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Res 138-96 9/3/1996RESOLUTION NO. ' 1 6J RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH INTER SPACE SERVICES, INC. , FOR AN AIRPORT ADVERTISING CONCESSION. WHEREAS, the City owns and operates the Wichita Falls Municipal Airport; and WHEREAS, the City desires to sell advertising space in the Municipal Airport terminal; and WHEREAS, Inter Space Services, Inc. , specializes in managing airport advertising concessions; and WHEREAS, granting an advertising concession will mutually benefit the City and Inter Space Services, Inc. , NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF WICHITA FALLS, TEXAS, THAT: Certain agreement between the City of Wichita Falls and Inter Space Services, Inc. , is hereby approved and the City Manager is authorized to execute same for the City of Wichita Falls. PASSED AND APPROVED this the 3rd day of September, 1996. 1K A Y O ATTEST: k (1 W t Clerk CONCESSION AGREEMENT BETWEEN THE CITY OF WICHITA FALLS, TEXAS AND INTERSPACE SERVICES, INC., D/B/A INTERSPACE AIRPORT ADVERTISING FOR TERMINAL ADVERTISING CONCESSION TABLE OF CONTENTS ARTICLE I. DEFINITIONS 2 ARTICLE II. TERM 3 ARTICLE III. PRIVILEGES AND OBLIGATIONS OF THE CONCESSIONAIRE 4 ARTICLE IV. ADVERTISING STANDARDS 7 ARTICLE V. IMPROVEMENTS BY AIRPORT 8 ARTICLE VI. IMPROVEMENTS BY CONCESSIONAIRE 9 ARTICLE VII. PRIVILEGE FEES, CHARGES AND ACCOUNTABILITY 12 ARTICLE VIII. OPERATIONAL STANDARDS 15 ARTICLE IX. MAINTENANCE 15 ARTICLE X. COMPLIANCE 18 ARTICLE XI. ASSIGNMENT AND SUBLEASING 18 ARTICLE XII. INSURANCE AND INDEMNIFICATION 19 ARTICLE XIII. CANCELLATION BY CONCESSIONAIRE 21 ARTICLE XIV. CANCELLATION BY AIRPORT 22 ARTICLE XV. SECURITY 24 ARTICLE XVI. FIRE AND OTHER DAMAGE 25 ARTICLE XVII. ATTORNEY'S FEES 26 ARTICLE XVIII. AMENDMENT 26 ARTICLE XIX. APPROVALS BY 26 ARTICLE XX. ENVIRONMENTAL PROTECTION 27 ARTICLE XXI. GENERAL PROVISIONS 27 ARTICLE XXII. DISADVANTAGED BUSINESS ENTERPRISE AND NON-DISCRIMINATION 31 ARTICLE XVIII. ENTIRE AGREEMENT 31 11 STATE OF TEXAS COUNTY OF WICHITA § CONCESSION AGREEMENT TERMINAL ADVERTISING CONCESSION This Concession Agreement, hereinafter referred to as "Agreement," made and entered into this day of 199 , by and between the City of Wichita Falls, existing under the laws of the State of Texas, hereinafter referred to as the "City," and Interspace Airport Advertising, a Pennsylvania corporation, which is, or will be, qualified to do business in the State of Texas, hereinafter referred to as the "Concessionaire." WITNESSETH : WHEREAS, the City of Wichita Falls, Texas, is the authority responsible for oversight of the Wichita Falls Municipal Airport, hereinafter referred to as "City;" and, WHEREAS, the Concessionaire is a corporation engaged in the business of operating airport terminal advertising concessions similar in nature to that proposed at the airport; and, WHEREAS, the City wishes to grant to Concessionaire the right to operate the airport's terminal advertising concession at the airport under an Agreement containing mutually satisfactory terms and covenants. NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions, privileges, obligations and agreements herein contained, the City and 2 the Concessionaire hereby mutually undertake, promise and agree, each for itself, and its successors and assigns, as follows: ARTICLE I. DEFINITIONS 1.1 Agreement," as used herein, contemplates and includes the airport locations (referred to henceforth as "Assigned Areas") and permission for Concessionaire to use such airport locations for the conduct of an airport terminal advertising concession within said airport locations under the terms and conditions expressly set forth herein. 1.2 Airport Terminal" and "Terminal" shall mean the Terminal Building and any future terminal(s) built to expand or replace the existing terminal facility at the Wichita Falls Municipal Airport in use as of the date of the execution of this Agreement. 1.3 Assigned Area" is the area or areas of the Airport Terminal designated by this Agreement and the Exhibits thereto as the place or places where the business of Concessionaire may be conducted. 1.4 Airport" shall refer to the Wichita Falls Municipal Airport. 1.5 Beneficial Occupancy" shall occur when the Concessionaire has occupied the facilities in the terminal. 1.6 Gross Revenues" as used herein shall be construed to include all monies paid to or payable 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; provided, however, that the term "gross revenues" shall exclude the following: 3 a. Any amount paid by advertisers in connection with design, fabrication or installation of the advertiser's display. b. Any amount paid by the advertisers to Concessionaire for telephone service. c. Standard 15% selling commission for sales/advertising agency. d. Quantity purchase discounts allowed. e. Amounts owed which are deemed uncollectible by Concessionaire after prudent collection efforts. f. Any and all taxes imposed by law during the contract term. 1.7 Percentage Payment" is the sum of money due City on account of airport's share of Gross Revenue as herein provided. 1.8 Administrator" shall mean the Administrator or Acting Administrator of the Wichita Falls Municipal Airport. ARTICLE II. TERM 2.1 This Agreement shall become effective at execution. The term of this Agreement shall commence on 199 , and continue for ten (10) years thereafter. The City and Interspace Airport Advertising shall have the mutual option to extend this Agreement for one separate ten (10) year term subject to all the other terms and conditions of this Agreement. 4 ARTICLE ID. PRIVILEGES AND OBLIGATIONS OF THE CONCESSIONAIRE 3.1 The City hereby grants to Concessionaire the right to operate, maintain and provide the airport's terminal advertising concession. 3.2 Concessionaire shall develop and maintain a comprehensive advertising program totally integrated and coordinated as to design, quality, and content for the airport. Under this program, Concessionaire shall establish, operate, service, and maintain prime quality, expertly designed commercial advertising displays, including but not limited to, floor exhibits, wall and floor back-lit units, product cases, posters, expo space, car and boat displays, direct telephone line hotel and transportation displays, electronic, computer and video displays and other forms of advertising which may be approved to provide, continuously during the period of this Agreement, an attractive and profitable means for the graphic display of materials, articles, and services of various manufacturers, industries, companies, and persons. 3.3 All installations shall be in good taste, professionally developed, and presented so as to be inoffensive to the general public and of such high caliber as to contribute to the establishment of the airport's facilities as prestige locations for commercial advertising media. 3.4 The specific locations for back-lit displays, product cases, poster boards and telephone boards will be selected and approved by the City Manager as indicated on Exhibit "A" attached hereto, with revisions as mutually agreed upon to be attached and substituted as Exhibit "A" as the need dictates. All locations selected are subject to relocation at any time at the City's discretion. Should the City, its architect and the 5 Concessionaire disagree on any advertising locations, the City's decision shall be final. However, the City shall provide sufficient acceptable advertising locations to allow Concessionaire to meet its airport, equipment and service costs. 3.5 Concessionaire shall be responsible for the commercial advertising program within Assigned Areas at the airport and shall apply to that program the fiscal and administrative resources of its sales organization. Through its national and regional organization, Concessionaire shall use its best efforts to: a. Develop, on a continuing basis, integrated master plans for advertising at the airport. b. Follow quality criteria which will recognize the need for integrity of design and advertising content appropriate to the prestige and dignity of the Wichita Falls Municipal Airport. c. Practice space utilization planning which will recognize and meet the needs of all advertising classifications and insure maximum revenue return to the airport consistent with the scope and integrity of the advertising master plan. d. Provide a sales organization with ability and experience of sufficient scope to solicit and sell local, regional, and national advertising for display at the airport with a primary emphasis on local advertising. e. Provide advertising and display units and facilities which are consistent with the approved architectural design plan for advertising at the airport's terminal structures and other facilities. 3.6 Concessionaire shall pay all expenses associated with planning, implementing, and operating the program provided for in this Agreement; EXCEPT as may be set forth elsewhere herein. 6 3.7 No advertising or displays reasonably considered offensive by the City may be presented to the public. The Concessionaire will promptly remove or modify the presentation of any advertising or display items if so directed by the City. 3.8 The Concessionaire has the right to ingress and egress from its Assigned Areas over airport roadways, including common use roadways, subject to any rules or regulations which may have been established or shall be established in the future by the City, the State of Texas, or the Department of the Air Force. Such rights of ingress and egress shall apply to the concessionaire's employees, customers, patrons, invitees, suppliers, and other authorized individuals. 3.9 The City shall provide parking facilities to the Concessionaire's employees in common with employees of other concessionaires and users of the airport. Visiting service personnel shall park in areas designated for temporary vendor parking. 3.10 The Concessionaire may utilize additional storage space identified by the City as available for such purposes if space is available and at the City's option. 3.11 The Concessionaire has the right to install and maintain appropriate signs in the Assigned Areas, provided that the design, installation and maintenance of such signs shall be consistent with the Graphic Standards and Policies of the Airport as they may be developed and amended, and shall have the written approval of the designated airport representative prior to installation. 7 ARTICLE IV. ADVERTISING STANDARDS 4.1 The Concessionaire agrees to use the Assigned Areas solely for the sale, placement and display of advertising products and shall use its best efforts in every proper manner to maintain, develop and increase the sales of advertising developed hereunder. 4.2 The Concessionaire shall submit annually to the City, upon request, a schedule of monthly rates to be applied to the advertising locations, with the understanding that advertising locations shall be subject to quantity purchase discounts and to the standard sales/advertising agency deduction or commission. 4.3 All advertising material, advertisements and manner of presentations shall be subject to approval by the City, insofar as the City may legally do so. Concessionaire shall immediately remove from the airport premises at its sole cost and expense upon written demand of the City any item which is disapproved. In the event that such disapproved item is not removed immediately upon receipt of written demand, the City may remove said material or display and Concessionaire shall pay any warehouse or storage rental incurred by such action. The City or its representatives shall not in any way be held responsible or liable for any damage to the equipment or material so removed. 4.4 Questions or complaints regarding the quality of service and/or prices, whether raised by patrons' complaints, clients' complaints or on the City's own initiative or otherwise, may be submitted to Concessionaire for response. Such response shall be provided by Concessionaire within ten (10) working days. 8 4.5 At the City Manager's request, Concessionaire shall meet with the City to review any complaints or concerns and to promptly correct any deficiencies. The City Manager's reasonable determination as to quality of operation or services shall be conclusive, and curative measures shall be implemented by Concessionaire as expeditiously as possible. 4.6 All advertising copy, equipment and other items used in the Concessionaire's operation shall conform in all respects to federal, state and local laws, orders and regulations. 4.7 The City Manager may, at his discretion, request the name of all purveyors used by the Concessionaire. 4.8 Concessionaire must, at its own expense, identify, provide and maintain in force any and all licenses and permits for the legal operation of_all aspects of the Concession. 4.9 Should a conflict arise between the Concessionaire and other concession operators at the airport regarding the scope of concession privileges, the City Manager's decision on the matter shall be final and conclusive. The Concessionaire agrees to abide by the Manager's decision. ARTICLE V. IMPROVEMENTS BY AIRPORT 5.1 The City shall provide finished floors, walls and ceilings for the Assigned Areas. 5.2 All permanent improvements, as defined by Wichita Falls law, will be considered an integral part of the Terminal and title to such permanent improvements will vest in the City upon termination or expiration of this Agreement, free and clear of any liens or encumbrances whatsoever. 9 5.3 The City will be responsible for the following: a. All partitions about the perimeter of the Assigned Areas, all structural walls and supports, all structural roof construction, all structural floor construction and all exterior window walls designed about the perimeter of the Assigned Areas. b. All required electrical to all approved sign and display locations indicated in the attached floor plan marked Exhibit "A" and any added or amended locations agreed upon by both parties. An abatement of fees would apply if there was a loss of electricity for more than three days or a case was visually obstructed and advertiser loses exposure. 5.4 Concessionaire will be responsible for the internal connections of signs and displays only. ARTICLE VI. IMPROVEMENTS BY CONCESSIONAIRE 6.1 Prior to Beneficial Occupancy, and upon approval from the City Manager, the Concessionaire may enter the Assigned Areas of the terminal or any portion thereof. 6.2 All structural improvements, equipment and interior design and decor constructed or installed by the Concessionaire, its agents, or contractors, including the plans and specifications, shall conform to all applicable statutes, ordinances, building codes, and rules and regulations. 6.3 One (1 ) set of final plans and specifications as approved for the Assigned Areas within the terminal must be submitted to the City. Work or 10 construction shall not commence until written approval from the City Manager is received. 6.4 The City Manager shall, within fourteen (14) days of receipt of any such plans, either approve or disapprove the plans and/or specifications submitted by the Concessionaire. Approval by the City Manager refers only to the conformity of such plans and specifications to the general architectural and aesthetic plan for the Assigned Areas, and such approval shall not be unreasonably withheld. The City Manager reserves the right to reject any designs submitted, and shall state the reasons for such action. 6.5 In the event of rejection by the City Manager, the Concessionaire has fourteen (14) days to submit necessary modifications and revisions. 6.6 No changes or alterations shall be made to said plans and specifications after approval by the City Manager. No structural alterations or improvements shall be made to or upon the Assigned Area without the prior written approval of the City Manager. One reproducible final copy of the plans for all improvements or subsequent changes therein or alterations thereof to the Assigned Areas shall be signed by the Concessionaire and submitted to the City Manager within ninety (90) days following completion of the installation. 6.7 All improvements made by the Concessionaire to the Assigned Areas shall be of high quality, safe, fire resistant, and attractive in appearance. 6.8 The Concessionaire shall submit a schedule depicting the estimated time required to complete the construction or installation of approved improvements. 6.9 Upon written "Notice to Proceed" from the City Manager, the Concessionaire shall immediately begin construction and installation of the approved improvements, in the Assigned Areas and pursue the same to completion. However, any delay in construction due to fire, 11 earthquake, wars, acts of the airport or one of the airport's contractors, or other calamity beyond the control of the Concessionaire shall reasonably extend the time within which such construction and installation shall be completed. 6.10 The Concessionaire and its architect-engineer shall meet with the City Manager in periodically scheduled meetings to assess the current status of completion. 6.11 All permanent improvements made to the Assigned Areas and additions and alterations thereto made to the Assigned Areas by the Concessionaire shall be and remain the property of the concessionaire until the expiration of the term of this Agreement, as set forth in Article II, or upon termination of this Agreement (whether by expiration of the term, cancellation, forfeiture, or otherwise, whichever first occurs); at which time the said improvements shall become the property of the airport; provided, however, that all advertising displays, and other possessions of Concessionaire, which shall include telephone boards, wall and freestanding displays, shall remain the property of Concessionaire, unless Concessionaire shall fail within sixty (60) days following the termination of this Agreement or at the expiration of the extension period of this Agreement, described in paragraph 14.13, as the case may be, to remove its trade fixtures, signs and other possessions of Concessionaire not permanently affixed to the Assigned Areas in which event, at the option of the City, title to same shall vest in City at no cost to City, or City may elect to exercise its rights set forth in Paragraph 14.6 of this Agreement. 6.12 The ultimate control over the quality and acceptability of the finishes in the Assigned Areas will be retained by the City, and all improvements and finishes shall require the written approval of the City Manager prior to installation. 12 6.13 Upon completion of construction, the Concessionaire must provide the City with a certification that the improvements have been constructed in accordance with the approved plans and specifications, and in strict compliance with all applicable building codes, laws, rules, ordinances and regulations. 6.14 For the work contemplated under this Agreement, the Concessionaire shall provide all labor, supervision, materials, supplies and transportation necessary to supply wall-mounted back-lit cases, freestanding displays and reservation boards. The Concessionaire shall have the right to negotiate and have input as to the acceptable locations for advertising displays in the terminal. ARTICLE VII. PRIVILEGE FEES, CHARGES AND ACCOUNTABILITY 7.1 Concessionaire agrees to pay to the City thirty (30%) percent of the Gross Revenue derived from the sale of advertising and advertising space in the Terminal Building. This payment will be paid by the twentieth 20th) days of the month following each quarter of service, beginning with the month following the first quarter of beneficial occupancy. Such payment will be made for the previous calendar quarter on or about April 20, July 20, October 20, and January 20 of each calendar year. The percentage will be subject to proportional reduction if passenger enplanements and deplanements at the airport during any calendar quarter of the Contract term shall fall ten (10%) percent or more below those recorded during the same quarter of 1995. If traffic declines more 13 than twenty (20%) percent in a quarterly period, Concessionaire may elect to terminate the contract subject to the terms of Article 13.1 . 7.2 Concessionaire shall furnish to the City each quarter a statement showing total Gross Revenue by advertiser, as defined herein, for the preceding quarter. With each quarterly statement, the Concessionaire shall remit to the City the above-stated percentage of its Gross Revenue derived through the end of the last month of the quarter. 7.3 Concessionaire shall pay for all telephone service to the Assigned Areas. The City shall pay for all heating, air conditioning and electrical service provided to the Assigned Areas. 7.4 The Concessionaire shall keep full and accurate books and records showing all of its said Gross Revenue, and the City shall have the right, through its representatives and at all reasonable times, to inspect and audit all such records as may be necessary to verify the Gross Revenue as reported, including State of Texas sales tax return records. The Concessionaire agrees that all such records and instruments are and shall be made available at Concessionaire's office location for at least a two 2) year period following the end of each annual period of this Agreement. 7.5 The Concessionaire shall furnish a written statement to the City stating that the Percentage Payment paid by the Concessionaire to the City during each of Concessionaire's fiscal years pursuant to this Agreement is accurate. Such statement shall also contain Gross Revenues as shown on the books and records of Concessionaire that were used to compute the Percentage Payment made to City during the period covered by the statement. Within ninety (90) days of the last day of the Concessionaire's fiscal year, this statement shall be completed and a copy shall be furnished to the City.PY Y 14 7.6 Without waiving any other right of action available to the City in the event of default in payment of any and all fees or charges hereunder, in the event that Concessionaire is delinquent for a period of fifteen (15) days or more in paying to the City any fees payable to the City pursuant to this Agreement, the Concessionaire shall pay to the City interest thereon at the rate of twelve (12%) percent per annum from the date such item was due and payable until paid. Such interest shall not accrue with respect to disputed items being contested in good faith by Concessionaire. 7.7 The City reserves the right to audit the Concessionaire's books and records of Gross Revenue at any time for the purpose of verifying the Gross Revenue hereunder. Any additional percentage fee due as determined by said audit shall forthwith be paid by the Concessionaire to the City with interest thereon at the rate of twelve (12%) percent per annum from the date such additional percentage fee became due. 7.8. Notwithstanding the fact that it is the practice of the industry for advertisers to render payment in arrears, Concessionaire shall render payment on the basis of gross revenues due rather than on the basis of amounts received by Concessionaire; provided, however, that in the event Concessionaire is unable to collect amounts due from an advertiser upon which Concessionaire has previously rendered payment to the City after a diligent effort is made to collect such amounts by Concessionaire, such "bad debts" shall be deemed uncollectible and the appropriate adjustments made in submission of subsequent statements and revenue payments. 15 ARTICLE VIII. OPERATIONAL STANDARDS 8.1 Concessionaire agrees to implement the Marketing and Management Plans developed as part of the original proposal submitted by Concessionaire. 8.2 The management, maintenance and operation of the Assigned Areas shall at all times be under the supervision and direction of an active, qualified, competent manager who shall at all times be subject to the direction and control of the Concessionaire. 8.3 The Concessionaire agrees to maintain policies outlining the rules, regulations and operating procedures which apply to its performance- of the terms and conditions applicable to its performance of this Agreement. 8.4 The operations of Concessionaire, its employees, customers, suppliers and contractors shall be conducted in an orderly and proper manner. 8.5 The Concessionaire agrees that its employees shall be of sufficient number so as to properly conduct the Concessionaire's operation. ARTICLE IX. MAINTENANCE 9.1 City shall not be required to make repairs or improvements of any kind at the Concessionaire's Assigned Areas except as follows: a. Structural repairs to the roof, floor and walls and windows of the terminal if needed, as determined by the City. 16 b. General maintenance and upkeep of the airport's interior common use areas and external areas. c. Should City be required to make any repairs or improvements under the provisions herein contained, City shall not be liable to Concessionaire for any damage caused by disrepair of any kind until City has had reasonable opportunity to perform repairs after being notified in writing of the need for same by Concessionaire. d. 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. 9.2 The Concessionaire agrees to provide at its own expense such janitorial and cleaning services and supplies as may be necessary or required in the operation and maintenance of its Assigned Areas. The Concessionaire also agrees to keep and maintain its Assigned Areas in a clean, neat and sanitary condition, and attractive in appearance. 9.3 The Concessionaire agrees to maintain and make necessary repairs, structural or otherwise, to all of its Assigned Areas and the fixtures and equipment therein, 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 its Assigned Areas. 9.4 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. 17 9.5 The City Manager or his duly appointed representatives shall have the right to enter the Concessionaire's Assigned Areas to: a. Inspect the Assigned Areas at reasonable intervals during the Concessionaire's regular business hours or at any time in case of emergency, to determine whether the Concessionaire has complied with and is complying with the terms and conditions of this Agreement. The City Manager may, at his discretion, require the Concessionaire to effect repairs required of Concessionaire at the Concessionaire's own cost. b. Perform any and all things which the Concessionaire is obligated to and has failed after reasonable notice to do, including: maintenance, repairs and replacements to the Concessionaire's Assigned Areas. The cost of all labor and materials required to complete the work will be paid by the Concessionaire to the City within thirty (30) days following demand by City Manager for said payment. 9.6 The Concessionaire shall, in a timely manner, provide for the adequate sanitary handling and removal of all trash, garbage and other refuse caused as a result of the Concessionaire's operations. 9.7 The City shall provide, or cause to be provided, during the term of this Agreement, security protection similar to that afforded to other concessionaires at the airport, and it will issue and enforce rules and regulations with respect to all portions of the airport. The Concessionaire shall have the right, but shall not be obligated, to provide such additional or supplemental public protection as it may desire at its own cost. 9.8 All terminal advertising deliveries, if required, shall be in a manner and location established by the City. All vendors traveling on the apron area must be escorted by airport security. 18 ARTICLE X. COMPLIANCE 10.1 The Concessionaire, its officers, agents, servants, employees, contractors, and licensees shall comply with all present and future laws, ordinances, orders, directives, rules and regulations of the United States of America, the State of Texas, the City of Wichita Falls and their respective agencies, departments, authorities or commissions. 10.2 Concessionaire shall pay, or in good faith contest, on or before their respective due dates, to the appropriate collecting authority, all federal, state, and local taxes and fees, which are subject to being levied upon the premises, or upon Concessionaire, or upon the business conducted on the premises. Concessionaire shall maintain in current status all federal, state, and local licenses and permits required for the operation of the business conducted by Concessionaire. 10.3 Concessionaire shall pay wages that are not less than the minimum wages required by law to persons employed in its operations hereunder. 10.4 This Agreement is governed by the laws of Texas. Any disputes relating to this Agreement must be resolved in accordance with the laws of Texas. ARTICLE XI. ASSIGNMENT AND SUBLEASING 11.1 The provisions contained in this Agreement shall be binding on all subleases. 19 11.2 Concessionaire shall not assign this Agreement or allow same to be assigned by operation of law or otherwise, or sublet the Assigned Areas or any part thereof without the prior written consent of City. Any purported assignment or sublease in violation hereof shall be void. ARTICLE XII. INSURANCE AND INDEMNIFICATION 12.1 Concessionaire shall protect, defend, indemnify and hold City, its officers and employees completely harmless from and against any and all liabilities, demands, suits, claims, losses, fines, or judgments arising-by reason of the injury or death of any person or damage to any property, including all reasonable costs from investigation and defense thereof including but not limited to attorney fees, court costs, and expert fees), of any nature whatsoever arising out of or incident o this Concession or Concessionaire's officers, employees, agents, contractors, subcontractors, licensees or invitees regardless of whether the injury, death or damage may occur; unless such injury, death or damage is caused by the sole negligence of City. 12.2 Concessionaire agrees to maintain comprehensive public liability and property damage insurance in an amount of not less than One Million 1,000,000) Dollars combined single limit during the term of the Concession and any renewals thereof. Such insurance polices must name the City, its officers and its employees as additional insureds to the full extent of Concessionaire's insurance coverage, but in no event less than the required minimum coverage limit amount. 20 12.3 Concessionaire agrees that all insurance polices shall contain a severability of interest or cross liability provision endorsement which shall read generally as follows: In the event of one of the assured incurring liability to any other of the assured, this policy shall cover the assured against whom claim is or may be made in the same manner as if separate policies had been issued to each assured. Nothing contained herein shall operate to increase the limits of liability. 12.4 Concessionaire agrees that all insurance policies shall provide that they will not be altered or canceled without thirty (30) days advance written notice to the City. Such insurance must provide that it will be considered primary insurance as respects any other valid and collectible insurance, or self-insured retention, or deductible the City may possess. Any other insurance or self-insured retention of the City shall be considered excess insurance only. 12.5 Concessionaire shall obtain all insurance required from an insurance company or companies licensed to do business in the State of Texas. The insurance company must be acceptable to the City; approval may be denied a company based on its Best rating or other indication of financial inadequacy. 12.6 Concessionaire shall provide to the City such evidence of compliance with City's insurance requirements as the City may from time to time request. At a minimum, the Concessionaire shall provide, at the commencement of the term, a certificate of insurance. All such certificates shall be completed to show compliance with Concessionaire's obligation hereunder, specifically as to the indemnification and notice 21 provisions. The City may also require copies of the declaration page, insurance policy, and endorsements thereto. ARTICLE XIII. CANCELLATION BY CONCESSIONAIRE 13.1 In addition to all other remedies available to the Concessionaire, this Agreement shall be subject to cancellation by the Concessionaire should any one or more of the following events occur: a. The abandonment of the airport for longer than sixty (60) days. b. The issuance by any court of competent jurisdiction preventing- or restraining the use of the airport in such a manner as to substantially restrict the Concessionaire from conducting its operations of a terminal advertising concession not caused by any act or omission of the Concessionaire and the remaining in force of such injunction for at least sixty (60) days. c. The breach by the City of any of the material terms, covenants, or conditions of this Agreement to be kept, performed, and observed by the City, and the failure of the City to remedy such breach, for a period of sixty (60) days after written notice from the Concessionaire of the existence of such breach. d. The assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the airport and its facilities in such a manner as to substantially restrict the Concessionaire from conducting its terminal advertising concession if such restriction be continued for a period of sixty 60) days or more. 22 e. If passenger traffic at the airport decreases twenty (20%) percent or more below the traffic recorded during the same quarter of calendar year 1995. f.The destruction of a significant portion of the terminal building due to fire, earthquake or any other causes. 13.2 In the event of default by the City, the Concessionaire shall be eligible for an abatement in its privileges, fees and charges as identified in Article VII from the time of default until the cessation of such event of default, or the cancellation of this Agreement by the Concessionaire. 13.3 In the event any condition of default shall occur, Concessionaire, then, or at any time thereafter, while such breach is continuing, shall have the right, at its election, to terminate this Agreement by giving at least ten 10) days written notice to the City at which time Concessionaire will then quit and surrender the Assigned Areas to the City. ARTICLE XIV. CANCELLATION BY AIRPORT 14.1 This Agreement shall be subject to cancellation by the City if one or more of the following conditions of default by concessionaire occur: a. If Concessionaire shall neglect or fail to perform or observe any of the terms, provisions, conditions or covenants herein contained and on Concessionaire's part to be performed and observed and if such neglect or failure should continue for a period of sixty (60) days after receipt by Concessionaire of written notice of such neglect or failure or, if more than sixty (60) days shall be required because of the nature of the default, if Concessionaire shall fail 23 within said sixty (60) day period to commence and thereafter diligently proceed to cure such default; or, b. If the estate hereby created shall be taken by execution or by other process of law; or, c. The taking by a court of jurisdiction of Concessionaire and its assets pursuant to proceedings under the provision of any federal or state reorganization code or act, insofar as the following enumerated remedies for default are provided for or permitted in such code or act; or, d. If any court shall enter a final order with respect to Concessionaire, providing for modification or alteration of the rights of creditors; or, e. If Concessionaire shall fail to abide by all applicable laws, ordinances, rules and regulations of the United States, or State of Texas; or the City of Wichita Falls; or, f.If Concessionaire shall fail to take possession of its Assigned Areas; or, g. If Concessionaire shall abandon all or any part of its Assigned Areas or shall discontinue the conduct of its operations in all or any part of its Assigned Areas. 14.2 In the event any condition of default shall occur, the City, then, or at any time thereafter, while such breach is continuing, shall have the right, at its election, either to terminate this Agreement by giving at least ten (10) days written notice to Concessionaire, at which time the Concessionaire will then quit and surrender the Assigned Areas to the City, or, to enter upon and take possession of the Assigned Areas, without demand or notice and repossess the same as of the City's former estate, expelling all those claiming under Concessionaire, forcibly, if necessary, without prejudice to any remedy for arrears of rent or preceding breach of 24 covenant and without any liability to Concessionaire or those claiming under Concessionaire for such repossession. 14.3 If City shall terminate this Agreement or take possession of the Assigned Areas by reason of a condition of default, Concessionaire, and those holding under concessionaire, shall forthwith remove their goods and effects from the Assigned Areas. 14.4 Upon the termination of this Agreement, through passage of time or otherwise, the Concessionaire, upon mutual agreement, may continue its advertising operations beyond the term of this Agreement. Such extension of operations beyond the term of this Agreement shall be under the same terms and conditions as stated herein. 14.5 The Concessionaire agrees to keep all insurance policies and/or self- insurance in effect through surrender of its Assigned Areas. ARTICLE XV. SECURITY 15.1 Concessionaire agrees to observe all security requirements of Federal Aviation Regulations Part 107, and the Airport Security Program, applicable parts, as the same may be from time to time amended, which will be furnished to Concessionaire as approved by the Federal Aviation Administration, and to take such steps as may be necessary or directed by the City to ensure that sublessees, employees, invitees, and guests observe these requirements. 25 ARTICLE XVI. FIRE AND OTHER DAMAGE 16. In the event that structural or permanent portions of the Assigned Areas shall be partially damaged by fire or other casualty, the Concessionaire shall give immediate notice thereof to the City Manager and the same shall be repaired at the expense of the City without unreasonable delay unless City determines that the damage is so extensive that repair or rebuilding is not feasible. From the date of such casualty until said area is so repaired, payments hereunder shall abate in such amount as may be reasonably determined by the City; provided, however, that if an area shall be so slightly injured in any such casualty as not to be rendered unfit for occupancy, the fees hereunder shall not cease or be abated during any repair period. In the event that the damage to the area should be so extensive as to render it untenantable, the fee for such areas shall cease until such time it shall again be put in repair, but in the event of the area being damaged by fire or other casualty to such an extent as to render it necessary in the exclusive judgment of the City not to rebuild the same, then, at the option of the City or Concessionaire, and upon thirty (30) days written notice to the other, this Agreement as it applies to said area shall cease and come to an end, and the fees hereunder shall be apportioned and paid up to date of such damage. If the City elects to rebuild said areas, the City shall notify Concessionaire of such intention within thirty (30) days of the date of the damage; otherwise, the Agreement as it applies to said area shall be deemed canceled and of no further force or effect. 26 ARTICLE XVII. ATTORNEY'S FEES 17.1 In the event either party brings an action under this Agreement, each party hereto shall be responsible for its own fees incurred. Such fees shall include, but not be limited to, attorney's fees, court costs and expert witness fees. ARTICLE XVIII. AMENDMENT 18.1 This Agreement constitutes the entire Agreement between the parties. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same be in writing, dated subsequent to the date hereof and duly executed by the parties hereto. ARTICLE XIX. APPROVALS BY 19.1 Whenever this Agreement calls for approval by the City, such approval shall be evidenced by the written approval of the City Manager or his designee. 27 ARTICLE XX. ENVIRONMENTAL PROTECTION 20.1 Concessionaire agrees to comply with all laws, and to obey all rules, regulations, or administrative orders of agencies of the City of Wichita Falls, the State of Texas, and the United States as these laws, rules, regulations and administrative orders may now exist and as they may be hereafter adopted. Concessionaire further agrees to abide by all rules and regulations adopted by City relating to protection of the environment. ARTICLE XXI. GENERAL PROVISIONS 21.1 Federal Aviation Act, Section 308 - Nothing herein contained shall be deemed to grant the Concessionaire any exclusive right or privilege within the meaning of Section 308 of the Federal Aviation Act or the conduct of any activity on the airport, except that, subject to the terms and provisions hereof, the Concessionaire shall have the right to possess the Assigned Areas under the provisions of this Agreement. 21.2 Subordination to Agreements with the United States Government - This Agreement is subject and subordinate to the provisions of any agreement heretofore or hereafter made between the City and the United States Government relative to the operation or maintenance of the airport, the execution of which has been required as a condition precedent to the transfer of federal rights or property to the City for airport purposes, or the expenditure of federal funds for the improvement or development of the airport, including the expenditure of federal funds for the 28 development of the airport in accordance with the provisions of the Federal Aviation Act of 1958, as it has been amended from time to time. The City covenants that it has no existing agreements with the United States Government in conflict with the express provisions hereof. 21.3 Non-Waiver of Rights - No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept, and observed by the other party shall be construed as, or shall operate as, a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept, and observed by the other party. 21.4 Notices - Notices required herein may be given by registered or certified or express mail by depositing the same in the United States Mail or by private courier in the continental United States, postage prepaid. Either party shall have the right, by giving written notice to the other, to change the address at which its notices are to be received. Until any such change is made, notices to City shall be delivered as follows: Name: Jim Berzina City Manager Address: 1300 Seventh Street Wichita Falls, Texas 76301 Until any such change is made, notices to Concessionaire shall be delivered as follows: Marianne Lieberman President, Chief Executive Officer Interspace Airport Advertising 4635 Crackersport Road Allentown, Pennsylvania 18104 21.5 Captions - The headings of the several articles of this Agreement are inserted only as a matter of convenience and for reference and in no way 29 define, limit, or describe the scope or intent of any provisions of this Agreement and shall not be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 21.6 Severability - If one or more clauses, sections, or provisions of this Agreement shall be held to be unlawful, invalid, or unenforceable, the parties hereto agree that the material rights of either party shall not be affected thereby. 21.7 Agent for Service of Process - The parties hereto expressly understand and agree that if the Concessionaire is a foreign corporation with its principal place of business outside the State, then in such event the Concessionaire does designate its registered agent as its agent for the purpose of service of process in any court action between it and the City arising out of or based upon this Agreement, and the service shall be made as provided by the laws of the State of Texas by serving the Concessionaire's registered agent. 21.8 Right to Develop Airport - The parties hereto further covenant and agree that the City reserves the right to further develop or improve the Airport Terminal and all landing areas and taxiways as it may see fit, regardless of the desires or view of the Concessionaire and without interference or hindrance. In such instances, the costs of development and financial impact as they impact the Concessionaire, shall be borne by the City and Concessionaire according to mutually agreed upon terms and conditions. 21.9 Incorporation of Exhibits - All exhibits referred to in this Agreement are intended to be and hereby are specifically made a part of this Agreement. 21.10 Incorporation of Required Provisions - The parties incorporate herein by this reference all provisions lawfully required to be contained herein by any governmental body or agency. 30 21.11 Non-Liability of Agents and Employees - No member, officer, agent, Commissioner, or employees of the City or Concessionaire shall be charged personally or held contractually liable by or to the other party under terms or provisions of this Agreement, because of any breach thereof or because of its or their execution or attempted execution. 21.12 Successors and Assigns Bound - This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto where permitted by this Agreement. 21.13 Right to Amend - In the event that the Federal Aviation Administration or its successor requires modifications or changes in this Agreement as a condition precedent to the granting of funds for the improvement of the airport, or otherwise, the Concessionaire agrees to consent to such amendments, modifications, revisions, supplements, or deletions of any of the terms, conditions, or requirements of this Agreement as may be reasonably required. 21.14 Time of Essence - Time is expressed to be of the essence of this Agreement. 21.15 Gender - Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. 21.16 Force Majeure - Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reason of strikes, boycotts, labor disputes, embargos, shortage of material, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or which is not within its control. 21.17 Right of Relocation - The City reserves the right to relocate area or areas in which Concessionaire is granted the privilege to conduct its business. 31 Such relocation demands shall be provided to Concessionaire in writing from the City within sixty (60) days of such needed action. ARTICLE XXII. DISADVANTAGED BUSINESS ENTERPRISE AND NON-DISCRIMINATION 22.1 Concessionaire agrees to submit all information necessary for the City to determine the eligibility of an individual or firm for certification as a Disadvantaged Business Enterprise, or a regional or local suboperator. Concessionaire agrees that it will comply with the City's Disadvantaged Business Enterprise Program and applicable laws and regulations. Concessionaire agrees that participation by Disadvantaged Business Enterprises will be in accordance with the goals and objectives of the City's program. 22.2 Non-Discrimination - 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. ARTICLE XXIII. ENTIRE AGREEMENT 23.1 The parties hereto understand and agree that this instrument contains the entire agreement between the parties hereto. The parties hereto further understand and agree that the other party and its agents have 32 made no representations or promises with respect to this Agreement or the making or entry into this Agreement, except as in this Agreement expressly set forth, and that no claim or liability or cause for termination shall be asserted by either party against the other and such party shall not be liable by reason of the making of any representations or promises not expressly stated in this Agreement, any other written or oral agreement with the other being expressly waived. 23.2 The individuals executing this Agreement personally warrant that they have full authority to execute this Agreement on behalf of the entity for whom they are acting herein. 23.3 The parties hereto acknowledge that they thoroughly read this Agreement, including any exhibits or attached hereto, and have sought and received whatever competent advice and counsel was necessary fro them to form a full and complete understanding of all rights and obligations herein. IN WITNESS WHEREOF, the parties have executed this Agreement this day of 199 CITY OF WICHITA FALLS, TEXAS Attest: By: City Clerk James Berzina, City Manager Date: INTERSPACE SERVICES, INC. d/b/a Interspace Airport Advertising Attest: By: Marianne Lieberman, President Chief Executive Officer Date: