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HomeMy WebLinkAboutDIIO LLC AND AUGUSTA AVIATION du. SUBSCRIPTION AGREEMENT This Subscription Agreement (the "Agreement ") is effective as of the date set forth below (the "Effective Date ") between: "Diio ": Diio, LLC, a California limited liability company 1775 Wiehle Ave., Suite 330, Reston, Virginia 20190 Phone: (408) 353 -0530 E -Mail: legal.notices(7a diio.net And "Customer": Augusta Aviation Commission, on behalf of the Augusta Regional Airport 1501 Aviation Way, Augusta, Georgia 30906 Phone: (706) 798 -3236 E -Mail: diohnston(a augustagagov Effective Date: January 1 2015 This Agreement consists of the Terms and Conditions set forth below, the attached Exhibits, and the Terms of Service (defined below). As used throughout this Agreement, Diio, and Customer are sometimes referred to individually as a "party" or collectively as the "parties." The parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date. DIIO, LLC AUGUSTA AVIATION COMMISSION A l(:),, z - .r -- -.0 Signature Signa ure 8 1 ag I if-1 Jordan Kayloe Douglas Lively Name Name Senior Vice President Aviation Commission Chairman Title Title TERMS AND CONDITIONS 1. Definitions. 1.3 "Authorized User" means those uniquely identified 1.1 "Diio Content" means the proprietary information, persons who: (i) are employed by Customer; (ii) agree to be databases, reports, maps, charts, graphs, tools, software, bound by the Terms of Service; and (iii) have received a valid documentation, and other materials that are made available to Password from Diio. Diio reserves the right not to approve an Customer and each Authorized User through the Diio Service. Authorized User. 1.2 "Diio Service" means the Diio proprietary Internet- 1.4 "Authorized User Fee" means the fee described in based report generating service, and any updates and Exhibit B that is due from Customer for access to the Diio enhancements thereto, currently referred to as "Diio Mi Express," Service by the number of Authorized Users specified in Exhibit B. that provides standard and customized reports for travel and 1.5 "Confidential Information" has the meaning set forth in airline industry data as more specifically described in Exhibit A Section 9. and that: (i) contains the Diio Content; and (ii) is hosted and 1.6 "Initial Term" has the meaning set forth in Section 10. served on the Site. 1 d!io 4.2 Customer Obligations. Customer agrees to be customers or users against viruses, worms, or other items of a responsible for providing accurate and complete information about destructive nature. Customer further agrees that Diio PROVIDES each Authorized User on registration as reasonably requested by THE DI10 SERVICE, THE SITE, AND THE DI10 CONTENT ON Diio. Customer agrees to review and update such information at AN "AS -IS" AND "WHERE -IS" BASIS. EXCEPT FOR THE least quarterly for accuracy. Diio may, in its sole discretion, TARGET SERVICE LEVELS SET FORTH IN EXHIBIT C, D110 terminate the accounts or access rights of any Authorized Users DOES NOT WARRANT THAT THE DI10 SERVICE, THE SITE, for whom inaccurate or incomplete information was provided OR THE DI1O CONTENT (OR ACCESS THERETO) WILL BE during registration, for any Authorized User who Diio believes has ERROR FREE, CURRENT, OR UNINTERRUPTED, OR THAT violated the Terms of Service, and for any Authorized User who ALL ERRORS CAN OR WILL BE CORRECTED. DI10 MAKES does not appear on the then - current list of Authorized Users NO OTHER WARRANTIES WITH RESPECT TO THE D110 provided by Customer. Customer is responsible for all activities SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR that occur under Authorized User passwords. Customer shall OTHERWISE, AND DI10 EXPRESSLY DISCLAIMS ALL OTHER notify all of its Authorized Users to keep such passwords WARRANTIES, INCLUDING BUT NOT LIMITED TO THE confidential. Customer and /or individual Authorized Users must IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS notify Diio immediately of any unauthorized use of passwords or if FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES they believe that any such password is no longer confidential. ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE Diio reserves the right to require Authorized Users to alter PRACTICE. passwords if Diio believes that such password is no longer 7. Limitations of Liability. secure. 7.1 CUSTOMER AGREES THAT IN NO EVENT WILL DI10 4.3 Remedies. Diio and its licensors reserve the right to OR ITS LICENSORS BE LIABLE TO CUSTOMER OR TO ANY investigate complaints or reported violations of this Agreement or THIRD PARTY CLAIMING THROUGH CUSTOMER FOR THE the Terms of Service and /or applicable licenses and copyrights RESULTS OF CUSTOMER'S OR ITS AUTHORIZED USERS' and to take any action they deem appropriate including, without USE OF THE DI10 SERVICE, THE SITE, OR THE DI10 limitation, reporting and providing information of any suspected CONTENT, OR FOR ANY SPECIAL, INCIDENTAL, unlawful activity to law enforcement officials, regulators, or other CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES EVEN third parties, including disclosing any information necessary or IF DI10 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH appropriate to such persons or entities relating to user profiles, e- DAMAGES. mail addresses, usage history, posted materials, IP addresses, and traffic information. Diio and its licensors reserve the right to 7.2 THE CUMULATIVE LIABILITY OF DI10 AND ITS seek all remedies available at law and in equity for violations of LICENSORS TO CUSTOMER FOR ALL CLAIMS ARISING this Agreement or the Terms of Service, including, but not limited UNDER THIS AGREEMENT, UNDER ANY LEGAL OR to, the right to block access to the Diio Service from a particular EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL NOT Internet address or username. EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO DI10 5. Proprietary Rights. All right, title, and interest in and to HEREUNDER. the Diio Service, the Diio Content, the Reports, the Site, and any 8 - Indemnification. Diio shall, at its expense, defend, related documentation, including any corrections, updates, indemnify, and hold Customer and its Authorized Users harmless adaptations, enhancements thereto, or authorized copies thereof, from and against any claim, suit, proceeding or Toss, damages, or shall remain exclusively with Diio and its licensors, as applicable. liability of any kind resulting from, arising out of, or related to a Access to the Diio Service and /or the Site is provided to claim that the software used to provide the Diio Service and /or the Authorized Users only to allow Customer to exercise Customer's Diio Content infringes or misappropriates any third party rights under this Agreement. Because the Content incorporates copyright, trade secret, or U.S. patent; provided that Customer Content from Diio's licensors, it may contain other proprietary provides Diio with prompt notice of such claims, gives Diio the notices, licenses, and terms for use of copyrighted information, sole right to control the defense of such claims, and provides Diio the terms of which must be observed and followed by Customer with reasonable assistance with respect to the defense thereof. In and all Authorized Users. In the event of any conflict between the the event that the use of the Diio Service is or may be enjoined, license(s) applicable to Content on the Diio Service and the Diio will use commercially reasonable efforts to replace the Terms of Service, the applicable license(s) prevail. infringing Diio Service with a non - infringing version of the Diio Service of substantially equivalent functionality. CUSTOMER 6. Disclaimer. Customer acknowledges and agrees that ACKNOWLEDGES THAT THE FOREGOING INDEMNITY AND any collection and compilation of data may result in the likelihood LIMITED REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE of some human and machine errors, omissions, delays, REMEDY, AND DIlO'S SOLE AND EXCLUSIVE LIABILITY, interruptions, and losses, including inadvertent loss of data or WITH RESPECT TO THE INFRINGEMENT BY THE DI10 damage to media, which may give rise to loss or damage. Diio SERVICE AND THE DI10 CONTENT OF ANY THIRD PARTY'S makes no representations or warranties that the Diio Service is INTELLECTUAL PROPERTY RIGHTS. free of bugs or other errors, or that it will operate continuously, or that the Content is complete, accurate, or free of malicious items. 9. Confidential Information. For the purposes of this Diio assumes no responsibility for any errors or omissions in the Agreement, "Confidential Information" means any and all: (i) Diio Content or any damage caused by use of the Diio Service or technical and non - technical information including patent, trade the Diio Content. Customer and its Authorized Users download or secret, and proprietary information, techniques, sketches, use Diio Content obtained from using the Diio Service at their own drawings, models, inventions, know -how, processes, apparatus, risk. Customer and its Authorized Users have the sole obligation equipment, and algorithms related to the Diio Service, the Diio to ensure that in using the Diio Service or downloading Diio Content, or the Site; (ii) information relating to costs, prices and Content they protect their systems and the systems of any of their names, finances, marketing plans, business opportunities, personnel, research, development, or know -how; and (iii) 3 EXHIBIT A DESCRIPTION OF D110 SERVICE The Diio Service includes the following data, tools and information: • Worldwide Airline Schedule Data • U.S. Department of Transportation ( "DOT ") Origin and Destination ( "O &D ") Data ( "DB1 B ") • U.S. DOT Onboard Data ( "T- 100 ") • Miscellaneous Tools • Demographics Map tool • Reference Data • Airline Codes, Names, and Alliance Members • Airline Equipment Types and Seat Counts • Airport Codes, Names, and Locations • Great Circle Route Distance Calculators 5 1 d!io EXHIBIT C SERVICE LEVELS AND SUPPORT 1. Definitions. 1.1 "Force Majeure Event" means (i) compliance with any act, order, demand, or request of any government or governmental authority, agency, or instrumentality; (ii) labor disputes, difficulties, work stoppages, or work slowdowns of any kind; (iii) hurricane, earthquake, flood, and other natural disasters or fires; (iv) war, rebellion, or civil disorder; or (v) any other cause beyond Diio's reasonable control. 1.2 "Maintenance Outage" means a planned or unplanned maintenance period, including without limitation any maintenance downtime or maintenance outage, not to exceed an aggregate of fifteen (15) hours in any three (3) calendar month period during the Term and, in any case, no more than seven and one -half (71/2) hours per calendar month. 1.3 "Service Outage" means any time when the Diio Service is inoperable or unavailable due to or caused by reasons within Diio's control, excluding specifically the following reasons: (i) Customer's own Internet service provider; (ii) a Force Majeure Event; (iii) any systemic Internet failures; or (iv) any failure in a Customer's own hardware, software, or network connection. 1.4 "Unit Hours of Operation" shall be twenty-four (24) hours per day, three - hundred sixty -five (365) days per year, excluding any Maintenance Outage. 2. Availability of Services. Diio will use commercially reasonable efforts to ensure that the Diio Service will be available at least ninety -nine percent (99 %) of the time measured monthly, using the following formula: Uptime = Unit Hours of Operation minus Service Outages Unit Hours of Operation 3. Maintenance Outages. Diio will post a notification on the Site for each Maintenance Outage at least forty - eight (48) hours in advance, whenever practicable of the occurrence of any such outage. Diio will use commercially reasonable efforts to perform scheduled maintenance between 8:00 p.m. Friday and 8:00 a.m. Monday, Pacific Time. 4. Support Services. Diio shall provide telephone and email support to Customer for problems that interrupt or significantly impair the operation of the Diio Service. A designated Diio customer service representative will respond to all emails within two (2) U.S. business days of each Customer query. Diio will provide status updates at regular intervals as appropriate until the issue has been satisfactorily resolved. In addition, Diio will track and correct all reproducible problems related to the functionality of the Diio Service within two (2) U.S. business days of receiving a report thereof. 7 AUGUSTA RICHMOND COUNTY C—V-- -----.________ ‘ ,1 6.1 f Deke S. Copenhaver, Mayor 1/ '.. 4 N Pr' ••••••�• 4 ATTEfi f ..� ,�: .. . Ok44 4 0 _a 1 . p. .,.. S toe, 0 11��._ • s • , 4 v s �� Vii✓ 0 j ILli o . n � et1ORG � Lena Bon Approved as to Form: aki/j4 ie hid I ' iiitifi Andrew Mackenzie, Esq. 1 �� t. AV� 4 0 %� . Z FA ,� ��, Ai rports F a d \� � 1 .�0 �� /STRP C urrent F A A Adv i so ry Circulars Req uired for U se in AIP F unded a nd PFC A pproved Projects U p d ated: p 3/ V i ew the most c urrent versions of these ACs a n d an associated changes a http / /www .faa.gov /airports /resource /advisory circular NUMBER TITLE 70/7460 -1 K Obstruction Marking and Lighting 150/5020 - Noise Control and Compatibility Planning for Airports 150/5070 - 6B Airport Master Plans Change 1 150/5070 - The Airport System Planning Process 150/5100 -13B Development of State Standards for Nonprimary Airports 150/5200-28D Notices to Airmen (NOTAMS) for Airport Operators 150/5200 -30C Airport Winter Safety And Operations Change 1 150/5200-31C Airport Emergency Plan Change 2 150/5210 -5D Painting, Marking, and Lighting of Vehicles Used on an Airport 150/5210 -7D Aircraft Rescue and Fire Fighting Communications 150/5210 -13C Airport Water Rescue Plans and Equipment 150/5210 -14B Aircraft Rescue Fire Fighting Equipment, Tools and Clothing 150/5210 -15A Aircraft Rescue and Firefighting Station Building Design 150/5210 -18A Systems for Interactive Training of Airport Personnel FAA Advisory Circulars Required for Use in Updated 3/20/2014 Page 1 of 5 ARP AIF Funded and PFC Approved Projects NUMBER TITLE 150/5320 -12C Measurement, Construction, and Maintenance of Skid Resistant Airport Pavement Surfaces 150/5320 -15A Management of Airport Industrial Waste 150/5235 -4B Runway Length Requirements for Airport Design 150/5335 -5C Standardized Method of Reporting Airport Pavement Strength — PCN (Draft approved for use) 150/5340-1L Standards for Airport Markings 150/5340 -5D Segmented Circle Airport Marker System 150/5340 -18F Standards for Airport Sign Systems 150/5340 -30G Design and Installation Details for Airport Visual Aids 150/5345 -3G Specification for L -821, Panels for the Control of Airport Lighting 150/5345 -5B Circuit Selector Switch 150/5345 -7F Specification for L -824 Underground Electrical Cable for Airport Lighting Circuits 150/5345 -10G Specification for Constant Current Regulators and Regulator Monitors 150/5345 -12F Specification for Airport and Heliport Beacons 150/5345 -13B Specification for L -841 Auxiliary Relay Cabinet Assembly for Pilot Control of Airport Lighting Circuits 150/5345 -26D FAA Specification For L -823 Plug and Receptacle, Cable Connectors 150/5345 -27E Specification for Wind Cone Assemblies 150/5345 -28G Precision Approach Path Indicator (PAPI) Systems 150/5345 -39D Specification for L -853, Runway and Taxiway Retro reflective Markers 150/5345 -42G Specification for Airport Light Bases, Transformer Housings, Junction Boxes, and Accessories 150/5345 -43G Specification for Obstruction Lighting Equipment 150/5345 -44J Specification for Runway and Taxiway Signs 150/5345 -45C Low- Impact Resistant (LIR) Structures FAA Advisory Circulars Required for Use in Updated 3/20/2014 Page 3 of 5 AIP Funded and PFC Approved Projects ARP NUMBER TITLE 150/5395 -1A Seaplane Bases THE FOLLOWING ADDITIONAL APPLY TO AIP PROJECTS ONLY Updated: 3/7/2014 NUMBER TITLE 150/5100 -14D 150/5100 -17 Architectural, Engineering, and Planning Consultant Services for Airport Grant Projects Land Acquisition and Relocation Assistance for Airport Improvement Program Changes 1 - 6 150/5300-9B 150/5300 15A 150/5320 -17 150!5370 -6D Assisted Projects Predesign, Prebid, and Preconstruction Conferences for Airport Grant Projects Use of Value Engineering for Engineering Design of Airports Grant Projects Airfield Pavement Surface Evaluation and Rating (PASER) Manuals Construction Progress and Inspection Report — Airport Grant Program 150/5370-12A Quality Control of Construction for Airport Grant Projects 150/5380 -7A Airport Pavement Management Program FAA Advisory Circulars Required for Use in Updated 3/20/2014 Page 5 of 5 AIP Funded and PFC Approved Projects ARP ASSURANCES Airport Sponsors A. General. 1. These assurances shall be complied with in the performance of grant agreements for airport development, airport planning, and noise compatibility program grants for airport sponsors. 2. These assurances are required to be submitted as part of the project application by sponsors requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as amended. As used herein, the term "public agency sponsor" means a public agency with control of a public -use airport; the term "private sponsor" means a private owner of a public -use airport; and the term "sponsor" includes both public agency sponsors and private sponsors. 3. Upon acceptance of this grant offer by the sponsor, these assurances are incorporated in and become part of this grant agreement. B. Duration and Applicability. 1. Airport development or Noise Compatibility Program Projects Undertaken by a Public Agency Sponsor. The terms, conditions and assurances of this grant agreement shall remain in full force and effect throughout the useful life of the facilities developed or equipment acquired for an airport development or noise compatibility program project, or throughout the useful life of the project items installed within a facility under a noise compatibility program project, but in any event not to exceed twenty (20) years from the date of acceptance of a grant offer of Federal funds for the project. However, there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport. There shall be no limit on the duration of the terms, conditions, and assurances with respect to real property acquired with federal funds. Furthermore, the duration of the Civil Rights assurance shall be specified in the assurances. 2. Airport Development or Noise Compatibility Projects Undertaken by a Private Sponsor. The preceding paragraph 1 also applies to a private sponsor except that the useful life of project items installed within a facility or the useful life of the facilities developed or equipment acquired under an airport development or noise compatibility program project shall be no less than ten (10) years from the date of acceptance of Federal aid for the project. 3. Airport Planning Undertaken by a Sponsor. Unless otherwise specified in this grant agreement, only Assurances 1, 2, 3, 5, 6, 13, 18, 25, 30, 32, 33, and 34 in Section C apply to planning projects. The terms, conditions, and assurances of this grant agreement shall remain in full force and effect during the life of the project; there shall be no limit on the duration of the assurances Airport Sponsor Assurances 3/2014 Page 1 of 19 b. Executive Order 11990 - Protection of Wetlands c. Executive Order 11998 — Flood Plain Management d. Executive Order 12372 - Intergovernmental Review of Federal Programs e. Executive Order 12699 - Seismic Safety of Federal and Federally Assisted New Building Construction f. Executive Order 12898 - Environmental Justice Federal Regulations a. 2 CFR Part 180 - OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement). b. 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards . 4 c. 2 CFR Part 1200 — Nonprocurement Suspension and Debarment d. 14 CFR Part 13 - Investigative and Enforcement Procedures 14 CFR Part 16 - Rules of Practice For Federally Assisted Airport Enforcement Proceedings. e. 14 CFR Part 150 - Airport noise compatibility planning. f. 28 CFR Part 35- Discrimination on the Basis of Disability in State and Local Government Services. g. 28 CFR § 50.3 - U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964. h. 29 CFR Part 1 - Procedures for predetermination of wage rates.' i. 29 CFR Part 3 - Contractors and subcontractors on public building or public work financed in whole or part by loans or grants from the United States.' j. 29 CFR Part 5 - Labor standards provisions applicable to contracts covering federally financed and assisted construction (also labor standards provisions applicable to non - construction contracts subject to the Contract Work Hours and Safety Standards Act).' k. 41 CFR Part 60 - Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor (Federal and federally assisted contracting requirements).' 1. 49 CFR Part 18 - Uniform administrative requirements for grants and cooperative agreements to state and local governments. m. 49 CFR Part 20 - New restrictions on lobbying. n. 49 CFR Part 21 — Nondiscrimination in federally- assisted programs of the Department of Transportation - effectuation of Title VI of the Civil Rights Act of 1964. o. 49 CFR Part 23 - Participation by Disadvantage Business Enterprise in Airport Concessions. p. 49 CFR Part 24 — Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs.' 2 q. 49 CFR Part 26 — Participation by Disadvantaged Business Enterprises in Department of Transportation Programs. r. 49 CFR Part 27 — Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance.' s. 49 CFR Part 28 — Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities conducted by the Department of Transportation. Airport Sponsor Assurances 3/2014 Page 3 of 19 3. Sponsor Fund Availability. It has sufficient funds available for that portion of the project costs which are not to be paid by the United States. It has sufficient funds available to assure operation and maintenance of items funded under this grant agreement which it will own or control. 4. Good Title. a. It, a public agency or the Federal government, holds good title, satisfactory to the Secretary, to the landing area of the airport or site thereof, or will give assurance satisfactory to the Secretary that good title will be acquired. b. For noise compatibility program projects to be carried out on the property of the sponsor, it holds good title satisfactory to the Secretary to that portion of the property upon which Federal funds will be expended or will give assurance to the Secretary that good title will be obtained. 5. Preserving Rights and Powers. a. It will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in this grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary. b. It will not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property shown on Exhibit A to this application or, for a noise compatibility program project, that portion of the property upon which Federal funds have been expended, for the duration of the terms, conditions, and assurances in this grant agreement without approval by the Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States Code, to assume the obligations of this grant agreement and to have the power, authority, and financial resources to carry out all such obligations, the sponsor shall insert in the contract or document transferring or disposing of the sponsor's interest, and make binding upon the transferee all of the terms, conditions, and assurances contained in this grant agreement. c. For all noise compatibility program projects which are to be carried out by another unit of local government or are on property owned by a unit of local government other than the sponsor, it will enter into an agreement with that government. Except as otherwise specified by the Secretary, that agreement shall obligate that government to the same terms, conditions, and assurances that would be applicable to it if it applied directly to the FAA for a grant to undertake the noise compatibility program project. That agreement and changes thereto must be satisfactory to the Secretary. It will take steps to enforce this agreement against the local government if there is substantial non - compliance with the terms of the agreement. d. For noise compatibility program projects to be carried out on privately owned property, it will enter into an agreement with the owner of that property which includes provisions specified by the Secretary. It will take steps to enforce this Airport Sponsor Assurances 3/2014 Page 5 of 19 10. Melita Pl O r gan ization. In projects in vol v ing the lo of an airp an a irport runway, or a major ru extension at a me or la hub airport, the spon sor has made available to and h provided tropo upo r to th metropolitan p organization in the area in which the airport is loc if a ny , a copy of the p roposed amendment to the airport layout plan to depic th e project an a copy of any ai master plan in which the project is described or dep 11. Pavement P rev e ntive Ma With respect to a project ap after Jan 1, 1995, for the replacement or reconstructio o f paveme at the airport, it assures or certifies that it has implemented an effective a pavement m - management program and it assures that it wi use such program for the usefu l ife of any pavement constructed, reconstructed or repaired with Federal financial assistance at the airport. It will provide such reports on pavement condition and pavement management programs as the Secretary determines may be useful. 12 Terminal Development Prerequisites. For projects which include terminal development at a public use airport, as defined in Title 49, it has, on the date of submittal of the project grant application, all the safety equipment. required for certification of such airport under section 44706 of Title 49, United States Code, and all the security equipment required by rule or regulation, and has provided for access to the passenger enplaning and deplaning area of such airport to passengers enplaning and deplaning from aircraft other than air carrier aircraft. 13. Accounting System, Audit, and Record Keeping Requirements. a. It shall keep all project accounts and records which fully disclose the amount and disposition by the recipient of the proceeds of this grant, the total cost of the project in connection with which this grant is given or used, and the amount or nature of that portion of the cost of the project supplied by other sources, and such other financial records pertinent to the project. The accounts and records shall be kept in accordance with an accounting system that will facilitate an effective audit in accordance with the Single Audit Act of 1984. b. It shall make available to the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, for the purpose of audit and examination, any books, documents, papers, and records of the recipient that are pertinent to this grant. The Secretary may require that an appropriate audit be conducted by a recipient. In any case in which an independent audit is made of the accounts of a sponsor relating to the disposition of the proceeds of a grant or relating to the project in connection with which this grant was given or used, it shall file a certified copy of such audit with the Comptroller General of the United States not later than six (6) months following the close of the fiscal year for which the audit was made. Airport Sponsor Assurances 3/2014 Page 7 of 19 d. It will make such material available for examination by the public, and agrees that no material prepared with funds under this project shall be subject to copyright in the United States or any other country. e. It will give the Secretary unrestricted authority to publish, disclose, distribute, and otherwise use any of the material prepared in connection with this grant. f. It will grant the Secretary the right to disapprove the sponsor's employment of specific consultants and their subcontractors to do all or any part of this project as well as the right to disapprove the proposed scope and cost of professional services. g. It will grant the Secretary the right to disapprove the use of the sponsor's employees to do all or any part of the project. h. It understands and agrees that the Secretary's approval of this project grant or the Secretary's approval of any planning material developed as part of this grant does not constitute or imply any assurance or commitment on the part of the Secretary to approve any pending or future application for a Federal airport grant. 19. Operation and Maintenance. a. The airport and all facilities which are necessary to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, state and local agencies for maintenance and operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. It will suitably operate and maintain the airport and all facilities thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal to temporarily close the airport for non - aeronautical purposes must first be approved by the Secretary. In furtherance of this assurance, the sponsor will have in effect arrangements for- 1) Operating the airport's aeronautical facilities whenever required; 2) Promptly marking and lighting hazards resulting from airport conditions, including temporary conditions; and 3) Promptly notifying airmen of any condition affecting aeronautical use of the airport. Nothing contained herein shall be construed to require that the airport be operated for aeronautical use during temporary periods when snow, flood or other climatic conditions interfere with such operation and maintenance. Further, nothing herein shall be construed as requiring the maintenance, repair, restoration, or replacement of any structure or facility which is substantially damaged or destroyed due to an act of God or other condition or circumstance beyond the control of the sponsor. b. It will suitably operate and maintain noise compatibility program items that it owns or controls upon which Federal funds have been expended. Airport Sponsor Assurances 3/2014 Page 9 of 19 classifications such as tenants or non - tenants and signatory carriers and non- signatory carriers. Classification or status as tenant or signatory shall not be unreasonably withheld by any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status. f. It will not exercise or grant any right or privilege which operates to prevent any person, firm, or corporation operating aircraft on the airport from performing any services on its own aircraft with its own employees [including, but not limited to maintenance, repair, and fueling] that it may choose to perform. g. In the event the sponsor itself exercises any of the rights and privileges referred to in this assurance, the services involved will be provided on the same conditions as would apply to the furnishing of such services by commercial aeronautical service providers authorized by the sponsor under these provisions. h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport. i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. 23. Exclusive Rights. It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph, the providing of the services at an airport by a single fixed -based operator shall not be construed as an exclusive right if both of the following apply: a. It would be unreasonably costly, burdensome, or impractical for more than one fixed -based operator to provide such services, and b. If allowing more than one fixed -based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed -based operator and such airport. It further agrees that it will not, either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can be regarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, United States Code. Airport Sponsor Assurances 3/2014 Page 11 of 19 paid or transferred in a manner consistent with Title 49, United States Code and any other applicable provision of law, including any regulation promulgated by the Secretary or Administrator. c. Any civil penalties or other sanctions will be imposed for violation of this assurance in accordance with the provisions of Section 47107 of Title 49, United States Code. 26. Reports and Inspections. It will: a. submit to the Secretary such annual or special financial and operations reports as the Secretary may reasonably request and make such reports available to the public; make available to the public at reasonable times and places a report of the airport budget in a format prescribed by the Secretary; b. for airport development projects, make the airport and all airport records and documents affecting the airport, including deeds, leases, operation and use agreements, regulations and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request; c. for noise compatibility program projects, make records and documents relating to the project and continued compliance with the terms, conditions, and assurances of this grant agreement including deeds, leases, agreements, regulations, and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request; and d. in a format and time prescribed by the Secretary, provide to the Secretary and make available to the public following each of its fiscal years, an annual report listing in detail: 1) all amounts paid by the airport to any other unit of government and the purposes for which each such payment was made; and 2) all services and property provided by the airport to other units of government and the amount of compensation received for provision of each such service and property. 27. Use by Government Aircraft. It will make available all of the facilities of the airport developed with Federal financial assistance and all those usable for landing and takeoff of aircraft to the United States for use by Government aircraft in common with other aircraft at all times without charge, except, if the use by Government aircraft is substantial, charge may be made for a reasonable share, proportional to such use, for the cost of operating and maintaining the facilities used. Unless otherwise determined by the Secretary, or otherwise agreed to by the sponsor and the using agency, substantial use of an airport by Government aircraft will be considered to exist when operations of such aircraft are in excess of those which, in the opinion of the Secretary, would unduly interfere with use of the landing areas by other authorized aircraft, or during any calendar month that — Airport Sponsor Assurances 3/2014 Page 13 of 19 • efficiency, and cost of operation existing before the unapproved change in the airport or its facilities except in the case of a relocation or replacement of an existing airport facility due to a change in the Secretary's design standards beyond the control of the airport sponsor. 30. Civil Rights. It will promptly take any measures necessary to ensure that no person in the United States shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any activity conducted with, or benefiting from, funds received from this grant. a. Using the definitions of activity, facility and program as found and defined in §§ 21.23 (b) and 21.23 (e) of 49 CFR § 21, the sponsor will facilitate all programs, operate all facilities, or conduct all programs in compliance with all non- discrimination requirements imposed by, or pursuant to these assurances. b. Applicability 1) Programs and Activities. If the sponsor has received a grant (or other federal assistance) for any of the sponsor's program or activities, these requirements extend to all of the sponsor's programs and activities. 2) Facilities. Where it receives a grant or other federal financial assistance to construct, expand, renovate, remodel, alter or acquire a facility, or part of a facility, the assurance extends to the entire facility and facilities operated in connection therewith. 3) Real Property. Where the sponsor receives a grant or other Federal financial assistance in the form of, or for the acquisition of real property or an interest in real property, the assurance will extend to rights to space on, over, or under such property. c. Duration. The sponsor agrees that it is obligated to this assurance for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the assurance obligates the sponsor, or any transferee for the longer of the following periods: 1) So long as the airport is used as an airport, or for another purpose involving the provision of similar services or benefits; or 2) So long as the sponsor retains ownership or possession of the property. d. Required Solicitation Language. It will include the following notification in all solicitations for bids, Requests For Proposals for work, or material under this grant agreement and in all proposals for agreements, including airport concessions, regardless of funding source: Airport Sponsor Assurances 3/2014 Page 15 of 19 practicable time. That portion of the proceeds of such disposition which is proportionate to the United States' share of acquisition of such land will be, at the discretion of the Secretary, (1) reinvested in another project at the airport, or (2) transferred to another eligible airport as prescribed by the Secretary. The Secretary shall give preference to the following, in descending order, (1) reinvestment in an approved noise compatibility project, (2) reinvestment in an approved project that is eligible for grant funding under Section 47117(e) of title 49 United States Code, (3) reinvestment in an approved airport development project that is eligible for grant funding under Sections 47114, 47115, or 47117 of title 49 United States Code, (4) transferred to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport, and (5) paid to the Secretary for deposit in the Airport and Airway Trust Fund. If land acquired under a grant for noise compatibility purposes is leased at fair market value and consistent with noise buffering purposes, the lease will not be considered a disposal of the land. Revenues derived from such a lease may be used for an approved airport development project that would otherwise be eligible for grant funding or any permitted use of airport revenue. b. For land purchased under a grant for airport development purposes (other than noise compatibility), it will, when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary an amount equal to the United States' proportionate share of the fair market value of the land. That portion of the proceeds of such disposition which is proportionate to the United States' share of the cost of acquisition of such land will, (1) upon application to the Secretary, be reinvested or transferred to another eligible airport as prescribed by the Secretary. The Secretary shall give preference to the following, in descending order: (1) reinvestment in an approved noise compatibility project, (2) reinvestment in an approved project that is eligible for grant funding under Section 47117(e) of title 49 United States Code, (3) reinvestment in an approved airport development project that is eligible for grant funding under Sections 47114, 47115, or 47117 of title 49 United States Code, (4) transferred to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport, and (5) paid to the Secretary for deposit in the Airport and Airway Trust Fund. c. Land shall be considered to be needed for airport purposes under this assurance if (1) it may be needed for aeronautical purposes (including runway protection zones) or serve as noise buffer land, and (2) the revenue from interim uses of such land contributes to the financial self - sufficiency of the airport. Further, land purchased with a grant received by an airport operator or owner before December 31, 1987, will be considered to be needed for airport purposes if the Secretary or Federal agency making such grant before December 31, 1987, was notified by the operator or owner of the uses of such land, did not object to such use, and the land continues to be used for that purpose, such use having commenced no later than December 15, 1989. d. Disposition of such land under (a) (b) or (c) will be subject to the retention or reservation of any interest or right therein necessary to ensure that such land will Airport Sponsor Assurances 3/2014 Page 17 of 19 CFR Part 23. In addition, the sponsor shall not discriminate on the basis of race, color, national origin or sex in the administration of its DBE and ACDBE programs or the requirements of 49 CFR Parts 23 and 26. The sponsor shall take all necessary ,• and reasonable steps under 49 CFR Parts 23 and 26 to ensure nondiscrimination in the award and administration of DOT - assisted contracts, and /or concession contracts. The sponsor's DBE and ACDBE programs, as required by 49 CFR Parts 26 and 23, and as approved by DOT, are incorporated by reference in this agreement. Implementation of these programs is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the sponsor of its failure to carry out its approved program, the Department may impose sanctions as provided for under Parts 26 and 23 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1936 (31 U.S.C. 3801). 38. Hangar Construction. If the airport owner or operator and a person who owns an aircraft agree that a hangar is to be constructed at the airport for the aircraft at the aircraft owner's expense, the airport owner or operator will grant to the aircraft owner for the hangar a long term lease that is subject to such terms and conditions on the hangar as the airport owner or operator may impose. 39. Competitive Access. a. If the airport owner or operator of a medium or large hub airport (as defined in section 47102 of title 49, U.S.C.) has been unable to accommodate one or more requests by an air carrier for access to gates or other facilities at that airport in order to allow the air carrier to provide service to the airport or to expand service at the airport, the airport owner or operator shall transmit a report to the Secretary that - 1) Describes the requests; 2) Provides an explanation as to why the requests could not be accommodated; and 3) Provides a time frame within which, if any, the airport will be able to accommodate the requests. b. Such report shall be due on either February 1 or August 1 of each year if the airport has been unable to accommodate the request(s) in the six month period prior to the applicable due date. Airport Sponsor Assurances 3/2014 Page 19 of 19 3. Using forced labor in the performance of the agreement, including subcontracts or subagreements under the agreement. B. In addition to all other remedies for noncompliance that are available to the FAA, Section 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA), as amended (22 U.S.C. 7104(g)), allows the FAA to unilaterally terminate this agreement, without penalty, if a private entity – 1. Is determined to have violated the Prohibitions; or 2. Has an employee who the FAA determines has violated the Prohibitions through conduct that is either — a. Associated with performance under this agreement; or b. Imputed to the Sponsor or subrecipient using 2 CFR part 180, "OMB Guidelines to Agencies on Governmentwide.Debarment and Suspension (Nonprocurement)," as implemented by the FAA at 49 CFR Part 29. 20. Exhibit A Incorporated by Reference. The Exhibit "A" updated July 7, 2006, filed with AIP Project 3 -13- 0011 -22 -2001, is incorporated herein by reference. The Sponsor's acceptance of this Offer and ratification and adoption of the Project Application incorporated herein shall be evidenced by execution of this instrument by the Sponsor, as hereinafter provided, and this Offer and Acceptance shall comprise a Grant Agreement, as provided by the Act, constituting the contractual obligations and rights of the United States and the Sponsor with respect to the accomplishment of the Project and compliance with the assurances and conditions as provided herein. Such Grant Agreement shall become effective upon the Sponsor's acceptance of this Offer. UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION (Signature) Larry F. Clark Manager, Atlanta Airports District Office 5I Page 3 -1 3 -001 1 - 037 -201 4 PART II - ACCEPTANCE The Sponsor does hereby ratify and adopt all assurances, statements, representations, warranties, covenants, and agreements contained in the Project Application and incorporated materials referred to in the foregoing Offer, and does hereby accept this Offer and by such acceptance agrees to comply with all of the terms and conditions in this Offer and in the Project Application. I declare under penaltyof perjury that the foregoing is true and correct.' Executed this ` t day of 2 . City of Augusta (Name of Sponsor) By: (Signature of Sponsor's Designated Official Representative) l � (Printed Name of Sponsor's Designated Official Representative) Title: 0-1 4 40(— CERTIFICATE OF SPONSOR'S ATTORNEY I, , acting as Attorney for the Sponsor do hereby certify: That in my opinion the Sponsor is empowered to enter into the foregoing Grant Agreement under the laws of the State of . Further, I have examined the foregoing Grant Agreement and the actions taken by said Sponsor and Sponsor's official representative has been duly authorized and that the execution thereof is in all respects due and proper and in accordance with the laws of the said State and the Act. In addition, for grants involving projects to be carried out on property not owned by the Sponsor, there are no legal impediments that will prevent full performance by the Sponsor. Further, it is my opinion that the said Grant Agreement constitutes a legal and binding obligation of the Sponsor in accordance with the terms thereof. Dated at this day of 4ep1 2r /L( / By .1'�J�" •. kek (Signature of Sponsors Attorney) 1 Knowingly and willfully providing false information to the Federal government is a violation of 18 U.S.C. Section 1001 (False Statements) and could subject you to fines, imprisonment, or both. 6IPage 3 -13- 0011 - 037 -2014