STAPLETON SITE OPERATIONS PERMIT

Transcription

1 STAPLETON SITE OPERATIONS PERMIT THIS PERMIT is issued this day of, 2016, by the CITY AND COUNTY OF DENVER, a municipal corporation of the State of Colorado (hereinafter "City"), on behalf of its Department of Aviation ( DEN ), to the following Permittee : Name: Home state: Type of Entity (e.g. LLC, corporation, etc.): If not a Colorado entity, is entity registered and in good standing in Colorado: WITNESSETH: WHEREAS, DEN operates and maintains the Denver Municipal Airport System, which includes certain lands on which the former Stapleton International Airport was located ("the Stapleton Site"); and WHEREAS, DEN advertised and published a Request for Qualifications for a Stapleton Unprocessed Concrete and Asphalt Rubble Opportunity (the RFQ ), in which DEN sought individuals or companies willing to remove certain Stockpiled Materials (as defined below) for their own use, at no cost or liability to DEN in exchange for ownership of the materials taken; and WHEREAS, Permittee responded to the RFQ, and now desires access to the Stapleton Site to perform concrete and asphalt hauling and recycling activities in accordance with the terms and conditions of the RFQ; NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, the parties hereto set forth the terms and conditions for Permittee s access as follows: SECTION 1 - DEFINITIONS 1.01 EXISTING CONTAMINATION. Existing Contamination shall include without limitation hazardous substances as defined under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C et seq.; and solid waste as defined under the Solid Waste Disposal Act., 42 U.S.C et seq., and its implementing regulations and correlative Colorado laws; petroleum or refined petroleum products and their constituents; waste oils; natural gas; radioactive source material, and de-icing chemicals, existing on the Stapleton Site prior to Notice to Proceed under this Permit HAZARDOUS MATERIALS. Hazardous Materials shall have the meaning set forth in Section 6.04.

2 1.03 PERMIT PROPERTY. Permit Property shall mean the property covered by the Permit. The Permit Property will include, and is limited to, property upon which the Stockpiled Materials are located and only such other property as is necessary for operations under this Permit. The Permit Property shall include the property shown on Exhibit A to this Permit. The Permit Property may be amended from time to time upon at the sole discretion of DEN PROJECT MANAGER. Administrative reports, memoranda, correspondence and other submittals required of the Permittee shall be processed in accordance with the Project Manager s directions. Until otherwise notified by the Chief Executive Officer ( CEO ) of the City s Department of Aviation, the designated Project Manager for this permit is Greg Holt STAPLETON SITE. "Stapleton Site" shall mean the real property surrounding the Permitted Property which comprises that part of the City's municipal airport system that was commonly known as Stapleton International Airport STOCKPILED MATERIALS Stockpiled Materials shall mean the accumulated asphalt, concrete, dirt, and similar materials taken from the former Stapleton International Airport site that are stockpiled on the Permitted Property. The materials were abandoned onsite by a previous DEN tenant, and DEN obtained title to the Stockpiled Materials through proceedings in the case In Re: Recycled Materials Company, Inc., Case No HRT (Bkrtcy. D. Colo.). The bankruptcy court determined the materials had no value but represented a liability to the estate. The Stockpiled Materials include unprocessed asphalt and concrete rubble as well as miscellaneous amounts of remaining original runway pavement (16 thickness) and cement treated base ( CTB ) that remain in situ, and cement treated sand ( CTS ). SECTION 2: GRANT OF PERMIT AND ACCESS 2.01 TERM. The Term of this permit shall commence on, 2016, and terminate on, 2016, unless terminated earlier in accordance with this Permit. Nothing herein shall be construed to give Permittee the right to hold over at any time, and DEN may exercise any and all remedies at law or in equity to recover possession of the Permit Property, as well as any damages incurred by DEN GENERAL CONDITIONS OF NON-EXCLUSIVE PERMIT. DEN hereby grants to the Permittee and its contractors a non-exclusive permit to enter onto the Permit Property for the purpose of performing the activities stated in Exhibit B, Permitted Activities. The access granted is nonexclusive and is completely revocable by DEN at its discretion, and DEN shall have the exclusive right to control, monitor, and establish procedures 2

3 applicable to Permittee s access to the Permit Property. The parties agree that this Permit is not a lease of the Permit Property. The Permittee agrees that all such activities conducted by Permittee shall be performed in accordance with the terms and conditions set forth herein, including the following A. Permittee shall remove the Stockpiled Materials according to the schedule in the attached Exhibit C (the Schedule ). B. Permittee shall weigh all Stockpiled Materials removed from the Permit Property, unless DEN and Permittee have agreed in a writing incorporated into Exhibit B upon an alternate method of measurement. On or within the twentieth (20th) day of each calendar month during the term of the Schedule, Permittee shall provide a summary to DEN of the Stockpiled Materials removed in the prior calendar month, together with any backup documentation such as purchase orders, invoices, or such other evidence of removal agreed to by the parties hereto. In addition, DEN shall be allowed to personally track the materials moved in order to verify the amounts reported. C. Permittee shall furnish to the Project Manager copies of any preliminary and final test data, reports, results, drawings, permits, and sample collection chain of custody documents and correspondence relating to the Permittee s testing and activities at the Permitted Property, upon generation or receipt of same by the Permittee. D. The Permittee may be required to obtain permits and approvals, or assume existing ones, and shall provide all notices required by any federal, state, and local entities prior to commencing work at the Permitted Property, including as follows and as directed by DEN: Site Wide General Permit for Storm Water Discharges Associated with Construction Activities from CDPHE. Site Wide Permit from the Wastewater Division of Public Works of the City and County of Denver. Project specific notification to CDPHE and Wastewater; however, Permittee shall provide plan, in the form required by each office, on how Permittee intends to provide best storm water management practice and erosion control, and shall provide maintenance of storm water inlets at its work areas for the duration of its work. Permittee shall not be required to seed or mulch the Permitted Property. All other required permits, approvals, or licenses shall be issued in the Permittee s name and a copy shall be provided to the Project Manager. Any activity conducted by the Permittee, its agents or contractors pursuant to the terms of this Permit shall be deemed to be taken on the Permittee s behalf and not as an agent for the City or SDC or their successors, assigns or grantees. All parties shall cooperate with each other in obtaining necessary permits and approvals. 3

4 E. The Permittee shall provide prior reasonable notice to the Project Manager of its access plans and the Permittee shall be responsible for all temporary access roads, layout, traffic control, scheduling and other measures necessary to its operations. F. The Permittee agrees not to permit or suffer, and to cause to be removed and released, any mechanic s or materialman s or other lien on the Permitted Property arising in relation to any work performed under this Permit. G. Permittee covenants and agrees Permittee shall be deemed to have accepted the Property "as is" and subject to existing covenants, conditions, restrictions, easements and encumbrances affecting the same. Further, upon possession of the Permit Property, Permittee shall be deemed to have waived any warranty of habitability, suitability for habitation, fitness for a particular purpose or merchant ability, express or implied, relating to the Property. H. The Permittee will take appropriate precautions in performing the Permitted Activities to avoid damaging or disturbing any aboveground or underground utility systems or facilities located on the Permitted Property MEANS OF ACCESS Permittee, its agents, and its employees are granted a non-exclusive right of ingress to and egress from the Permit Property by a means of access located as shown on Exhibit A. Such access shall be, without exception, in common with such other persons (including, at the option of the Project Manager, the general public) as the Project Manager may authorize or permit. The Project Manager may at any time close, relocate, reconstruct or modify such means of access, provided that a reasonably convenient and adequate means of ingress and egress is available for the same purposes; provided however, that Project Manager shall not deny Permittee access to 56th Avenue RIGHT OF ENTRY. DEN and the City retain the full right of entry in and to the Permit Property (i) for any purpose necessary, incidental to or in connection with its obligations hereunder or in the exercise of the City's governmental functions, (ii) for the purpose of making any inspection it deems necessary, (iii) for the purpose of performing demolition work or environmental remediation, (iv) for constructing infrastructure or other improvements, or (v) for any other legitimate and reasonable purpose of DEN or the City. Except in the case of emergency, DEN agrees to exercise good faith in notifying Permittee within a reasonable time in advance of all entries into the Permit Property, so as to minimize disturbance to Permittee. The foregoing rights of entry include access for contractors, employees and/or agents, and third parties acting with permission of DEN or the City, provided that DEN and the City shall use reasonable efforts to minimize interference with the business or operations of Permittee. Nothing contained in this Paragraph shall be construed so as to require Permittee to relocate Stockpiled Materials, plant or recycling equipment EASEMENTS. DEN and the City reserve the right to install utilities upon areas of the Permit Property or grant easements on the Permit Property as DEN or the City deem necessary or desirable, provided that the use of such areas or the grant of such use or easements do not interfere substantially with Permittee's operations and use of the Permit Property. 4

5 2.06 PERSONAL GRANT. The rights of Permittee hereunder are personal to the Permittee and so shall not constitute an interest in real property and shall not run with the land. Neither may this Permit be assigned by Permittee, and nothing contained in this Permit shall give or allow any such claim or right of action by any other or third person based on this Permit. The City and the Permittee expressly intend that any person other than the City or the Permittee receiving services or benefits under this Permit shall be deemed to be an incidental beneficiary only. SECTION 5 - COMPENSATION 0.01 SECURITY DEPOSIT. In lieu of a permit fee, materials fee, or depositing a security deposit with DEN, Permittee expressly understands and agrees to promptly pay and cover any loss, cost, damage, or expense, including attorney s fees sustained by the City by reason of the failure of Permittee to comply with any provision, covenant or agreement contained in this Permit PROCESSING. SECTION 6 - OPERATIONS A. The Permittee shall be responsible for obtaining and assuming liability for all necessary permits and approvals for, and conducting all aspects of the Permitted Activities in compliance with, all applicable federal, state, and local laws governing the operation of the processing facility, including but not limited to U.S. EPA, Colorado Department of Public Health and Environment and other environmental permits and approvals, compliance with the City s noise control ordinance, federal and state air quality standards for fugitive dust control, compliance with Denver s Prevailing Wage and Building Code ordinances in undertaking any construction or alteration on the subleased premises, and Denver water approvals and fees. All required permits and approvals shall be issued in the Permittee s name, and all operations shall be deemed to be performed only on the Permittee s behalf and not as agent for or on behalf of the City, its successors, assigns, or grantees. The Department of Aviation shall cooperate with the Permittee s obtaining necessary permits and approvals. B. The Permittee shall be solely responsible for and hold title to any and all materials that are recycled, reused, generated, or removed in connection with the Permitted Activities. Permittee agrees to assume all liability for, and legal title to, all waste materials generated by Permittee in the course of Permittee s work on DEN property under this Permit. The Permittee shall use best efforts to minimize the volume of wastes generated by the Permitted Activities, and shall properly handle, containerize, manage, and dispose of all such wastes and prevent surface and groundwater contamination in respect thereto. Permittee shall remove all wastes generated as a result of its work from the property on or before the expiration date of this Permit or any subsequent extension or renewal thereof. C. All costs and expenses of the Permitted Activities conducted by the Permittee, its agents or contractors, and all related work conducted by, through, or on behalf of the Permittee, shall be solely the costs and expenses of the Permittee. The Permittee shall be solely responsible 5

6 for all materials and equipment placed on the subleased premises in the course of any activities conducted by the Permittee, its agents, contractors, suppliers, or materialmen CARE OF AREA Permittee, in conducting its activities on the subleased premises, shall make every attempt to minimize dust pollution by the use of water control and any other approved industry dust minimizing procedures. Permittee agrees that it will keep the subleased premises in a safe, sanitary and orderly condition at all times, and further agrees that it will keep the outside of the subleased premises free at all times of all paper, rubbish, spills, and debris. Permittee, at its own expense, shall collect and dispose of all trash and refuse at frequent intervals COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS. A. Permittee, in conducting any activity on the Stapleton Site, shall comply with all applicable local, state or federal environmental rules, regulations, statutes, laws or orders, as amended from time to time (collectively Environmental Requirements ), including but not limited to Environmental Requirements regarding the storage, use and disposal of Hazardous Materials and regarding releases or threatened releases of Hazardous Materials to the environment. For purposes of this Permit the terms Hazardous Materials shall mean asbestos and asbestoscontaining materials, special wastes, polychlorinated biphenyls (PCBs), waste oils or any petroleum products, natural gas, radioactive source material, pesticides, any hazardous waste as defined at 42 U.S.C (5) of the Solid Waste Disposal Act, any hazardous substance as defined at 42 U.S.C (14) of the Comprehensive Environmental Response, Compensation and Liability Act, and chemical substance as defined at 15 U.S.C. 2602(2) of the Toxic Substances Control Act, and any rules or regulations promulgated pursuant to such statutes or any other applicable federal or state statute. B. Permittee shall acquire or cause its contractors to acquire all necessary federal, state, and local environmental permits and comply with all applicable federal, state and local environmental permit requirements relating to Permittee s or its contractors use of the Stapleton Site. C. Permittee will not cause and it will prohibit any discharge or disposal of any Hazardous Materials to storm or sanitary sewer systems, surface water, ground water, air or the Permitted Property except in compliance with permits obtained. D. In the case of a discharge, release, spill, or leak of Hazardous Materials as a result of the Permittee s activities or that of any of its Contractors and not as a result of Existing Contamination, Permittee shall immediately control and remediate all contaminated media to applicable federal, state and local standards. Subject to the limitation on indemnification for Existing Contamination in Section 8.07 herein, Permittee shall indemnify and reimburse the City for any penalties and all cost and expense, including without limitation reasonable attorney s fees, incurred by the City as a result of the release or disposal by Permittee or its Contractors of any Hazardous Materials on City property. Permittee shall also immediately notify the City in writing of the release, spill or leak, the control and remediation response actions taken by Permittee, and 6

7 any responses, notifications or actions taken by any federal, state or local agency with regard to such release, spill or leak. E. Permittee shall make available for the City s review and approval all documents and materials that Permittee prepares pursuant to any requirement under this Section. The City s approval shall be required prior to Permittee submitting any such documents or materials to any governmental agency, except where such prior approval would prevent Permittee from complying in a timely manner with any requirement to file any notice or report regarding any release or threatened release of Hazardous Materials at, on, under or about the Stapleton Site. Permittee shall provide the City copies of all such notices and reports of releases or threatened releases when they are filed with the appropriate governmental agency. F. At the Project Manager s reasonable request, Permittee shall conduct testing and monitoring as is necessary to determine whether any Hazardous Materials brought on or generated on the Site by Permittee or its contractors have entered the air, soil, groundwater, or surface water at, on, or under the Stapleton Site as a result of Permittee s activities. Permittee shall provide copies of all results of such testing and monitoring to the City SAFETY. The Permittee shall develop and implement an appropriate health and safety plan and shall conduct all aspects of the work performed on the Permitted Property and Stapleton Site in accordance with all OSHA and other safety requirements, utilizing OSHA trained and certified contractors, site workers and site managers where appropriate COMPLIANCE WITH LAWS AND REGULATIONS. All of the work performed under this Permit by the Permittee shall comply with all applicable laws, rules, regulations, and codes of the United States and the State of Colorado and with the charter, ordinances, and rules and regulations of the City and County of Denver. The Permittee or its contractors shall obtain and pay for all required permits and other governmental approvals STRUCTURAL OR ELECTRICAL OVERLOADING. Permittee agrees that nothing shall be done or kept on the Permit Property and no improvements, changes, alterations, additions, maintenance or repairs shall be made to the Permit Property which would result in an overload of utility lines NOISE, ODORS, VIBRATIONS AND ANNOYANCES. Permittee shall conduct its operations in an orderly and proper manner so as not to commit any nuisance in the Permit Property or annoy, disturb or be offensive to others in the vicinity of the Permit Property and shall take all reasonable measures, using the latest known and practicable devices and means, to eliminate any unusual, nauseous or objectionable noise, gases, vapors, odors and vibrations. 7

8 SECTION 7 INSURANCE, INDEMNIFICATION AND BONDS INSURANCE GENERAL PROVISIONS. Unless otherwise expressly provided in the Permit, the Permittee at its sole expense, shall take out and maintain in effect at all times during the performance of this Permit, insurance coverage with limits not less than those contained in the City s approved insurance certificate attached hereto as Exhibit D. The Permittee shall deliver to the City within 15 days after execution of this Permit, certificates of insurance identified on their face as to contract name and number, as evidence that policies providing the required coverages and limits are in full force and effect. Only the standard form of insurance certificate provided by the City will be acceptable. The Permittee shall provide sufficient evidence to the City that the person signing the insurance certificate has the requisite authority to bind the insurer. Each such certificate and policy shall provide that the policy shall not be canceled or coverage reduced without 45 days advance written notice, 10 days for nonpayment of premium, to the Department of Aviation, 8500 Pena Blvd., AOB 9 th Floor, Denver, Colorado Also, when it is required that the City and County of Denver be named as an "additional insured", the certificate and policy must provide that such coverage afforded the City shall apply as primary insurance for the Contractor's operations and any other insurance issued to the City and County of Denver shall apply as excess and non-contributing insurance INDEMNIFICATION. The Permittee shall defend, release, indemnify, and hold harmless the City and its officers, agents, and employees from all loss of or damage to property or injuries to or death of any person or persons, including property and officers, employees or agents of the City, and further agrees to defend, indemnify, and hold harmless the City and its officers, agents and employees from all claims, costs, damages, demands, suits, actions, or proceedings of any kind or nature whatsoever in any way arising out of, directly or indirectly, the operations of the Permittee as herein defined, including operations of subcontractors and suppliers and acts or omissions of officers, employees, or agents of the Permittee or its subcontractors or suppliers; and including the cost of abatement or remediation and the payment of any fines or penalties with respect to the violation of any environmental protection laws or regulations by Permittee, or with respect to any breach of this Permit by Permittee. This indemnification is not limited to third party claims. However, the Permittee need not defend, release, indemnify, or hold harmless the City or its officers, agents, and employees from damages or liability resulting from the negligence or wrongful conduct of the City's officers, agents, licensees, and employees, and the Permittee's obligation to defend, release, indemnify and hold harmless the City and its officers, agents, and employees under this paragraph shall not apply to liability or damages resulting from Existing Contamination if the Permittee promptly notified the City in accordance with this Permit and the Permittee s work in connection with the Existing Contamination was not performed in a negligent or wrongful manner or in violation of Environmental Requirements or Permittee s federal, state, or local permit obligations, and Permittee did not exacerbate the release of Existing Contamination Insurance coverage requirements specified elsewhere in this Permit shall not limit the liability of the Permittee under the terms of the Permit, including but not limited to this indemnification obligation, which shall survive termination of the Permit. 8

9 7.03 COVENANT NOT TO SUE. The Permittee, for itself, its agents, contractors, and employees, covenants not to sue or take any other civil or administrative action against the City, its successors, assigns and grantees, or against the Permitted Property itself, for any and all liability for injunctive relief, cost recovery, testing costs, disposal or other response costs, contribution, damages or other relief pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C et seq.; or pursuant to the Solid Waste Disposal Act, 42 U.S.C et seq.; or based upon any cause of action for damages arising out of the inability of the Permittee to sell or use the Stockpiled Materials for the purposes intended or any other purpose ADMINISTRATIVE HEARING. Disputes arising out of this Permit shall be resolved by administrative hearing following the procedures outlined in Denver Revised Municipal Code Section It is further agreed that no cause of action shall be brought against the City until there has been full compliance with the terms of this paragraph WAIVERS. No failure of City to insist upon the strict performance of a term, covenant or agreement contained in this Lease, no failure by City to exercise any right or remedy under this Permit, and no acceptance of full or partial payment during the continuance of any default by Permittee shall constitute a waiver of any such term, covenant or agreement or a waiver of any such right or remedy or a waiver of any default by Permittee. SECTION 8 - MISCELLANEOUS PROVISIONS 8.01 APPLICABLE LAW. This Permit shall be construed according to the laws of the State of Colorado. Any and all actions at law or in equity which may be brought by any of the parties to enforce or interpret this Permit shall be brought only in the State of Colorado ASSIGNMENT. The Permittee agrees not to assign, pledge or transfer its rights in this Permit, in whole or in part, without first obtaining the written consent of DEN, which consent shall not be unreasonably withheld. Any attempt by the Permittee to assign or in any way transfer this Permit, in whole or in part, without such prior written consent shall at the option of DEN automatically terminate this Permit and all rights of the Permittee hereunder BOND ORDINANCES. This Permit is in all respects subject and subordinate to any and all City bond ordinances applicable to the Denver Municipal Airport System and airport system and to any other bond ordinances which should amend, supplement or replace such bond ordinances. 9

10 8.04 EXAMINATION OF RECORDS. The City or any of its duly authorized representatives shall, until the expiration of three years after completion of operations under this Permit, have access to and the right to examine any directly pertinent books, documents, papers and records of the Permittee involving this Permit FEDERAL PROVISIONS. This Permit is subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreements and federal grant assurances between the City and the United States, the execution of which has been or may be required as a condition precedent to the transfer of federal rights or property for Airport purposes and the expenditure of federal funds for the extension, expansion or development of the Denver Municipal Airport System. Appendices 1 and 2 attached hereto are made a part of this Permit NONDISCRIMINATION. In connection with the performance of work under this Permit, Permittee agrees not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability, and Permittee further agrees to insert the foregoing provision in all subcontracts hereunder NOT PARTNERSHIP. Notwithstanding the provisions herein for payment by Permittee to City of sums based upon a percentage of sales or revenues, it is expressly understood and agreed that the City shall not be construed or held to be a partner, associate or joint venturer of Permittee in the conduct of its business. Permittee shall at all times have the status of an independent contractor without the right or authority to impose tort or contractual liability upon the City NOTICES. All required notices concerning this Permit shall be made as follows: To DEN: Contact: Address: Stapleton Redevelopment Project Greg Holt 8500 Peña Blvd., 6 th Floor Denver, Colorado Phone: Greg.Holt@FlyDenver.com To Permittee: Entity: Contact: Address: Phone: 10

11 8.09 SURVIVAL. This Permit and its covenants and provisions shall survive the removal of the Stockpiled Materials by the Permittee, and shall survive the termination of this Permit THIRD PARTIES. Enforcement of this Permit shall be strictly reserved to the parties signatory hereto and nothing contained in this Permit shall give or allow any claim or right of action by or on behalf of any other or third party. It is the express intention of the City and the Permittee that any other party receiving benefits resulting from this Permit shall be deemed to be an incidental beneficiary only. CITY AND COUNTY OF DENVER APPROVED AS TO FORM: By Chief Executive Officer of the Department of Aviation D. SCOTT MARTINEZ City Attorney for the City and County of Denver By Assistant City Attorney PERMITTEE. ATTEST: By Title 11

12 APPENDIX 1 STANDARD FEDERAL ASSURANCES ATTACHMENT 1 NOTE: As used below the term "contractor" shall mean and include the "Party of the Second Part," and the term "sponsor" shall mean the "City". During the term of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations. The contractor shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination. The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, creed or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontractors, Including Procurements of Materials and Equipment. In all solicitations either by competitive bidding or negotiations made by the contractor for work to be performed under a subcontract, including procurements or materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. 4. Information and Reports. The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration (FAA) to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information, the contractor shall so certify to the sponsor of the FAA, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance. In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, the sponsor shall impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to: 12

13 a. Withholding of payments to the contractor under the contract until the contractor complies, and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions. The contractor shall include the provisions of paragraphs 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the sponsor or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the sponsor to enter into such litigation to protect the interests of the sponsor and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. 13

14 APPENDIX 2 NONDISCRIMINATION IN AIRPORT EMPLOYMENT OPPORTUNITIES The Party of the Second Part assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This Provision obligates the Party of the Second Part or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or an interest therein or structures or improvements thereon. In these cases, this Provision obligates the Party of the Second Part or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the property. In the case of contractors, this Provision binds the contractors from the bid solicitation period through the completion of the contract. It is unlawful for airport operators and their lessees, tenants, concessionaires and contractors to discriminate against any person because of race, color, national origin, sex, creed, or handicap in public services and employment opportunities. 14