privileges and
interests acquired herein by Concessionaire, at the option of the Airport Manager, may be
suspended if such suspension is found by the Airport Manager, to be necessary to secure
federal financial aid for the development of the Airport, or further development of
aeronautical operations thereon.
22.9 Incorporation of Exhibits - All exhibits referred to in this Agreement are intended to be
and hereby are specifically made a part of this Agreement.
22.10 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.
22.11 Nonliability 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 or because of its or their execution or attempted execution.
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22.12 Successors and Assigns Bound - This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
22.13 Right to Amend -In the event that the Federal Aviation Administration or its successors
requires modifications or changes in this Agreement as a condition precedent to the
granting of 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.
22.14 Time of Essence - Time is expressed to be of the essence of this Agreement.
22.15 Gender - Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the
plural, unless the context otherwise requires.
22.16 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, embargos, shortages 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.
22.17 Right of Relocation - The Airport Manager 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 Airport
Manager within sixty (60) days of such needed action. Subsequent costs and financial
impact of such relocation shall be borne by the Concessionaire.
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22.18 Rules,Regulations and Procedures - City reserves the right to issue through the Airport
Manager such rules, regulations and procedures for activities and operations conducted
on 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 XXIII
DISADVANTAGED BUSINESS ENTERPRISE AND NONDISCRIMINATIQ
23.1 Concessionaire agrees to submit all information necessary for the Airport Manager to
determine the eligibility of an individual or firm for certification as a Disadvantaged
Business Enterprise, or a regional or local suboperator. Concessionaire agrees that it will
comply with the City's Disadvantaged Business Enterprise Program and applicable laws
and regulations. Concessionaire agrees that participation by Disadvantaged Business
Enterprises will be in accordance with the goals and objectives of the City's program.
23.2 Nondiscrimination The Concessionaire assures that it will undertake an affirmative
action program as required by 14 CFR Part 152, Subpart E, to ensure that no person shall
on the grounds of race, creed, color, national origin or sex be excluded from participating
in any employment activities covered in 14 CFR Part 152, Subpart E. The Concessionaire
assures that no person shall be excluded on these grounds from participating in or
receiving the services or benefits of any program or activity covered by this subpart. The
Concessionaire assures that it will require that its covered suborganizations provide
assurances to the Concessionaire that they similarly will undertake affirmative action
programs and that they will require assurances from their suborganizations as required by
14 CFR Part 152, Subpart E, to the same effect.
46
Concessionaire, its agents and employees will not discriminate against any person
or class of persons by reason of race, color, sex, religion or national origin in providing
any services or in the use of any of its facilities provided for the public; nor shall
Concessionaire discriminate against any person or class of persons on the basis of age in
a manner that violates any prohibition against such discrimination under the Age
Discrimination Act of 1975, 42 U.S.C. §§621 et. sg}. Concessionaire finther agrees to
comply with such enforcement procedures as the United Stated might demand that the
City take in order to comply with the Sponsor's Assurances.
Concessionaire agrees to not discriminate against any employees or applicants for
employment because of race, color, age, sex, religion or national origin. Concessionaire
also agrees to take affirmative action to ensure that applicants are employed and that
employees are treated during employment without regard to their race, color, age, sex,
religion or national origin. Such action shall include, but not be limited to, employment,
upgrading, demotion or transfer, recruitment, layoff, rates of pay or other forms of
compensation, and selection for training, including apprenticeship.
Concessionaire will also conduct its activities and operate its facilities in
accordance with the requirements of Section 504 of the Rehabilitation Act of 1973, and
will assure that no qualified handicapped person shall, solely by reason of his or her
handicap, be excluded from participation in, be denied the benefits of, or otherwise be
subjected to discrimination, including discrimination in employment, under any program
or activity of Concessionaire.
Concessionaire also agrees that in the event facilities are constructed, maintained
or otherwise operated on the Assigned Areas for a purpose for which a Department of
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Transportation program or activity is extended, or for another purpose involving the
provision of similar services or benefits, Concessionaire shall maintain and operate such
facilities and services in compliance with all requirements imposed pursuant to 49 CFR
Part 21, Nondiscrimination in Federally Assisted Programs of the Department of
Transportation, and as said Regulations may be amended.
ARTICLE XXIV
► _. I: a ���
24.1 The parties hereto understand and agree that this instrument contains the entire agreement
between the parties hereto. The parties hereto further understand and agree that the other
party and its agents have made no representations or promises with respect to this
Agreement or the making or entry into this Agreement, except as in this Agreement
expressly set forth, and that no claim or liability or cause for termination shall be asserted
by either party against the other and such party shall not be liable by reason of, the
making of any representations or promises not expressly stated in this Agreement, any
other written or oral agreement with the other being expressly waived.
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IN WITNESS WHEREOF, the parties have executed this Agreement, this 28th day
arch , 19 96 .
D VID R. I Al'�iGSTON, MAY
ATTEST:
evrv�' �'t (Y--�
Betty A JohnsorY, City Secretary
APS TO / ONTENT:
Mark ar ,Aviation Manager
APPROVED AS TO FORM:
Harold Willard, Assistant City Attorney
HW;dp/ ISI-AGT.DOC\D45 c&a
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INTERSPACE ADVERTISING
SERVICES, INC. d/b/a. INTERSPACE
AlRPO ADVER
�— ANNE RMAN,
PRESIDENT AND CHIEF
EXECUTIVE OFFICER
ATTEST: p