HomeMy WebLinkAboutA5855 - COREY AIRPORT SERVICES AIRPORT DISPLAY ADVERTISING CONCESSION AGR CONSENT TO ASSIGNMENT
Reference is hereby made to that certain Airport Display Advertising Concession
Agreement ("Agreement") dated December 17, 2014, between the CITY OF PALM SPRINGS
("Consenting Party') and U.S. ENTERPRISES, INC. D/B/A COREY AIRPORT SERVICES (the
"Corey"). The Company desires to transfer and assign its rights and interests under the
Agreement to LAMAR ALLIANCE AIRPORT ADVERTISING COMPANY, a Nevada
Corporation, or its designated affiliate ("Lamar").
NOW, THEREFORE in consideration of the benefits to be provided to the Consenting
Party under the Agreement:
1. Consent to Assignment of Agreement. The Consenting Party hereby consents to
the assignment of the Agreement by the Company to Lamar, in the form and
content of the Assignment and Assumption of Concession Agreement attached to
this consent as Exhibit "A". All terms, conditions, and provisions of the Agreement
shall remain in full force and effect on and after the Effective Date. This consent
shall not be considered as a novation of the Agreement.
2. Notice. From and after the Effective Date, all notices required or which may be
given to the Company under the Agreement shall be considered properly given only
if delivered in writing, by certified mail, postage prepaid, return receipt requested,
addressed to:
Lamar Alliance Airport Advertising Company
5321 Corporate Boulevard
Baton Rouge, Louisiana 70808
Attn: General Counsel
3. Representations. The Consenting Party represents, certifies and affirms that: (i) the
Agreement is in full force and effect, that all rents, license fees or other amounts
due thereunder have been paid and are current; (ii) to its knowledge, neither party
to the Agreement is in default thereunder, and no event exists which with the
passage of time or giving of notice, or both, would constitute a default under the
Agreement, and no notice of default under the Agreement has been given which
has not been cured; (iii) the Agreement has not been amended, modified or
terminated and that it is the only agreement between the Consenting Party and The
Company; (iv) to its knowledge, there are no outstanding defenses, counterclaims
or offsets again the Company under the Agreement; and (v) neither party to the
Agreement has transferred or assigned nay rights or obligations under the
Agreement nor entered into any license, use occupancy or concession agreement
with respect thereto.
4. Effective Date. The effective date of this Consent (the "Effective Date") shall be the
effective date of the assignment executed by the Company in favor of Lamar,
pursuant to which the Company's rights and interests under the Agreement are
assigned to Lamar.
(Signatures on following page)
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SIGNED AND DELIVERED before the undersigned witnesses at Palm Springs,California on this I Y
day of MY 2017.
WITNESSES: CONSENTING PARTY:
CITY OF PALM SPRINGS
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City Cleric
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SIGNED ,IgND DELIVERED before the undersigned witnesses at Palm Springs, California on this 7
day of fL�, 2017.
WITNESSES: CONSENTING PARTY:
CITY OF PALM SPRINGS
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Printed Name: Printed Nam� ,o �c'»Qy
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Printed Name:
ATTEST:
City Clerk
EXHIBIT "A"
ASSIGNMENT AND ASSUMPTION OF CONCESSION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF CONCESSION AGREEMENT is made
effective as of the �day o f 141� , 2017, by and between U.S. Enterprises,
Inc. a Georgia corporation, doing business as "Corey Airport Services" with an address at 225
Corey Center, SE, Atlanta, GA 30312 (hereinafter "Assignor" or Concessionaire") and Lamar
Alliance Airport Advertising Company, a Nevada corporation with an address at 5321
Corporate Boulevard, PO Box 66338, Baton Rouge, LOA 70896-6338 (hereinafter
"Assignee").
Reference is made to that certain Airport Display Advertising Concession Agreement
dated December 17, 2014 between the city of Palm Springs and Corey Airport Services
relating to advertising services at the Palm Springs International Airport in Palm Springs,
California (the "Concession Agreement').
Pursuant to Article 18 of the Concession Agreement, Assignor is assigning all of its
interest under the Concession Agreement as Concessionaire to the Assignee.
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and for the mutual promises set forth herein, Assignor and Assignee agree,
effective as of the date hereof, as follow:
1. Assignment of Concession Agreement. Assignor hereby assigns, sets over and
transfers to the assignee all of the rights, obligations, duties, liabilities, title, and
interest in and to the Concession Agreement.
2. Assumption of Obligations. The Assignee hereby assumes all of the rights,
obligations, duties and liabilities of the Assignor under the Concession Agreement.
3. Authority. Assignor and Assignee each represent and warrant that each has all
right, power and requisite authority to execute and deliver, and to perform all of its
obligations under this Assignment and Assumption of Concession agreement.
4. Binding. The agreement contained herein shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
5. APA. Anything contained herein to the contrary notwithstanding, Assignor and
Assignee agree that this Assignment and Assumption Agreement is subject to the
representations, covenants, terms and conditions set forth in that certain Asset
Purchase Agreement dated as of March 23, 2017, between Assignor and Assignee.
( 9nature Pag
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9
WITNESS the execution of this Assignment and Assumption of Concession Agreement
as a sealed instrument on the date first set forth above.
ASSIGNOR: ASSIGNEE:
U.S.Enterprises,Inc.d/b/a Lamar Alliance Airport Advertising
Corey Airport Service 6b&!!�D
Com anyI C- A7moa q Ey;
Name: la i pip Keith A.Istre,Executive Vice
Title: President and Chief Financial Officer
STATE OF GEOR I
COUNTY OF v
On this Z� of u n-e. 2017,before me personal
da
appeared "k OOAS ,to me known to be the person(or persons)
described in d who executed the foregoing instrument,and acknowledged that(he/she/they)
executed it as (his/her/their)free act and deed.
�pt1U/pi
otary public: 7% JV. ••
Print Name: nns � '�
My commission expires.
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STATE OF LOU SIANA O CQ�
PARISH OF aw;o i ��•y118 nt11100%`
VD
On this 25 day of:�y�/ ,2017,before me personally
appeared ,to me known to be the person (or persons)
described in and who executed the foregoing instrument,and acknowledged that(he/she/they)
executed it as(his/her/their)free not and deed.
Public:
me IinNta . ee
y commission expires:
alit
James R. Mcllwain
Notary Public No. 58370
8469451 2 My Commission is for Life
AIRPORT DISPLAY ADVERTISING
CONCESSION AGREEMENT
PALM SPRINGS INTERNATIONAL AIRPORT
This Concession Lease Agreement ("Agreement') is made and entered into effective this 17th
day of December 2014 (the "Effective Date") by and between the City of Palm Springs, a
California charter city and municipal corporation ("City"), and U.S. Enterprises Inc. d/b/a Corey
Airport Services, a Georgia corporation ("Concessionaire").
RECITALS
A. The City owns and operates Palm Springs International Airport ("Airport") located in Palm
Springs,California for the convenience of the general public.
B. The City has determined that it is desirable to have a high quality,professionally designed and
managed advertising concession that will maximize advertising revenues, facilitate passenger flow
and be architecturally compatible with the Airport.
C. In response to a Request for Proposals, the Concessionaire has submitted a proposal to
develop and manage the display advertising Concession at the Airport.
D. The City approved the selection of the Concessionaire to operate and manage the display
advertising concession on the Airport.
NOW,THEREFORE, in consideration of the mutual covenants, terms, conditions,
privileges, obligations and agreements herein contained, and other valuable considerations, the
City and the Concessionaire hereby mutually undertake, promise and agree, as follows:
Article 1
Definitions and Interpretation
1.01 Definitions
Except as otherwise clearly indicated by the context, the following words, terns and phrases
wherever used in this Agreement shall, for the purpose of this Agreement, have the following
meanings:
1. "Advertisements" means advertising copy, advertising materials, and any manner of
commercial presentation.
2. "Agreement Year" means the twelve month period from April 1st to March 31st of each year
of the Term.
3. "Airport"means the Palm Springs International Airport.
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1
4. "Assigned Area(s)" means the areas at the Airport shown on Exhibit "A" to this
Agreement that the Concessionaire is authorized to use for the operation of the Concession as
provided in this Agreement.
5. "City" means the City of Palm Springs, a California charter city and the owner and
operator of the Palm Springs International Airport and governed by the City Council of the City
of Palm Springs.
6. "City Manager" means the City Manager of the City or the designee or designees of the
City Manager.
7. "Effective Date" means December 17, 2014.
8. "Concession' means the right, privilege, and obligation to develop, maintain and operate the
Program pursuant to Section 3.01 of this Agreement and subject to all requirements and
limitations provided in this Agreement.
9. "Concessionaire" means U.S. Enterprises, Inc. d/b/a/ Corey Airport Services, a Georgia
corporation and includes its contractors, employees,partners, invitees, agents, or anyone operating on
behalf of the Concessionaire.
10. "Advertiser" means any person or entity that contracts with the Concessionaire for the
provision of advertising services of any kind at the Airport.
11. "Fixed Improvement" means any alteration, addition, annexation or improvement to the
Assigned Areas or a portion thereof which cannot be removed or changed without material damage
to, or destruction of, either itself or the Assigned Areas or a portion thereof.
12. "Gross Revenues" means all monies or other consideration paid to or payable, cash or
credit, to Concessionaire for sales made and for services rendered at or from the Airport,
regardless of when or where the order therefore is received,or delivered, whether on a cash basis or
credit. Each sale upon installment or credit shall be treated as a sale for the full price in the
month during which such sale shall be made, irrespective of the time when any payment is
received. There shall be allowed, when properly recorded and accounted for as a reduction from
Gross Revenue the following:
a. Actual advertising sales commissions paid and documented by Concessionaire to a
recognized third party sales/advertising agency other than Concessionaire or any
company affiliated with Concessionaire, such commissions not to exceed 15%.
b. Amounts owed which Concessionaire deems un-collectible after diligent
collection efforts. In no event shall more that 2.5% of Concessionaire's Gross Revenue be
deducted from total revenues as "bad debts." When Concessionaire after
diligent collection efforts is unable to collect amounts due from an advertiser upon
which Concessionaire had previously based Percentage Fee payments, such bad debts
shall be deemed uncollectible and an appropriate adjustment shall be made in
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Concessionaire's subsequent statements and Percentage Fee submissions. The
uncollectible bad debts will be accrued and deducted from the Concessionaire's
Percentage Fee at such time as Concessionaire commences paying such Percentage
Fee. If Concessionaire collects bad debts after adjustments are made to Gross Revenues,
then an appropriate adjustment shall be made to subsequent revenue statement and Percentage Fee
submission. This adjustment shall exclude external collection costs.
C. Sales or excise taxes that are imposed by law and paid to a government entity. This
provision shall not allow Concessionaire to exclude from Gross Revenues the concession
fees or Minimum Annual Guarantee specified in Article 4 herein.
d. The actual amount of a credit or refund given to an advertising customer resulting
from the delay in the commencement of the advertising display provided such delay was not
caused by Concessionaire.
e. The phone/data communication service charges are excluded from the Definition of gross
revenue.
13. "Hazardous Materials" means any substance, chemical, or waste which at any time shall be
defined as hazardous, toxic, or dangerous under applicable federal, state or local laws or
regulations that govern (1) the existence, cleanup, or remedy of contamination on property; (2) the
protection of the environment from spilled,deposited, or otherwise emplaced contamination; (3)control
of hazardous wastes; or (4) the use, generation, transport, treatment, removal, or recovery of hazardous
substances, including building materials.
14. "Minimum Annual Guarantee" means the minimum concession fee payable by
Concessionaire to City of Three Hundred Thousand Dollars ($300,000.00) for the first Agreement
Year and Three Hundred and Fifty Thousand Dollars ($350,000.00) for each successive Agreement
Year during the Term in the manner provided in Section 5.01 of this Agreement.
15. "Minimum Capital Investment" means at least Two Hundred and Eighty Thousand Dollars
($280,000.00) for the cost paid to contractors and/or subcontractors for improvements, furnishings,
fixtures, and equipment (exclusive of leased equipment) required under the Program. The term
"Minimum Capital Investment" includes architectural and engineering costs which are not to exceed
ten percent (10%) of the minimum construction expenditures, and does not include any finance or
interest expense, supervisory or overhead costs, or any other markups of any kind of Concessionaire or
any fees payable to the City under Article 4 or Article 5 of this Agreement.
16. "Operating Equipment" means personal equipment and trade fixtures that are furnished,
installed, or used by the Concessionaire in its operations on the Airport. It does not include Fixed
Improvements, nor does it include displays or decorations that are of a seasonal or temporary
promotional nature.
17. "Percentage Fee"means an amount equal to 50°/o of gross revenues for the first $800,000.00 of
Gross Revenue in an Agreement Year and 55% of all revenues in excess of$800,000.00 in Gross
Revenues in an Agreement Year.
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18. "Program" means the comprehensive advertising program, integrated and coordinated
with respect to design, quality, and content for the Airport, as described in Exhibit "A" to this
Agreement.
19. "Rules and Regulations"means the provisions of Title 16 of the Palm Springs Municipal Code,
as may be amended form tone to time, and any Hiles and regulations of the City Manager promulgated
thereunder.
20. "Term"means the term of this Agreement as provided in Article 2 of this Agreement.
21. `Term Commencement Date"means April 1,2015.
Article 2
Term of Agreement
This Agreement shall become effective upon execution by all parties. The Tenn of this Agreement
shall be a period of five(5)years,commencing on the Term Commencement Date and terminating on March
31,2020 unless sooner terminated in accordance with this Agreement Any occupancy or use of the Assigned
Areas by Concessionaire prior to the commencement of the Term shall be subject to all terms and conditions of
this Agreement.
Article 3
Use of Assigned Areas and Operation of Concession
301 Grant ofPrivileg
1. The City hereby grants to Concessionaire the rights to operate, maintain, and provide the
Concession and Concessionaire shall install and maintain the Program. Under this Program,
Concessionaire shall have the right to establish, operate, service, and maintain quality, expertly
designed commercial advertising displays, including without limitation: flat screen cases, free-
standing displays, wall mounted displays, dioramas, interactive kiosks, brochure racks, digital
advertising media, wall wraps, video, directories and other similar advertising for the purpose of
promoting or displaying the products or services of various industries, manufacturers,
companies, agencies, and persons fully consistent with the requirements of this Agreement. The
specific locations for displays are the Assigned Areas. No advertising shall be permitted at the
Airport out of the Assigned Areas. Any additional areas made available for advertising at the
Airport by the City shall be added to Exhibit "A" and shall be approved as an amendment to this
Agreement. Concessionaire shall have the exclusive advertising use of all Assigned Areas.
2. Concessionaire shall be responsible for the Program within the Assigned Areas at the
Airport and shall apply the financial, marketing, and administrative resources of its organization
to the implementation of the Program. Through its national, local and regional organization,
Concessionaire shall:
a. Develop, on a continuing basis, an integrated business plan for advertising at
the Airport.
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b. Follow quality criteria that 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 insure maximum revenue return to the
City consistent with the scope and integrity of the advertising master plan.
d. Provide a sales organization, including a locally based concession manager 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. The local manager must be available a minimum of 80 hours per
month.
e. Provide advertising and display equipment and fixtures that are consistent with
the architectural design of the Airport.
3. Except as provided elsewhere in this Agreement, Concessionaire shall be solely
responsible for all expenses associated with planning, implementing, refurbishing, maintaining,
and operating the Program provided for in this Agreement, whether or not advertising displays
and equipment were installed by Concessionaire. This includes, without limitation, the cost of
utility connections for all equipment within the assigned areas.
4. The City reserves the right to add or modify advertising locations and formats, at any
time, which may benefit the Airport, provided the City Manager consults with Concessionaire
before affecting such additions or modifications. These changes may include without limitation
video screens on the baggage claim carousels, a terminal directory, outdoor advertising, wall
wraps, and other formats/technologies that may become available in the future. All costs
associated with the development of advertising materials or modification of equipment shall be
the sole responsibility of the Concessionaire.
5. Upon execution of this Agreement, the Concessionaire shall have rights of ingress and
egress to and from the Assigned Areas, including but not limited to common use roadways,
subject to the Rules and Regulations. Such rights of ingress and egress shall apply to the
Concessionaires employees, customers, agents, contractors, suppliers, and other authorized
individuals.
6. If a concession change occurs, Concessionaire shall use its best efforts to reasonably
cooperate with the City and the City's future advertising concessionaire to ensure a seamless
transition of responsibility from the current Concessionaire and minimize any disruption in the
provision of advertising services at the Airport.
3.02 Exclusions from Agreement
The following advertising rights are not included under this Agreement:
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a. Internet Services (subject to negotiation). This includes but is not limited to
self-service monitors, internet kiosks, Wi-Fi, or other paid or advertising
supported internet services at the Airports.
b. Retail display advertising on tenant premises except as approved by the
City Manager.
C. Advertising on bus terminals or benches.
d. Airport related, or Airport directed information and promotions.
3.03 Use of Airport Facilities
1. The Concessionaire shall use the Assigned Areas only to operate the Concession.
Concessionaire shall not maintain any other use within the Assigned Areas unless previously
authorized by the City Manager in writing, which authorization may be withheld in the City
Manager's sole discretion. Concessionaire shall use its best efforts in every proper manner to
maintain, develop, and increase the sales of advertising developed under the Program.
2. If requested by Concessionaire, Concessionaire shall be provided a work area by
appointment, this space will not be permanent. The office will be occupied by a manager or a
representative of Concessionaire during normal business hours of the Airport unless otherwise
approved by the City Manager. One parking space at no cost to Concessionaire in the City's
employee parking lot available at all times, and access to no cost visitor parking for advertisers
or other persons doing Airport business with the Concessionaire at the Airport.
3. Concessionaire shall pay the City Three Hundred Dollars ($300.00) per month for
utilities, including electrical services.
3.04 Adjustment and Relocation of Assigned Area
The City reserves the right to relocate any Assigned Areas in which Concessionaire is
granted the privilege to conduct its Concession. The decision of the City on any advertising
locations shall be final. Such relocation demands shall be provided to Concessionaire in
writing from the City Manager at least sixty (60) days prior to such needed action unless such
relocation results from an emergency, in which case notice which is reasonable under the
circumstances shall be given. The Minimum Annual Guarantee and/or Percentage Fee shall be
adjusted in accordance with the impact on exposure of the public to Concessionaire's additional
or modified locations and formats as reasonably determined by the City Manager. Any
additional areas made available for advertising at the Airport by the City shall be added
to the Assigned Areas. The reasonable cost of such relocation shall be borne by the City. A
revised Exhibit "A" shall be substituted to show any additions or deletions to the Assigned
Areas.
3.05 Use of Terminal Building
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Concessionaire shall have the right of use, in common with others authorized to do so,
of the common areas in the Terminal Building; provided, however, that such use shall be
subject to and consistent with the Rules and Regulations.
3.06 Parkin
Concessionaire shall have the right to utilize vehicular parking facilities for
Concessionaire's employees in a manner and of a type similar to or equal to that provided for
employees of other Airport tenants or concessionaires.
Article 4
Advertising Rates and Standards
4.01 The Concessionaire shall submit to the City Manager, on an annual basis, a schedule of
monthly rates to be applied to the advertising locations. Advertising locations may be subject to
quantity purchase and other incentive discounts and to standard/sales advertising agency
deductions or commissions as expressly provided in this Agreement.
4.02 Concessionaire shall obtain the City Manager's approval before any advertising display
shall be placed in any location allocated for such purpose. The number, type, size, and content
of all Advertisements within the Airport is subject to the approval of the City Manager and shall
not contain nudity, profanity, pornography, or any content which the City Manager reasonably
determines, in his or her sole discretion, is harmful to the public peace, safety, health, and/or
welfare.
4.03 Concessionaire further agrees that it will not display or advertise locations, businesses,
facilities, activities, or events in other desert communities or other warm-weather, winter resort
areas in California, Arizona, Nevada (including without limitation Las Vegas), New Mexico,
Florida, or Mexico unless Concessionaire receives prior approval from the City Manager. This
prohibition shall not include businesses, facilities, activities, and events in the Coachella Valley.
4.04 Concessionaire shall not display any Advertisements reasonably disapproved by the City
Manager or which conflict with the provisions of this Article 4 and Concessionaire shall
immediately remove from the Airport upon written demand of the City Manager, at
Concessionaire's sole cost and expense, any such Advertisements. In the event that any such
Advertisement is not removed promptly upon receipt of written demand, the City may remove
and store said Advertisement. The City shall not in any way be held responsible or liable for any
damage to any Advertisement so removed. No Advertisements reasonably considered offensive
by the City may be presented to the public. The Concessionaire will promptly remove or modify
the presentation of any Advertisement if so directed by the City Manager, at the City Manager's
sole discretion. Where any backlit or other graphic display case of Concessionaire does not
contain an Advertisement, such display case shall contain tiller graphics.
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4.05 In accepting the limitations on advertising provided in this Article 4, Concessionaire
waives any and all rights it may have regarding the regulation of content of its advertising
displays at the Palm Springs International Airport and will hold the City harmless for any
damage or loss of income it may suffer as a result thereof.
4.06 Concessionaire shall submit a bi-annual performance metric evaluation to the City
Manager or his designee for his input and rating of the local operation, implementation of
standards and customer interaction.
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Article 5
Fees
5.01 Term Minimum Annual Guarantee and Percentage Fee
During the Term of this Agreement, Concessionaire agrees to pay to the City for the
privileges provided under this Agreement, a monthly fee equal to the Minimum Annual
Guarantee or the Percentage Fee, whichever is greater, for each calendar month for each
Agreement Year. All such payments shall be due on the twentieth (20`h) calendar day of the
month immediately following the month in which Gross Revenue was generated. In any
Agreement Year during the Term, in the event the total number of passengers passing through
the Airport (the "Total Passengers") declines by twenty percent (20%) or more from the Total
Passengers for the calendar year 2013, the Minimum Annual Guarantee shall be reduced by the
same percentage as the reduction of Total Passengers for the Agreement Year in question and
shall remain at that amount until the Total Passengers for any Agreement Year are not less than
eighty percent (80%) of the Total Passengers for 2013. The City shall provide Concessionaire
with the Total Passenger figures for each Agreement Year within ninety (90) days following the
end of such Agreement Year. The Minimum Annual Guarantee shall be increased or decreased,
as the case may be, retroactive to the first day of the Agreement Year after the Total Passenger
figures have been delivered to Concessionaire, provided the increase does not exceed the
amounts set forth in Article 1.01 (14).
5.02 Procedure for Payment of Fees
1. Both the City and the Concessionaire acknowledge and agree that the Concessionaire's
monthly payments of the Percentage Fee and Minimum Annual Guarantee during the Term shall
be computed and reconciled on an annual basis on or before the twentieth (20th) calendar day of
the next calendar month following the last calendar month of the Agreement Year.
2. No later than ninety (90) days after the end of Concessionaire's fiscal year,
Concessionaire shall furnish to the City the written statement of a Certified Public Accountant
stating that the Privilege Fee paid by the Concessionaire to the City pursuant to this Agreement
during each of Concessionaire's fiscal years is accurate. Such statement shall also state Gross
Revenues as shown on the books and records of Concessionaire that were used to compute the
Percentage Fee made to the Director of Aviation during the period covered by the statement.
3. If,at the end of any Agreement Year,the total amount of monthly installments of the Percentage
Fee paid by Concessionaire for such Agreement Year is less than the total amount of the Percentage Fee
required to be paid by Concessionaire for such Agreement Year, Concessionaire shall pay the amount of
such deficiency on or before the time Concessionaire provides its Annual Statement as provided in
this Agreement. In the event that any additional Percentage Fee shall be determined to be rightly
due and owing by any audit of Concessionaire's books and records, such amount shall forthwith
be paid by the Concessionaire to the City with interest thereon at the rate of twelve percent
(12%) per annum from the date such additional Percentage Fee became due; provided, however,
that the foregoing not be applied to amounts contested in good faith by Concessionaire.
4. If, at the end of any Agreement Year, the total amount of monthly installments of the
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Percentage Fee paid by Concessionaire based on Gross Revenues for such Agreement Year exceeds
the total amount of Percentage Fee required to be paid by Concessionaire for such Agreement Year as
indicated in Concessionaire's Annual Statement, Concessionaire shall receive a credit equivalent
to such excess which shall be credited by City to the next monthly payment due from Concessionaire
to City under this Agreement,or City may at its option pay Concessionaire in one lump sum within sixty
(60)days thereafter. if at the end of the final Agreement Year the total amount of Percentage Fee
paid by Concessionaire exceeds the total amount of Percentage Fee required to be paid by
Concessionaire for such Agreement Year, such excess shall be refunded to Concessionaire within sixty
(60) days after Concessionaire has vacated the Assigned Areas at the conclusion of this Agreement
and the Assigned Areas are in the condition required by this Agreement, and any other sums due City
from Concessionaire under this Agreement have been paid in frill or deducted therefrom.
5. Unless specifically stated otherwise in this Agreement, all Fees or other charges required to be
paid by Concessionaire pursuant to this Agreement shall be due and payable as indicated herein,
and shall incur a late charge if not received within ten (10) calendar days after Concessionaire's
receipt of written notice of such default. In the event Concessionaire fails to pay any monthly
installment of Fees within ten (10) calendar days after Concessionaire's receipt of written notice of
such default,then Concessionaire shall pay a late charge of five percent(5%)of the amount in default as
liquidated damages for failure to make prompt payment. The parties agree that such late charge
represents a fair and reasonable estimate of the costs and expenses City will incur by reason of late
payment by Concessionaire. Acceptance of such late charge by City shall in no event constitute a
waiver of Concessionaire's default with respect to such overdue amount, nor prevent City from
exercising any of the other rights and remedies granted in this Agreement. In the event Concessionaire
pays the late charge set forth hereunder but fails to pay contemporaneously therewith all unpaid
amounts of Fees, City's acceptance of this late charge payment shall not constitute a waiver of
Concessionaire's default with respect to Concessionaire's nonpayment nor prevent City from
exercising all other rights and remedies available to City under this Agreement, at law or in equity.
5.03 Good Faith Administration
Concessionaire shall not use any system, method, practice, or technique that results in, or is
designed to circumvent or shift the Concessionaire's Percentage Fee obligation under this Agreement.
The final determination on this issue shall be at the discretion of the City Manager. Examples include,
without limitation: (a) Concessionaire must equally distribute Gross Revenues among displays of
differing percentage rents when selling packages; (b) any cost based exclusions from Gross Revenue
are for the actual costs of providing a service or product, costs that are actually passed along to a third
party, and costs that are not typical business overhead in nature; Concessionaire shall not trade, borrow,
barter, or engage in any marketing practice or device that diminishes gross revenues from the Program
except as expressly authorized under this Agreement or as otherwise approved by the City Manager.
5.04 Adequate Consideration
It is expressly understood and agreed that City does not consider the Minimum Annual
Guarantee in itself a fair and adequate rate for the Assigned Areas and would not have entered into this
Agreement unless Concessionaire had obligated itself to pay Percentage Fee, which City expects to
supplement the Minimum Annual Guarantee to provide a fair and adequate return. Therefore, if
Concessionaire fails to continuously operate its business in accordance with the terms of this
Agreement or vacates the Assigned Areas prior to the expiration of the Tenn hereof, City will suffer
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damages and City shall have the right to treat any of such events as a material default and breach of this
Agreement and to recover such damages.
5.05 Concessionaire's Tax Obligation
Concessionaire shall be responsible for all taxes lawfully assessed against
Concessionaire's operations at the including, but not limited to any personal property taxes levied or
assessed on Concessionaire's personal property.
5.06 Concessionaire's Payment Obligations
1. In the event that Concessionaire disputes any Fees or other charge due hereunder, Concessionaire
shall notify City of such dispute prior to the due date for such payment. In the event that the City does
not agree with the disputed amount or if a period of more than 30 days is required to investigate such
dispute,the Concessionaire shall place such amounts in a separate escrow account for the mutual
benefit of Concessionaire and the City until such dispute can be resolved and no late charges or
interest shall be assessed on such amounts if the dispute is resolved in Concessionaire's
favor.
2. Payment by Concessionaire or receipt by the City of a lesser amount than the Fees or other
charges herein stipulated shall be deemed to be on account of the earliest Fees or other charges
due from Concessionaire to the City. No endorsements or statement on any check or any letter
accompanying any check or payment as Fees or other charges shall be deemed an accord and
satisfaction, and the City shall accept such check or payment without prejudice to the City's right to
recover the balance of any and all Fees or other charges due from Concessionaire to the City or to
pursue any other remedy provided in this Agreement or by law.
3. City may,at its option and its sole discretion, apply any payments received from Concessionaire
to any Fees, or other charges which are then due and payable. If City shall not make any specific
application of a payment received from Concessionaire, then any payment received from
Concessionaire shall be applied rust to the other charge, then to the Fee which has been overdue for the
longest period of time. No designation of any payment by Concessionaire for application to a specific portion
of Concessionaire's financial obligations hereunder shall be binding upon City. Any sums received by
City after termination of this Agreement shall not constitute a Fee but shall be received only as
reimbursement for use and occupancy of the Assigned Areas.
4. At any time that Concessionaire has either failed to pay Fees or other charges within five (5)
days after the same shall be due or shall have delivered checks to City for payments pursuant to this
Agreement which shall have on at least three (3) occasions during the Term of this Agreement (whether
consecutive or not or whether involving the same check or different checks)been returned by City's bank
for any reason, City shall not be obligated to accept any payment from Concessionaire unless such
payment is made by cashier's check or in bank certified funds.
5.07 Performance Bond
To secure the faithful performance of its obligations under this Agreement, Concessionaire shall
provide security in the form of a performance bond or a letter of credit or such other form as the City Attomey
may approve in the amount of Three Hundred Thousand Dollars ($300,000.00) through January 31, 2016.
Such security shall be issued by a surety or financial institution authorized to do business in the State of
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California and shall be approved by the City Attorney.
Article 6
Construction of Assigned Areas
6.01 Condition of Assigned Areas
Concessionaire's taking possession of the Assigned Areas shall constitute
Concessionaire's formal acceptance of the same and acknowledgment that the Assigned
Areas are in satisfactory condition, subject to all field conditions existing at the time of
delivery of possession.
6.02 Impmvements by Concessionaire
Concessionaire shall, without cost to City, provide the Assigned Areas with all
improvements necessary for the customary operation of the Concession in a first class manner, as
set forth in Exhibit A to this Agreement, and as listed here:
1. All structural improvements, equipment, and interior design and decor constructed or
installed by Concessionaire, its agents, or contractors, including the plans and specifications, shall
conform to all applicable statutes, ordinances, building codes, and rules and regulations. Final
construction design and/or "shop drawings" of all fixtures, displays, and improvements shall be
submitted to the City Manager for review and approval prior to installation.
2. No structural installations or improvements shall be made to or upon the Assigned
Areas without the prior written approval of the City Manager, which approval may be withheld for
any reason.
3. Concessionaire will not make any alterations, additions, or improvements to the Assigned
Areas or any structures thereon, without first obtaining the City Manager's written consent.
Concessionaire will obtain City Manager review and written approval before proceeding with
any improvements. Concessionaire shall also be responsible for any damage to persons or
property that may occur as a result of making any improvements. Any alterations, additions, or
improvements to the Assigned Areas will be made by Concessionaire at Concessionaire's sole
cost and expense according to plans and specifications approved by the City Manager.
4. All improvements made by Concessionaire to Assigned Areas shall be of high quality.
Furthermore, they shall be safe, fire resistant, attractive in appearance, and shall require written
approval of the City Manager prior to installation.
5. Concessionaire shall submit to the City a schedule depicting the estimated time required to
complete the construction or installation of approved improvements, facilities, furniture, and
equipment for the Concession. All work shall be fully completed within 165 days of City approval.
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6. Within One Hundred and Twenty(120) days of completion of construction, Concessionaire shall
provide to City Manager: (1) one reproducible final copy of plans for all improvements or subsequent
changes therein or alterations thereof to the Assigned Areas, signed by Concessionaire; (2) a signed
statement from the construction contractor(s), architect(s) and engineers) specifying the total
construction cost; (3)a signed statement 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; and(4) a signed statement demonstrating that no liens exist on any or
all of the construction. If the total construction cost is less than the Minimum Capital Investment, the
difference shall be paid to City within one hundred and twenty (120) days after the completion of all
construction as described in Exhibit A to this Agreement.
7. All Fixed Improvements made to the Assigned Areas and additions and alterations
thereto made to the Assigned Areas by Concessionaire shall be and remain the property of
Concessionaire until the expiration of the tern of this Agreement,or upon termination of this Agreement
(whether by expiration of the tern,cancellation, forfeiture,or otherwise,whichever first occurs); at which
time the said improvements shall become the property of City free and unencumbered, provided
however, that any trade fixtures, signs, and other personal property of Concessionaire not
permanently affixed to Assigned Areas shall remain the property of Concessionaire, unless
Concessionaire shall fail within ten(10) days following the termination of this Agreement, to remove
such facilities in which event, at the option of City Manager, title to same shall vest in City at no cost to
City or the City Manager may elect to exercise City rights set forth in this Agreement. With respect to
any wall or other wraps and any artwork, graphics, posters, or other collateral advertising material
owned by advertisers, advertisers shall have the right to elect to retain ownership of such materials and
remove them at their expense.
8. City Manager shall retain the ultimate control over the quality and acceptability of the finishes in
the Assigned Areas, and all improvements and finishes shall require the written approval of the City
Manager prior to installation. The architectural/engineering firm utilized by Concessionaire shall be
approved by the City Manager.
9. Concessionaire agrees to expend the full "Minimum Capital Investment" in the
modification, furnishing, and equipping of the Assigned Areas for the capital improvements related
to the Program not later than 120 days after final completion. The improvements shall become the
property of the Airport at the end of the contract term.
10. Concessionaire shall not remove or demolish, in whole or in part, any improvements upon
the Assigned Areas(excluding advertising copy)without the prior written consent of the City Manager,which
may be conditioned upon the obligation of Concessionaire to replace the same by an improvement
specified in such consent. The City Manager shall not withhold consent unreasonably, shall not
impose unreasonable conditions,and shall state the reasons for withholding consent.
Article 7
Concession Operations
7.01 Operational Standards
1. The management, maintenance and operation of the Assigned Areas shall be under the
supervision and direction of an active, qualified, competent manager who shall be subject to the
direction and control of Concessionaire. The Concessionaire agrees that its employees and
contractors shall be of sufficient number so as to properly conduct the Concessionaire's
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operation. A representative of Concessionaire shall be available by telephone twenty-four hours
a day, seven days a week, and three hundred sixty five days a year in case of emergency.
2. The operations of Concessionaire, its employees, agents, suppliers and contractors shall
be conducted in an orderly and proper manner, including all maintenance and cleaning of
advertising displays. All advertising shall be in compliance with all applicable federal, state and
local laws and regulations, including, but not limited to, laws and regulations intended to protect
the interest of consumers and the general public.
3. Concessionaire agrees that at least ten percent (10%) of the advertising capacity of the
Program shall be reserved for and dedicated to advertising City marketing and tourism
information and services, including without limitation the Palm Springs Convention Center and
the Palm Springs Bureau of Tourism, approved by the City Manager, and at no cost to the City
other than costs of production which will be paid by the City.
a. Exhibit A designates locations which are reserved for the City of Palm Springs
self-promotion. These locations shall be utilized for City branding messages
which highlight City-owned assets, City events, and/or the Palm Springs lifestyle.
Messages will be group welcome related, Airport related, or Airport directed
information and promotions. City of Palm Springs advertising must not promote
private businesses, corporations, events or organizations which would otherwise
pay for advertising in the airport. Convention Center advertising is allowed for
City supported organizations and events.
b. Advertising locations designated for the City of Palm Springs may be sold by
Corey Airport Services to paying advertisers or switched to other locations if
deemed in the City's best interest by the City Manager.
C. Corey Airport Services are not responsible for printing production or installation
of any City of Palm Springs static advertising displays.
d. Corey Airport Services are responsible for posting and removing all digital
advertising for the City of Palm Springs.
e. Corey Airport Services are responsible for the installation and maintenance of the
display cases to be used by the City of Palm Springs.
4. Concessionaire shall use its best efforts and sound business practices to keep all
advertising displays fully occupied with revenue producing advertising. Under no circumstances
shall Concessionaire allow an advertising display to remain vacant or dark for more than forty-
eight (48) hours. Concessionaire will produce and maintain a supply of "fillers" at
Concessionaire's sole cost and expense. All "filler" advertising shall be subject to prior approval
of the City Manager and shall be kept fresh and current. Subject to the City Manager's prior
written approval and the Advertising Guidelines, Concessionaire may install and maintain
appropriate and attractive advertising in vacant advertising displays providing City sponsored
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activities or events, City marketing and tourism information or services, local community events
or services, public service announcements, information regarding local non-profit organizations,
or other similar public information. Under no circumstances shall such advertisement include
controversial social, moral, political or ethical content or messages. Concessionaire shall also
otter vacant advertising displays to the City for advertising and promoting the Airport or Airport
programs. Advertisements installed pursuant to this section are intended to be short-term and
temporary in nature until such time revenue generating advertising can be secured for the
location.
5. Notwithstanding any provision of this Agreement to the contrary, Concessionaire
understands and agrees that, in the event of a conflict between Concessionaire and any other
lessee or concessionaire in the Airport as to specific items to be sold or services to be provided,
the City Manager shall make the final determination as to which product or service may be sold
or provided by each concessionaire or lessee.
6. Any Hazardous Materials used or brought onto the Assigned Areas by the Concessionaire
shall be handled, stored, transported, and disposed of in strict accordance with all applicable
federal, state, and local statutes, ordinances, and regulations. Concessionaire shall promptly
respond to and clean up any released or threatened release of any Hazardous Material into the drainage
systems, soils, groundwatdr, waters or atmosphere, in a safe manner, in accordance with applicable
federal, state, and local statutes,ordinances,and regulations, and as authorized or approved by all federal,
state or local agencies having authority to regulate the permitting, handling and cleanup of
Hazardous Materials. The City Manager shall be notified immediately of any release or threatened
release of any Hazardous Material.
7.02 Operational Standards and Evaluation by City
Concessionaire shall operate the Concession in accordance with the terms of this Agreement
and the standards set forth in the Program.
7.03 Maintenance and Utilities
1. The Concessionaire shall provide at its own expense such janitorial and cleaning
services and supplies as may be necessary in the operation and maintenance of the Assigned
Areas. The Concessionaire also agrees to keep and maintain the Assigned Areas in a clean, neat
and sanitary condition, and attractive in appearance.
2. The Concessionaire agrees to maintain and make necessary general repairs to all existing
advertising equipment and fixtures, fixtures and equipment placed or installed in the Assigned
Areas by Concessionaire, including, without limitation, signs, showcases, displays, all pay
telephones and telephone boards. Concessionaire agrees to keep and maintain in good condition
the electrical equipment located at or on the Assigned Areas. 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 authority having jurisdiction over the work in the Concessionaire's
Assigned Areas. The City Manager shall be the sole judge of the quality of maintenance of the
advertising displays. If it is determined that such maintenance is not satisfactory, the City
Manager shall so notify Concessionaire in writing. If such maintenance is not performed to City
standards by the Concessionaire within seventy-two (72) hours after receipt of written notice,
the City or its agents thereafter shall have the right to perform the maintenance thereof and
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Concessionaire agrees to promptly reimburse the City for the cost thereof, plus a fifteen percent
(15%) administrative overhead fee.
3. The Concessionaire shall, in a timely manner, provide for the adequate sanitary handling
and removal of all trash, garbage, and other refuse caused as result of the Concessionaire's
operations.
4. 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 costs, any damage
to Concessionaire property resulting from such activities.
5. Concessionaire shall be responsible for making all utility connections required for
operation of its advertising displays at Concessionaire's sole cost and expense. The City shall
be responsible and pay for monthly utility billing required, used or consumed in the Assigned
Areas, including but not limited to electric, gas, telephone, garbage collection services and data
and cable utility services, that are over and above the amount paid by Concessionaire in Article
3.03 (3).
6. The City shall not be liable for any interruptions to the utility services provided at the
Airport or to the advertising displays.
7.04 City Access
The City shall have the right to enter Concessionaire's Assigned Areas to:
a Inspect Assigned Areas at reasonable intervals during Concessionaire's regularbusiness
hours or at any time in case of emergency,to determine whether Concessionaire
has complied with and is complying with the terms and conditions of this
Agreement,and may require Concessionaire to perform necessary repairs at
Concesssionaire's own cost.
b. Perform any and all things that Concessionaire is obligated to perform and has failed
after reasonable notice to do, including: maintenance, repairs and replacements to
Concessionaire's Assigned Areas. The cost of all labor and materials required to
complete the work will be paid'by Concessionaire to City within ten(10)days
following demand by the City Manager for said payment.
Article 8
Responsibility of the City
8.1 City Maintenance
The City shall provide finished floors, walls and ceilings for the Assigned Areas in an
"as-is" condition. The City shall be responsible for the providing of, maintenance of, and upkeep
of partitions about the perimeter of the Assigned Areas, structural walls and supports, structural
roof construction, structural floor construction, exterior window walls designed about the
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perimeter of the Assigned Areas, and Airport security. The City shall further be responsible for
the general maintenance and upkeep of the Airport outside of Concessionaire's Assigned Areas.
Article 9
Defaults of Concessionaire and Termination by the Citv
9.01 General
Each of the following events shall constitute a"Default"or"Event of Default":
1. Any failure of Concessionaire to pay any Guaranteed Fee, Percentage Fee or any other fees,
charges or sums whatsoever due hereunder for more than ten(10)days after receipt of written notice from
City to Concessionaire that such amounts due hereunder were not received on the date required for payment
pursuant to this Agreement; or
2. If Concessionaire fails to remedy a default by it with respect to any of the other covenants,
conditions, and agreements contained in this Agreement, or in any rider, exhibit or other addendum
hereto, within thirty (30) days after notice has been sent; provided, however, that in the event of a
default which does not involve the payment of money and which cannot reasonably be cured within thirty
(30) days, Concessionaire shall not be in default of this Agreement. If Concessionaire (i) gives
written notice to City, within thirty (30) days after the notice of default has been sent, of
Concessionaire's intent to cure, and (ii) within such thirty (30) day period, delivers evidence to City of
the commencement of the cure, and(in)diligently and in good faith continues said cure;and(iv)completes said
cure expeditiously,or
3. IfCc>ricessionaire abandons or vacates the Assigned Areas or ceases to conduct its business therein for a period
of ten(10)consecutive days; or the occurrence of any act by or within the control of the Concessionaire which
operates to deprive the Concessionaire of the rights,powers and privileges necessary for the proper conduct of the
concession;or
4. If the Concessionaire allows any interior static advertising display to remain empty and blank for a period
longer than ten(10)days after receipt of written notice from the City Manager: or
5. Any assignment ofthe Concessionaire's interest in this Agreement without the prior written approval of
the City Manager,or
6. The failure of the Concessionaire to perfomi,keep or observe any of the temrs,covenants and obligations
wider this Agreernent and the failure coninues forten(10)days after written notice by the City of such failure;or
7. If Concessionaire shall (i) apply for or consent to the appointment of or the taking of possession by a
receiver; liquidator,custodian or trustee of itself or of all or a substantial part of its property,(ii)admit in writing its
inability, or be generally ramble,to pay its debts as such debts become due; (m)make a general assignment for the
benefit of As creditors,(iv)commence a volurrtary case under the Federal Bankruptcy Code(as now or hereafter in
eflect),(v)file a petition seeking to take advantage ofany other law relating to bankruptcy,insolvency,reorganization,
winding-up,or composition or adjustment of debts, or(vi)take any action for the purpose of effecting any of
the foregoing;or
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8. Ifapnxeeding or case shall be commenced,without the application or consent ofConcessionaire,in any court
of competent jurisdiction, seeking, (i) liquidation, reorganization, dissolution, winding up, or composition or
adjustment of debts,(h)the appointment of a trustee,receiver,liquidator,custodian or the like of Concessionaire
or of all or any substantial part of its assets, or(iii)similar relief under arty law relating to bankngrtcy, insolve;rcy,
teorg iniz,ation,winding-up,or composition or adjustment of debts,and Concessionaire fails to controvert such action or
proceeding in a timely and appropriate manner, or an order,judgment or decree approving or ordering any of the
foregoing shall be entered and continued unstayed and in effect,for a period of ninety(90)days; or any order for
relief against Concessionaire shall be entered in an involuntary case under such Bankruptcy Code;or
9. Any representation by Concessionaire,or in any report,certificate,financial statement,or other instrument
including this Agreement or any Exhibit that the City Manager determines is false, misleading, or incorrect
in any material respect as of the date made.
9.02 City Rights upon Default
1. Upon the occurrence of a Default,the City Manager may at the City Manager's sole discretion,in
addition to any other right or rights which City may have, serve a written thirty (30) days' notice of
cancellation of this Agreement upon Concessionaire, and upon the expiration of said thirty (30) days,
unless the Event of Default has been cured or a cure has been reasonably commenced and is
diligently prosecuted by Concessionaire, this Agreement shall terminate and Concessionaire shall quit
and surrender the Assigned Areas to City. In case of any such Default
a. All Guaranteed Fee and Percentage Fee and other sums then to be paid by
Concessionaire pursuant to this Agreement shall become due thereupon and be paid up
to the time of such re-entry, dispossession and/or expiration, together with such
reasonable expenses as the City may incur for legal expenses, attorneys' fees,
brokerage,and/or putting the Assigned Areas in good order.
b. The City-may re-assign the Assigned Areas or any part or parts thereof, either in the
name of City or otherwise, for a term or terms,which may at Citys option be less than or
exceed the period which would otherwise have constituted the balance of the Term and
may grant concessions or free of fees.
C. Concessionaire or the legal representatives of Concessionaire shall also pay the
City as liquidated damages for the failure of Concessionaire to observe and perform
Concessionaire's covenants herein contained, any deficiency between the Guarantee
Fee and Percentage Fee and other sums hereby reserved and/or covenanted to be paid
and the net amount, if any, of the fees collected on account of the new concession or
assignment of the Assigned Areas for each month of the period which would
otherwise have constituted the balance of the Term. In computing such damages there
shall be added to the deficiency such reasonable expenses as City may incur in
connection with reassigning, such as legal expenses, attorneys' fees,brokerage and for
keeping the Assigned Areas in good order. The City, at City's option, may make such
alterations,repairs,decorations and replacements as are reasonably necessary or desirable
for the purpose of reassigning the Assigned Areas; and the making of such alterations
and/or decorations shall not operate or be construed to release Concessionaire from
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liability hereunder as aforesaid.
d. The foregoing remedies and rights of City are cumulative and in addition to any
remedies the City may have in the enforcement of this Agreement. Concessionaire
expressly waives any and all rights of redemption granted by or under any present or
future laws in the event of Concessionaire's eviction or dispossession for any cause.
2. The City Manager may allow this Agreement to continue in effect, for so long as City
does not terminate this Agreement and Concessionaire's right to possession of the Assigned
Areas, in which event City shall have the right to enforce all of City's rights and remedies under this
Agreement including the right to recover the Guaranteed Fee, Percentage Fee, and any additional fee
and other charges payable by Concessionaire under this Agreement as they become due under this
Agreement.
9.03 Termination for Convenience.
The City may terminate this Agreement for its convenience at any time, in whole or in
part, by giving Concessionaire written notice thereof specifying the extent of the termination and
its effective date. In the event this agreement is terminated solely for Convenience pursuant to
this section 10.03, City shall reimburse Concessionaire for the unamortized depreciation amount of the
Minimum Capital Investment, if any, at the tennimtion of this Agreement and an Inconvenience Fee in the
amount of Two Hundred and Fifty Thousand Dollars ($250,000.00). The depreciation method shall be
based on a five year straight line depreciation schedule. In no case shall Concessionaire be entitled
to anticipatory profits or consequential damages except as expressly provided in this Section 9.03
and Concessionaire shall have no further claims against City under this Agreement.
9.04 Right of City to Lien
The right to lien on the inventory and other property of the Concessionaire is expressly granted
to the City in any case where the Concessionaire fails to pay amounts due to the City under this
Agreement.
9.05 No City Liability for Damage
The City shall not be liable for any damage, including, but not limited to, loss of profit, and
the Concessionaire shall not make a claim of any kind whatsoever against the City, its agents or
representatives, by reason of any action taken pursuant to this Article other than damages arising from
the negligence or willful misconduct of the City, its employees or agents.
Article 10
Bankruptcy or Insolvency
10.01 Concessionaire's Interest Not Transferable
Neither Concessionaire's interest in this Agreement, nor any estate hereby created in
Concessionaire nor any interest herein or therein, shall pass to any trustee or receiver or assignee for
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the benefit of creditors or otherwise by operation of law except as may specifically be provided
pursuant to the United States Bankruptcy Code, as amended. In the event the Concessionaire enters
into proceedings relating to bankruptcy, whether voluntary or involuntary, the Concessionaire
agrees to furnish, by certified mail or electronic commerce method authorized by the Agreement,
written notification of the bankruptcy to the City Manager. This notification shall be furnished
within five (5) days of the initiation of the proceedings relating to bankruptcy filing. This
notification shall include the date on which the bankruptcy petition was filed, the identity of the
court in which the bankruptcy petition was filed, and a listing of City contract numbers for all
City contracts against which final payment has not been made. This obligation remains in effect
until final payment of net receipts under this Agreement has been made to the City.
10.02 Termination
In the event the interest or estate created in Concessionaire hereby shall be taken in execution
or by other process of law, or if Concessionaire's guarantor, if any, or its executors, administrators, or
assigns, if any, shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state act or the
Code or if Concessionaire is adjudicated insolvent by a court of competent jurisdiction other than the
United States Bankruptcy Court, or if a receiver or trustee of the property of Concessionaire or
Concessionaire's guarantor, if any, shall be appointed by reason of the insolvency or inability of
Concessionaire or Concessionaire's guarantor, if any,to pay its debts as the same become due or if any
assignment shall be made of the property of Concessionaire or Concessionaire's guarantor, if any,
for the benefit of creditors, then City shall have the right to elect,by written notice to Concessionaire,to
terminate this Agreement and all rights of Concessionaire hereunder, and Concessionaire shall vacate
and surrender the Assigned Areas but shall remain liable as herein provided.
10.03 Concessionaire's Obligation to Avoid Creditors'Proceedings
Concessionaire or Concessionaire's guarantor, if any, shall not cause or give cause for
the appointment of a trustee or receiver of the assets of Concessionaire or Concessionaire's
guarantor, if any, and shall not make any assignment for the benefit of creditors, or become or be
adjudicated insolvent. The allowance of any petition under insolvency law except under the
Code or the appointment of a trustee or receiver of Concessionaire or Concessionaire's
guarantor, if any, or of the assets of either of them, shall be conclusive evidence that
Concessionaire caused, or gave cause for the appointment of a trustee or receiver of the assets
of Concessionaire therefore, unless such allowance of the petition, or the appointment of a
trustee or receiver, is vacated within sixty (60) days after such allowance or appointment.
Any act or occurrence described in this Section shall be deemed a material breach of
Concessionaire's obligations hereunder, and providing City with the right to elect by written notice
to Concessionaire to terminate this Agreement and all rights of Concessionaire hereunder, and
Concessionaire shall vacate and surrender the Assigned Areas but shall remain liable as herein
provided. City does, in addition, reserve any and all other remedies provided in this
Agreement or by law.
Article 11
Cancellation by Concessionaire
The Concessionaire, in addition to any other right of cancellation herein given to the
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Concessionaire by the City or any other rights to which Concessionaire may be entitled by law or
otherwise, may cancel this Agreement at any time that the Concessionaire is not in default in its
payments to the City hereunder, by giving the City Manager sixty (60) days written notice to be
served as hereinafter provided, upon or after the happening of any one of the following events:
a. Issuance by any court of competent jurisdiction of an injunction in any way
preventing or restraining the use of the Airport or any part thereof for Airport
purposes, which injunction materially affects Concessionaire's operations at the
Airport;
b. The inability of Concessionaire to use the Airport or any of the premises,
facilities, rights, licenses, services or privileges granted to the Concessionaire
hereunder because of any law or any order, rule, regulation or other action or any
non-action of the Federal Aviation Administration or any other govermnental
authority, or because of fire, earthquake, other casualty or acts of God, or the
public enemy, which materially affects Concessionaire's operations at the Airport.
C. The default by the City in the performance of any covenant or agreement herein
required to be performed by the City and the failure of the City to remedy such
default for a period of thirty (30) days after receipt from the Concessionaire of
written notice to remedy the same; provided, however, that no notice of
cancellation as above provided shall be of any force or effect if the-City shall
remedy the default prior to receipt of the Concessionaire's notice of cancellation.
Article 12
Laws,Regulations and Compliance
12.01 Laws and Regulations
The Concessionaire covenants and agrees that it will fully comply with all laws,
ordinances, rules and regulations for the City, the State of California, and the United States
applicable to, related to, or touching upon Concessionaire's operations within and upon the
Facilities or elsewhere at the Airport and expressly agrees that its use of and activities upon the
Airport shall be subject to all such ordinances, rules and regulations. The Concessionaire shall
furnish all licenses, permits and authorizations required for the management and operation of the
Facilities authorized herein.
12.02 Safety and Fire Regulation
The Concessionaire shall conduct its operations and activities under this
Agreement in compliance with all safety regulations and directives of the City and applicable
Federal, state and local laws. The Concessionaire shall procure and maintain such fire
prevention and extinguishing devices as required by the authority and shall at all times be
familiar with and comply with the fire regulations and orders of the City.
12.03 Airport Security
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Concessionaire shall observe all security requirements of Federal Aviation
Regulation Part 139 and Transportation Security Regulations Parts 1500, 1520, and 1542
applicable parts, as, the same may be from time to time amended, and to take such steps as
may be necessary or directed by City to ensure that subcontractors, employees, invitees, and
guests observe these requirements. If City incurs any fines and/or penalties imposed by the
Federal Aviation Administration or Transportation Security Administration or any expense in
enforcing said regulations and the City's Airport Security Program, as a result of the acts or
omissions of 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 City or the Federal Aviation Administration or the Transportation
Security Administration. City reserves the right to take whatever action is necessary to
rectify any such security deficiency in the event Concessionaire fails to remedy same.
12.04 City Issuance of Rules and Regulations
The City Manager shall have the right to prescribe, in its sole discretion, such
reasonable rules and regulations which in the City Manager's reasonable judgment are
necessary or appropriate for the general well being, safety, care, and cleanliness of the Airport.
12.05 Compliance by Other Concessionaires and Concessionaires
The City Manager shall, whenever possible, make reasonable efforts to obtain
uniform compliance with the City's rules and regulations; however, the City shall not be
liable to the Concessionaire for any violation or non-observance of such rules and regulations
by any user, tenant, concessionaire, invitee, licensee, or trespasser at the Airport nor shall such
violation or non-observance by a user, tenant concessionaire, invitee, licensee, or trespasser
at the Airport, constitute a waiver of the Concessionaire's obligation to comply with City rules
and regulations.
12.06 Notification of Theft or Damage
The Concessionaire shall inform the City Manager, in writing, within twenty-four (24) hours
after the Concessionaire becomes aware of any damage to or alleged theft of City property or private
property.
Article 13
Indemnification and Insurance
13.01 Damage Caused by the Concessionaire
All damage to the Assigned Areas or to the Airport in any way caused by the
Concessionaire or its agents,employees,contractors,visitors,guests or invitees,shall be repaired at the expense of
the Concessionaire. In the event of such damage, the City shall have the option to make such repairs as are
necessary,and any charge,costs,or damages so incurred by the City shall be paid by the Concessionaire.
I
13.02 Indemnification-General
22
R0669.1
The Concessionaire shall defend, indemnify, and hold the City and its officers, employees and
agents completely hamiless from and against any and all claims, suits, demands, actions, liabilities, losses,
damages,judgments,or fines arising by reason of injury or death of any person,or damage to any property,
including all reasonable costs for investigation and defense thereof(including, but not limited to, attorney
fees, court costs and expert fees) of any nature whatsoever arising out of the Concessionaire's conduct of its
business on the Airport,or in its use ofoccupancy ofthe Assigned Areas,regardless of where the injury,death,or
damage may occur, except to the extent such injury, death, or damage is caused City's sole negligence or
willful conduct or that of its officers,employees,or agents.
13.03 Indemnification-Violation of Laws.
The Concessionaire shall defend, indemnify, and hold the City, and its agents, officers, and
employees, completely harmless from and against any claim, suit, demand, action, liability, loss, damage,
judgment, fine, or civil penalty and all costs and expenses of whatever kind or nature (including, but not
limited to, attorney fees, court costs and expert fees) associated therewith in any way arising from or
based upon the violation of any Federal, state, or municipal laws, statutes, resolutions, or regulations
by the Concessionaire, its agents, employees, subcontractors, or sublessees, in conjunction with the
Concessionaire's use and/or occupancy of the Airport. The City shall give the Concessionaire
reasonable notice of and an opportunity to defend against, any such claims or actions,and the City shall
take reasonable actions to mitigate its damages.
13.04 Indemnification-Airport Security
If the City is deemed to be in noncompliance with laws or regulations governing access to
secure areas of the Airport and to the areas of the airfield and said noncompliance is the result of or due
to the negligence or willful act or omission of the Concessionaire or of any of the Concessionaire's
employees, agents, subcontractors, or sublessees and such breach results in a civil penalty action
against the City, the Concessionaire agrees to reimburse the City for all expenses, including reasonable
attorney fees incurred by the City in defending against the civil penalty action and for any civil
penalty or settlement amount paid by the City as a result of the civil penalty action. The City shall
give the Concessionaire reasonable notice of any allegation, investigation, or proposed or actual
civil penalty which relates to acts or omissions of the Concessionaire.
13.05 Survival of Indemnification
The provisions of Sections 13.02, 13.03, and 13.04 shall survive the expiration,termination,or
early cancellation of this Agreement for claims, suits, demands, actions, liabilities, loss, or damage,
which occur prior to the termination or early cancellation of this Agreement.
13.06 Insurance.
1. Concessionaire shall procure and maintain, at its cost, and submit concurrently with its
execution of this Agreement, public liability and property damage insurance against all claims
for injuries against persons or damages to property resulting from Concessionaire's performance
under this Agreement. Concessionaire shall also carry workers' compensation insurance in
accordance with California's workers compensation laws. Such insurance shall be kept in effect
during the term of this Agreement and shall not be cancelable without thirty (30) days written
notice to City Manager of any proposed cancellation. City's certificate evidencing the foregoing
and designating City as an additional named insured shall be delivered to and approved by City's
Risk Manager prior to commencement of the services hereunder. The procuring of such
insurance and the delivery of policies or certificates evidencing the same shall not be construed
as a limitation of Concessionaire's obligation to indemnify City, its contractors, officers and
employees.
2. Comprehensive or Commercial Form General Liability Insurance shall include the
following minimal limits:
a. General Liability including operations, products and completed operations
$1,000,000 each occurrence for bodily injury, personal injury and property
damage/$2,000,000 aggregate
b. Automobile, $1,000, 000 each accident; $1,000,000 uninsured motorist
C. Workers Compensation, $1,000,000 each accident/$1,000,000 each employee for
disease.
d. Excess Liability/Umbrella Form, $2,000,000.
3. Insurance policies carried by Concessionaire shall be with a company admitted to write
insurance in California that has a current A.M. Best rating of not less than B++:VIII or with a
non-admitted insurer on California's List of Eligible Surplus Lines of Insurers that has a current
A.M. Best rating of not less that A-;X. All insurance certificates verifying insurance coverage
and endorsements shall be provided to the City a minimum of five days prior to the
Commencement Date of this Agreement.
4. An Additional Insured Endorsement is required for the General Liability Insurance
policy naming the City, its officers, employees, and agents as additional insureds on the policy.
5. The policies shall provide for a 30 day notice to the City prior to termination,
cancellation, or change.
6. The general liability and excess liability/umbrella policies must be endorsed to provide
that each policy shall apply on a primary and noncontributing basis in relation to any insurance
or self-insurance, primary or excess, maintained by or available to the City or its officials,
employees, and agents.
7. The Workers Compensation policy shall contain the insurer's waiver of subrogation (or
waiver of right of recovery) in favor of City, its elected officials, officers, employees, and
agents.
8. If, in the City's opinion, the minimum limits of the insurance herein required have
become inadequate during the period of this Agreement, the Concessionaire shall increase
such minimum limits by reasonable amounts on request of the City provided that said coverage
is available at standard commercial rates.
24
/)0669.1
Article 14
Gross Revenues Reports
14.01 Certified Statements
Concessionaire shall submit to the City Manager not later than the twentieth day of each calendar
month during the Tenn of this Agreement, or at such other intervals as specified herein, a certified
statement setting forth the Concessionaire's Gross Revenues for the preceding calendar month. Said
statement shall be in the format specified by the City Manager, shall include all information required by
the City Manager including,without limitation, separate total sales by location and shall be certified as
complete and correct by the Concessionaire's principal financial officer. Within ninety (90) days after
the expiration of each Agreement Year, the Concessionaire shall submit to the City Manager an annual
certified statement showing the amount of Gross Revenues and itemized exclusions therefrom for the
Agreement Year certified by the Chief Financial Officer of the Concessionaire and a like annual
certified and complete statement from a Certified Public Accountant which includes an opinion that the
fees paid by Concessionaire to the city during the preceding agreement year were made in accordance
with the terns of this Agreement. Such certification does not affect the City's audit rights or supersede
any City audit findings and such statement shall be in the format specified by the City Manager.
Article 15
Records and Books;Inspections:Audits
15.01 Maintenance of Books and Records
1. Concessionaire shall maintain full and accurate books of accounts and records from which
Gross Revenues can be determined. Concessionaire shall maintain adequate accounting records in
accordance with generally, accepted accounting principles, and generally accepted auditing standards and
the requirements of this Agreement, for: (i) all transactions relevant to this Agreement; and (ii) all
exclusions from Gross Revenue claimed by Concessionaire. The City Manager shall have the right at
all reasonable times to inspect and audit all such records as may be necessary to verify the reported
Gross Revenue,including State of California sales tax return records.
2. Books of accounts and records shall include detailed analysis listing all of
Concessionaire's operations at the Airport,or a result of its operation at the Airport in the form of printed,
written or electronic media. Books of accounts and records shall also include, but is not limited to: (i)
all original accounting source documents detailing transactions relevant to this Agreement, including
but not limited to: (a) original contacts, (b) monthly sales journals detailing each transaction for the
month, (c) reconciliations between the financial records and monthly reports submitted to the City, (d)
other sales related documents;and(e)all exclusions from Gross Revenue claimed by Concessionaire.
3. For exclusions or adjustments to Gross Revenue, the Records shall include, but are not
limited to: (a) all agreements between Concessionaire and corporate or volume customers establishing
the customers' contractual rights to rebates; (b) lists of all individual transactions with all
corporate or volume customers; (c) all individual agreements with all corporate or volume customers;
and(d)any documentation or records supporting additional reductions to Gross Revenue.
25
73060 1
4. Concessionaire's books of accounts and records shall be segregated from other business matters
and records of other operations of the Concessionaire. Concessionaire's records for its operations at the
Airport shall be kept separate from other records and sequentially numbered for tracking. All books of
accounts and records and all other papers and files of the Concessionaire related to Gross Revenues and
capital under this Agreement shall be made available at the Airport within ten(10)days of Concessionaire's
receipt of the City's written request for such books and records with respect to advertising sales at the
airport.
5. In those situations where Concessionaire's sales records have been generated from
computerized data Concessionaire agrees to provide the City Manager or the City Manager's
representative with extracts of data files in a computer readable format in E-mail with attached,files,
orsuitablealtem4w computer data exchange formats.
6. Records shall be so kept and maintained for at least five (5) years after the end of each
Agreement Year and at least three (3) years after the expiration or termination of this Agreement or in
the event of a claim by the City,until such claim of City has been fully ascertained, fixed and paid.
The foregoing books and records so required to be kept and maintained shall include without
limitation all records of daily bank deposits of the entire receipts from transactions on the Assigned
Areas and invoices.
15.02 Accounting Manager
Concessionaire shall provide the name and telephone number of Concessionaire's accounting
manager or the like who has a thorough knowledge of the accounting system as it pertains to this
Agreement and who will assist the City with its audit. Concessionaire will also allow interviews of
past and present employees who were involved in the financial or operational activities of
Concessionaire at reasonable times in cooperation with the Concessionaire.
15.03 Legal Fees
In the event that the City deems it necessary to utilize the services of internal or external legal
counsel in connection with collecting any amounts found due and owing by Concessionaire in an
audit, then Concessionaire shall reimburse the City for reasonable attorney's fees and litigation
expenses as part of the aforementioned costs incurred.
Article 16
Surrender of Occupancy
16.01 Surrender of Occupancy
When this Agreement expires or is terminated in whole or in part as provided for elsewhere in this
Agreement, the Concessionaire shall surrender the Assigned Areas and all Fixed Improvements therein
broom clean and in good condition and repair, with the exception of reasonable wear and tear and
damage by loss or casualty not covered by insurance which the Concessionaire is required to maintain
pursuant to this Agreement and not otherwise attributable to the Concessionaires fault or negligence.
Article 17
26
Chanties&Additions to Airport; Impact of Construction Activities
17.01 Chanties&Additions to Airport
1. The City reserves the right at any time, and from time to time, to make alterations to, and to
build additional retail stores in the terminal building at the Airport, and to construct other buildings and
improvements at the Airport, including any modifications of any common areas,to enlarge or reduce
the Airport, to add decks or elevated parking facilities, and to sell or lease any part of the land
comprising the Airport, for the construction thereon of a building or buildings which may or may not
be part of the Airport. The City reserves the right at any time to relocate, reduce, enlarge, or
reconfigure the various buildings,parking areas, and other common areas;provided,however,that any
such relocation, reduction, enlargement, or reconfiguration which adversely affects the Assigned Area
shall result in a downward adjustment of the Minimum Annual Guarantee or Percentage Fee,
whichever is applicable, in accordance with the impact on the exposure of the public to
Concessionaire's locations.
2. The City shall have the exclusive right to use all or any part of the roof of the Assigned Areas
for any purpose; to erect additional stories or other structures over all or any part of the Assigned
Areas; to erect in connection with the construction thereof temporary scaffolds and other aids to
construction on the exterior of the Assigned Areas, provided that access to the Assigned Areas shall
not be materially denied; and to install, maintain, use, repair and replace within the Assigned Areas
pipes, ducts, conduits, wires and all other mechanical equipment serving other parts of the Airport,
the same to be in locations as will not unreasonably deny Concessionaire's use thereof. The City may
make any use it desires of the side or rear walls of the Assigned Areas (including, without limitation,
freestanding columns and footings for all columns), and the City, at its expense, shall repair all damage
to the Assigned Areas resulting from such work.
17.02 Impact of Construction Activities
The Concessionaire recognizes that from time to time during the term of this Agreement it may
be necessary for the City to initiate and carry forward extensive programs of construction reconstruction,
expansion, relocation, maintenance, and repair on the Airport, and that such construction,
reconstruction, expansion, relocation, maintenance, and repair may inconvenience or impair the
Concessionaire in its operation at the Airport. The Concessionaire agrees that no liability shall attach
to the City, its directors, officers, agents, employees, contractors, subcontractors, and representatives
by way of such inconveniences or impairment, and the Concessionaire waives any right to claim
damages or other consideration for such inconveniences or impairment provided however that the
Minimum Annual Guarantee shall be adjusted in accordance with the impact on exposure of the public
to Concessionaire's locations.
Article 18
Assimment and Sublettine
18.01 Prohibition
1. Concessionaire shall not transfer or assign this Agreement or its interest in this Agreement or
subcontract its rights under this Agreement without the express written consent of the City, which will
not be unreasonably withheld.
27
720669 1
2. Transfers or assignments occurring by operation of law are also prohibited. Any attempted
transfer, assign, sublease (if applicable), license, or franchise, or equivalent shall be void and confer
no rights upon any third person. No assignment, subcontract, transfer, license, franchise, or equivalent
shall relieve Concessionaire of any obligations under this Agreement. The consent by the City to any
transfer, assignment, or subcontract shall not be deemed to be a waiver on the part of the City to
any prohibition against any future transfer, assignment,or subcontract.
18.02 Procedure for Transfer
Should Concessionaire desire to make a transfer hereunder, Concessionaire shall, in each
instance, give written notice of its intention to do so to City Manager at least ninety (90) days before
the intended effective date of any such proposed transfer, specifying in such notice whether
Concessionaire proposes to assign or sublet, or enter into license, franchise or concession
agreements, the proposed date thereof, and specifically identifying the proposed transferee, previous
business experience of the proposed transferee, including without limitation copies of the proposed
transferee's last two years' income statement,balance sheet and statement of changes in financial position
(with accompanying notes and disclosures of all material changes thereto) in audited form, if
available, and certified as accurate by the proposed transferee. Such notice shall be accompanied,in the
case of a proposed assignment, subletting, license, franchise or concession agreement, by a copy of the
proposed assignment, sublease, license, franchise or concession agreement or, if same is not available, a
letter of commitment or a letter of intent.
18.03 Required Documents and Fees
Each transfer to which City has consented shall be evidenced by a written instrument in form
satisfactory to City, executed by Concessionaire and the transferee, under which the transferee
shall agree in writing for the benefit of the City (except as otherwise agreed in writing by the City)
to assume, perform and abide by all of the term, covenants and conditions of this Agreement to be done,
kept and performed by Concessionaire, including the payment of all amounts due or to become due
under this Agreement directly to the City and the obligation to use the Assigned Areas only for the
purposes specified in this Agreement.Concessionaire shall reimburse the City's reasonable attorneys'and
administrative fees incurred in the processing of,and documentation for,each such requested transfer,not
to exceed$500,whether or not the transfer is consummated.
18.04 Transfers
The term "transfer" includes, but is not limited to, transactions after the
commencement date in which the Concessionaire sublets, rents or otherwise permits occupancy or
use of the Assigned Areas by a third party.
18.05 Consent
If the City consents to any transfer, assignment or subcontract, that consent shall not be
effective unless and until Concessionaire gives notice of the transfer or assignment and a copy of the
transfer, assignment, or subcontract agreement to the City, and the transferee, assignee, or
subcontractor assumes all of the obligations and liabilities of the Concessionaire under this
Agreement.
28
?20669.1
18.06 Transfer to Wholly Owned Subsidiary
Concessionaire may transfer this Agreement to any wholly owned subsidiary provided
that Concessionaire shall guarantee and remain secondarily liable for the compliance with
all terms and conditions of the Agreement.
Article 19
Federal Regulations
19.01 Federal Government's Emergency Clause
All provisions of this Agreement shall be subordinate to the rights of the United
States of America to operate the Airport or any portion thereof during time of war or declared
national emergency in accordance with established lawful procedures. Such rights shall
supersede any provision of this Agreement that is inconsistent with the operation of the
Airport by the United States of America during time of war or national emergency.
Article 20
Nondiscrimination,DBE Participation.
20.01 Policy
It is the policy of City to promote the objectives of the United States Department of
Transportation with respect to the participation of DBE'S in DOT assisted contracts. This policy
has been formulated to comply with 49 CFR Parts 23 and 26. The Concessionaire agrees to
include the statements in Paragraphs 22.02, 22.03, and 22.04 in any subsequent agreement that it
enters and cause those businesses to similarly include the statements in further agreements.
20.02 Nondiscrimination
The Concessionaire for itself, its personal representatives, successors in interest, and
assigns, as a part of the consideration hereof, does hereby covenant and agree that:
(1) "This agreement is subject to the requirements of the U.S. Department of
Transportation's regulations, 49 CFR Part 23. The concessionaire or contractor agrees that it will
not discriminate against any business owner because of the owner's race, color, national origin,
or sex in connection with the award or performance of any concession agreement, management
contract, or subcontract,purchase or lease agreement, or other agreement covered by 49 CFR
Part 23.
(2) "The concessionaire or contractor agrees to include the above statements in any
subsequent concession agreement or contract covered by 49 CFR Part 23, that it enters and cause
those businesses to similarly include the statements in further agreements."
20.03 General Civil Rights Provision
The Concessionaire assures that it will comply with pertinent statutes, Executive Orders and
such Hiles as are promulgated to assure that no person shall,on the grounds of race, creed, color,national
origin, sex, age, or handicap be excluded from participating in any activity conducted with or
benefiting from Federal assistance.
Article 21
Miscellaneous
21.01 Rights Reserved to the City
All rights not specifically granted to the Concessionaire by this Agreement are reserved
to the City.
21.02 City Not Liable
Except as specifically provided for in this Agreement the City shall not be under any
duty or obligation to the Concessionaire to repair or maintain the Assigned Areas, or any
portion thereof, or any facilities or equipment constructed thereon other than as previously set
forth herein. The City shall not be responsible or liable to the Concessionaire for any claims
for compensation or any losses, damages, or injury, including lost profits, sustained by the
Concessionaire resulting from failure of any water supply, heat, air conditioning, electrical
power, or sewer or drainage facility, or caused by the natural physical conditions on the
Airport, whether on the surface or underground, including stability, moving, shifting,
settlement of, ground, or displacement of materials by fire, water, windstorm, tornado, act of
God, or state of war, civilian commotion or riot, or any other cause or period beyond the control
of the City, except to the extent covered by the City's insurance.
21.03 Entire Agreement
This Agreement constitutes the entire agreement of the parties hereto and may not be
changed, modified or amended, but only by a written instrument of change,
modification or amendment executed by the party against whom enforcement of any
change, modification or amendment is sought.
21.04 Relationship of the Parties
The Concessionaire is and 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 therefore. Nothing in this Agreement shall be construed as making the
Concessionaire an agent or representative of the City for any purpose whatsoever. Further,
nothing in this Agreement is intended or shall be construed as in any way creating or
establishing the relationship of copartners between the Parties hereto.
21.05 Ingress and Egress
For the purpose of contract performance, the City will grant the
Concessionaire without charge therefore, the right of ingress and egress from said
Assigned Areas by the Concessionaire, its employees, contractors, suppliers, servicemen,
licensees, guests, patrons, and invitees, provided that such right of ingress and egress shall at
all times be exercised in compliance with any and all regulations promulgated by lawful
authority for the care, operation, maintenance, and protection of the Airport which apply to all
30
720009.1
users of the Airport. For purposes of this Article, a person shall be deemed to conduct business on
the Airport if he occupies any space on the Airport or if he provides any services on the Airport, other
than utilities,on a regular or continuing basis.
21.06 Waiver of Performance
The failure of the City or the Concessionaire, in any one or more instances, to invoke a
provision, term, covenant, reservation, condition, or stipulation of this Agreement, or to enforce or
take action to enforce, or to demand performance by the other party hereto, or to insist upon a strict
performance by the other of any of the provisions, terms, covenants, reservations, conditions or
stipulations contained in this Agreement shall not be considered a waiver or relinquishment of the rights
to invoke enforce, demand, or insist thereon, but the same shall continue and remain in full force and
effect, and no waiver by either party of any provision,term, covenant,reservation,condition or stipulation
hereof shall be deemed to have been made in any instance unless expressed in writing. In the event any
provision contained in this Agreement is breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so waived and shall not be deemed to be a
waiver of any other breach hereunder.
21.07 Specific Performance of City's Rights
City shall, have the right to obtain specific performance of any and all covenants or
obligations of Concessionaire under this Agreement, and nothing contained in this Agreement shall be
construed as or shall have the effect of abridging such right.
21.08 Survival of Concessionaire's Obligations
All obligations of Concessionaire under this Agreement which cannot be ascertained to
have been fully performed prior to the end of the Term or any earlier termination hereof shall survive
the expiration or termination of this Agreement; whichever occurs earlier.
21.09 Severability
If any article, section, provision, tern or condition of this Agreement is held to be invalid by a
court of competent jurisdiction, the remainder of this Agreement, including the remaining rights and
obligations of the City and the Concessionaire,shall not be affected thereby.
21.10 No Third Party Beneficiaries
This Agreement is for the benefit of the parties hereto only and is not intended to and shall not
create any rights in or confer any benefits upon any person or entity other that the parties hereto.
21.11 Governing Law
This Agreement shall be governed by and in accordance with the laws of the State of California
without regard to conflicts of law principals.
24.12 Venue
31
7?OO .1
To the extent allowed by law, the venue for any action arising from this Agreement shall
be Riverside County,
21.13 Waiver of Jury Trial
The Concessionaire hereby waives all right to trial by jury in any claim, action, proceeding or
counterclaim by either the Concessionaire or the City against each other or any matters arising out of or
in any way connected with this Agreement.
21.14 Notices
Any notice, demand, request, consent, approval, or communication either party desires or
is required to give to the other party or any other person shall be in writing and either served
personally or sent by certified mail, return receipt requested to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight(48) hours from the time of mailing if
mailed as provided in this Section.
To City: Office of the City Manager
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263-2743
Office of the Airport Director
Suite OFC
3400 E. Tahquitz Canyon Way
Palm Springs, CA 92263-2743
To Concessionaire: U.S. Enterprises d/b/a/Corey Airport Services
Attn: President
225 Corey Center, SE Suite 1
Atlanta, Georgia 30312
21.16 Duplicate Counterpart Originals
This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same instrument.
21.17 Capacity to Execute
The persons executing this Agreement on behalf of the parties hereto warrant that they
are duly authorized to execute this Agreement on behalf of said parties and that by so executing
this Agreement the parties hereto are formally bound to the provisions of this Agreement.
24.18 Execution
The parties hereto acknowledge that they have thoroughly read this Agreement, including any
exhibits or attachments hereto and have sought and received whatever competent advice and
32
7 N)6G9_I
counsel was necessary for them to form a full and complete understanding of all rights and
obligations herein.
21.19 Transfer of Operations
Concessionaire agrees to cooperate with any substitute concessionaire at the termination of
this Agreement, whether by lapse of time or otherwise. Concessionaire shall provide a complete list of
existing advertising agreements including the contact person for each advertising client. City may
direct Concessionaire to leave in place any wall or other wraps and any artwork, graphics, posters, or
other collateral advertising material for reuse in the Airport subject to the consent of the advertising client.
[Signature Page Follows]
33
920GG9.1
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
"CITY"
City of Palm Springs
Date: �• a� • 1� By
David H. Ready f
City Manager
APPROVED AS TO FORM: ATTEST
By: &Iix B .
ougl s C. Holland, ames Thompson,
City ttomey City Clerk
APPROVED BY CITY COUNCIL: APPROVED BY CITY CDIrNCIL
at- ��
Date: Agreement No.
Corporations require two notarized signatures. One signature must be from Chairman of Board,President,or any Vice President. The
second signature must be from the Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer.
COMPANY NAME:
U1 .ISr. �.rFerP�ises,l.Lec./
61e, 60 eT: / f7 1rf'✓1 ($ Check one Individual_Partnership Corpora[inn
Z. �T1TTT
Address
t.,., A- o3
By By
Signature(Notarized) Signature(Notarized)
34
720669.1
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❑hd uirtud ❑Mimicry in Fad ❑lrch dal ❑Attorney in Fad
❑Tmdea ❑6tardae Or Cmsarvator ❑Tneatee ❑Owedm or Omswvats
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6199131 3
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
"CITY"
City of Palm Springs
Date: By:
David H. Ready
City Manager
APPROVED AS TO FORM: ATTEST
By: By:
Douglas C. Holland, James Thompson,
City Attorney City Clerk
APPROVED BY CITY COUNCIL:
Date: Agreement No.
Corporations require hvo notarized signatures. One signature must be from Chairman of Board,President,or any Vice President. The
second signature must be from the Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer,
COMPANY NAME:
V. S C. 4@w r Pr.3 e s, S1Ne.
s� Ce r �'y JE py scry 4; C, Check one_Individual_Partnership Zcorporation
01
Address
By Br
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Signature(Notarized) a aan,
34
720669.1
CAUFORRIA ALL-PURPOSE ACMOWLEDGMENT CIVIL CODE g 118g
A rotary public or other dricer oouplamg the ranamm a menses cr*the idan*of the ine5vid al%ft agned the
doasnant Cis which the cerbT�e a abaclwd.and rut the nrMhdmea,ammeY.a validity of this doaarn
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County of Fg// ., } //
Oinc�..jc,C)3 2 /YbeNe
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rtI.Ja, (�tci-se rT Lf..I7eIt ie.3�2V1 nJc�of�Cre=
Personally appeared � A
L) S Lr �CxW cll ' Pu ��n c
who proved to me on the basis of satisfactory evidere to be Me praun(s) whose rarre(s) islare
subscribed to the within instrument and acknowledged to me Mat helshalthey executed the same in
hisll a authorized ceomciy(me and that by hie/herAhek signsture(s)on the enshumrd Una persom(s).
or the ardiiy upon behad of which the person(s)acted,executed the instrumard_
I certify under PENALTY OF PERJURY under the laws
L Lpp� of the state of California that the foregoing paragraph
07"Pus'ng
is true a d correct.x�pDN si naE:s my and aascJia/l'seal.
sigrvabaa
3iignabas of Notary Pubic
Puce Notary Ssaf Abom
OPTIONAL
Though this secbon a ophorel,corwietiog this irdorrrabcn can deter,afterafaon of the documrd ci,
A'ruduhe t usat&ehmerd of We form to an unederded dac reed.
Description of Attached Dommnent
Title or Type of Doaxnenk Door urwxd Datw
N"br of Pages: Signer(s) Other Then Named Above:
Gapocity(es)Claimed by Signer(a)
3ignera Name: signer a Name:
❑Corporate Officer—Tme(sp. ❑Corporate O61car—Title(s):
❑Partner— 0 Limited ❑General ❑Partner— O Urnded ❑General
❑individual ❑Attorney in Fact ❑Individual 0 Attorney in Fact
❑Trustee ❑Grardisn or Conservator ❑Trustee 0 Guardian or Conservator
O Olm"7 0 OMar
Signer Is Representing: signer In FBpreeenfirV:
82D14National Nolay As i ibm-w .Hffbre@labny.org•1-WO.Ua HOTAR'f(1-BDD-87&8W7) Iham ASgg7
IN WITNESS WHEREOF, the parties have executed and entered into this Lease as of the date first written above.
CITY OF PALM SPRINGS
1
6399131
Advertising Concession
Exhibit "X'
CONEY
` O `
f
s
• Existing Program Locations 67 n
• New Program Locations 59
�' • City Program 7 INTERNATIONAL�AIRPORT
• City Shared (1 spot on Digital) 7*
` - �i, - •Included in New Program location count
�' I
AMENDMENT NO. 1
TO CONCESSION ADVERTISING AGREEMENT
PALM SPRINGS INTERNATIONAL AIRPORT
THIS FIRST AMENDMENT is made and entered into as of the 15th day of
February, 2012 (the "effective date") by and between the CITY OF PALM SPRINGS, a
California charter city and municipal corporation ("City"), and U.S. Enterprises, Inc. d/b/a
Corey Airport Services, a Georgia corporation ("Concessionaire").
RECITALS
WHEREAS, the City owns and operates Palm Springs International Airport ("Air-
port") located in Palm Springs, California, for the convenience of the general public.
WHEREAS, City and Concessionaire entered into an Agreement, dated
August 5, 2009, for the operation and management of the display advertising
concession at the Airport ("Agreement No. 5855"); and
WHEREAS, The City has determined that it is desirable to a have a high quality,
professionally designed and managed advertising concession that will maximize adver-
tising revenues, facilitate passenger communication and be architecturally compatible
with the Airport; and.
WHEREAS, the Concessionaire has submitted a proposal to install and manage
brand new public telephones with digital screen technology which shall be included in
the advertising Concession at the Airport; and
WHEREAS, the City approved the selection of the Concessionaire to operate
and manage the display advertising on the Airport and shall relinquish the operation and
management of all public pay phones in the Palm Springs International Airport terminal
complex.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promise of the parties hereto and
for the other good and valuable consideration, the receipt and sufficiency of which is he-
reby acknowledged, City and Concessionaire agree as follows:
1. Amendment No. 1 shall pertain only to the public pay phones within the Palm
Springs International Airport terminal complex and Concessionaire shall be re-
sponsible for the procurement, installation, maintenance, provision of a dial tone,
servicing of equipment as trade fixtures and sale of advertising content for all
public payphones located throughout the airport.
2. The agreement shall allow up to twenty two (22) phones to be installed at loca-
tions approved in Exhibit "A".
3. All phone equipment and installation costs shall be the full responsibility of Con-
cessionaire, at no cost to the City. All gross revenue collected and received
through the pay phones by Concessionaire shall be reported to the Airport and
be included in the gross concessions revenue formula as stipulated in Agreement
ORIGINAL BID
ANVOR A:G??EEMENT
i
r
Corey Airport Services Amendment No. 1 to Agreement 5855
Palm Springs International Airport
No. 5855 and shall include all telephone advertising revenue and all telephone
charges, tariffs and fees for long distance access.
4. The term shall be as provided in Article 2 of the original Agreement, No. 5855.
5. The Concessionaire reserves the right to return the pay phones and associated
equipment to the Airport for future operation, prior to the expiration of the adver-
tising agreement No. 5855.
6. Full Force and Effect. Except as previously modified for public payphones here-
in, all other provisions of Agreement No. 5855 shall remain unmodified in full
force and effect.
7. Corporate Authority. The person executing this Agreement on behalf of the par-
ties hereto warrants that (i) such party is duly organized and existing, (ii) they are
duly authorized to execute and deliver this Amendment on behalf of said party,
(iii) by so executing this Amendment, such party is formally bound to the provi-
sions of this Amendment, and (iv) the entering into this Amendment does not vi-
olate any provision of any other agreement to which said party is bound.
[SIGNATURE PAGE FOLLOWS]
Corey Airport Services Amendment No. 1 to Agreement 5855
Palm Springs International Airport
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first
written above.
ATTEST: CITY OF PALM SPRING
a municipal corporation
By: /
City Clerk sa?/, 012 APPROVED BY CITY COUNCIVy Manag
APPROVE S T O M: I _ 1 „(� �r0 n i�2
By APPROVED BY CITY
1�M1!IIANA'/GGER {{��
City Attorney h� �k't U/�Ih Ads:/'/
CONTRACTOR: Check one: _ Individual rarcnersmr__- rporation
Corporations require two notarized signatures: One from each of the following: A. Chairman of Board,
Presid resident: AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer,
or ief ancial/Off r.
By:
ig ature (notarized) Signature(notarized)
Nam ` �r- Name:
Tit / Title:
State of (PG. State of
County of �� (" County of
On ZZ ! fore me, Ut I On before me,
personally appeared ;emn.t r 4 T#c personally appeared
who proved to me on the basis of satisfactory who proved to me on basis of satisfactory
evidence to be the person(s)whose name(s) evidence to be the person(s)whose name(s)
is/are subscribed to the within instrument is/are subscribed to the within instrument
and acknowledged to me that he/she/they and acknowledged to me that he/she/they
executed the same in his/her/their authorized executed the same in his/her/their authorized
capacity(ies), and that by his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), signatures(s) on the instrument the person(s)
or the entity upon behalf of which the or the entity upon behalf of which the
person(s) acted, executed the instrument. person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY I certify under PENALTY OF PERJURY
under the laws of the State of California that under the laws of the State of California that
the foregoing paragraph is true and correct. the foregoing paragraph is true and correct.
WITNESS my hand and official seal. )) "� WITNESS my hand and official seal.
Notary Signature: G�zc�����Ulf 1 Notary Signature:
Notary Seal: W ` Notary Seal:
octob*9 2p�
760-327-3474 PSP Payphone Locations
G ' 760-329-2938
760-320-8103
760-327-3289 (TTY)
o0 760-322-5207
GATE 5
GATE 4
760-778-6962
Proposed new locations `
(3) Bono & (3) RJ concourse Palm Springs
InterkAMERIC liR al ESOR port X
AhRfCA'3 RESOft7POR7 =.
D
760-327-8254
760-327-3754 T
o� 760-325-3180
760-866-1948
760-325-8037 Customs: 760-327-8945
760-327-8274 GTC: 760-325-8109
760-327-3849 760-327-3851(TTY)
AIRPORT DISPLAY ADVERTISING
CONCESSION AGREEMENT
PALM SPRINGS INTERNATIONAL AIRPORT
This Concession Lease Agreement ("Agreement') is made and entered into effective
this day of�2009 (the "Effective Date") by and between the City of
Palm Springs, a Califo nia charter city and municipal corporation ("City"), and U.S.
Enterprises, Inc. d/b/a Corey Airport Services, a Georgia corporation
("Concessionaire").
RECITALS
A. The City owns and operates Palm Springs International Airport("Airport") located in
Palm Springs, California for the convenience of the general public.
B. The City has determined that it is desirable to have a high quality, professionally
designed and managed advertising concession that will maximize advertising revenues,
facilitate passenger flow and be architecturally compatible with the Airport
C. In response to Request for Proposals, the Concessionaire has submitted a
proposal to develop and manage the display advertising Concession at the Airport.
D. The City approved the selection of the Concessionaire to operate and manage
the display advertising concession on the Airport.
NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions,
privileges, obligations and agreements herein contained, and other valuable
considerations, the City and the Concessionaire hereby mutually undertake, promise
and agree, as follows:
Article 1
Definitions and Interpretation
1.01 Definitions
Except as otherwise clearly indicated by the context, the following words, terms and
phrases wherever used in this Agreement shall, for the purpose of this Agreement, have
the following meanings:
1. "Advertisements" means advertising copy, advertising materials, and any
manner of commercial presentation.
2. "Agreement Year" means the twelve month period from November 1 st to October
31 st of each year of the Term.
3. "Airport" means the Palm Springs International Airport.
639913 1 1 „}
4.. "Assigned Area(s)" means the areas at the Airport shown on Exhibit "A" to this
Agreement that the Concessionaire is authorized to use for the operation of the
Concession as provided in this Agreement.
5. "City" means the City of Palm Springs, a California charter city and the owner
and operator of the Palm Springs International Airport and governed by the City
Council of the City of Palm Springs.
6. "City Manager" means the City Manager of the City or the designee or
designees of the City Manager.
7. "Commencement Dale" means June 1, 2009.
8. "Concession" means the right, privilege, and obligation to develop, maintain and
operate the Program pursuant to Section 3.01 of this Agreement and subject to all
requirements and limitations provided in this Agreement.
9. "Concessionaire" means U.S. Enterprises, Inc. d/b/a Corey Airport Services, a
Georgia corporation and includes its contractors, employees, partners, invitees, agents,
or anyone operating on behalf of Concessionaire.
10. "Advertiser" means any person or entity that contracts with the Concessionaire
for the provision of advertising services of any kind at the Airport.
11. "Fixed Improvement" means any alteration, addition, annexation or
improvement to the Assigned Areas or a portion thereof which cannot be removed or
changed without material damage to, or destruction of, either itself or the Assigned
Areas or a portion thereof.
12. "Gross Revenues" means all monies or other consideration paid to or
payable, cash or credit, to Concessionaire for sales made and for services rendered
at or from the Airport, regardless of when or where the order therefore is received, or
delivered, whether on a cash basis or credit. Each sale upon installment or credit shall
be treated as a sale for the full price in the month during which such sale shall be
made, irrespective of the time when any payment is received. There shall be allowed,
when properly recorded and accounted for as a reduction from Gross Revenue the
following:
a. Actual advertising sales commissions paid and documented by
Concessionaire to a recognized third party sales/advertising agency other than
Concessionaire or any company affiliated with Concessionaire, such
commissions not to exceed 15%.
b. Amounts owed which Concessionaire deems un-collectible after
diligent collection efforts. In no event shall more that 2.5% of Concessionaire's
Gross Revenue be deducted from total revenues as "bad debts."
When Concessionaire after diligent collection efforts is unable to collect
amounts due from an advertiser upon which Concessionaire had
previously based Percentage Fee payments, such bad debts shall be
deemed un-collectible and an appropriate adjustment shall be made in
2
639913 1
Concessionaire's subsequent statements and Percentage Fee
submissions. The uncollectable bad debts will be accrued and deducted
from Concessionaires Percentage Fee at such time as Concessionaire
commences paying such Percentage Fee. If Concessionaire collects bad
debts after adjustments are made to Gross Revenues, then an appropriate
adjustment shall be made to subsequent revenue statement and Percentage Fee
submission. This adjustment shall exclude external collection costs-
C. Sales or excise taxes that are imposed by law and paid to a government entity.
This provision shall not allow Concessionaire to exclude from Gross Revenues
the concession fees or Minimum Annual Guarantee specified in Article 4 herein.
d. The actual amount of a credit or refund given to an advertising customer
resulting from the delay in the commencement of the advertising display provided
such delay was not caused by Concessionaire.
13. "Hazardous Materials" means any substance, chemical, or waste which at any
time shall be defined as hazardous, toxic, or dangerous under applicable federal,
state or local laws or regulations that govern (1) the existence, cleanup, or remedy of
contamination on property; (2) the protection of the environment from spilled, deposited, or
otherwise emplaced contamination; (3) control of hazardous wastes; or (4) the use,
generation, transport, treatment, removal, or recovery of hazardous substances, including
building materials.
14. "Interim Term" means the period between the Commencement Date and the
Term Commencement Date.
15. "Minimum Annual Guarantee" means the minimum concession fee payable by
Concessionaire to City of Two Hundred and Fifty Thousand Dollars ($250,000.00) for the
first Agreement Year and Three Hundred Thousand Dollars ($300,000.00) for each
successive Agreement Year during the Term in the manner provided in Section 5.01 of
this Agreement.
16. "Minimum Capital Investment" means at least Three Hundred Thousand Dollars
($300,000.00) for the cost paid to contractors and/or subcontractors for improvements,
furnishings, fixtures, and equipment (exclusive of leased equipment) required under the
Program. The term "Minimum Capital Investment" includes architectural and engineering
costs which are not to exceed ten percent (10%) of the minimum construction
expenditures, and does not include any finance or interest expense, supervisory or
overhead costs, or any other markups of any kind of Concessionaire or any fees payable to
the City under Article 4 or Article 5 of this Agreement-
IT "Operating Equipment" means personal equipment and trade fixtures that are
furnished, installed, or used by the Concessionaire in its operations on the Airport. It does
not include Fixed Improvements, nor does it include displays or decorations that are
of a seasonal or temporary promotional nature.
1& "Percentage Fee" means an amount equal to 50% of gross revenues for the first
$700,000.00 of Gross Revenue in an Agreement Year and 60%of all revenues in excess of
3
639913.1
$700,000.00 in Gross Revenues in an Agreement Year.
19. 'Program" means the comprehensive advertising program, integrated and
coordinated with respect to design, quality, and content for the Airport, as described
in Exhibit "A" to this Agreement.
20. 'Rules and Regulations" means the provisions or Title 16 of the Palm Springs
Municipal Code, as may be amended form time to time, and any rules and regulations of the
City Manager promulgated thereunder.
21. "Term" means the term of this Agreement as provided in Article 2 of this Agreement.
22. 'Term Commencement Date" means November 1, 2009.
Article 2
Term of Agreement
This Agreement shall became effective upon execution by all parties. The Term of this
Agreement shall be a period of five (5) years, commencing on the Term Commencement Date
and terminating on October 31, 2014 unless sooner terminated in accordance with this Agreement
Any occupancy or use of the Assigned Areas by Concessionaire prior to the commencement of
the Term shall be subject to all terms and conditions of this Agreement
Article 3
Use of Assigned Areas and Operation of Concession
3.01 Grant of Privilege
1. The City hereby grants to Concessionaire the rights to operate, maintain, and
provide the Concession and Concessionaire shall install and maintain the Program.
Under this Program, Concessionaire shall have the right to establish, operate,
service, and maintain quality, expertly designed commercial advertising displays,
including without limitation: flat screen cases, free-standing displays, wall mounted
displays, dioramas, interactive kiosks, brochure racks, digital advertising media, wall
wraps, video, directories and other similar advertising for the purpose of promoting or
displaying the products or services of various industries, manufacturers, companies,
agencies, and persons fully consistent with the requirements of this Agreement. The
specific locations for displays are the Assigned Areas. No advertising shall be
permitted at the Airport out of the Assigned Areas. Any additional areas made
available for advertising at the Airport by the City shall be added to Exhibit "A" and
shall be approved as an amendment to this Agreement. Concessionaire shall have
the exclusive advertising use of all Assigned Areas.
2. Concessionaire shall be responsible for the Program within the Assigned
Areas at the Airport and shall apply the financial, marketing, and administrative
resources of its organization to the implementation of the Program. Through its
national, local and regional organization, Concessionaire shall:
4
639913 1
a. Develop, on a continuing basis, an integrated business plan for
advertising at the Airport.
b. Follow quality criteria that 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 insure maximum revenue
return to the City consistent with the scope and integrity of the
advertising master plan.
d. Provide a sales organization, including a full time locally based
concession manager 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.
e. Provide advertising and display equipment and fixtures that are
consistent with the architectural design of the Airport.
3. Except as provided elsewhere in this Agreement, Concessionaire shall be
solely responsible for all expenses associated with planning, implementing,
refurbishing, maintaining, and operating the Program provided for in this Agreement,
whether or not advertising displays and equipment were installed by Concessionaire.
This includes, without limitation, the cost of utility connections for all equipment within
the assigned areas.
4. The City reserves the right to add or modify advertising locations and formats,
at any time, which may benefit the Airport, provided the City Manager consults with
Concessionaire before affecting such additions or modifications. These changes may
include without limitation video screens on the baggage claim carousels, a terminal
directory, outdoor advertising, wall wraps, and other formats/technologies that may
become available in the future. All costs associated with the development of
advertising materials or modification of equipment shall be the sole responsibility of
the Concessionaire.
5. Upon execution of this Agreement, the Concessionaire shall have rights of
ingress and egress to and from the Assigned Areas, including but not limited to
common use roadways, subject to the Rules and Regulations. Such rights of ingress
and egress shall apply to the Concessionaires employees, customers, agents,
contractors, suppliers, and other authorized individuals.
6. Concessionaire shall use its best efforts to reasonably cooperate with the City
and the City's current advertising concessionaire to ensure a seamless transition of
responsibility from the current Concessionaire to the Concessionaire and minimize
any disruption in the provision of advertising services at the Airport. The City shall
use its best efforts to reasonably cooperate with the Concessionaire to ensure that
the City's removal of the advertising displays owned by the current concessionaire
and the repair and/or restoration of the surrounding Terminal areas, at the City's sole
5
639913 1
expense, is done in a timely manner.
3.02 Exclusions from Agreement
The following advertising rights are not included under this Agreement!
a. Internet Services. This includes but is not limited to self-service
monitors, internet kiosks, or other paid or advertising supported
internet services at the Airports.
b. Retail display advertising on tenant premises except as approved by
the City Manager.
C. Advertising on bus terminals or benches.
d. Group welcome related, Airport related, or Airport directed information
and promotions
3.03 Use of Airport Facilities
1. The Concessionaire shall use the Assigned Areas only to operate the
Concession. Concessionaire shall not maintain any other use within the Assigned
Areas unless previously authorized by the City Manager in writing, which authorization
may be withheld in the City Manager's sole discretion. Concessionaire shall use its
best efforts in every proper manner to maintain, develop, and increase the sales of
advertising developed under the Program.
2. If requested by Concessionaire, Concessionaire shall be provided an
unfurnished office of approximately one hundred and seventy (170) square feet on
the second floor of the main terminal at the Airport. The office will be occupied by a
manager or a representative of Concessionaire during normal business hours of the
Airport unless otherwise approved by the City Manager. A separate lease far this
space will be approved by the City and the Concessionaire and will provide that
Concessionaire will pay the City Four Hundred and Forty Dollars ($440) for rent
including utilities, one parking space at no cost to Concessionaire in the City's
employee parking lot available at all times, and access to no cost visitor parking for
advertisers or other persons doing Airport business with the Concessionaire at the
Airport.
3. Concessionaire shall pay the City Three Hundred Dollars ($300.00) per month
for utilities, including electrical services.
3.04 AdiusI tment and Relocation of Assigned Area
The City reserves the right to relocate any Assigned Areas and any other area
in which Concessionaire is granted the privilege to conduct its Concession. The
decision of the City on any advertising locations shall be final. Such relocation
demands shall be provided to Concessionaire in writing from the City Manager at
least sixty (60) days prior to such needed action unless such relocation results from
6
639913 1
an emergency, in which case notice which is reasonable under the circumstances
shall be given. The Minimum Annual Guarantee and/or Percentage Fee shall be
adjusted in accordance with the impact on exposure of the public to Concessionaire's
additional or modified locations and formats as reasonably determined by the City
Manager.. Any additional areas made available for advertising at the Airport by
the City shall be added to the Assigned Areas. The reasonable cost of such
relocation shall be borne by the City. A revised Exhibit "A" shall be substituted to
show any additions or deletions to the Assigned Areas.
3.05 Use of Terminal Building
Concessionaire shall have the right of use, in common with others
authorized to do so, of the common areas in the Terminal Building; provided,
however, that such use shall be subject to and consistent with the Rules and
Regulations.
3.06 Parking
Concessionaire shall have the right to utilize vehicular parking facilities for
Concessionaire's employees in a manner and of a type similar to or equal to that
provided for employees of other Airport tenants or concessionaires.
Article 4
Advertising Rates and Standards
4.01 The Concessionaire shall submit to the City Manager, on an annual basis, a
schedule of monthly rates to be applied to the advertising locations. Advertising
locations may be subject to quantity purchase and other incentive discounts and to
standard/sales advertising agency deductions or commissions as expressly provided
in this Agreement.
4.02 Concessionaire shall obtain the City Manager's approval before any
advertising display shall be placed in any location allocated for such purpose. The
number, type, size, and content of all Advertisements within the Airport is subject to
the approval of the City Manager and shall not contain nudity, profanity, pornography,
or any content which the City Manager reasonably determines, in his or her sole
discretion, is harmful to the public peace, safety, health, and/or welfare.
4.03 Concessionaire further agrees that it will not display or advertise locations,
businesses, facilities, activities, or events in other desert communities or other warm-
weather, winter resort areas in California, Arizona, Nevada (including without
limitation Las Vegas), New Mexico, Florida, or Mexico unless Concessionaire
receives prior approval from the City Manager. This prohibition shall not include
businesses, facilities, activities, and events in the Coachella Valley.
4.04 Concessionaire shall not display any Advertisements reasonably disapproved
by the City Manager or which conflict with the provisions of this Article 4 and
Concessionaire shall immediately remove from the Airport upon written demand of
the City Manager, at Concessionaire's sole cost and expense, any such
7
639913 1
Advertisements. In the event that any such Advertisement is not removed promptly
upon receipt of written demand, the City may remove and store said Advertisement.
The City shall not in any way be held responsible or liable for any damage to any
Advertisement so removed. No Advertisements reasonably considered offensive by
the City may be presented to the public. The Concessionaire will promptly remove or
modify the presentation of any Advertisement if so directed by the City Manager, at
the City Manager's sole discretion. Where any backlit or other graphic display case of
Concessionaire does not contain an Advertisement, such display case shall contain
filler graphics.
4.05 In accepting the limitations on advertising provided in this Article 4,
Concessionaire waives any and all rights it may have regarding the regulation of
content of its advertising displays at the Palm Springs International Airport and will
hold the City harmless for any damage or loss of income it may suffer as a result
thereof.
Article 5
Fees
5.01 Term Minimum Annual Guarantee and Percentage Fee
During the Term of this Agreement, Concessionaire agrees to pay to the City
for the privileges provided under this Agreement, a monthly fee equal to the Minimum
Annual Guarantee or the Percentage Fee, whichever is greater (the "Privilege Fee"),
for each calendar month for each Agreement Year. All such payments shall be due
on the twentieth (20t ) calendar day of the month immediately following the month in
which Gross Revenue was generated. In any Agreement Year during the Term, in
the event the total number of passengers passing through the Airport (the "Total
Passengers") declines by twenty percent (20%) or more from the Total Passengers
for the calendar year 2009, the Minimum Annual Guarantee shall be reduced by the
same percentage as the reduction of Total Passengers for the Agreement Year in
question and shall remain at that amount until the Total Passengers for any
Agreement Year are not less than eighty percent (80%) of the Total Passengers for
2009. The City shall provide Concessionaire with the Total Passenger figures for
each Agreement Year within ninety (90) days following the end of such Agreement
Year. The Minimum Annual Guarantee shall be increased or decreased, as the case
may be, retroactive to the first day of the Agreement Year after the Total Passenger
figures have been delivered to Concessionaire.
5.02 Procedure for Payment of Fees
1. Both the City and the Concessionaire acknowledge and agree that the
Concessionaire's monthly payments of the Percentage Fee and Minimum Annual
Guarantee during the Term shall be computed and reconciled on an annual basis on
or before the twentieth (20r") calendar day of the next calendar month following the
last calendar month of the Agreement Year.
2. No later than one hundred twenty (120) days after the end of
Concessionaire's fiscal year, Concessionaire shall furnish to the City the written
8
639913 1
statement of a Certified Public Accountant stating that the Privilege Fee paid by the
Concessionaire to the City pursuant to this Agreement during each of
Concessionaire's fiscal years is accurate. Such statement shall also state Gross
Revenues as shown on the books and records of Concessionaire that were used to
compute the Privilege Fee made to the Director of Aviation during the period covered
by the statement.
3. If, at the end of any Agreement Year, the total amount of monthly installments of the
Percentage Fee paid by Concessionaire for such Agreement Year is less than the total
amount of the Percentage Fee required to be paid by Concessionaire for such Agreement
Year, Concessionaire shall pay the amount of such deficiency on or before the time
Concessionaire provides its Annual Statement as provided in this Agreement. In the
event that any additional Privilege Fee shall be determined to be rightly due and
owing by any audit of Concessionaire's books and records, such amount shall
forthwith be paid by the Concessionaire to the City with interest thereon at the rate of
twelve percent (12%) per annum from the date such additional Privilege Fee became
due; provided, however, that the foregoing not be applied to amounts contested in
good faith by Concessionaire.
4. If, at the end of any Agreement Year, the total amount of monthly installments
of the Percentage Fee paid by Concessionaire based on Gross Revenues For such
Agreement Year exceeds the total amount of Percentage Fee required to be paid by
Concessionaire for such Agreement Year as indicated in Concessionaire's Annual
Statement, Concessionaire shall receive a credit equivalent to such excess which
shall be credited by City to the next monthly payment due from Concessionaire to City
under this Agreement, or City may at its option pay Concessionaire in one lump sum within
sixty (60) days thereafter. If at the end of the final Agreement Year the total amount of
Percentage Fee paid by Concessionaire exceeds the total amount of Percentage Fee
required to be paid by Concessionaire for such Agreement Year, such excess shall be
refunded to Concessionaire within sixty (60) days after Concessionaire has vacated the
Assigned Areas at the conclusion of this Agreement and the Assigned Areas are in the
condition required by this Agreement, and any other sums due City from Concessionaire
under this Agreement have been paid in full or deducted therefrom.
5. Unless specifically stated otherwise in this Agreement, all Fees or other charges
required to be paid by Concessionaire pursuant to this Agreement shall be due and
payable as indicated herein, and shall incur a late charge if not received within ten (10)
calendar days after Concessionaire's receipt of written notice of such default. In the event
Concessionaire fails to pay any monthly installment of Fees within ten (10) calendar days
after Concessionaire's receipt of written notice of such default, then Concessionaire shall
pay a late charge of five percent (6%) of the amount in default as liquidated damages for
failure to make prompt payment. The parties agree that such late charge represents 'a fair
and reasonable estimate of the costs and expenses City will incur by reason of late payment
by Concessionaire. Acceptance of such late charge by City shall in no event constitute
a waiver of Concessionaire's default with respect to such overdue amount, nor prevent
City from exercising any of the other rights and remedies granted in this Agreement. In
the event Concessionaire pays the late charge set forth hereunder but falls to pay
contemporaneously therewith all unpaid amounts of Fees, City's acceptance of this late
charge payment shall not constitute a waiver of Concessionaire's default with respect to
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Concessionaire's nonpayment nor prevent City from exercising all other rights and
remedies available to City under this Agreement, at law or in equity.
5.03 Good Faith Administration
Concessionaire shall not use any system, method, practice, or technique that
results in, or is designed to circumvent or shift the Concessionaire's Percentage Fee
obligation under this Agreement. The final determination on this issue shall be at the
discretion of the City Manager. Examples include, without limitation: (a) Concessionaire
must equally distribute Gross Revenues among displays of differing percentage rents
when selling packages; (b) any cost based exclusions from Gross Revenue are for the
actual costs of providing a service or product, costs that are actually passed along to a third
party, and costs that are not typical business overhead in nature; Concessionaire shall not
trade, borrow, barter, or engage in any marketing practice or device that diminishes gross
revenues from the Program except as expressly authorized under this Agreement or as
otherwise approved by the City Manager.
5.04 Adequate Consideration
It is expressly understood and agreed that City does not consider Minimum Annual
Guarantee in itself a fair and adequate rate for the Assigned Areas and would not have
entered into this Agreement unless Concessionaire had obligated itself to pay Percentage
Fee, which City expects to supplement the Minimum Annual Guarantee to provide a
fair and adequate return. Therefore, if Concessionaire fails to continuously operate its
business in accordance with the terms of this Agreement or vacates the Assigned Areas
prior to the expiration of the Term hereof, City will suffer damages and City shall have the
right to treat any of such events as a material default and breach of this Agreement and to
recover such damages.
5.05 Concessionaire's Tax Obligation
Concessionaire shall be responsible for all taxes lawfully assessed against
Concessionaire's operations at the including, but not limited to any personal property
taxes levied or assessed on Concessionaire's personal property,
5.06 Concessionaire's Payment Obligations
1. In the event that Concessionaire disputes any Fees or other charge due hereunder,
Concessionaire shall notify City of such dispute prior to the due date for such payment.
In the event that the City does not agree with the disputed amount or if a period of more
than 15 days is required to investigate such dispute, the Concessionaire shall place
such amounts in a separate escrow account for the mutual benefit of
Concessionaire and the City until such dispute can be resolved and no late charges or
interest shall be assessed on such amounts if the dispute is resolved in
Concessionaire's favor.
2. Payment by Concessionaire or receipt by the City of a lesser amount than the
Fees or other charges herein stipulated shall be deemed to be on account of the
earliest Fees or other charges due from Concessionaire to the City. No
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endorsements or statement on any check or any letter accompanying any check or
payment as Fees or other charges shall be deemed an accord and satisfaction, and the.
City shall accept such check or payment without prejudice to the City's right to recover
the balance of any and all Fees or other charges due from Concessionaire to the City or
to pursue any other remedy provided in this Agreement or by law.
3. City may, at its option and its sole discretion, apply any payments received from
Concessionaire to any Fees, or other charges which are then due and payable. If City
shall not make any specific application of a payment received from Concessionaire,
then any payment received from Concessionaire shall be applied first to the other charge,
then to the Fee which has been overdue for the longest period of time. No designation of any
payment by Concessionaire for application to a specific portion of Concessionaire's financial
obligations hereunder shall be binding upon City. Any sums received by City after
termination of this Agreement shall not constitute a Fee but shall be received only as
reimbursement for use and occupancy of the Assigned Areas.
4. At any time that Concessionaire has either failed to pay Fees or other charges
within five (5) days after the same shall be due or shall have delivered checks to. City
for payments pursuant to this Agreement which shall have on at least three (3) occasions
during the Term of this Agreement (whether consecutive or not or whether involving the
same check or different checks) been returned by City's bank for any reason, City shall not
be obligated to accept any payment from Concessionaire unless such payment is made
by cashier's check or in bank certified funds.
5.07 Performance Bond
To secure the faithful performance of its obligations under this Agreement,
Concessionaire shall provide security in the form of a performance bond or a letter of credit or
such other form as the City Attorney may approve in the amount of Three Hundred Thousand
Dollars ($300,000.00). Such security shall be issued by a surety or financial institution
authorized to do business in the State of California and shall be approved by the City Attorney.
Article 6
Construction of Assigned Areas
6.01 Condition of Assigned Areas
The City shall be responsible to repair any significant damage to the Assigned
Areas that may result from the removal of equipment, trade fixtures, and
operating agreement by the exiting concessionaire. Concessionaire's taking
possession of the Assigned Areas shall constitute Concessionaire's formal acceptance
of the same and acknowledgment that the Assigned Areas are in satisfactory
condition, subject to all field conditions existing at the time of delivery of possession.
6.02 Improvements by Concessionaire
Concessionaire shall, without cost to City, (other than City's cost incurred in
connection with the removal of current Concessionaire's displays and
restoration/repair of walls) provide the Assigned Areas with all improvements
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necessary for the customary operation of the Concession in a first class manner, as
set forth in Exhibit A to this Agreement, and as listed here:
1. All structural improvements, equipment, and interior design and decor
constructed or installed by Concessionaire, its agents, or contractors, including the
plans and specifications, shall conform to all applicable statutes, ordinances, building
codes, and rules and regulations. Final construction design and/or "shop drawings"
of all fixtures, displays, and improvements shall be submitted to the City Manager for
review and approval prior to installation.
2. No structural installations or improvements shall be made to or upon the
Assigned Areas without the prior written approval of the City Manager, which approval
may be withheld for any reason.
3. Concessionaire will not make any alterations, additions, or improvements to the
Assigned Areas or any structures thereon, without first obtaining the City
Manager's written consent. Concessionaire will obtain City Manager review and
written approval before proceeding with any improvements. Concessionaire shall also
be responsible for any damage to persons or property that may occur as a result of
making any improvements. Any alterations, additions, or improvements to the
Assigned Areas will be made by Concessionaire at Concessionaire's sole cost and
expense according to plans and specifications approved by the City Manager.
4. All improvements made by Concessionaire to Assigned Areas shall be of high
quality. Furthermore, they shall be safe, fire resistant, attractive in appearance, and shall
require written approval of the City Manager prior to installation.
5. Concessionaire shall submit to the City a schedule depicting the estimated time
required to complete the construction or installation of approved improvements,
facilities, furniture, and equipment for the Concession. All work shall be fully completed within
five(5)months of the Commencement Date.
6. Upon the Commencement Date, 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 in keeping with the
schedules for completion as required above.
T Within sixty (60) days of completion of construction, Concessionaire shall provide to
City Manager: (1) one reproducible final copy of plans for all improvements or subsequent
changes therein or alterations thereof to the Assigned Areas, signed by Concessionaire; (2)
a signed statement from the construction contractor(s), architect(s) and engineer(s)
specifying the total construction cost; (3)a signed statement 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; and
(4) a signed statement demonstrating that no liens exist on any or all of the construction. If
the total construction cost is less than the Minimum Capital Investment, the difference shall
be paid to City within sixty(60) days after the completion of all construction as described in
Exhibit A to this Agreement.
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8. All Fixed Improvements made to the Assigned Areas and additions and
alterations thereto made to the Assigned Areas by Concessionaire shall be and remain
the property of Concessionaire until the expiration of the term of this Agreement, 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 City free and unencumbered, provided however, that any trade
fixtures, signs, and other personal property of Concessionaire not permanently affixed to
Assigned Areas shall remain the property of Concessionaire, unless Concessionaire
shall fail within ten (10) days following the termination of this Agreement, to remove such
facilities in which event, at the option of City Manager, title to same shall vest in City at no
cost to City or the City Manager may elect to exercise City rights set forth in this
Agreement. With respect to any wall or other wraps and any artwork, graphics, posters, or
other collateral advertising material owned by advertisers, advertisers shall have the right
to elect to retain ownership of such materials and remove them at their expense-
9- City Manager shall retain the ultimate control over the quality and acceptability of the
finishes in the Assigned Areas, and all improvements and finishes shall require the
written approval of the City Manager prior to installation. The architectural/engineering firm
utilized by Concessionaire shall be approved by the City Manager,
10. Concessionaire agrees to expend the full "Minimum Capital Investment" in the
modification, furnishing, and equipping of the Assigned Areas for the capital
improvements related to the Program during the first five months of the Concession and
shall be fully expended within such period. In the event Concessionaire's expenditures on
the Minimum Capital Investment exceeds Three Hundred Thousand Dollars
($300,000.00),the next One Hundred and Twenty Thousand Dollars ($120,000.00) of the
Minimum Capital Investment (or any lesser portion thereof) shall be the responsibility of the
City and the City shall either reimburse Concessionaire for such costs or amortize such costs
over a twelve month period (with simple interest of 6% per annum added to any such amount
unpaid and outstanding) and authorize Concessionaire to deduct such amortized costs from
the Fees Concessionaire is obligated to pay the City pursuant to Article 5 of this Agreement.
Any costs in excess of the Concessionaire's first $300,000.00 and the City's $120,000.00
shall be bome solely by the Concessionaire.
11. Concessionaire shall not remove or demolish, in whole or in part, any
improvements upon the Assigned Areas (excluding advertising copy) without the prior written
consent of the City Manager, which may be conditioned upon the obligation of
Concessionaire to replace the same by an improvement specified in such consent. The City
Manager shall not withhold consent unreasonably, shall not impose unreasonable
conditions, and shall state the reasons for withholding consent.
Article 7
Concession Operations
7.01 Operational Standards
1. The management, maintenance and operation of the Assigned Areas shall be
under the supervision and direction of an active, qualified, competent manager who
shall be subject to the direction and control of Concessionaire. The Concessionaire
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agrees that its employees and contractors shall be of sufficient number so as to
properly conduct the Concessionaire's operation. The manager or other
representative of the Concessionaire shall staff the office provided in Section 3.03-2
of this Agreement. A representative of Concessionaire shall be available by
telephone twenty-four hours a day, seven days a week, and three hundred sixty five
days a year in case or emergency.
2. The operations of Concessionaire, its employees, agents, suppliers and
contractors shall be conducted in an orderly and proper manner, including all
maintenance and cleaning of advertising displays. All advertising shall be in
compliance with all applicable federal, state and local laws and regulations, including,
but not limited to, laws and regulations intended to protect the interest of consumers
and the general public.
3. Concessionaire agrees that at least five percent (5%) of the advertising
capacity of the Program shall be reserved for and dedicated to advertising City
marketing and tourism information and services, including without limitation the Palm
Springs Convention Center and the Palm Springs Bureau of Tourism, approved by
the City Manager, and at no cost to the City other than costs of production which will
be paid by the City.
4. Concessionaire shall use its best efforts and sound business practices to keep
all advertising displays fully occupied with revenue producing advertising. Under no
circumstances shall Concessionaire allow an advertising display to remain vacant or
dark for more than forty-eight (48) hours. Concessionaire will produce and maintain a
supply of "fillers", at Concessionaire's sole cost and expense. All "filler' advertising
shall be subject to prior approval of the City Manager and shall be kept fresh and
current. Subject to the City Manager's prior written approval and the Advertising
Guidelines, Concessionaire may install and maintain appropriate and attractive
advertising in vacant advertising displays providing City sponsored activities or
events, City marketing and tourism information or services, local community events
or services, public service announcements, information regarding local non-profit
organizations, or other similar public information. Under no circumstances shall such
advertisement include controversial social moral, political or ethical content or
messages. Concessionaire shall also offer vacant advertising displays to the City for
advertising promoting the Airport or Airport programs. Advertisements installed
pursuant to this section are intended to be short-term and temporary in nature until
such time revenue generating advertising can be secured for the location.
5. Notwithstanding any provision of this Agreement to the contrary,
Concessionaire understands and agrees that, in the event of a conflict between
Concessionaire and any other lessee or concessionaire in the Airport as to specific
items to be sold or services to be provided, the City Manager shall make the final
determination as to which product or service may be sold or provided by each
concessionaire or lessee.
6. Any Hazardous Materials used or brought onto the Assigned Areas by the
Concessionaire shall be handled, stored, transported, and disposed of in strict
accordance with all applicable federal, state, and local statutes, ordinances, and
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regulations. Concessionaire shall promptly respond to and clean up any released or
threatened release of any Hazardous Material into the drainage systems, soils,
groundwater, waters or atmosphere, in a safe manner, in accordance with applicable
federal, state, and local statutes, ordinances, and regulations, and as authorized or
approved by all federal, state or local agencies having authority to regulate the permitting,
handling and cleanup of Hazardous Materials. The City Manager shall be notified
immediately of any release or threatened release of any Hazardous Material.
7.02 Operational Standards and Evaluation by City
Concessionaire shall operate the Concession in accordance with the terms of this
Agreement and the standards set forth in the Program.
7.03 Maintenance and Utilities
1. The Concessionaire shall provide at its own expense such janitorial and
cleaning services and supplies as may be necessary in the operation and
maintenance of the Assigned Areas. The Concessionaire also agrees to keep and
maintain the Assigned Areas in a clean, neat and sanitary condition, and attractive in
appearance.
2. The Concessionaire agrees to maintain and make necessary general repairs
to all of the improvements, fixtures and equipment placed or installed in the Assigned
Areas by Concessionaire, including, without limitation, signs, showcases, displays,
and telephone boards. Concessionaire agrees to keep and maintain in good
condition the electrical equipment located at or on the Assigned Areas. 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 authority having
jurisdiction over the work in the Concessionaire's Assigned Areas. The City Manager
shall be the sole judge of the quality of maintenance of the advertising displays. If it is
determined that such maintenance is not satisfactory, the City Manager shall so
notify Concessionaire in writing. If such maintenance is not performed to City
standards by the Concessionaire within seventy-two (72) hours after receipt of written
notice, the City or its agents thereafter shall have the right to perform the
maintenance thereof and Concessionaire agrees to promptly reimburse the City for
the cost thereof, plus a fifteen percent (15%) administrative overhead fee.
3. The Concessionaire shall, in a timely manner, provide for the adequate
sanitary handling and removal of all trash, garbage, and other refuse caused as
result of the Concessionaire's operations.
4. 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 costs, any damage to Concessionaire property resulting from
such activities.
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5. Concessionaire shall be responsible for making all utility connections required
for operation of its advertising displays at Concessionaire's sole cost and expense.
The City shall be responsible and pay for all utilities required, used or consumed in
the Assigned Areas, including but not limited to electric, gas, telephone, garbage
collection services and data and cable utility services.
6. The City shall not be liable for any interruptions to the utility services provided
at the Airport or to the advertising displays.
7.04 City Access
The City shall have the right to enter Concessionaire's Assigned Areas to:
a. Inspect Assigned Areas at reasonable intervals during Concessionaire's regular
business hours or at any time in case of emergency, to determine whether
Concessionaire has complied with and is complying with the terms and
conditions of this Agreement, and may require Concessionaire to perform
necessary repairs at Concessionaire's own cost.
b. Perform any and all things that Concessionaire is obligated to perform and has
failed after reasonable notice to do, including: maintenance, repairs and
replacements to Concessionaire's Assigned Areas. The cost of all labor and
materials required to complete the work will be paid by Concessionaire to City
within ten (10)days following demand by the City Manager for said
payment.
Article 8
Responsibility of the City
8.1 City Maintenance
The City shall provide finished floors, walls and ceilings for the Assigned
Areas in an "as-is" condition. The City shall be responsible for the providing of,
maintenance of, and upkeep of partitions about the perimeter of the Assigned Areas,
structural walls and supports, structural roof construction, structural floor
construction, exterior window walls designed about the perimeter of the Assigned
Areas, Airport security, and any required electric connections to the Assigned Areas.
The City shall also be responsible and pay for all utilities required, used or consumed
in the assigned areas, including but not limited to, gas, water, telephone, electricity,
garbage collection services and data and cable utility services. The City shall further
be responsible for the general maintenance and upkeep of the Airport outside of
Concessionaire's Assigned Areas.
Article 9
Defaults of Concessionaire and Termination by the Ci
9.01 General
Each of the following events shall constitute a "Default"or"Event of Default":
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I. Any failure of Concessionaire to pay any Guaranteed Fee, Percentage Fee or any
other fees, charges or sums whatsoever due hereunder for more than ten (10) days after
receipt of written notice from City to Concessionaire that such amounts due hereunder were
not received on the date required for payment pursuant to this Agreement; or
2. If Concessionaire fails to remedy a default by it with respect to any of the other
covenants, conditions, and agreements contained in this Agreement, or in any rider, exhibit
or other addendum hereto, within thirty (30) days after notice has been sent; provided,
however, that in the event of a default which does not involve the payment of money and
which cannot reasonably be cured within thirty (30) days, Concessionaire shall not be in
default of this Agreement. if Concessionaire (i) gives written notice to City, within thirty
(30) days after the notice of default has been sent, of Concessionaire's intent to cure, and
(ii) within such thirty (30) day period, delivers evidence to City of the commencement of the
cure, and (iii) diligently and in good faith continues said cure; and (iv) completes said cure
expeditiously; or
3. If Concessionaire abandons or vacates the Assigned Areas or ceases to conduct its business
therein for a period of ten (10) consecutive days; or the occurrence of any act by or within the
control of the Concessionaire which operates to deprive the Concessionaire of the rights, powers
and privileges necessaryforthe proper conduct of the concession;or
4. If the Concessionaire allows any interior static advertising display to remain empty and blank
for a period longer than ten (10) days after receipt of written notice from the City Manager. or
5. Any assignment of the Concessionaire's interest in this Agreement without the prior
written approval of the City Manager, or
6. The failure of the Concessionaire to perform, keep or observe any of the terms, covenants
and obligations under this Agreement and the failure continues for ten (10) days after written notice
by the City of such failure;or
7. If Concessionaire shall (i) apply for or consent to the appointment of or the taking of
possession by a receiver, liquidator, custodian or trustee of itself or of all or a substantial part of its
property,(ii)admit in writing its inability,or be generally unable,to pay its debts as such debts become
due; (iii) make a general assignment for the benefit of its. creditors, (iv) commence a voluntary case
under the Federal Bankruptcy Code (as now or hereafter in effect), (v)file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, or(vi)take any action for the purpose of effecting any of the
foregoing;or
8. If a proceeding or case shall be commenced, without the application or consent of
Concessionaire, in any court of competent jurisdiction, seeking, (i) liquidation, reorganization,
dissolution, winding-up, or composition or adjustment of debts, (ii) the appointment of a trustee,
receiver, liquidator, custodian or the like of Concessionaire or of all or any substantial part of its
assets,or(iii)similar relief under any law relating to bankruptcy,insolvency, reorganization,winding-up,
or composition or adjustment of debts,and Concessionaire fails to controvert such action or proceeding
in a timely and appropriate manner, or an order,judgment or decree approving or ordering any of the
foregoing shall be entered and continued unstayed and in effect,for a period of ninety(90)days; or
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any order for relief against Concessionaire shall be entered in an involuntary case under such
Bankruptcy Code,or
9. Any representation by Concessionaire, or in any report, certificate, financial statement, or
other instrument including this Agreement or any Exhibit that the City Manager determines is
false, misleading, or incorrect in any material respect as of the date made.
9.02 City Rights upon Default
1. Upon the occurrence of a Default, the City Manager may at the City Manager's sole
discretion, in addition to any other right or rights which City may have, serve a written
thirty (30) days' notice of cancellation of this Agreement upon Concessionaire, and upon
the expiration of said thirty (30) days, unless the Event of Default has been cured or a
cure has been reasonably commenced and is diligently prosecuted by Concessionaire,
this Agreement shall terminate and Concessionaire shall quit and surrender the Assigned
Areas to City. In case of any such Default
a. All Guaranteed Fee and Percentage Fee and other sums then to be paid
by Concessionaire pursuant to this Agreement shall become due thereupon
and be paid up to the time of such re-entry, dispossess and/or expiration,
together with such reasonable expenses as the City may incur for legal
expenses, attorneys' fees, brokerage, and/or putting the Assigned Areas in
good order.
b. The City-may re-assign the Assigned Areas or any part or parts thereof,
either in the name of City or otherwise, for a term or terms, which may at
City's option be less than or exceed the period which would otherwise have
constituted the balance of the Term and may grant concessions or free of
fees.
C. Concessionaire or the legal representatives of Concessionaire shall
also pay the City as liquidated damages for the failure of Concessionaire to
observe and perform Concessionaire's covenants herein contained, any
deficiency between the Guarantee Fee and Percentage Fee and other
sums hereby reserved and/or covenanted to be paid and the net amount, if
any, of the fees collected on account of the new concession or assignment of
the Assigned Areas for each month of the period which would otherwise
have constituted the balance of the Term. In computing such damages there
shall be added to the deficiency such reasonable expenses as City may incur
in connection with reassigning, such as legal expenses, attorneys' fees,
brokerage and for keeping the Assigned Areas in good order. The City, at
City's option, may make such alterations, repairs, decorations and
replacements as are reasonably necessary or desirable for the purpose of
reassigning the Assigned Areas; and the making of such alterations and/or
decorations shall not operate or be construed to release Concessionaire
from liability hereunder as aforesaid.
d. The foregoing remedies and rights of City are cumulative and in addition
to any remedies the City may have in the enforcement of this Agreement.
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Concessionaire expressly waives any and all rights of redemption granted
by or under any present or future laws in the event of Concessionaire's
eviction or dispossession for any cause.
2. The City Manager may allow this Agreement to continue in effect, for so long
as City does not terminate this Agreement and Concessionaire's right to possession
of the Assigned Areas, in which event City shall have the right to enforce all of City's
rights and remedies under this Agreement including the right to recover the Guaranteed
Fee, Percentage Fee, and any additional fee and other charges payable by
Concessionaire under this Agreement as they become due under this Agreement.
9.03 Termination for Convenience.
The City may terminate this Agreement for its convenience at any time, in
whole or in part, by giving Concessionaire written notice thereof specifying the extent
of the termination and its effective date. In the event this agreement is terminated
solely for Convenience pursuant to this section 10.03, City shall reimburse
Concessionaire for the unamortized depreciation amount of the Minimum Capital Investment, if
any, at the ten-nination of this Agreement and an Inconvenience Fee in the amount of Two
Hundred and Fifty Thousand Dollars($250,000.00). The depreciation method shall be based
on a five year straight line depreciation schedule. In no case shall Concessionaire be
entitled to anticipatory profits or consequential damages except as expressly
provided in this Section 9.03 and Concessionaire shall have no further claims against
City under this Agreement.
9.04 Right of City to lien
The right to lien on the inventory and other property of the Concessionaire is
expressly granted to the City in any case where the Concessionaire fails to pay amounts
due to the City under this Agreement.
9.05 No City liability for Damage
The City shall not be liable for any damage, including, but not limited to, loss of
profit, and the Concessionaire shall not make a claim of any kind whatsoever against the
City, its agents' or representatives, by reason of any action taken pursuant to this Article
other than damages arising from the negligence or willful misconduct of the City, its
employees or agents.
Article 10
Bankruptcy or Insolvency
10.01 Concessionaire's Interest Not Transferable
Neither Concessionaire's interest in this Agreement, nor any estate hereby created
in Concessionaire nor any interest herein or therein, shall pass to any trustee or receiver
or assignee for the benefit of creditors or otherwise by operation of law except as may
specifically be provided pursuant to the United States Bankruptcy Code, as amended. In
the event the Concessionaire enters into proceedings relating to bankruptcy, whether
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voluntary or involuntary, the Concessionaire agrees to furnish, by certified mail or
electronic commerce method authorized by the Agreement, written notification of the
bankruptcy to the City Manager. This notification shall be furnished within five (5)
days of the initiation of the proceedings relating to bankruptcy filing. This notification
shall include the date on which the bankruptcy petition was filed, the identity of the
court in which the bankruptcy petition was filed, and a listing of City contract numbers
for all City contracts against which final payment has not been made. This obligation
remains in effect until final payment of net receipts under this Agreement has been
made to the City.
10.02 Termination
In the event the interest or estate created in Concessionaire hereby shall be taken
in execution or by other process of law, or if Concessionaire's guarantor, if any, or its
executors, administrators, or assigns, if any, shall be adjudicated insolvent or bankrupt
pursuant to the provisions of any state act or the Code or if Concessionaire is adjudicated
insolvent by a court of competent jurisdiction other than the United States Bankruptcy
Court, or if a receiver or trustee of the property of Concessionaire or Concessionaire's
guarantor, if any, shall be appointed by reason of the insolvency or inability of
Concessionaire or Concessionaire's guarantor, if any, to pay its debts as the same become
due or if any assignment shall be made of the property of Concessionaire or
Concessionaire's guarantor, if any, for the benefit of creditors, then City shall have the
right to elect, by written notice to Concessionaire, to terminate this Agreement and all rights
of Concessionaire hereunder, and Concessionaire shall vacate and surrender the
Assigned Areas but shall remain liable as herein provided.
10.03 Concessionaire's Obligation to Avoid Creditors'Proceedings
Concessionaire or Concessionaire's guarantor, if any, shall not cause or
give cause for the appointment of a trustee or receiver of the assets of
Concessionaire or Concessionaire's guarantor, if any, and shall not make any
assignment for the benefit of creditors, or become or be adjudicated insolvent. The
allowance of any petition under insolvency law except under the Code or the
appointment of a trustee or receiver of Concessionaire or Concessionaire's
guarantor, if any, or of the assets of either of them, shall be conclusive evidence that
Concessionaire caused, or gave cause therefore, unless such allowance of the
petition, or the appointment of a trustee or receiver, is vacated within sixty (60)
days after such allowance or appointment. Any act or occurrence described in
this Section shall be deemed a material breach of Concessionaire's obligations
hereunder, and providing City with the right to elect by written notice to Concessionaire
to terminate this Agreement and all rights of Concessionaire hereunder, and
Concessionaire shall vacate and surrender the Assigned Areas but shall remain
liable as herein provided. City does, in addition, reserve any and all other
remedies provided in this Agreement or by law.
Article 11
Cancellation by Concessionaire
The Concessionaire, in addition to any other right of cancellation herein given
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to the Concessionaire by the City or any other rights to which Concessionaire may be
entitled by law or otherwise, may cancel this Agreement at any time that the
Concessionaire is not in default in its payments to the City hereunder, by giving the
City Manager sixty (60) days written notice to be served as hereinafter provided,
upon or after the happening of any one of the following events:
a. Issuance by any court of competent jurisdiction of an injunction in any
way preventing or restraining the use of the Airport or any part thereof
for Airport purposes, which injunction materially affects
Concessionaire's operations at the Airport;
b. The inability of Concessionaire to use the Airport or any of the
premises, facilities, rights, licenses, services or privileges granted to the
Concessionaire hereunder because of any law or any order, rule,
regulation or other action or any non-action of the Federal Aviation
Administration or any other governmental authority, or because of fire,
earthquake, other casualty or acts of God, or the public enemy, which
materially affects Concessionaire's operations at the Airport.
C. The default by the City in the performance of any covenant or
agreement herein required to be performed by the City and the failure
of the City to remedy such default for a period of thirty (30) days after
receipt from the Concessionaire of written notice to remedy the same;
provided, however, that no notice of cancellation as above provided
shall be of any force or effect if the City shall remedy the default prior to
receipt of the Concessionaire's notice of cancellation.
Article 12
Laws Regulations and Compliance
12.01 Laws and Regulations
The Concessionaire covenants and agrees that it will fully comply with all
laws, ordinances, rules and regulations for the City, the State of California, and the
United States applicable to, related to, or touching upon Concessionaire's operations
within and upon the Facilities or elsewhere at the Airport and expressly agrees that
its use of and activities upon the Airport shall be subject to all such ordinances, rules
and regulations. The Concessionaire shall furnish all licenses, permits and
authorizations required for the management and operation of the Facilities authorized
herein.
12.02 Safety and Fire Regulation
The Concessionaire shall conduct its operations and activities under this
Agreement in compliance with all safety regulations and directives of the City and
applicable Federal, state and local laws. The Concessionaire shall procure and
maintain such fire prevention and extinguishing devices as required by the authority
and shall at all times be familiar with and comply with the fire regulations and orders
of the City.
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12.03 Airport Security
Concessionaire shall observe all security requirements of Federal Aviation
Regulation Part 139 and Transportation Security Regulations Parts 1500, 1520, and
1542 applicable parts, as, the same may be from time to time amended, and to take
such steps as may be necessary or directed by City to ensure that subcontractors,
employees, invitees, and guests observe these requirements. If City incurs any
fines and/or penalties imposed by the Federal Aviation Administration or
Transportation Security Administration or any expense in enforcing said regulations
and the City's Airport Security Program, as a result of the acts or omissions of
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 City or the Federal Aviation Administration or the
Transportation Security Administration. City reserves the right to take whatever
action is necessary to rectify any such security deficiency in the event
Concessionaire fails to remedy same.
12.04 CitV Issuance of Rules and Regulations
The City Manager shall have the right to prescribe, in its sole discretion,
such reasonable rules and regulations which in the City Manager's reasonable
judgment are necessary or appropriate for the general well being, safety, care, and
cleanliness of the Airport
12.05 Compliance by Other Concessionaires and Concessionaires
The City Manager shall, whenever possible, make reasonable efforts to
obtain uniform compliance with the City's rules and regulations; however, the City
shall not be liable to the Concessionaire for any violation or non-observance or such
rules and regulations by any user, tenant, concessionaire, invitee, licensee, or
trespasser at the Airport nor shall such violation or non-observance by a user,
tenant concessionaire, invitee, licensee, or trespasser at the Airport, constitute a
waiver of the Concessionaire's obligation to comply with City rules and regulations.
12.06 Notification of Theft or Damage
The Concessionaire shall inform the City Manager, in writing, within twenty-four (24)
hours after the Concessionaire becomes aware of any damage to or alleged theft of City
property or private property.
Article 13
Indemnification and Insurance
13.01 Damage Caused by the Concessionaire
All damage to the Assigned Areas or to the Airport in any way caused by the
Concessionaire or its agents, employees, contractors,visitors, guests or invitees, shall be repaired at
the expense of the Cone%, ionaire. In the event of such damage, the City shall have the option to
make such repairs as are necessary, and any charge, costs, or damages so incurred by the City
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shall be paid by the Concessionaire.
13.02 Indemnification- General
The Concessionaire shall defend, indemnify, and hold the City and its officers,
employees and agents completely harmless from and against any and all claims, suits,demands,
actions, liabilities, losses,damages,judgments, or fines arising by reason of injury or death of any
person, or damage to any property, including all reasonable costs for investigation and defense
thereof (including, but not limited to, attorney fees, court costs and expert fees) of any nature
whatsoever arising out of the Concessionaire's conduct of its business on the Airport,or in its use of
occupancy of the Assigned Areas, regardless of where the injury, death, or damage may occur,
except to the extent such injury, death, or damage is caused City's sole negligence or willful
conduct orthat of its officers, employees, or agents.
13.03 Indemnification - Violation of Laws.
The Concessionaire shall defend, indemnify, and hold the City, and its agents, officers,
and employees, completely harmless from and against any claim, suit, demand, action, liability,
loss, damage, judgment, fine, or civil penalty and all costs and expenses of whatever kind or
nature (including, but not limited to, attorney fees, court costs and expert fees) associated
therewith in any way arising from or based upon the violation of any Federal, state, or
municipal laws, statutes, resolutions, or regulations by the Concessionaire, its agents,
employees, subcontractors, or sublessees, in conjunction with the Concessionaire's use
and/or occupancy of the Airport. The City shall give the Concessionaire reasonable notice of
and an opportunity to defend against, any such claims or actions, and the City shall take
reasonable actions to mitigate its damages.
13.04 Indemnification -Airport Securitv
If the City is deemed to be in noncompliance with laws or regulations governing
access to secure areas of the Airport and to the areas of the airfield and said noncompliance
is the result of or due to the negligence or willful act or omission of the Concessionaire or of
any of the Concessionaire's employees, agents, subcontractors, or sublessees and such
breach results in a civil penalty action against the City, the Concessionaire agrees to
reimburse the City for all expenses, including reasonable .attorney fees incurred by the City
in defending against the civil penalty action and for any civil penalty or settlement amount
paid by the City as a result of the civil penalty action. The City shall give the
Concessionaire reasonable notice of any allegation, investigation, or proposed or actual
civil penalty which relates to acts or omissions of the Concessionaire.
13.05 Survival of Indemnification
The provisions of Sections 13.02, 13.03, and 13.04 shall survive the expiration,
termination, or early cancellation of this Agreement for claims, suits, demands, actions,
liabilities, loss, or damage, which _occur prior to the termination or early cancellation of
this Agreement.
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13.06 Insurance.
1. Concessionaire shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, public liability and property damage
insurance against all claims for injuries against persons or damages to property
resulting from Concessionaire's performance under this Agreement. Concessionaire
shall also carry workers' compensation insurance in accordance with California
worker's compensation laws. Such insurance shall be kept in effect during the term
of this Agreement and shall not be cancelable without thirty (30) days written notice
to City Manager of any proposed cancellation. City's certificate evidencing the
foregoing and designating City as an additional named insured shall be delivered to
and approved by City's Risk Manager prior to commencement of the services
hereunder. The procuring of such insurance and the delivery of policies or
certificates evidencing the same shall not be construed as a limitation of
Concessionaire's obligation to indemnify City, its contractors, officers and employees.
2. Comprehensive or Commercial Form General Liability Insurance shall include
the following minimal limits:
a. General Liability including operations, products and completed
operations $1,000,000 each occurrence for bodily injury, personal injury
and property damage/$2,000,000 aggregate
b. Automobile, $1,000, 000 each accident; $1,000,000 uninsured motorist
C. Workers Compensation, $1,000,000 each accident/$1,000,000 each
employee for disease.
d. Excess Liability/Umbrella Form, $2,000,000.
3. Insurance policies carried by Concessionaire shall be with a company
admitted to write insurance in California that has a current A.M. Best rating of not
less than B++:VIII or with a non-admitted insurer on California's List of Eligible
Surplus Lines of Insurers that has a current A.M Best rating of not less that A-;X. All
insurance certificates verifying insurance coverage and endorsements shall be
provided to the City a minimum of five days prior to the Commencement Date of this
Agreement.
4. An Additional Insured Endorsement is required for the General Liability
Insurance policy naming the City, its officers, employees, and agents as additional
insureds on the policy.
5. The policies shall provide for a 30 day notice to the City prior to
termination, cancellation, or change.
6. The general liability and excess liability/umbrella policies must be endorsed to
provide that each policy shall apply on a primary and noncontributing basis in relation
to any insurance or self-insurance, primary or excess, maintained by or available to
the City or its officials, employees, and agents.
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7. The Workers' Compensation policy shall contain the insurer's waiver of
subrogation (or waiver of right of recovery) in favor of City, its elected officials,
officers, employees, and agents.
8. If, in the City's opinion, the minimum limits of the insurance herein
required have become inadequate during the period of this Agreement, the
Concessionaire shall increase such minimum limits by reasonable amounts on
request of the City provided that said coverage is available at standard commercial
rates.
Article 14
Gross Revenues Reports
14.01 Certified Statements
Concessionaire shall submit to the City Manager not later than the twentieth day of
each calendar month during the Term of this Agreement, or at such other intervals as
specified herein, a certified statement setting forth the Concessionaire's Gross Revenues
for the preceding calendar month. Said statement shall be in the format specified by the City
Manager, shall include all information required by the City Manager including, without
limitation, separate total sales by location and shall be certifiedl �a�complete and correct by
the Concessionaire's principal financial officer. Within`s'rx�y 0 day after the expiration
of each Agreement Year, the Concessionaire shall submit to the City Manager an annual
certified statement showing the amount of Gross Revenues and itemized exclusions
therefrom for the Agreement Year certified by the Chief Financial Officer of the
Concessionaire and a like annual certified and complete statement from a Certified Public
Accountant which includes an opinion that the fees paid by Concessionaire to the city
during the preceding agreement year were made in accordance with the terms of this
Agreement. Such certification does not affect the City's audit rights or supersede any City
audit findings and such statement shall be in the format specified by the City Manager.
Article 15
Records and Books: Inspections:Audits
15.01 Maintenance of Books and Records
1. Concessionaire shall maintain full and accurate books of accounts and records
from which Gross Revenues can be determined. Concessionaire shall maintain adequate
accounting records in accordance with generally, accepted accounting principles, generally
accepted auditing standards and the requirements of this Agreement,for. (i) all transactions
relevant to this Agreement, and (ii) all exclusions from Gross Revenue claimed by
Concessionaire. The City Manager shall have the right at all reasonable times to inspect
and audit all such records as may be necessary to verify the reported Gross Revenue,
including State of California sales tax return records.
2. Books of accounts and records shall include detailed analysis listing all of
Concessionaire's operations at the Airport, or a result of its operation at the Airport in the
form of printed, written or electronic media. Books of accounts and records shall also
include, but is not limited to: (i) all original accounting source documents detailing
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transactions relevant to this Agreement, including but not limited to: (a) original contacts,
(b) monthly sales journals detailing each transaction for the month, (c) reconciliations
between the financial records and monthly reports submitted to the City, (d) other sales
related documents; and (e) all exclusions from Gross Revenue claimed by Concessionaire.
3. For exclusions or adjustments to Gross Revenue, the Records shall include, but
are not limited to: (a) all agreements between Concessionaire and corporate or volume
customers establishing the customers' contractual rights to rebates; (b) lists of all
individual transactions with all corporate or volume customers; (c) all individual
agreements with all corporate or volume customers; and (d) any documentation or records
supporting additional reductions to Gross Revenue.
4. Concessionaire's books of accounts and records shall be segregated from other
business matters and records of other operations of the Concessionaire. Concessionaire's
records for its operations at the Airport shall be kept separate from other records and
sequentially numbered for tracking. All books of accounts and records and all other papers
and files of the Concessionaire related to Gross Revenues and capital under this Agreement
shall be made available at the Airport within ten (10) days of Concessionaire's receipt of the
City's written request for such books and records with respect to advertising sales at the
airport.
5. In those situations where Concessionaire's sales records have been generated
from computerized data (whether mainframe, minicomputer, or PC-BASED computer
systems), Concessionaire agrees to provide the City Manager or the City Manager's
representative with extracts of data files in a computer readable format on data disks, E-
mail with attached files, or suitable alternative computer data exchange formats.
6. Records shall be so kept and maintained for at least five (5) years after the end of
each Agreement Year and at least three (3) years after the expiration or termination of
this Agreement or in the event of a claim by the City, until such claim of City has been
fully ascertained, fixed and paid. The foregoing books and records so required to be
kept and maintained shall include without limitation all records of daily bank deposits of the
entire receipts from transactions on the Assigned Areas and invoices.
15.02 Accounting Manager
Concessionaire shall provide the name and telephone number of Concessionaire's
accounting manager or the like who has a thorough knowledge of the accounting system as
it pertains to this Agreement and who will assist the City with its audit. Concessionaire
will also allow interviews of past and present employees who were involved in the
financial or operational activities of Concessionaire at reasonable times in cooperation with
the Concessionaire.
15.03 Legal Fees
In the event that the City deems it necessary to utilize the services of internal or
external legal counsel in connection with collecting any amounts found due and owing by
Concessionaire in an audit, then Concessionaire shall reimburse the City for reasonable
attorney's fees and litigation expenses as part of the aforementioned costs incurred.
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Article 16
Surrender of Occupancy
16.01 Surrender of Occupancy
When this Agreement expires or is terminated in whole or in part as provided for
elsewhere in this Agreement, the Concessionaire shall surrender the Assigned Areas and
all Fixed Improvements therein broom clean and in good condition and repair, with the
exception of reasonable wear and tear and damage by loss or casualty not covered by
insurance which the Concessionaire is required to maintain pursuant to this Agreement and
not otherwise attributable to the Concessionaire's fault or negligence.
Article 17
Changes &Additions to Ai ort; Impact of Construction Activities
17.01 Chances & Additions to Airport
1. The City reserves the right at any time, and from time to time, to make alterations
to, and to build additional retail stores in the terminal building at the Airport, and to
construct other buildings and improvements at the Airport, including any modifications of
any common areas, to enlarge or reduce the Airport, to add decks or elevated parking
facilities, and to sell or lease any part of the land comprising the Airport, for the
construction thereon of a building or buildings which may or may not be part of the
Airport. The City reserves the right at any time to relocate, reduce, enlarge, or
reconfigure the various buildings, parking areas, and other common areas; provided,
however, that any such relocation, reduction, enlargement, or reconfiguration which
affects the Assigned Area shall result in an adjustment of the Minimum Annual Guarantee
or percentage Fee, whichever is applicable, in accordance with the impact on the
exposure of the public to Concessionaire's locations.
2. The City shall have the exclusive right to use all or any part of the roof of the
Assigned Areas for any purpose; to erect additional stories or other structures over all or
any part of the Assigned Areas; to erect in connection with the construction thereof
temporary scaffolds and other aids to construction on the exterior of the Assigned Areas,
provided that access to the Assigned Areas shall not be materially denied; and to install,
maintain, use, repair and replace within the Assigned Areas pipes, ducts, conduits,
wires and all other mechanical equipment serving other parts of the Airport, the same to
be in locations as will not unreasonably deny Concessionaire's use thereof. The City may
make any use it desires of the side or rear walls of the Assigned Areas (including,
without limitation, freestanding columns and footings for all columns), and the City, at its
expense, shall repair all damage to the Assigned Areas resulting from such work.
17.02 Impact of Construction Activities
The Concessionaire recognizes that from time to time during the term of this
Agreement it may be necessary for the City to initiate and carry forward extensive programs
of construction reconstruction, expansion, relocation, maintenance, and repair on the
Airport, and that such construction, reconstruction, expansion, relocation, maintenance,
and repair may inconvenience or impair the Concessionaire in its operation at the Airport.
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The Concessionaire agrees that no liability shall attach to the City, its directors, officers,
agents, employees, contractors, subcontractors, and representatives by way of such
inconveniences or impairment, and the Concessionaire waives any right to claim damages
or other consideration for such inconveniences or impairment provided however that the
Minimum Annual Guarantee shall be adjusted in accordance with the impact on exposure
of the public to Concessionaire's locations.
Article 18
Assignment and Sublettin
18.01 Prohibition
1. Concessionaire shall not transfer or assign this Agreement or its interest in this
Agreement or subcontract its rights under this Agreement without the express written
consent of the City, which will not be unreasonably withheld.
2. Transfers or assignments occurring by operation of law are also prohibited. Any
attempted transfer, assign, sublease (if applicable), license, or franchise, or equivalent
shall be void and confer no rights upon any third person. No assignment, subcontract,
transfer, license, franchise, or equivalent shall relieve Concessionaire of any obligations
under this Agreement. The consent by the City to any transfer, assignment, or
subcontract shall not be deemed to be a waiver on the part of the City to any prohibition
against any future transfer, assignment, or subcontract.
18.02 Procedure for Transfer
Should Concessionaire desire to make a transfer hereunder, Concessionaire
shall, in each instance, give written notice of its intention to do so to City Manager at
least ninety (90) days before the intended effective date of any such proposed transfer,
specifying in such notice whether Concessionaire proposes to assign or sublet, or enter
into license, franchise or concession agreements, the proposed date thereof, and
specifically identifying the proposed transferee, previous business experience of the
proposed transferee, including without limitation copies of the proposed transferee's last
two years' income statement, balance sheet and statement of changes in financial position
(with accompanying notes and disclosures of all material changes thereto) in audited
form, if available, and certified as accurate by the proposed transferee. Such notice shall
be accompanied, in the case of a proposed assignment, subletting, license, franchise or
concession agreement, by a copy of the proposed assignment, sublease, license,
franchise or concession agreement or, if same is not available, a letter of commitment or a
letter of intent.
18.03 Required Documents and Fees
Each transfer to which City has consented shall be evidenced by a written instrument
in form satisfactory to City, executed by Concessionaire and the transferee, under
which the transferee shall agree in writing for the benefit of the City (except as
otherwise agreed in writing by the City) to assume, perform and abide by all of the tern,
covenants and conditions of this Agreement to be done, kept and performed by
Concessionaire, including the payment of all amounts due or to become due under this
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Agreement directly to the City and the obligation to use the Assigned Areas only for the
purposes specified in this Agreement. Concessionaire shall reimburse the City's reasonable
attorneys' and administrative fees incurred in the processing of, and documentation for,
each such requested transfer, not to exceed $500, whether or not the transfer is
consummated.
18.04 Transfers
The term "transfer" includes, but is not limited to, transactions after the
commencement date in which the Concessionaire sublets, rents or otherwise permits
occupancy or use of the Assigned Areas by a third party.
18.05 Consent
If the City consents to any transfer, assignment or subcontract, that consent shall not
be effective unless and until Concessionaire gives notice of the transfer or assignment
and a copy of the transfer, assignment, or subcontract agreement to the City, and the
transferee, assignee, or subcontractor assumes all of the obligation_ s and liabilities of the
Concessionaire under this Agreement.
18.06 Transfer to Wholly Owned Subsidiary
Concessionaire may transfer this Agreement to any wholly owned subsidiary
provided that Concessionaire shall guarantee and remain secondarily liable for
the compliance with all terms and conditions of the Agreement_
Article 19
Federal Regulations
19.01 Federal Government's Emergency Clause
All provisions of this Agreement shall be subordinate to the rights of the
United States of America to operate the Airport or any portion thereof during time of
war or declared national emergency in accordance with established lawful
procedures. Such rights shall supersede any provision of this Agreement that is
inconsistent with the operation of the Airport by the United States of America during
time of war or national emergency.
Article 20
Nondiscrimination, DBE Participation.
20.01 Policy
It is the policy of City to promote the objectives of the United States
Department of Transportation with respect to the participation of ACDBE'S in DOT
assisted contracts. This policy has been formulated to comply with 49 CFR Parts 23
and 26. The Concessionaire agrees to include the statements in Paragraphs 22.02,
22.03, and 22.04 in any subsequent agreement that it enters and cause those
businesses to similarly include the statements in further agreements.
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20.02 Nondiscrimination
1. The Concessionaire for itself, its personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby covenant
and agree that:
a. No person on the grounds of race, color or national origin shall be
excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said Facilities;
b. That in the construction of any improvements on, over, or under such
land and the furnishings of services thereon, no person on the grounds
of race, color or national origin shall be excluded from participation in,
denied benefits of, or be otherwise subjected to discrimination;
c. That the Concessionaire shall use the assigned areas in compliance
with all other requirements imposed by or pursuant to Title 49, Code of
Federal Regulations, Department of Transportation, Subtitle A, Office of
the Secretary, Part 21, Nondiscrimination in Federally Assisted
Programs of the Department of Transportation - Effectuation of Title VI
of the Civil Rights Act of 1964, and as said regulations may be
amended.
2. The Concessionaire assures that it will undertake an affirmative action
program as required by 14 CFR Part 152, Subpart E, to insure 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.
3. 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 14 CFR Part 152, Subpart E.
4. The Concessionaire assures that it will require that its covered sub
organizations provide assurances to the Concessionaire that they similarly will
undertake affirmative action programs and that they will require assurances from
their sub organizations, as required by 14 CFR Part 152, Subpart E, to the same
effect.
5. In the event of breach of any of the above nondiscrimination covenants, the
City shall have the right to take such action as the United States Government may
direct to enforce this covenant.
20.03 General Civil Rights Provision
The Concessionaire assures that it will comply with pertinent statutes, Executive
Orders and such rules as are promulgated to assure that no person shall, on the grounds of
race, creed, color, national origin, sex, age, or handicap be excluded from participating in
any activity conducted with or benefiting from Federal assistance.
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Article 21
Miscellaneous
21.01 Rights Reserved to the City
All rights not specifically granted to the Concessionaire by this Agreement are
reserved to the City.
21 .02 City Not Liable
Except as specifically provided for in this Agreement the City shall not be
under any duty or obligation to the Concessionaire to repair or maintain the
Assigned Areas, or any portion thereof, or any facilities or equipment constructed
thereon other than as previously set forth herein. The City shall not be responsible
or liable to the Concessionaire for any claims for compensation or any losses,
damages, or injury, including lost profits, sustained by the Concessionaire resulting
from failure of any water supply, heat, air conditioning, electrical power, or
sewer or drainage facility, or caused by the natural physical conditions on the
Airport, whether on the surface or underground, including stability, moving, shifting,
settlement of, ground, or displacement of materials by fire, water, windstorm,
tornado, act of Gad, or state of war, civilian commotion or riot, or any other cause or
period beyond the control of the City, except to the extent covered by the City's
insurance.
21 .03 Entire Agreement
This Agreement constitutes the entire agreement of the parties hereto and
may not be changed, modified or amended, but only by a written instrument of
change, modification or amendment executed by the party against whom
enforcement of any change, modification or amendment is sought.
21 .04 Relationship of the Parties
The Concessionaire is and 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 therefore. Nothing in this Agreement shall be
construed as making the Concessionaire an agent or representative of the City for
any purpose whatsoever. Further, nothing in this Agreement is intended or shall
be construed as in any way creating or establishing the relationship of copartners
between the Parties hereto.
21.05 Ingress and Egress
For the purpose of contract performance, the City will grant the
Concessionaire without charge therefore, the right of ingress and egress from
said Assigned Areas by the Concessionaire, its employees, contractors, suppliers,
servicemen, licensees, guests, patrons, and invitees, provided that such right of
ingress and egress shall at all times be exercised in compliance with any and all
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regulations promulgated by lawful authority for the care, operation, maintenance, and
protection of the Airport which apply to all users of the Airport. For purposes of this
Article, a person shall be deemed to conduct business on the Airport if he occupies any
space on the Airport or if he provides any services on the Airport, other than utilities, on a
regular or continuing basis.
21.06 Waiver of Performance
The failure of the City or the Concessionaire, in any one or more instances, to
invoke a provision, term, covenant, reservation, condition, or stipulation of this
Agreement, or to enforce or take action to enforce, or to demand performance by the
other party hereto, or to insist upon a strict performance by the other of any of the
provisions, terms, covenants, reservations, conditions or stipulations contained in this
Agreement shall not be considered a waiver or relinquishment of the rights to invoke
enforce, demand, or insist thereon, but the same shall continue and remain in full force
and effect, and no waiver by either party of any provision, term, covenant, reservation,
condition or stipulation hereof shall be deemed to have been made in any instance unless
expressed in writing. In the event any provision contained in this Agreement is breached
by either party and thereafter waived by the other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to be a waiver of any other
breach hereunder.
21.07 Specific Performance of Cit 's Rights
City shall, have the right to obtain specific performance of any and all covenants
or obligations of Concessionaire under this Agreement, and nothing contained in this
Agreement shall be construed as or shall have the effect of abridging such right.
21.08 Survival of Concessionaire's Obligations
All obligations of Concessionaire under this Agreement which cannot be
ascertained to have been fully performed prior to the end of the Term or any earlier
termination hereof shall survive the expiration or termination of this Agreement;
whichever occurs earlier.
21 .09 Severabilitv
If any article, section, provision, term or condition of this Agreement is held to be
invalid by a court of competent jurisdiction, the remainder of this Agreement, including the
remaining rights and obligations of the City and the Concessionaire, shall not be affected
thereby.
21.10 No Third Party Beneficiaries
This Agreement is for the benefit of the parties hereto only and is not intended to
and shall not create any rights in or confer any benefits upon any person or entity other
that the parties hereto.
32
639913 1
21.11 Governing Law
This Agreement shall be governed by and in accordance with the laws of the State of
California without regard to conflicts of law principals.
24,12 Venue
To the extent allowed by law, the venue for any action arising from this
Agreement shall be Riverside County.
21.13 Waiver of Jury Trial
The Concessionaire hereby waives all right to trial by jury in any claim, action,
proceeding or counterclaim by either the Concessionaire or the City against each other or
any matters arising out of or in any way connected with this Agreement.
21.14 Notices
Any notice, demand, request, consent, approval, or communication either
party desires or is required to give to the other party or any other person shall be in
writing and either served personally or sent by certified mail, return receipt requested
to the address set forth below. Either party may change its address by notifying the
other party of the change of address in writing. Notice shall be deemed
communicated forty-eight (48) hours from the time of mailing if mailed as provided in
this Section.
To City: Office of the City Manager
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263-2743
Office of the Airport Director
Suite OFC
3400 E. Tahquitz Canyon Way
Palm Springs, CA 92263-2743
To Concessionaire: Corey Airport Services
225 Corey Center
Atlanta, Georgia 30312
Attn: President
With a copy to:
Corey Airport Services
225 Corey Center
Atlanta, Georgia 30312
Attn: General Counsel
21,16 Duplicate Counterpart Originals
33
639913 1
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, and all of which together shall constitute one and the same
instrument.
21.17 Capacity to Execule
The persons executing this Agreement on behalf of the parties hereto warrant
that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the
provisions of this Agreement.
24.18 Execution
The parties hereto acknowledge that they have thoroughly read this Agreement,
including any exhibits or attachments hereto and have sought and received whatever
competent advice and counsel was necessary for them to form a full and complete
understanding of all rights and obligations herein.
21.19 Transfer of Operations
Concessionaire agrees to cooperate with any substitute concessionaire at the
termination of this Agreement, whether by lapse of time or otherwise. Concessionaire
shall provide a complete list of existing advertising agreements including the contact
person for each advertising client. City may direct Concessionaire to leave in place any
wall or other wraps and any artwork, graphics, posters, or other collateral advertising material
for reuse in the Airport subject to the consent of the advertising client-
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date first
above written.
CITY OF PALM SPRINGS
�i �:y A.3 78 FOh'f'Z
Its: �'-=�- T1-�.ry� •I s;nf LLcWG /?
APPROVED BY MY COUNCIL
ENT P ISES, Igb/a/- Airport Services
� b•�7.t�1 T7�J ��J�
ATTEST:
Its:
ity Clerk
Its: -:Cal Secr�
34
639913.1
Exhibit "A"
Advertising Display Program Layout
Page 1
Advertising Display Program Layout
Display # Location Type
101 Baggage Claim Lifestyle Wall Mural
102 Baggage Claim Lifestyle Wall Mural
103 Baggage Claim Lifestyle Wall Mural
104 Baggage Claim Lifestyle Wall Mural
105 Baggage Claim Lifestyle Wall Mural
106 Baggage Claim Lifestyle Wall Mural
107 Baggage Claim Lifestyle Wall Mural
108 AS Baggage Claim Bag Deck Diorama-2 Sided
109 AS Baggage Claim Bag Deck Diorama-2 Sided
110 AB Baggage Claim Bag Deck Diorama-2 Sided
111 AB Baggage Claim Bag Deck Diorama-2 Sided
112 AB Baggage Claim Bag Deck Diorama-2 Sided
113 AB Baggage Claim Bag Deck Diorama-2 Sided
114 AB Baggage Claim Bag Deck Diorama-2 Sided
115 AB Baggage Claim Bag Deck Diorama-2 Sided
116 AS Baggage Claim Bag Deck Diorama-2 Sided
117 AB Baggage Claim Bag Deck Diorama-2 Sided
119 Baggage Claim Wall Mounted Diorama
120 Baggage Claim Wall Mounted Diorama
121 Baggage Claim Wall Mounted Vertacular-Interior
122 Baggage Claim Wall Mounted Vertacular-Interior
123 Baggage Claim Wall Mounted Vertacular-Interior
124 Baggage Claim Wall Mounted Vertacular-Interior
125 Baggage Claim Wall Mounted Vertacular-Interior
126 Baggage Claim Wall Mounted Vertacular-Interior
127 Baggage Claim Wall Mounted Vertacular-Interior
128 Baggage Claim Wall Mounted Vertacular-Interior
129 Baggage Claim Wall Mounted Vertacular-Interior
600 EF Baggage Claim Bag Deck Digital-2 Sided
600 GH Baggage Claim Bag Deck Digital-2 Sided
600 IJ Baggage Claim Bag Deck Digita1-2 Sided
600 KL Baggage Claim Bag Deck Digital-2 Sided
Boo MN Baggage Claim Bag Deck Digital-2 Sided
700 A Baggage Claim Touchscreen Hotel Kiosk
700 B Baggage Claim Touchscreen Hotel Kiosk
201 AB Courtyard Pedestal Diorama 2 Sided
202 AB Courtyard Pedestal Diorama 2 Sided
203 AB Courtyard Pedestal Diorama 2 Sided
204 AB Courtyard Pedestal Diorama 2 Sided
205 AS Courtyard Pedestal Diorama 2 Sided
206 AB Courtyard Starbucks Pedestal Diorama 2 Sided
207 AB Walkway to 12-20 Pedestal Diorama 2 Sided
208 AS Walkway to 12-20 Pedestal Diorama 2 Sided
209 AB Walkway to 12-20 Pedestal Diorama 2 Sided
210 AB Walkway to 12-20 Pedestal Diorama 2 Sided
401 Gates12-20 Wall Mounted Vertacular
600 P Gates12-20 Pedestal Digital Display
TBD' Gates12-20 Charging Station
600 C Security Exit Pedestal Digital Display
600 D Security Exit Pedestal Digital Display
600 A Sonny Bono Terminal Pole/Concrete Mounted Digital
600 B Sonny Bono Terminal Pole/Concrete Mounted Digital
303 Sonny Bono Terminal Wall Mounted Vertacular-with trim piece
304 Sonny Bono Terminal Wall Mounted Vertacular-with trim piece
305 Sonny Bono Terminal Wall Mounted Diorama Existing
306 Sonny Bono Terminal Wall Mounted Diorama Existing
307 Sonny Bono Terminal Wall Mounted Diorama Existing
308 Sonny Bono Terminal Large Panel Wall Standoff
309 Sonny Bono Terminal Large Panel Wall Standoff
310 Sonny Bono Terminal Wall Mounted Diorama Existing
311 Sonny Bona Terminal Wall Mounted Diorama Existing
312 Sonny Bono Terminal Wall Mounted Diorama Existing
313 Sonny Bono Terminal Large Panel Window Standoff
314 Sonny Bono Terminal Large Panel Window Standoff
TBD' Sonny Bono Terminal Charging Station
TBD" Atrium inside Front Entrance Various Banner Locations
TBD' Courtyard Various Auto Display Locations Page 2
"These specific displays/locations are to be determined.
S•a-
-- - - Baggage Claim
a Touchscreen Hotel Kiosk
_f'IEc:Oi Drie I�� r•/ -
.R
ill•', . r 1� ti( L>12a 129
-- -�= �'_ _ -1'Q.�, Yl�� �;� � ,• .. �r�_125126
_ 3 12
1234
- ``,, 11 � 121122 .=\.
�_ '•r• '_�� .� ' a _ _ - ,`-3 '. \1A % 11 G' 600iJIN 120 %�
t 1 12 l �03 109 i , ` � �0
_ f
102- `,.
�'. i 1.4- IMPOW
113 SOdGH
_
101 �.�,`'� 600EF /'\700B
i ' �'`•\'fir ' _ FF���„ 1:SV; 71 ' _
COJW
Exact Des€gn/Locations to be determined and approved by city.
Page 3
Courtyard & Security Exit A '9
0 PE?dEJs_Ll D-€orDrnD .
Exact Design/Locations to be determined and approved by city.
{'� '.�. a t �-'k�.• Y I I ps_l`?�� 0 �. '� � 1 •,,i • „ aicSiu �[]
s spa^
L ons
. �L s' i► 1 �r i , c r.
"�`j� a° _ �, y� rrrt -� f '•::,`=4 'Clef
\M, ,,] _�- ii' f�',•+gin , �,:;�: � '-. -i - ,
ram' f 1600D 'l - ? •' ` : ,
201
Variom
202 - - -
` 'i 203
' Temporary Banner\, \ //
La^.afronsTW J .- _-z0$ 205
- - - - -
Xl:
COREY
Page 4
------------ Gates 12-20 Regional Terminal
-`j '' ys o
sl `
OOP
t
Wall-Mounted Vertacular a
]Frame type with outwhitetrim at _
this location-See description on i1
page 15) P j
Pk a „
Charging Station" F
X._ Y
(Location to be determined "COr7er
by city} '•� 's
r -�:9.vp�rmfrrs
l� Vertical Oriented Digital Display* f" Page 5
Exact Design to be determined and approved by city.
Walkway to Gates 12-20
Regional Terminal
Pedestal Diorama � ' €1 \'!•
FS: �'•yy,,'r�I - - TO RMO MAL JET 11
TFRVrAa
�.; 'i __ 20l7 _ 2ar8_ 209 f 210 __
>,�—� �� i
"
Exact Design/Locations to be determined and approved by city. LAW,--' CO/705Y
�.C6podfersrrer
Page 6
Sonny Bono
- -- Terminal Walkway r -_-_-- -17
=-_----
•hi - - — __-___ / _ i --- --
`s
3 U S —
„ 600A 600B - -- ---- .• --_—_ __—
® Vertical Oriented Digital
Display (52") j 171 Wall Mounted Exterior
> SchematicOnly-Needs more study Vertacular
> This site may be deleted if sign type
cannot be worked out
303 304
COIRCY
Exact Design/Locations to be determined and approved by city. Page 7
Sonny Bono
Terminal
F - - 4 •s. i..�
� s �
r313TBD 314TBD�` �
st
r 1
- -- - - 306307 310311 '-
- -
[C P- 1 \ 308 369
...
Zwl
0 Existing Dioramas
Exact Design/Locations to be determined and approved by city.
Charging Station COMLY� r�Cr
Page 8
Pedestal Diorama
=1 Description:
Two sided vertical display mounted on a
r ;_ E concrete base consistent with other
�F A- architectural elements in the
surrounding area. The base shall be
iE
flush with the sign with a reveal
between the two. The display will be
_ brushed aluminum or stainless steel and
-_ — — feature 3/16" tempered safety glass as
the lens, held behind the door face.
Graphic Size: 62"h x 43"w
Exact Design/Locations to be determined and approved by city.
# Location 61splay Type
201 AB Courtyard Pedestal Diorama 2 Sided ■
202 AB Courtyard Pedestal Diorama 2 Sided
203AB Courtyard Pedestal Diorama 2 Sided
204 AB Courtyard Pedestal Diorama 2 Sided OM
205AB Courtyard Pedestal Diorama 2 Sided
206 AB Courtyard Starbucks Pedestal Diorama 2 Sided C'0117LY
207 AB Walkway to 12-20 Pedestal Diorama 2 Sided
208 AB Walkway to 12-20 Pedestal Diorama 2 Sided == r
209 AB Walkway to 12-20 Pedestal Diorama 2 Sided
210 AB Walkway to 12-20 Pedestal Diorama 2 Sided 1 Page 9
Baggage Deck Diorama & Digital 2-Sided Display
Description: Double Sided Digital
Brushed aluminum pedestal mounted display with a double
sided digital cabinet housing 46" vertical oriented screens.
There will be a baggage claim identifying number on each
display. The display style is"frame on glass'with decorative
stainless steel pucks on the face,te m pered 3/16"safety gl ass
' ���-�.,. �} ! as the lens and a white fritted "frame" on the inside of the
glass. Glass will be flush with frame. Corner of the base will
I ` beflush with reveal.
Description: Baggage DeckDouble Diorama
Brushed aluminum pedestal mounted display with a
�i horizontal double sided static display. The display style is
"frame on glass"with d e corative sta i n I ess steel pucks on the
face, tempered 3/16" safety glass as the lens and a white
fritted"frame"on the inside of the glass. Cornerofthebase
will be flush with reveal.
Graphic Size: 43"h x 62"w
Exact Design/Locations to be determined and
a p p roved by city.
1F Location Display Type
108 AB Baggage Claim Bag Deck Dio-2 Sided
109 AB Baggage Claim Bag Deck Din-2 Sided
110 AB Baggage Claim Bag Deck Dio -2 Sided
111 AB Baggage Claim Bag Deck Dio -2 Sided
112AB Baggage Claim Bag Deck Dio -2 Sided
113AB Baggage Claim Bag Deck Dio -2 Sided f
114AB Baggage Claim Bag Deck Dio -2 Sided
115AB Baggage Claim Bag Deck Dio-2 Sided
116AB Baggage Claim Bag Deck Dio-2 Sided
117AB Baggage Claim Bag Deck Dio-2 Sided
600 EF Baggage Claim Bag Deck Digital-2 Sided �
600 GH Baggage Claim Bag Deck Digita[-2 Sided C0��■/
600 ]1 Baggage Claim Bag Deck Digital-2 Sided -====4hA�f :
600 KL Baggage Claim Bag Deck Digital-2 Sided
600 MN Baggage Claim Bag Deck Digital-2 Sided Page 10
Lifestyle WaII Mural
sue: - Description:
_s Each Lifestyle Wall Mural display will
_ a consist of 3-panels of glass with sub-
;_— surface graphics application. Each panel
1 ffr �
is %"tempered glass that will be mounted
_ i with a standoff from the wall surface.
The graphics will be mounted
sandwiched between the glass and
another sheet of material producing a
,_
relief effect from the wall. Aluminum
pucks will align with standoff to provide
the appearance of a single mounted
F piece.
_ = Graphic Size: Yh x 20'w (approx.)
Exact Des ign/Locatlons to be determined and approved by city.
# Location Display Type
101 Baggage Claim Lifestyle Null Mural
142 Baggage Claim Lifestyle VAN Mural
103 Baggage Claim Lifestyle Wall Mural
104 Baggage Claim Lifestyle Wall Mural
105 e Claim Lifele Wall Mural
106 Baggage Claim Lifestyle Nall Mural CORN Y
107 Baggage Claim Lifestyle Wall Mural
Page 11
Wall Mounted Vertacular - Interior
Description: Wall Mounted Vertacular
j Brushed aluminum surface vertical mounted display. Display style
is "frame on glass" with decorative stainless steel pucks on the
face, tempered 3/16" safety glass as the lens and a white fritted
"frame" on the inside of the glass. The display also features a
f ,1 standoff mounting system that extends directly behind the puck
locationto the mounting poi nt.
Graphic Size: 64"h x 47"w
t
z�
Exact Design/Locations to be determined and approved by city.
# Location Display Type
121 Baggage Claim Wal[ Mounted Vertacular If"
122 Baggage Claim Wall Mounted Vertacular
123 Baggage Claim Wall Mounted Vertacular A
124 Baggage Claim Wall Mounted Vertacular
125 Baggage Claim Wall Mounted Vertacular
126 Baggage Claim Wall Mounted Vertacular
127 Baggage Claim Wall Mounted Vertacular
128 Baggage Claim Wall Mounted Vertacular C���
129 Baggage Claim Wall Mounted Vertacular
�tirp�dSrnirer
Page 12
Wall Mounted Diorama
+; i) Description:
Brushed aluminum surface horizontal
mounted display style is "frame on glass"
with decorative stainless steel pucks on the
face, tempered 3/16" safety glass as the lens
! �� • � V,1f � T and a white fritted "frame" on the inside of
the glass.The display also features a standoff
Ihlr: , mounting system that extends directly
behind the puck location to the mounting
point producing a reveal effect from the
= LAM wall.
- Graphic Size: 43"hx62"w
Exact Design/Locations to be determined and approved by city.
# Location Display Toe
1
119 Baggage Claim Wall Mounted Diorama
120 Baggage Claim Wall Mounted Dlorama
COI��■
— �-fl�feirrrer
Page 13
Digital Display Pedestals
Description:
Brushed aluminum surface pedestal
housing a Vertical digital display with
"frame on glass", white fritted border
l� [.
e M,tA" y �� and decorative stainless steel pucks on
-A _ -, +s the face, tempered 3/16" safety glass as
the lens. Cabinet to house 52" Digital
Screen networked throughout site.
Y Static non-illuminated back also with
"frame on glass" style with decorative
stainless steel pucks on the face,
tempered 3/16" safety glass as the lens
and a white fritted "frame" on the inside
of the glass.
GraphicSixe: 52" Digital Display
Exact Design/Locations to be determined and approved by city.
■
# Location Display Type
6000 Security Vertically Oriented Digital Pedestal
600 ❑ security Vertically Oriented Digital Pedestal 600 P Gates 12-20 Vertically Oriented Digital Pedestal CQIT/�
4sy
— .alryoASrnirrr
Page 14
Wall Mounted Vertacular - Exterior
Description:
Aluminum surface mounted vertacular
f
display that features a white trim piece
J to reflect mid-century architecture (trim
piece on Bono Terminal only). The
display will hold 3/16" tempered safety
#l:- =-- -- - — glass as the lens behind the doorframe.
Display will feature a reveal effect from
�• wall.
it
Graphic5ize: 69"hx47"w
i
Exact Design/Locations to be determined and approved by city,
# Location Display Type
303 Sonny Bono Terminal Wall Mounted Exterior Vertacular-With trim piece
304 Sonny Bono Terminal Wall Mounted Exterior Vertacular-with trim piece COI�LY 401 Facing Gates 12-20 Terminal Wall' Mounted Exterior Vertacular �`■
--—.'�1HfmAlelrkes
Page 15
Pole/Concrete Mounted Digital Display
i
- - Description:
Aluminum cabinet to house a 52" Digital
screen, that will be mounted to an existing
- pole and concrete wall by the use of
` mounting collars which will be consistent
with the existing hardware used on the
pole and throughout the concourse area.
This display will also feature trim pieces
"��jll;l 3
j� fr that will reflect the mid-century
j - architectural style.
°4 ' _^ ! _ Graphic Size: 52" Digital Display
21
> Schematic Only-Needs more study
> This site may be deleted 1f sign type cannot be worked out
Exact Design/Locations to be determined and approved by city. A
Location Display Type
600A Sonny Bono Terminal Pole/Concrete Mounted Digital
600B Sonny Bono Terminal Pole/Concrete Mounted Digital COM Y
` 7.6porrSrnrres
Page 16
Large Panel Wall Standoff
_ = Description:
Large 5-paneled glass display with sub-
surface graphics application. Each
panel is Y4" tempered glass that will be
sL mounted with a standoff from the wall
surface. The graphics will be mounted
sandwiched between the glass and
another sheet of material producing a
j1 _ WOW r♦ reliefeffectfrothewall.
N m_
- Panel Size: 5'h x 33'w
.j _E (approximate)
4
' I
Exact Design/Locations to be determined and approved bycity.
# Location Display Type
308 Sonny Bono Terminal Large Panel Wall Standoff
309 Sonny Bono Terminal Large Panel Wall Standoff
313` Sonny Bono Terminal Large Panel Window Standoff
314' Sonny Bono Terminal Large Panel Window Standoff C01,745Y
`These specific displaysRocations are to be determined and installed at a later date.
Page 17