HomeMy WebLinkAboutCONTRACT WITH DEPARTURE MEDIA INC FOR AUGUSTA REGIONAL AIRPORT'S INTERMINAL ADVERTISING CONCESSIONTHIS AGREEMENT (Agreement) made this 7 day of , 20!1 , by and
between Augusta, Georgia (Augusta) on behalf of the Augusta Aviation Commission
(Commission), an agency of Augusta, Georgia and DEPARTURE MEDIA, INC., a corporation
existing under the laws of the state of North Carolina (Concessionaire), authorized to do business
in the State of Georgia.
WITNESSETH:
WHEREAS, the Augusta Regional Airport (Airport) is owned by Augusta, Georgia and
operated by the Aviation Commission; and
WHEREAS, the Aviation Commission has the right to grant the privilege of concession
agreements in accordance with applicable Augusta, Georgia ordinances and subject to the terms
and conditions hereinafter set forth; and
WHEREAS, Concessionaire is a corporation primarily engaged in the business of
advertising; and
WHEREAS, both Augusta and Concessionaire desire to enter into this Agreement to
provide advertising space for persons desiring to place advertising in the Airport terminal; and
NOW THEREFORE, in consideration of the mutual covenants and considerations
herein contained, Augusta and Concessionaire hereby agree as follows:
SECTION 1
DEFINITIONS; CONSTRUCTION
Definitions. Certain capitalized words and terms used in this Agreement are defined in
the text herein. The following words and terms are defined terms under this Agreement:
1.1 "Advertiser" shall mean any company, corporation or person purchasing
advertising space at the Airport.
1.2 "Airport" shall mean the lands and facilities owned by Augusta and operated by
the Aviation Commission known collectively as Augusta Regional Airport, as it now exists and
as it may change from time to time.
1.3 "Airport Concession Disadvantaged Business Enterprise" or "ACDBE" shall
mean, a business, whether it is a corporation, sole proprietorship, partnership or joint venture
certified as an ACDBE by the Airport, or State of Georgia, of which at least fifty-one percent
(51%) of the interest is owned and controlled by one or more socially and economically
disadvantaged individuals as defined in the Airport and Airways Safety and Capacity Expansion
Act of 1987 and the regulation promulgated pursuant to 49 CFR Part 23.
1.4 "Airport Executive Director" shall mean Gary LeTellier, or any other such person
designated by the Aviation Commission to exercise functions with respect to the rights and
obligations of the Aviation Commission under this Agreement.
1.5 "Augusta Aviation Commission" or "Commission" shall mean the
Commissioners tasked with the overall administration of the Airport.
1.6 "Augusta, Georgia" or "Augusta" shall mean the governing authority of Augusta -
Richmond County, Georgia.
1.7 "Best Management Practices" shall include those environmental or operational
standards or guidelines specifying common and accepted practices appropriate for the types of
businesses Concessionaire, its contractors, agents or vendors engage in on the Airport or such
standards or guidelines as have been articulated by pertinent trade associations, professional
associations or regulatory agencies, including (but not limited to) Best Management Practices
developed by the Airport cooperation with its tenants, including Concessionaire. Best
Management Practices shall be subject to approval by the Airport Director.
1.8 "Common Use Area" shall mean and refer to those portions of the Airport shared
equally by all tenants.
1.9 "Concessionaire" shall mean and refer to Departure Media, Inc. ("DM1").
1.10 "FAA" shall mean the Federal Aviation Administration of the U.S. Government
or any federal agencies succeeding to its jurisdiction.
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1.11 "Gross Advertising Sales" shall mean the amount received by Concessionaire
from advertisers or their agencies for the use of advertising facilities under this Agreement and
as further defined in Section 10.5.
1.12 "Premises" shall mean those areas of the Airport provided to Concessionaire for
advertising displays.
1.13 "Public Areas" shall mean those areas of the Airport not leased to any person,
company, or corporation that are open to use by the general public.
1.14 "Rules and Regulations" shall mean those rules, regulations, and ordinances
promulgated by the Aviation Commission or operating directives issued by the Airport Director,
as the same may be amended, modified, or supplemented from time to time to the extent that
such rules, regulations, and ordinances are not in conflict with the purposes of this Agreement.
1.15 "TSA" shall mean the Office of Homeland Security and Transportation Security
Administration, or their authorized successor(s).
1.16 "Uncollectibles" shall mean any invoice, which, after commercially reasonable
efforts on the part of Concessionaire, remains uncollectible one year after delivery of invoice to
Advertiser.
SECTION 2
REPRESENTATIONS AND UNDERTAKINGS
It is understood and agreed under this Agreement that the Aviation Commission is the
operator of the Airport for the use and benefit of the public; that Augusta, Georgia is the owner
of the Airport and that Concessionaire may use only those portions of the Airport herein
described with only the privileges provided for in this Agreement.
2.1 Representations by Augusta. Augusta makes the following representations and
warranties as the basis for the undertakings on its part herein contained:
2.1.1 Creation and Authority. Augusta is a public body corporate and politic,
duly created and validly existing under the laws of the State of Georgia.
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2.1.2 Augusta is the owner of the Premises, has all requisite power and authority
under the laws of the State of Georgia (i) grant a concession to the Concessionaire, and (ii) to
enter into, perform its obligations under this Agreement and (iii) to exercise its rights under this
Agreement.
2.2 Representations by the Concessionaire. The Concessionaire makes the
following representations and warranties as the basis for the undertakings on its part herein
contained:
2.2.1 Organization and Power. The Concessionaire is a corporation duly
organized, validly existing, and in good standing under and by virtue of the laws of the State of
North Carolina, is authorized to do business in the State of Georgia, and has all requisite power
and authority to enter into this Agreement and perform its obligations and exercise its rights
under the same.
SECTION 3
GENERAL
3.1 That for and in consideration of the payments and agreements hereinafter
mentioned to be made by Concessionaire, Augusta does hereby grant to Concessionaire the right
to serve as the national, regional and local Sales Representative for all advertising displays
within terminal buildings at the Airport and to solicit and make contracts in the Airport for
advertising and exhibit material to be displayed therein.
3.2 The approximate number, types and sizes of advertising and exhibit spaces, and
their locations, as well as additional locations as may be authorized from time to time by the
Aviation Commission as being available to Concessionaire, are at the sole discretion of the
Executive Director.
3.3 Concessionaire shall provide a comprehensive, contemporary and innovative
advertising program unique to the Airport that utilizes state -of -the art technology and optimizes
advertising effectiveness while minimizing visual clutter. To achieve this objective, the Airport
requires the Concessionaire to procure, install and maintain a digital program, with
accompanying software, to include eight 55" LCD monitors at mutually agreed upon locations
Advertising Concession and Management Agreement Page 3 of 38
throughout the terminal (the "Monitors "). The Monitors are being leased by Concessionaire for
a three year term after which time Concessionaire shall purchase the Monitors for $1 plus any
taxes to be calculated at the end of lease the lease purchase term. The Monitors shall be deemed
to be fixtures and shall become the sole and exclusive property of the Airport after the expiration
of the three year lease purchase term and payment of outstanding balances by the
Concessionaire.
3.4 The Airport shall have the right to purchase the digital program software should
the parties elect not to exercise the contract renewals.
3.5 Concessionaire shall provide advertising that creatively reflects the character of
the Airport and the culture and quality of life in Augusta Richmond County and the Central
Savannah Region Area (CRSA).
3.6 Concessionaire shall provide displays that are aesthetically consistent with the
Airport's design and architecture and compatible with Airport operational efficiencies.
Concessionaire may procure and install static displays in place of digital displays at the approval
of the Airport.
3.7 Concessionaire shall provide timely and effective ongoing and emergency
maintenance of all displays.
3.8 Concessionaire shall provide a program and hiring policy that provides
opportunities for qualified disadvantaged businesses.
3.9 Concessionaire shall provide a business plan that effectively serves advertisers
while providing optimum revenues for the Airport.
3.10 Concessionaire shall adhere to the following operational standards:
3.10.1 Make at least 350 sales calls, either by phone or in person, per
Agreement year, which shall be documented by Concessionaire.
3.10.2 Shall focus procuring advertising from local and regional advertisers.
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3.10.3 Provide architect approved engineering drawings for monitor placement.
3.10.4 Provide maintenance staff with on site availability within twenty -four
(24) hours upon Airport or Advertiser request.
3.10.4 Provide graphic guidance to advertisers and obtain written approval by
Airport for all graphic designs prior to installation.
3.11 Except as otherwise provided herein, all work shall be at Concessionaire's sole
cost and expense and Concessionaire shall provide all necessary labor, supervision, materials,
supplies and transportation.
3.12 All improvements and displays installed by the Concessionaire shall be of high
quality, safe, fire resistant materials and shall be aesthetically compatible with Airport design.
3.13 Concessionaire shall upload advertisements to monitors and maintain display
inventory in a first -class manner during the entire term of the Agreement.
3.14 Concessionaire shall ensure all advertising material is installed in a timely manner
to coincide with advertising contract dates.
3.15 Concessionaire shall supervise the installation of all inventory and advertising
displays.
3.16 Concessionaire shall supervise repairs of all inventory and advertising displays as
required.
3.17 Concessionaire shall hire local maintenance personnel to service the advertising
displays and install and remove advertising artwork; provided, however, all communication
regarding repairs and requests are to be made directly to Concessionaire Operations Manager not
to local maintenance personnel.
3.18 Concessionaire shall continuously promote the concept of Airport advertising and
conscientiously solicit and endeavor to sell international, local, national and regional advertisers
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and advertising agencies on the use of advertising facilities located in the Airport while
maintaining and expanding the customer base.
3.19 Concessionaire will act as an advertising consultant to the Aviation Commission,
rendering advice and information regarding the management of advertising displays and sales of
advertising. If the Aviation Commission is considering additional types of advertising it shall
consult with Concessionaire in order to give Concessionaire a reasonable opportunity to
determine if direct competition with concession program is forthcoming.
3.20 Concessionaire shall correctly invoice Advertisers in a prompt, conscientious and
professional manner. All checks will be made payable to Concessionaire.
3.21 Concessionaire shall follow up with Advertisers to assist with any that are not
current on advertising fees owed.
3.22 Concessionaire shall provide Airport with current advertising contracts, monthly
statements showing Advertisers and applicable revenues for the previous month.
3.23 The Concessionaire may install and maintain appropriate informational signs in
the areas assigned for advertising, provided however, that the design, installation and
maintenance of such signs shall be consistent with the graphic standards and policies of the
Airport. All such signage shall be subject to written approval of the Airport prior to installation.
3.24 All advertisement, advertising copy, advertising materials and manners of
commercial presentation shall be subject to the reasonable approval of the Airport. The Airport
should provide written notice to Concessionaire within five (5) days of submission of graphics
sample by Concessionaire. Concessionaire shall not display any advertisements reasonably
disapproved by the Airport. Concessionaire shall immediately remove from the Airport, upon
written demand, any offensive advertisements.
3.25 Concessionaire shall provide a dedicated Sales Representative, Customer Service
Manager, Local Maintenance Manager and a qualified Sales Team as part of this Agreement.
3.26 Concessionaire shall conduct regular research studies to define the lifestyles and
psychographics of the Airport's travelers.
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3.27 Concessionaire shall work closely with the Airport staff and provide:
3.27.1 Monthly sales reports
3.27.2 Records of maintenance requests
3.27.3 Project Management
3.27.4 Equipment Management
3.27.5 Concept Approval
3.27.6 Recommendations on the best use of space
3.27.7 Reports related to construction, relocation and/or expansion projects.
3.28 Concessionaire shall develop relationships with the local Chambers of Commerce,
Convention and Visitors' Bureaus and other community based organizations to increase
awareness of advertising opportunities at the Airport.
3.29 Nothing herein contained shall be deemed to grant the Concessionaire any
exclusive right or privilege within the meaning of Title 49 -40103 of the United States Code.
Without derogation to the Act and subject to the terms and provisions hereof, the Concessionaire
shall have the sole right to use the assigned areas for advertising purposes under the provisions of
this Agreement.
SECTION 4
TERM
Effective Date; Term. This Agreement shall become effective on
2012, for a period of three (3) years (the "Agreement Term "). The term of this Agreement may
be extended by mutual agreement for two (2) one year periods upon approval of the Aviation
Commission.
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SECTION 5
AIRPORT PREMISES
5.1 Available Advertising Areas. Advertising displays may be located throughout the
public areas of the Terminal as the Concessionaire deems effective.
5.2 No advertising shall be displayed on the outside of the Terminal other than
specialty displays during the Master's Golf Tournament.
5.3 All locations and advertising display units are subject to approval by the
Executive Director. Concessionaire may modify advertising display types, locations and
quantities only with the Executive Director's written approval.
5.4 Concessionaire shall use the Premises, the areas designated on Exhibit A, for
advertising displays.
5.5 Augusta reserves the right to enter upon the Premises at any time for the purpose
of further developing and improving said Premises as it sees fit, regardless of the desires of
Concessionaire, and without interference or hindrance, and at Augusta's sole cost and expense.
5.6 Concessionaire shall not attach any additional posters, pictures, advertisement,
signs, or the like on the walls or the counters located in the Airport, without the prior written
consent of Augusta.
SECTION 6
MAINTENANCE AND REPAIR
6.1 Concessionaire accepts the Premises in their present condition and agrees to
maintain the displays on the Premises in good state of repair at all times during the life of this
Agreement.
6.2 Concessionaire warrants that it has inspected the Premises and accepts possession
of the Premises and any improvements thereon "as is" in its present condition, and subject to all
limitations imposed upon the use thereof by the rules and regulations of the FAA, TSA,
ordinances of Augusta, and the Airport's Rules and Regulations. Concessionaire agrees that the
Premises are suitable and sufficient for the uses permitted hereunder. Except as may otherwise
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be provided for herein, Augusta shall not be required to maintain nor to make any improvements,
repairs restorations upon or to the Premises or to any of the improvements presently located
thereon. Augusta shall never have any obligation to repair, maintain or restore, during the term
of this Agreement, any improvements placed upon the Premises by Concessionaire, its
successors and assigns.
6.3.1 Keep at all times, in a clean and orderly condition and appearance, the
Premises, all improvements thereon and all of the Concessionaire's fixtures, equipment and
personal property which are located on any part of the Premises;
contractors.
6.3 Concessionaire, without limiting the generality hereof, shall:
6.3.2 Repair any damage caused by Concessionaire or its employees and/ or
SECTION 7
APPROVAL OF ADVERTISING MATERIALS; PLACEHOLDERS
7.1 Approval. All advertising material and exhibit material, advertisements, location
and manner of presentation shall be subject to approval by the Aviation Commission through the
Airport's Executive Director.
7.2 Concessionaire will immediately remove from the Airport premises, at its sole
cost and expense, upon written demand of the Aviation Commission or the Executive Director,
advertising material that may be considered offensive to the general public. In the event that such
material is not removed immediately upon receipt of written demand, the Executive Director
remove said material or display and Concessionaire will pay any warehouse or storage rental
incurred by this action.
7.3 Neither Augusta nor its authorized representatives shall be held responsible or
liable for any damage to the equipment or materials so removed.
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SECTION 8
USE OF PREMISES
8.1 Concessionaire shall not use or occupy or permit the Premises or any part thereof
to be used or occupied, no do or permit anything to be done in or on the Premises, in whole or in
part, in a manner which would in any way (i) violate any then- applicable legal requirements, or
(ii) violate any of the covenants, agreements, provisions and conditions of this Agreement (iii)
violate the certificate of occupancy then in force with respect thereto, or (iv) may make it
difficult for either Augusta to obtain fire or other insurance required hereunder, or (v) as will
constitute a public or private nuisance.
8.2 Concessionaire shall not use or occupy or permit the Premises to be used or
occupied, in whole or in part, in a manner which, in Augusta's reasonable judgment, may or
tends to, impair or interfere with (i) the character, reputation or appearance of the Premises or the
Airport; or (ii) the use of any other Airport property.
8.3 Concessionaire shall not do or permit or suffer any waste, damages, disfigurement
or injury to or upon the Premises or any part thereof.
8.4 In connection with the exercise of its rights under this Agreement, Concessionaire
shall not:
8.4.1 Do or permit its agents, employees, directors, or officers to do anything on
or about the Airport that may interfere with the effectiveness or accessibility of the drainage and
sewage system, electrical system, air conditioning system, fire protection system, sprinkler
system, alarm system, and fire hydrants and hoses, if any, installed or located on or within the
premises of the Airport.
8.4.2 Bring, keep or store, at any time, flammable or combustible liquids on the
premises, except in storage containers especially constructed for such purposes in accordance
with federal, state, and county laws, including the Uniform Fire Code and the Uniform Building
Code. For the purposes of this Agreement, flammable or combustible liquids shall have the
same definitions as set forth in the most recent Uniform Fire Code.
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8.4.3 Do or permit its agents, employees, directors, or officers to do any act or
thing upon the Airport that will invalidate or conflict with any fire or other casualty insurance
policies covering the Airport or any part thereof.
8.4.4 Do or permit its agents, employees, directors, or officers to do any act or
thing upon the Airport that will jeopardize the Airport's Operating Certificate.
8.4.5 Do or permit its agents, employees, directors, or officers to do any act or
thing in conflict with the Airport's Security Plan.
8.4.6 Use the Premises for any illegal purposes, or in violation of FAA, TSA
and/or the Airport's Rules or Regulations, as amended from time to time, or any regulation of
any other governmental entity having jurisdiction over the Airport.
8.4.7 Use the Premises in any manner that will create any nuisance or trespass
with respect to other tenants; constitute any unreasonable annoyances, obstruction or interference
with operations; or in any manner interfere with, obstruct, block or violate in any manner, the
navigable airspace above the Airport in compliance with 14 C.F.R. § 77.5 and/or other
regulations as implemented by the Airport, the FAA or as may be implemented by the TSA.
8.4.8 Cause or permit any hazardous materials to be placed, stored, generated,
used, or disposed of in, on, under, about, or transported from any Airport premises by
Concessionaire, its agents, employees, contractors, or other person unless it has complied with
the following: with respect to hazardous materials other than cleaning products and/or substances
reasonably necessary in connection with Concessionaire's advertising activities, the prior written
consent of the Airport Executive Director shall be required, which shall not be withheld
unreasonably. Augusta may impose, however, as a condition of such consent, such requirements
as Augusta in its sole discretion may deem reasonable or desirable, including, without limiting
the generality of the foregoing, requirements as to the manner in which, the time at which, and
the contractor by whom such work shall be done, and Concessionaire must comply with all
environmental laws and regulations (including compliance with all Environmental Protection
Agency requirements concerning clean -up) , and with prudent business practices, with respect to
such hazardous materials, and the presence of hazardous materials must be reasonably necessary
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for the operation of Concessionaire's business. "Hazardous Material" shall mean: (1) any oil
petroleum products, flammable substances, explosives, radioactive materials, hazardous wastes
or substances, toxic wastes or substances, or any other wastes, materials, or pollutants that pose a
hazard to the Airport premises or surrounding property; or to the safety and/or health of persons
on or about the Airport and surrounding property and/or cause Concessionaire's Premises to be
in violation of any federal, state, or local laws governing or regulating hazardous materials; (2)
asbestos in any form, urea formaldehyde foam insulation, transformers, or other equipment that
contains dielectric fluid containing regulated levels of polychlorinated biphenyls, or radon gas;
(3) any chemical, material, or substance defined as or included in the definition of "hazardous
substances ", "hazardous waste ", " hazardous material ", "extremely hazardous waste ", "restricted
hazardous waste ", "toxic substance ", or similar words under any applicable local, state, or
federal laws, or any regulations promulgated pursuant thereto, including, but not limited to: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA),
as amended, 42 U.S.C. § §9601, et seq.; the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. § §1801, et seq.; the Federal Water Pollution Control Act (Clean Water Act,
or CWA), as amended, 33 U.S.0 § §1251 et seq.; the Resource Conservation and Recovery Act
(RCRA), as amended, 42 U.S.C. § §6901, et seq.; the Toxic Substances Control Act (TSCA), as
amended, 15 U.S.C. §§ 2601, et seq.; (4) any other chemical, material, or substance exposure
that is prohibited, limited, or regulated by any government authority, and that may or could pose
a hazard to the health and safety of occupants of the Airport, or to any person entering upon the
Airport or adjacent property; and/or (5) any other chemical, material, or substance that may or
could pose a hazard to the environment or a person.
8.5 Concessionaire shall use the Premises of the Airport in accordance with published
Airport Rules and Regulations. Concessionaire specifically agrees to comply with all present or
future Rules and Regulations of the Airport that are promulgated for the general safety and
convenience of the Airport, its various tenants, invitees, licensees and the general public and
which do not materially affect the use and enjoyment of the Premises for the purposes for which
they are intended under this Agreement. Said Rules and Regulations may be examined by
Concessionaire at the offices of the Airport's Aviation Services.
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8.6 Concessionaire shall have rights of ingress and egress to and from the assigned
areas, included but not limited to common use roadways, subject to any Rules or Regulations
which may have been established or shall be established in the future by the Airport. Such rights
of ingress and egress shall apply to the Concessionaire's employees, customers, agents,
contractors, suppliers, and other authorized individuals.
8.7 Employees, agents and contractors of Concessionaire shall be permitted to park at
the Facility under the same terms and conditions as employees of other concessionaires at the
Facility. Visiting service personnel shall be permitted to park in areas designated for temporary
vendor parking.
SECTION 9
FACILITIES AND SERVICES TO BE PROVIDED BY AUGUSTA
Augusta shall, without cost to Concessionaire:
9.1 Furnish all wall spaces and/or other areas in the condition required to accept video
monitors and exhibits in the approximate number, type, standard industry sizes and locations, as
well as additional locations, as may from time to time be approved by the Executive Director.
9.2 Supply electrical outlets at each approved location and any additional approved
locations if equipment type should require electricity and provide CAT 5 cable or wireless access
to the Airport's internet portal for video monitors.
9.3 Provide electrical current in reasonable amounts for the operation of the video
monitors.
9.4 Without incurring any liability for property damage, provide normal police
surveillance and protection of the displays against vandalism or trespass and will report to
Concessionaire the discovery of any damage or unsightly appearance so client(s) may be notified
of any interruption in service and repair(s) can begin.
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SECTION 10
CONCESSION FEES
10.1 For the privileges herein provided, Concessionaire shall pay Augusta a specified
percentage of the Gross Advertising Sales Revenue from advertising opportunities sold by
Concessionaire for placement at the Airport for each of the years the Agreement is in effect,
based upon the total annual passenger enplanements and deplanements as set forth in Section
10.1.1 (the "Percentage Fee "). The Applicable Percentage shall be determined by the total
annual passenger enplanements and deplanements during the immediately preceding calendar
year (ending December 31). The Percentage Fee due each month shall be calculated by
multiplying the Applicable Percentage set forth in Section 10.1.1 by Concessionaire's Gross
Advertising Sales Revenue for the immediately preceding calendar month.
10.1.1 Concessionaire shall pay the Percentage Fee as outlined below:
Total Annual Passenger Enplanements and
Deplanements
less than 300,000 20%
300,001 - 400,000
400,001 - 500,000
over 500,001
Applicable Percentage
25%
30%
35%
10.2 The Percentage Fee shall be subject to proportional percentage reduction equal to
the percentage of passenger traffic decline if enplanements and deplanements at the facility
during any calendar quarter of the Term shall fall (10 %) or more below those recorded during the
same quarter of the previous calendar year; and subject to reduction equal to actual and
prospective advertising revenues lost and unearnable from removed advertising locations where
ten percent (10 %) or more (as a percent of potential advertising revenues based on
Concessionaire's current rate card) of the assigned areas are deleted at the request of the Augusta
without the option of replacement locations of at least equal passenger exposure and value.
Percentage Fee payment to Airport shall be subject to temporary pro rata reduction equal to
Advertiser payments refunded to or withheld by affected advertisers where a display case or
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other display advertisement in an Assigned Area was visually obstructed or subject to electric
supply failure for more than three days without default to Concessionaire.
10.3 Transition Period: Commencement of Percentage Payments. Percentage
payments to the Airport shall commence once DMI (i) has received copies of existing
advertiser's contracts from previous concessionaire, (ii) new contracts have been executed
between DMI and each existing advertiser, and (iii) existing advertiser monies have been
collected.
10.4 Capital investment will be determined by (i) the number of approved locations,
(ii) Advertisers' demand for new advertising options pursuant to executed contracts and (iii) the
term of the Agreement.
10.5 The term "Gross Advertising Sales" as used herein shall be defined as the amount
received by Concessionaire from advertisers or their agencies for the use of advertising facilities
under this Agreement. It is further understood that such Gross Advertising Sales receipts (Gross
Receipts) shall not include:
agencies;
10.5.1 Standard (15 %) commissions paid to advertisers' recognized advertising
10.5.2 Uncollectibles at year -end;
10.5.3 Any taxes imposed by law which are separately stated to and paid by a
customer and directly payable to Augusta;
10.5.4 Expensible charges and fees including but not limited to phone charges,
rental fees, maintenance fees, brochure stocking fees, credit card fees, technology fees (i.e.,
content management including programming and maintenance charges for computer- operated,
video, interactive or motion displays, equipment repair or replacement, IT support), production,
installation and removal charges; or
10.5.6 Commissions received from vendors for production and fabrication work.
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10.6 In the event Concessionaire is unable to collect amounts due from Advertisers
upon which Concessionaire had previously based Percentage Fee payments after diligent efforts,
such " uncollectible amounts" shall be deemed uncollectible and an appropriate adjustment shall
be made in Concessionaire's subsequent statements and Percentage Fee submissions. If any
" uncollectible amounts" are collected by Concessionaire after adjustment, then appropriate
upward adjustment shall be made to a subsequent revenue statement and Percentage Fee
submission, excluding collection costs.
10.7 The first thirty-six (36) payments of the Percentage Fee shall be reduced by one-
thirty -sixth (1/36) of the actual cost of the acquisition and installation of the Monitors, but in no
event more than One Thousand sixty eight Dollars and eighty three cents ($1068.83) per month.
In the event the actual costs exceed $38,478.00, Concessionaire shall receive no further credit or
reduction. If the actual costs are less than $38,478.00, Concessionaire shall reduce the credits of
the Percentage Fee accordingly. Concessionaire shall provide the Airport with a copy of the lease
purchase agreement for monitors being acquired and installed. At the time the Concessionaire's
gross advertising revenues exceed $80,000 per year, credits for acquisition and installation shall
no longer be issued to Concessionaire.
10.8 All Percentage Fee payments shall be made on or before the twentieth (20th) day
of the calendar month following the calendar month during which the Gross Revenue
hereinabove described has been realized. Any and all local taxes, including use, receipts, or
similar taxes imposed by law and levied and assessed to Concessionaire as a result of its
activities hereunder shall be excluded from the Fee.
SECTION 11
CONCESSION REQUIREMENTS
The granting of the authority to the Concessionaire to operate at the Airport set forth in
this Agreement will be on the following terms and conditions:
11.1 Concessionaire shall provide the highest degree and standards of quality
advertising services to the passengers and patrons of the Airport.
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11.2 Concessionaire shall furnish prompt, efficient, first class service that is adequate
to meet all responsible demands for advertising services.
SECTION 12
EMPLOYEES OF CONCESSIONAIRE
12.1 Concessionaire shall require all of its employees, subcontractors and/or
independent contractors hired by Concessionaire working in view of the public, and about the
Airport, to wear clean and neat attire and to display appropriate identification.
12.2 Concessionaire's employees shall obtain identification badges from the Airport.
Concessionaire will be responsible for paying for the cost of Transportation Security
Administration (TSA) required employee background checks and badging.
SECTION 13
INTEREST ON OVERDUE PAYMENTS
There shall be added to all unpaid sums due Augusta an interest charge of one and one-
half percent (1.5 %) per month on the principal sum, computed as simple interest; at no time will
the interest actually charged exceed the highest applicable interest rate permitted under Georgia
law. Payments not received when due shall accrue interest from the due date until paid in full.
SECTION 14
ACCOUNTING PROCEDURES; AUDIT
14.1 Accounting Procedures. Concessionaire covenants and agrees that it will
establish and maintain an accounting system (specifically including all books of account and
records customarily used in the type of operation permitted by this Agreement) in full and
complete accordance with generally accepted accounting principles and otherwise reasonably
satisfactory to the Commission for the determination of any revenue computations, which may
be necessary or essential in carrying out the terms of this Agreement. Concessionaire shall
maintain its records relating to the operation permitted by this Agreement for a period of at least
three (3) years after the end of each Agreement year (or until the close of any ongoing audit
thereof being conducted by, or on behalf of Augusta); provided, however, that Augusta may
Advertising Concession and Management Agreement Page 17 of 38
(prior to the expiration of the relevant retention period) request that any such records be retained
for a longer period of time, in which case Concessionaire, at its option, may deliver such records
into the custody of Augusta.
14.2 Audit. Representative(s) designated by the Executive Director shall be allowed
to inspect and audit Concessionaire's books of accounts and records with reference to the
determination of any matters relevant to this Agreement at all reasonable times. Augusta's
representative shall specifically be entitled to inspect and audit any records necessary, in the
auditor's professional discretion, to complete the audit consistent in a manner consistent with
Generally Accepted Auditing Standards; provided, however, nothing herein shall authorize
Augusta to make any investigation into the expenses or expense structure of Concessionaire
except to the extent specifically necessary for the verification of any exclusion from Gross
Revenues. The costs of such audit shall be borne by Augusta unless the results of such audit
reveal a discrepancy of more than three percent (3 %) for any other amount for any twelve (12)
month audit period. In the event of such discrepancy, the full cost of the audit shall be borne by
the Concessionaire, and Concessionaire shall promptly pay all additional fees owing to Augusta
together with interest on such sums from the date originally due until the date paid at the Default
Rate.
14.3 In the event that Concessionaire's books or accounts are not maintained in
Augusta - Richmond County, they shall be made available for audit digitally within twenty (20)
business days of a request by Augusta, or Concessionaire shall pay in full any travel and related
expenses of Augusta representative(s) to travel to the location outside Augusta Richmond
County.
14.4 In those situations where Concessionaire's records have been generated from
computerized data (whether mainframe, minicomputer, or PC -based computer systems),
Concessionaire agrees to provide Augusta's representative with extracts of data files in a
computer readable format on data disks, electronic mail with attached files or suitable alternative
computer data exchange formats. Concessionaire agrees to provide appropriate work space to
conduct the audit and free access to copiers; number of Concessionaire's accounting manager or
the like who have a thorough knowledge of the accounting system as it pertains to this
Advertising Concession and Management Agreement Page 18 of 38
Agreement and who will assist Augusta with its audit. Concessionaire will also allow interviews
of past and present employees who were or are involved in the financial or operational activities
of Concessionaire.
SECTION 15
RECORDS TO BE MAINTAINED BY CONCESSIONAIRE
15.1 Concessionaire shall maintain a complete and accurate set of books and records
on the business conducted on the Airport and same shall be open to inspection by the Aviation
Commission or its representative at any reasonable time so as to ascertain the true amount of
Concessionaire's Gross Revenue from its operation on the Airport.
15.2 Concessionaire shall provide a statement verifying monthly Gross Revenues, as
previously reported by Concessionaire to Aviation Commission. Said verification is to be
compiled by a competent accountant.
SECTION 16
COMPLIANCE WITH LAW
Concessionaire agrees that its operation at the Airport shall be conducted in conformity
with all local, State, and federal laws and all published Airport Rules and Regulations. It is
further agreed that the Executive Director, acting on behalf of Augusta, shall be, at all times, in
full and complete charge of the Airport in its entirety and his directions as to policy and
procedures shall be final and conclusive as regarding Concessionaire. Concessionaire
understands that all operations, uses and occupancy of the Premises must be in strict compliance
with all TSA, FAA, Airport Rules and Regulations, grant requirements, and related provisions
for Airport use and operations without restrictions or limitations. Concessionaire further agrees
that, in the event there is a question of interpretation, it will comply with Augusta's interpretation
of such requirements, rules, laws and regulations. This provision supersedes any other provision
of this Agreement which may be in conflict therewith. Any default by Concessionaire shall
permit Augusta to immediately terminate the Agreement as a non - exclusive remedy.
Advertising Concession and Management Agreement Page 19 of 38
SECTION 17
DEFAULT AND TERMINATION
17.1 Augusta may terminate this Agreement for any Event of Default, for its
convenience or as set forth below:
17.2 Events of Default: The following shall be "Events of Default" under this
Agreement constituting a material breach of the Agreement and the terms "Events of Default"
and "default" shall mean any one of the following events:
17.2.1 If the Premises are vacated, not utilized or abandoned by the
Concessionaire for a period of thirty (30) days or more.
17.2.2 If Concessionaire uses the Premises for unlawful or unauthorized
purposes and/or fails to comply with or observe any statute, law, ordinance, rule, regulation,
standard or requirement of Augusta, any federal, state or local governmental entity with respect
to Concessionaire's occupancy and/or use of the Premises.
17.2.3 If Concessionaire fails to obtain, pay for, and maintain in full force and
effect at all times during the life of this Agreement, without any lapse in coverage, such
insurance as is required of Concessionaire herein.
17.2.4 If Concessionaire fails to make payments when due hereunder, where
such failure shall continue for a period of seven (7) days following service of notice thereof upon
Concessionaire by Augusta.
17.2.5 If Concessionaire uses, or permits the use of, the Premises at any time
for any purpose which at that time is not authorized by this Agreement. Upon the occurrence of
any material default and breach of this Agreement by Concessionaire, Augusta may then
immediately, or at any time thereafter, terminate this Agreement by service of a ten (10) days
advance written notice to such effect upon Concessionaire and this Agreement shall terminate at
11:59:59 p.m. on the termination date specified within such notice.
17.2.6 The failure by Concessionaire to observe or perform any covenant,
condition, or agreement to be observed or performed by Concessionaire in this Agreement.
Advertising Concession and Management Agreement Page 20 of 38
17.2.10 The filing by Concessionaire of a petition in bankruptcy, Concessionaire
being adjudged bankrupt or insolvent by any court, a receiver of the property of Concessionaire
being appointed in any proceeding brought by or against Concessionaire, Concessionaire making
an assignment for the benefit of creditors, or any proceeding being commenced to foreclose any
mortgage or other lien on Concessionaire's interest in the Premises or on any personal property
kept or maintained on the Premises by Concessionaire.
SECTION 18
REMEDIES
18.1 In addition to, and not in lieu or to the exclusion of, any other remedies provided
in the Agreement or to any other remedies available to Augusta at law or in equity, whenever any
default (other than a default under Section 17 , above, upon which termination of this Agreement
shall, at Augusta's option, be effective immediately without further notice) continues to be un-
remedied in whole or in part for thirty (30) days after Notice of Default is provided by Augusta
to Concessionaire (or for fifteen (15) days after Notice of Default in the case of default for
failure to pay any fees or other required payment under when due). This Agreement and all of
Concessionaire's rights under it will automatically terminate if the Notice of Default so provides.
Upon termination, Augusta may reenter the Premises using such force as may be necessary and
remove all persons and Property from the Premises. Augusta will be entitled to recover from
Concessionaire all Concession fees and other sum or charge otherwise payable by
Concessionaire, or any other payments and damages incurred because of Concessionaire's
default.
SECTION 19
NON - WAIVER OF RIGHTS
Should Concessionaire breach any of its obligations hereunder, Augusta may thereafter
accept from Concessionaire any payment or payments due hereunder, and continue this
Agreement in effect, without in any way waiving Augusta's right to exercise its default rights
hereunder, or any other remedies provided by law, for said breach. In addition, any waiver by
Augusta of any default, breach, or omission of Concessionaire under this Agreement shall not be
construed as a Waiver of any subsequent or different default, breach, or omission.
Advertising Concession and Management Agreement Page 21 of 38
SECTION 20
ASSIGNMENT
20.1 Concessionaire may not, without the prior written consent of Augusta endorsed
hereon, assign this Agreement.
20.2 Assignees shall become liable directly to Augusta for all obligations of
Concessionaire hereunto, without relieving Concessionaire's liability.
20.3 It is expressly understood that Concessionaire shall not sell or otherwise change
ownership of its advertising business or permit representation by any person or persons other
than Concessionaire without the prior written approval of Augusta.
SECTION 21
ATTORNEY'S FEES
If Augusta is required to obtain legal counsel to enforce any of its rights under this
Agreement or to collect its fees and charges, the Commission shall be entitled to recover from
Concessionaire reasonable attorney's fees incurred by it in connection with such proceedings.
SECTION 22
DAMAGE OR DESTRUCTION OF DEMISED PREMISES
If the Premises are totally destroyed (or so substantially damaged as to be un- tenantable)
by storm, fire, earthquake, or other casualty, this Agreement shall terminate as of the date of such
destruction or substantial damage, and all concession fees shall be considered accounted for as
between the parties hereunto as of that date.
SECTION 23
INSURANCE
23.1 Concessionaire agrees to carry and maintain in force at all times during the Term
of this Agreement, at Concessionaire's sole expense, the insurance described in herein below.
Advertising Concession and Management Agreement Page 22 of 38
23.2 Concessionaire acknowledges that Augusta has and reserves, the right to amend
the insurance requirements imposed by this Agreement at any time, provided that any such
amendment is not unreasonable.
23.3 Concessionaire understands and agrees that the minimum limits of the insurance
required herein may become inadequate during the term of this Agreement and that, if it in any
way, directly or indirectly, contingently or otherwise, affects or might affect the Airport or
Augusta, as determined in the sole but reasonable discretion of the Airport Director,
Concessionaire will increase such minimum limits by reasonable amounts on written request of
the Airport Director, with the concurrence of the Augusta - Richmond County Risk Manager. No
such amendment shall reduce the coverage amounts lower than as stated in this Agreement.
23.4 Within (30) days of the publication by the Airport of any such modifications to
the foregoing insurance requirements, Concessionaire shall deliver to the Airport insurance
certificates certifying compliance with such modified coverage(s).
23.5 No written amendment of this Agreement shall be required to effectuate said
increases in minimum limits
23.6 All insurance required hereunder shall be by companies holding a "General
Policyholders Rating" of A or better as set forth in the most current issue of "Best's Insurance
Guide" and shall be issued a company licensed, qualified and authorized to transact business in
the State of Georgia.
23.7 Any self - insured retention or deductible on any insurance coverage required shall
be declared by Concessionaire and approved by the Airport.
23.8 Concessionaire acknowledges that Augusta is not responsible for the costs of its
insurance premiums.
23.9 The insurance policies for coverage listed in this Section shall contain a provision
that written notice of cancellation or any material change in policy by the insurer shall be
delivered to the Airport no less than thirty (30) days prior to cancellation or change
Advertising Concession and Management Agreement Page 23 of 38
23.10 Proof of Insurance. Concessionaire shall provide the Airport with an annual
Certificate of Insurance on all required insurance prior to Concessionaire's exercise of any
privileges provided by this Agreement and annually upon the effective date thereafter within
thirty (30) days of execution of this Agreement. Concessionaire shall furnish additional
Certificates of Insurance, from time to time, upon specific request of the Airport.
23.11 The Augusta Richmond County Commissioners, the Augusta Aviation
Commission, and their officers, agents, elected and appointed officials, representatives,
volunteers, and employees shall be named as "Additional Insureds" on all required coverage and
also shown on the certificate as such.
23.12 General Liability Insurance. General liability insurance with a combined single
limit of not less than $ 1,000,000 covering Concessionaire's operations on Airport premises.
The foregoing insurance shall be endorsed to state that it will be primary to Airport's insurance
and that the Concessionaire waives its right of subrogation against the Aviation Commission,
Augusta - Richmond County, and their officers, agents, elected and appointed officials,
representatives, volunteers, and employees. The Aviation Commission, Augusta - Richmond
County and their employees, officers, agents, elected and appointed officials shall be added as
additional insureds on said policies. Said policy shall contain Severability of Interest Clause
and Contractual Liability coverage at least as broad as that given in the most current CG 00 01
ISO form.
23.13 Workers' Compensation Insurance. Concessionaire shall provide Workers'
Compensation insurance with statutory limits and employers liability with a limit of $1,000,000
for employees and subcontractors with limits of liability of not less than One Million Dollars
($1,000,000.00) for each accident/disease. Such policy (ies) shall be endorsed to state that the
Workers' Compensation carrier waives its right of subrogation against the Aviation Commission,
Augusta - Richmond County, and their officers, agents, elected and appointed officials,
representatives, volunteers, and employees.
23.15 Worker's Compensation Insurance. With employer's liability coverage of at
least $1,000,000 each accident, $1,000,000 each employee and a $1,000,000 disease policy limit.
The foregoing insurance shall be endorsed to state that that the workers' compensation carrier
Advertising Concession and Management Agreement Page 24 of 38
waives its right of subrogation against the Augusta, Georgia Board of Commissioners, their
officers, agents, elected and appointed officials, representatives, volunteers, and employees, the
Aviation Commission and the Airport.
23.16 Property Insurance. To insure Concessionaire against loss or damage to the
existing structure and any improvements due to fire, lightning and all other perils included in
standard extended coverage policies, plus vandalism and malicious mischief coverage, all in
amounts of not less than ninety percent (90%) of replacement value. Upon request by the
Aviation Commission, such replacement value shall be determined by a qualified appraiser, a
copy of whose findings shall be submitted to the Risk Manager, and thereafter, proper
adjustment in the limits of insurance coverage shall be effected. Said property need not be
maintained by Concessionaire, if Concessionaire is renting or leasing improvement and
Concessionaire's Concessionaire maintains the required insurance. The foregoing insurance shall
be endorsed to state that the carrier waives its right of subrogation against Augusta, Georgia, the
Aviation Commission, the Airport, and their officers, agents, elected and appointed officials,
representatives, volunteers, and employees. Augusta, GA and the Aviation Commission shall be
named as loss payees on any Property coverage. Said policy shall contain a Severability of
Interest clause.
23.18 An insurance binder letter or a Certificate of Insurance must be sent to:
City of Augusta
Risk Manager
530 Greene Street
Room 217
Augusta, Ga. 30901
(706) 821 -2502 (Fax)
23.19 Loss Control and Safety. Concessionaire shall retain control over its employees,
agents, servants and subcontractors, as well as control over its invitees, and its activities on and
about the premises and the manner in which such activities shall be undertaken and to that end,
Concessionaire shall not be deemed to be an agent of the Aviation Commission or Augusta.
Precaution shall be exercised at all times by Concessionaire for the protection of all persons,
including employees and property. Concessionaire shall make special effort to detect hazards
and shall take prompt action where loss control /safety measure should reasonably be expected.
Advertising Concession and Management Agreement Page 25 of 38
SECTION 24
INDEMNIFICATION AND HOLD HARMLESS
24.1 Concessionaire agrees to indemnify and hold harmless Augusta and the Augusta
Aviation Commission, and their members, officers, elected officials, agents, servants, employees
and successors in office against all claims, damages, losses and expenses, including but not
limited to attorney's fees, and expenses of litigation incurred by Airport in connection therewith
related to or arising out of any damage or injury to property or persons, occurring or allegedly
occurring in, on or about Airport property caused by any negligent act or omission of
Concessionaire or which arise out of any failure of Concessionaire to perform its obligations
hereunder during the period from the date of this Agreement to the end of the Agreement Term
or Concessionaire's operations under this Agreement.
24.2 Concessionaire shall keep, defend and hold harmless Augusta and the Augusta
Aviation Commission, and their members, officers, elected officials, agents, servants, employees
successors in office, guests, licensees and invitees from and against any and all claims, demands,
suits, judgments, costs and expenses asserted by any person or persons, including agents or
employees of Concessionaire, by reason of death or injury to persons or loss or damage to
property, resulting from Concessionaire's operations or activities on the Airport, or anything
done or omitted by Concessionaire under this Agreement except to the extent that such claims,
demands, suits, judgment, costs and expenses may be directly attributed to the sole negligence
of the Airport or its agents, employees, directors, or officers.
24.3 In the event of a conflict between the provisions of the Augusta Georgia Code and
this Agreement the stringent requirements shall govern.
SECTION 25
FEDERAL GOVERNMENT'S EMERGENCY CLAUSE
It is understood that, during time of war or national emergency, Augusta shall have the
right to lease any and all of the herein described Premises to the United States Government for
Advertising Concession and Management Agreement Page 26 of 38
military use, and if any such lease is executed, the provisions of this instrument insofar as they
are inconsistent with the lease of the Government shall be suspended.
SECTION 26
SECURITY
Concessionaire, its officers, employees, agents, and those under its control, shall comply
with security measures required of Augusta or the Aviation Commission by the FAA, TSA, or U.
S. Department of Transportation, or contained in any Airport Master Security Plan approved by
the TSA, to include an Airport Tenant Security Program as outlined in 49 CFR Part 1542
regarding Concessionaire's Agreement. If Concessionaire, its officers, employees, agents, or
those under its control shall fail or refuse to comply with said measures and such noncompliance
results in a monetary penalty being assessed against Augusta, then Concessionaire shall be
responsible and shall reimburse Augusta in the full amount of any such monetary penalty or
other damages, including attorney's fees and other costs to defend Augusta against such claims.
SECTION 27
NON - DISCRIMINATION
27.1 Concessionaire shall furnish its services on a fair, equal and not unjustly
discriminatory basis to all users thereof and it shall charge fair, reasonable, and non-
discriminatory prices for each unit or service, provided that Concessionaire may be allowed to
make reasonable and non - discriminatory discounts, rebates, or other similar type of price
reductions to volume purchasers.
27.2 Concessionaire shall make its services available to the public on fair and
reasonable terms without discrimination on the basis of race, creed, color, sex, sexual orientation,
age, national origin, or disability.
27.3 Non - compliance with the above paragraphs, after written findings, shall constitute
a material breach thereof and in the event of such non - compliance, Augusta shall have the right
to terminate this Agreement or at the election of Augusta and/or the Commission or the United
States, either or both said governments shall have the right to judicially enforce the above
paragraphs.
Advertising Concession and Management Agreement Page 27 of 38
27.4 Concessionaire assures that it will undertake an affirmative action program to
ensure that no person shall on the grounds of race, creed, color, national origin, sex, or disability
be excluded from participating in any employment activities covered in 49 C.F.R. Part 29,
Subpart E, and/or 29 C.F.R. Part 21. Concessionaire assures that no person shall be excluded on
these grounds from participating in or receiving the services or benefits of any program or
activity covered by this subpart. Concessionaire assures that it will require that its covered sub -
organization provide assurances to Concessionaire that they similarly will undertake affirmative
action programs and that they will require assurances from their sub - organizations, as required
by the aforesaid regulations, to the same effect.
27.5 Concessionaire will maintain open hiring and employment practices and will
accept applications for employment in all positions from all qualified individuals.
27.6 Concessionaire will provide to Augusta any information needed in the preparation
of reports or documents and other data relative to equal employment.
27.7 Concessionaire shall include similar clauses in any subcontracts and shall cause
such subcontractors to include these clauses in any contract related to the provision of services.
SECTION 28
AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISES
28.1 Certification Required. Augusta does not operate a DBE, MBE or WBE
Program for Augusta funded projects, as a Federal Court has entered an Order enjoining the
Race -Based portion of Augusta's DBE Program. Instead Augusta operates a Local Small
Business Opportunity Program. However, for various projects utilizing the expenditure of State
or Federal funds, Augusta enforces DBE requirements and/or DBE goals set by the Federal
and/or State Agencies in accordance with State and Federal laws. It is the policy of Augusta to
support participation in the Airport Concession Disadvantaged Business Enterprises (ACDBE),
as defined in 49 CFR Part 23, in concession activities at the Airport. This Agreement is subject
to the provisions of 49 CFR Part 23 as applicable.
Advertising Concession and Management Agreement Page 28 of 38
28.2 Program. The Airport has established an Airport Concession Disadvantaged
Business Enterprise (ACDBE) program in accordance with regulations of the U.S. Department of
Transportation (DOT), 49 CFR Part 23. The Airport is a primary airport and has received federal
funds authorized for airport development after January 1988 (authorized under Title 49 of the
United States Code); and has executed airport grant assurances that it will comply with 49 CFR
Part 23. It is the policy of the Airport to ensure that ACDBEs as defined in Part 23, have an equal
opportunity to receive and participate in concession opportunities. It is also our policy:
28.2.1 To ensure nondiscrimination in the award and administration of
opportunities for concessions by airports receiving DOT financial assistance;
28.2.2 To create a level playing field on which ACDBEs can compete fairly for
opportunities for concessions;
28.2.3 To ensure that our ACDBE program is narrowly tailored in accordance
with applicable law;
28.2.4 To ensure that only firms that fully meet this part's eligibility standards
are permitted to participate as ACDBEs at our airport(s);
28.2.5 To help remove barriers to the participation of ACDBEs in opportunities
for concessions at the Airport; and
28.2.6 To provide appropriate flexibility to our Airport in establishing and
providing opportunities for ACDBEs.
28.3 Contact. Augusta, on behalf of the Airport, has appointed Brenda Brown,
Augusta Regional Airport, 1501 Aviation Way, Augusta Georgia 30906 Telephone: (706) 798-
3236; E -mail: bbrown @augustaga.gov as the Airport Concessionaires DBE Liaison Officer
(ACDBELO). In that capacity, Ms. Brown is responsible for implementing all aspects of the
DBE program. Implementation of the ACDBE program is accorded the same priority as
compliance with all other legal obligations incurred by the Airport in its financial assistance
agreements with the Department of Transportation.
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28.4 Opportunities for Participation. It is the policy of Augusta to ensure that
ACDBE, as defined in 49 CFR Part 23 and other small businesses have an equal opportunity to
receive and participate in Department of Transportation (DOT) assisted contracts. Augusta
encourages the Concessionaire to make every reasonable effort to maximize contracting
opportunities for ACDBE and other small businesses in any construction or architectural changes
to the premises and in the procurement of goods and services necessary for the operation of the
Concession at this Airport.
28.5 Reports. Concessionaire shall submit ACDBE participation reports to Augusta
as required for the purpose of demonstrating compliance with 49 CFR Part 23. An ACDBE
concession specific goal of three percent (3 %) of total gross receipts for concessions has been
established for this Agreement. Each Concessionaire shall make good faith efforts, as defined in
Appendix A, 49 CFR Part 26, to meet the concession specific goal for ACDBE participation in
the performance of this Agreement. The Concessionaire will be required to submit the following
information:
28.5.1 Names and addresses of ACDBE firms and suppliers that will participate
in the concession;
participating;
28.5.2 A description of the work that each ACDBE will perform;
28.5.3 The dollar amount of the participation of each ACDBE fine
28.5.4 Written and signed documentation of commitment to use an ACDBE
whose participation it submits to meet a contract goal;
28.5.5 Written and signed confirmation from the ACDBE that it is participating
in the concession as provided in the prime Concessionaire's commitment; and
28.5.6 If the concession goal is not met, evidence of good faith efforts.
28.6 Non - Discrimination in Contracts. Augusta encourages Concessionaire to create
and maintain a diverse workforce, contractor and supplier base. The Concessionaire shall not
create barriers to open and fair opportunities for minority business enterprises (MBE), women's
Advertising Concession and Management Agreement Page 30 of 38
business enterprises (WBE), small business enterprises (SBE) and disadvantaged business
enterprises (DBE) to participate in all contracts at Augusta and to obtain or compete for contracts
and subcontracts as sources of supplies, equipment, construction and services. In considering
offers from and doing business with contractors and suppliers, the Concessionaire shall not
discriminate on the basis of race, color, creed, religion, sex, age, disability, nationality, marital
status, sexual orientation or disability. These requirements apply to all concessions firms and
suppliers, including those who qualify as an Airport Concessions Disadvantaged Business
Enterprise (ACDBE).
Concessionaire shall be liable for any damage to the Airport caused by Concessionaire's
officers, agents, employees, contractors, subcontractors, or anyone acting under its direction and
control, ordinary wear and tear excepted. All repairs for which Concessionaire is liable shall be
made by Augusta at Concessionaire's expense.
All notices by either party to the other shall be made by depositing such notice in the
registered or certified mail, of the United States of America, postage prepaid, and such notice
shall be deemed to have been delivered and received on the date of such depositing correctly
addressed in the registered or certified mail.
All notices to Augusta shall be mailed to:
With a copy to:
SECTION 29
DAMAGE TO AIRPORT
SECTION 30
NOTICES
Augusta Aviation Commission
Attn: Executive Director
1501 Aviation Way
Augusta, GA 30906
Augusta Law Department
501 Greene St.
Suite 302
Augusta, GA 30901
All notices to Concessionaire shall be mailed to:
Advertising Concession and Management Agreement Page 31 of 38
Leslie Clark Bensen
Departure Media, Inc.
PO Box 31577
Charleston, SC 29417
(843) 571-2299
Either party may change the address and name of addressee to which subsequent notices
are to be sent by notice to the other given as aforesaid.
SECTION 31
LIENS
Concessionaire shall cause to be removed promptly any and all liens of any nature arising
out of or because of any construction performed by Concessionaire or any of its contractors or
subcontractors upon the Airport or arising out of or because of the performance of any work or
labor by or for it or them at said premises, reserving the right to contest in court the validity of
any such liens. Concessionaire shall have the right to post an appropriate bond to cover its
obligations pursuant to this Section. If any person or corporation attempts to assert a Mechanic's
Lien against Augusta for improvements made by Concessionaire, Concessionaire shall hold
Augusta harmless from such claim, including the cost of defense.
SECTION 32
RULES AND REGULATIONS
32.1 Concessionaire shall comply with and shall require its officers and employees and
any other persons over whom it has direct control to comply with such Rules and Regulations
governing the use of Airport facilities and the access to said facilities pursuant to this Agreement
and Augusta's ordinances which may govern said use and access of the Airport facilities, as may
be amended from time to time by the Aviation Commission.
32.2 Concessionaire shall not use or permit to be used any Airport facilities for any
purposes or uses other than those specifically authorized by this Agreement, and such other
purposes or uses as may be mutually agreed upon in writing.
32.3 Concessionaire shall comply with and shall require its officers and employees and
any other persons over whom it has control to comply with such reasonable and
Advertising Concession and Management Agreement Page 32 of 38
nondiscriminatory Rules and Regulations governing the use of Airport facilities pursuant to this
Agreement as may from time to time be adopted and promulgated by Augusta or the Aviation
Commission, including, but not limited to, security, health, safety, environmental concern,
sanitation, and good order, and with such amendments, revisions, or extensions thereof as may
from time to time be adopted and promulgated by the Aviation Commission. The Airport
Director will provide a copy of the initial Rules and Regulations to Concessionaire within thirty
(30) days of the date of this Agreement.
32.4 Concessionaire's right of access to the Airport shall be subject to security
considerations and all federal, State, and local laws or regulations and all Airport rules,
regulations, and ordinances now in effect or hereinafter adopted or promulgated.
32.5 Concessionaire shall, at all times, comply with any and all present and future
laws, ordinances, and general rules or regulations of any public or governmental entity pertaining
to its operations at the Airport now or at any time during the term that this Agreement is in force.
SECTION 33
SURVIVAL
Concessionaire's obligations under this Article shall survive the expiration or earlier
termination of this Concession Agreement. No modification, termination or surrender to
Augusta of this Agreement or surrender of the Premises or any part thereof, or of any interest
therein by Concessionaire, shall be valid or effective unless agreed to and accepted in writing by
Augusta, and no act by any representative or agent of Augusta, other than such written
agreement and acceptance, shall constitute an acceptance thereof.
SECTION 34
ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties and no representation,
inducements, promises, or agreement, oral or otherwise, between the parties not embodied herein
shall be of any force or effect. No failure of Augusta to exercise any power at variance with the
terms hereof shall constitute a waiver of Augusta's right to demand exact compliance with the
terms hereof.
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SECTION 35
GOVERNING LAW
This Agreement and all disputes arising hereunder shall be governed by the laws of the
State of Georgia.
SECTION 36
VENUE
All claims, disputes, and other matters in question between Augusta and Concessionaire
arising out of or relating to this Agreement, or the breach hereof, shall be decided in the Superior
Court of Richmond County, Georgia. Concessionaire, by executing this Agreement, specifically
consents to jurisdiction and venue in Augusta - Richmond County and waives any right to contest
jurisdiction and venue in the Superior Court of Richmond County, Georgia or the United States
District Court for the Southern District of Georgia, Augusta Division.
SECTION 37
MISCELLANEOUS PROVISIONS
37.1 No purported or alleged waiver of any of the provisions of this Agreement shall
be valid or effective unless in writing signed by the party against whom it is sought to be
enforced.
37.2 Captions herein are for convenience or reference only and in no way define, limit
or expand the scope or intent of this Agreement. Whenever the context hereof shall so require,
the singular shall include the plural, the male gender shall include the female, and vice versa.
37.3 Counterparts. This Agreement may be executed in two or more counterparts, all
of which together shall constitute but one and the same Agreement. In the event that one or more
of the provisions hereof shall be held to be illegal, invalid or enforceable, such provisions shall
be deemed severable and the remaining provisions hereof shall continue in full force and effect.
37.4 Nothing contained in this Agreement shall be construed to be a waiver of
Augusta's sovereign immunity.
Advertising Concession and Management Agreement Page 34 of 38
37.5 It is specifically agreed between the parties executing this Agreement that it is not
intended by any of the provisions of this Agreement to create in the public or any member
thereof, third party beneficiary status in connection with the performance of the obligations
herein.
37.6 Nothing contained in this Agreement shall be construed to be a waiver of any
individual's qualified good faith immunity.
37.7. Covenants Bind and Benefit Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, however, that no one shall have any
benefit or acquire any rights under this Agreement pursuant to any conveyance, transfer, or
assignment in violation of any of its provisions.
37.8 Open Records. The Concessionaire acknowledges that all records relating to this
Agreement and the services to be provided under this Agreement may be a public record subject
to Georgia's Open Records Act (O.C.G.A. § 50- 18 -70, et seq.). Concessionaire shall cooperate
fully in responding to such request and making all records, not exempt, available for inspection
and copying as provided by law. Concessionaire shall notify Augusta immediately of any
request made under the Open Records Act and shall furnish Augusta with a copy of the request
and the response to such request.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
Augusta, Georgia
Augusta Aviation Commission:
Mayor
Date: Date:
Chairman
Advertising Concession and Management Agreement Page 35 of 38
Attest:
Lena Bonner,
Date:
Signed this day of " :--
12 in the presence of:
DEPARTURE MEDIA, INC.
- n
Witness
Approve
By:
Approved as to form:
By:
Date:
o content:
ft
r '
G , eTellier, Airpo rt Director
Andrew Mackenzie, Gen
I2
Advertising Concession and Management Agfeement
1
B - y 1 C. Bensen
President
p age 36 of 38
ATTACHMENTS
Advertising Concession and Management Agreement Page 37 of 38
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EMI
HOLOROOM LEASE
AREAS
55" LCD Column
55" LCD Column
TICKETING LEASE
SPACE
55" LCD Arrivals
Soffit
55" LCD TSA
Checkpoint
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Regional Airport
OVERALL FIRST FLOOR
VUKKST.211$
NEW TERMINAL BREAKDOWN OF AIRLINE LEASE SPACE
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