CITY OF BOISE. SUBJECT: Advertising Concession and Lease Agreement; Boise Airport to Elizabeth Younger Agency, LTD dba The Younger Agency.

Transcription

1 CITY OF BOISE To: FROM: Mayor and Council Amy Snyder, Department of Aviation RESOLUTION NUMBER: R DATE: August 12, 2010 SUBJECT: Advertising Concession and Lease Agreement; Boise Airport to Elizabeth Younger Agency, LTD dba The Younger Agency. ACTION REQUIRED: Award and Approval of Revenue Contract, Advertising Concession and Lease Agreement; Boise Airport to Elizabeth Younger Agency, LTD dba The Younger Agency. RECOMMENDATION: Approval BACKGROUND: The Department of Aviation solicited proposals for an Advertising Concession & Lease Agreement for the Boise Airport. A Pre-Proposal meeting was held on Friday, June 25 th, 2010 with four (4) advertising companies in attendance. The Proposals were opened Wednesday, July 21, 2010 at 4:30 p.m. local time. Eleven (11) companies received RFPs and were entered on the plan holders list. Two (2) proposals were received. PROPOSER SCORE Younger Agency 376 out of 400 Creative Indoor Non-Responsive: Advertising No proposal bond and did not meet the minimum requirements Department of Aviation staff has reviewed the proposals for accuracy, completeness and responsiveness. The proposals were evaluated on the selection criteria included in the specification to rank the proposals. RECOMMENDATION: The Department of Aviation recommends the Advertising Concession & Lease Agreement for Boise Airport be awarded to the best qualified/highest ranked proposer, Elizabeth Younger Agency, LTD dba The Younger Agency. FISCAL IMPACTS: This is a revenue generating contract. The minimum annual guaranteed revenue to the City is $275,000 or 50% of gross revenue whichever is greater. ATTACHMENTS: 3 original Concession & Lease Agreements

2 RESOLUTION NO. BY THE COUNCIL: BISTERFELDT, CLEGG, EBERLE, JORDAN, SHEALY AND THOMSON A RESOLUTION APPROVING AN ADVERTISING CONCESSION AND LEASE AGREEMENT BETWEEN BOISE CITY (DEPARTMENT OF AVIATION) AND ELIZABETH YOUNGER AGENCY LTD, DBA THE YOUNGER AGENCY; AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND ATTEST SAID CONCESSION AND LEASE AGREEMENT ON BEHALF OF BOISE CITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Aviation Department issued a Request for Proposals (RFP) for Advertising Concession Services at Boise Airport on June 10, 2010; and WHEREAS, The Younger Agency was selected to be the Airport s advertising concessionaire for a five year term with one five year renewal period; and WHEREAS, The Younger Agency has complied with the requirements of the RFP; and WHEREAS, the Director of Aviation recommends award and approval of said Concession and Lease Agreement as it is in the best interests of the City to enter into said Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Concession and Lease Agreement, a copy of which is attached hereto marked Exhibit A and made a part hereof by attachment be, and the same hereby is, approved both as to form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest said Agreement for and on behalf of Boise City. Section 3. That this Resolution shall be in full force and effect immediately upon its adoption and approval. ADOPTED by the Council of the City of Boise, Idaho, this day of August, APPROVED by the Mayor of the City of Boise, Idaho this day of August, APPROVED: ATTEST: MAYOR CITY CLERK R

3 ADVERTISING CONCESSION AND LEASE AGREEMENT THE YOUNGER AGENCY TABLE OF CONTENTS R E C I T A L S...1 ARTICLE I DEFINITIONS Defined Terms...1 ARTICLE II TERM Initial Term First Renewal Period Second Renewal Period...3 ARTICLE III - CONCESSION PREMISES Concession Premises Additional Concession Premises...3 ARTICLE IV - FEES, CHARGES, AND RELATED PROVISIONS Concession Fees Waiver of Minimum Annual Guarantee Unpaid Fees Collection of Advertising Fees Other Taxes, Fees, or Charges Performance Guarantee...5 ARTICLE V - GENERAL OPERATING RIGHTS AND OBLIGATIONS Advertising Rights Access Rights Parking Rights Lease Rights Retained Rights...6 ARTICLE VI - CONCESSIONAIRE'S OTHER OBLIGATIONS Services, Displays and Equipment Standards of Service Restoration of Service Display Contracts Rates Licenses and Permits Displays and Advertising Content New Advertising Displays Locations and Additional Displays Installation Electrical Service Hazard and Nuisance Abatement Airport Construction Relocation or Removal Maintenance and Repairs Failure to Maintain or Repair Unsold Space Consultation Title to Improvements...12

4 6.20 Reservations Center Phone Lines...12 ARTICLE VII - STATEMENTS, REPORTS AND AUDITS Monthly Statement Master List of Advertisers Underpayments by Concessionaire Report of DBE Compliance Annual Audited Statement Annual Reconciliation of Percentage Fee Payments City Audit of Advertisers Public Records Retention of Records Other Reports...14 ARTICLE VIII COMPLIANCE Laws, Rules, and Regulations Airport Rules and Regulations Prompt Payment of Taxes and Fees Minimum Wages Governing Law Non-discrimination Covenant Alterations and Improvements...16 ARTICLE XI ASSIGNMENT Assignment Merger or Consolidation City Consent...16 ARTICLE X - INSURANCE AND INDEMNIFICATION General Information Standard Commercial General and Automobile Liability Insurance, Workers Compensation, Additional Insured Advertising Liability Insurance Additional Insurance Requirements...18 ARTICLE XI - DEFAULT BY CONCESSIONAIRE Events of Default Remedies on Concessionaire Default...19 ARTICLE XII TERMINATION Termination Termination by Concessionaire Concessionaire Remedy on Termination Events Removal of Property Holding Over...21 ARTICLE XIII - GENERAL PROVISIONS Airport Security Attorney's Fees Amendment Relationship of Parties Approvals By Disputes Subordination to the Agreement with the United States Nonwaiver of Rights Notices Captions...23

5 Severability Agent for Service of Process Waiver of Claims Right to Develop Airport Liability of Agents and Employees Successors and Assigns Bound Right to Amend Gender Incorporation by Reference Entire Agreement...25 ATTACHMENT A...26 ATTACHMENT B...27 ATTACHMENT C...28

6 ADVERTISING CONCESSION AND LEASE AGREEMENT BOISE AIRPORT THE YOUNGER AGENCY THIS ADVERTISING CONCESSION AGREEMENT (hereinafter referred to as "Agreement"), made and entered into this 1 st day of September, 2010, by and between the City of Boise, Department of Aviation, (hereinafter referred to as "City") and Elizabeth Younger Agency, LTD dba The Younger Agency (hereinafter referred to as "Concessionaire"). R E C I T A L S WHEREAS, the City is the owner and operator of the Boise Airport (hereinafter referred to as "Airport"); and WHEREAS, the City has issued a Request for Proposal (RFP) for the Advertising Concession and Lease at the Airport; and WHEREAS, Concessionaire is engaged in the business of providing advertising and has proposed for such service at the Airport and has been selected as the most responsive proposer; and NOW THEREFORE, in consideration of the mutual promises herein contained, the City and Concessionaire hereby mutually undertake, promise, and agree, each for itself, and its successors and assigns, as follows: Defined Terms ARTICLE I DEFINITIONS The following terms shall have the meanings stated below: Agreement as used herein shall mean the contractual commitments of the parties hereto which is represented by this document, the RFP and any appendices thereto, and Concessionaire's proposal. Airport shall mean the Boise Airport, City of Boise, Ada County, Idaho. Concession Premises is the area or areas of the Airport Terminal Building, Concourses, or any other Airport property designated in writing by the Airport Director or his designee, as the place or places where the business of Concessionaire may be conducted. DBE shall mean Disadvantaged Business Enterprise as determined by the regulations of the Federal Aviation Administration (FAA) and Idaho Department of Transportation. 1

7 Director shall mean Airport Director of the Boise Airport, and shall include such person or persons as may from time to time be authorized, in writing, by the Airport Director to act for him with respect to any or all matters pertaining to this Agreement. Gross Receipts shall include all revenues derived from the sale of advertising and promotions from this Agreement, whether sold on or off the Airport, and whether paid for in cash or credit (revenue shall be determined on an accrual basis), and regardless of when paid for or not, except only as explicitly excluded hereunder. Excluded from Gross Receipts shall be: 1. Federal, state, county and municipal sales taxes or other taxes separately stated and collected from customers; 2. Receipts from the sale of or the trade-in value of any Trade Fixtures; 3. Receipts in the form of refunds from or the value of merchandise, supplies, or equipment returned to shippers, suppliers or, manufacturers; 4. Standard advertising agency commission fees, not to exceed fifteen (15%) percent of the advertising sales to which they apply 5. Receipts from the sale of uniforms or clothing to Company s employees where it is required that such uniforms or clothing be worn by said employees. 6. In the event Company fails for any reason to charge for or collect the value of any advertisement provided hereunder, the amount customarily charged by Company for such advertisement shall be included in the calculation of Gross Receipts. Further, no deduction shall be made from Gross Receipts by reason of any credit loss, charge, or deduction that may be incurred by reason of the acceptance or use of credit cards or other credit or charge arrangements. No deduction will be made from annual Gross Receipts by reason of any credit loss, charge or deduction that may be incurred by reason of the acceptance or use of credit cards or other credit or charge arrangements. Minimum Annual Guarantee is the minimum amount of money due the Airport each year from Concessionaire in consideration of the rights granted Concessionaire pursuant to this Agreement. Proposal is the proposal submitted to the City of Boise by Concessionaire in response to the City of Boise's Request for Proposals. Request for Proposal is the request for proposal to provide the advertising concession at the Boise Airport, issued by the City of Boise on June 10, ARTICLE II TERM Initial Term This Agreement shall become effective September 1, 2010, and shall continue for five (5) years thereafter, subject to the early termination provisions contained in the Agreement. 2

8 2.2 First Renewal Period City shall have the option, at its sole discretion, to renew this Agreement for one (1) 3 year period beginning at the end of the initial term (August 31, 2015). In the event the City exercises its right to renew it shall so notify Concessionaire by providing written notice to Concessionaire not less than one hundred eighty (180) days prior to the scheduled termination date of the initial term. Such notice shall include any City required modifications to terms and conditions of this Agreement. This may include a capital investment requirement. The Concessionaire shall, within thirty (30) days following receipt of notice from the City have the right to negotiate any such renewal modifications by written notice to the City. Failure of the Concessionaire to respond to the City within the thirty (30) day period shall automatically constitute acceptance of the renewal modifications. In the event of non-renewal by City, this Agreement shall automatically terminate as of the last day of the initial term. 2.3 Second Renewal Period City shall have the option, at its sole discretion, to renew this Agreement for a second renewal term of one (1) 2 year period beginning at the end of the first renewal term (August 31, 2018). In the event the City exercises its right to renew it shall so notify Concessionaire by providing written notice to Concessionaire not less than one hundred eighty (180) days prior to the scheduled termination date of the first renewal term. Such notice shall include any City required modifications to terms and conditions of this Agreement. This may include a capital investment requirement. The Concessionaire shall, within thirty (30) days following receipt of notice from the City have the right to negotiate any such renewal modifications by written notice to the City. Failure of the Concessionaire to respond to the City within the thirty (30) day period shall automatically constitute acceptance of the renewal modifications. In the event of nonrenewal by City, this Agreement shall automatically terminate as of the last day of the first renewal period term. ARTICLE III - CONCESSION PREMISES Concession Premises The areas for placement of advertising provided to Concessionaire (hereinafter referred to as the "Concession Premises"), will initially consist of those areas as shown on Attachment A attached. In addition, Concessionaire shall have use of an approximately 12 x 12 foot storage cage located in the basement of the terminal building Additional Concession Premises The City reserves the right to determine at its sole discretion that additional areas should be allocated for advertising as covered in this Agreement. The City may develop and plan for the construction and operation of such additional facilities and Concessionaire shall, upon mutual agreement as to the financial viability of required cost to Concessionaire, be obligated to finance, construct, and operate the advertising concession for such additional facilities. In the event the City provides notice of such Additional Areas, Concessionaire shall provide the City a plan for the advertising for such Additional Areas within thirty (30) days of the date of notice from the City that such Additional Areas will be part of this Agreement. 3

9 ARTICLE IV - FEES, CHARGES, AND RELATED PROVISIONS 4.1 Concession Fees For the concession privileges granted hereunder, Concessionaire shall pay to City a Concession Fee during each year of the Term hereof. Each year the Concession Fee shall be the greater of the Minimum Annual Guaranteed Concession Fee or the Percentage Fee as follows: a. Minimum Annual Guarantee (MAG). Year 1 - $ 275,000 Year 2, Year 3, Year 4, and Year 5: Eighty (80) percent of actual total Advertising and Sponsorship Percentage Fee, as defined below, for 12 month period September-August or the first year MAG whichever is greater. For any payment period of less than one calendar month, the Minimum Annual Guarantee shall be paid on a pro rata basis. b. Advertising Percentage Fee. The Advertising Percentage Fee shall be Fifty (50) percent of the Gross Receipts derived from the Advertising opportunities as defined in Article I above. c. Sponsorship Percentage Fee. The Sponsorship Percentage Fee shall be Fifty (50) percent of the Gross Receipts derived from the Sponsorship opportunities as defined in Article I above. Advertising provided in a package as part of Sponsorship shall be included in the Gross Receipts for Sponsorship and the percentage paid according to this section. Beginning on the fifteenth (15 th ) day of the month following the Commencement of the Term and for each month thereafter, Concessionaire shall pay to City without demand, a sum of money which represents one-twelfth (1/12) of the Minimum Annual Guarantee or the combined Advertising and Sponsorship Percentage Fee, whichever is greater. 4.2 Waiver of Minimum Annual Guarantee If Concessionaire is in full compliance with the terms, covenants and conditions set forth herein and at least one of the following conditions exists, the City, through the Director, may waive the requirement to pay the Minimum Annual Guarantee as provided for in Section 4.1a upon written request by Concessionaire. Any waiver granted pursuant to this clause shall be limited to a specified period, as authorized by the Director in his/her sole discretion. a. The actual number of passengers enplaning on scheduled airline flights at the Airport during any three (3) consecutive reporting months, shall be less than eighty percent (80%) of the number of such enplaning passengers in the same consecutive reporting months during the preceding year; or 4

10 b. If damage shall render the Concession Premises or a portion thereof untenable and incapable of being repaired, the fees payable hereunder with respect to the Concession Premises or portion thereof shall be proportionately paid up to the date of such damage and thereafter shall abate until such time as replacement of reconstructed Concession Premises shall be made available for use by Concessionaire. The Percentage Fee obligation shall remain in effect Unpaid Fees All amounts not paid by Concessionaire to the City when due shall bear a service charge at the City s prevailing rate on delinquent accounts. The said rate shall be applied from the date when the same was due until paid by the Concessionaire. Past due accounts shall be subject to a minimum delinquency charge per month which shall cover the costs of handling. The delinquency charge on past due accounts is subject to periodic adjustment to reflect the City s then current rate charged on past due accounts. The minimum charge shall also be adjusted periodically to reflect current costs. Concessionaire agrees that it shall pay and discharge all costs and expenses, including reasonable attorney s fees, incurred or expended by City in collection of any delinquent amounts due Collection of Advertising Fees Concessionaire shall be responsible for collections of advertising fees or charges to be paid by advertisers and shall assume all financial responsibility for loss of uncollected funds Other Taxes, Fees, or Charges Fees and charges paid to the City shall not include any taxes, fees or license charges that may be levied, assessed or charged by any governmental entity on Concessionaire. Concessionaire agrees to pay such taxes, fees or license charges directly to the appropriate taxing authority, without involving the City, or in the event Concessionaire desires to contest such taxes, fees or license charges, such contest shall be in good faith and the taxes, fees, or charges in contest shall be bonded if not paid when due Performance Guarantee Concurrently with execution of this Agreement, Concessionaire shall obtain and deliver to City, unless specifically waived in writing by City, a good and sufficient corporate surety company bond or a bank irrevocable letter of credit ("Security Assurance") renewable for the Term of this Agreement. Said Security Assurance shall serve the purpose of securing payment of all sums payable by Concessionaire to City hereunder will be forfeited in whole or in part to satisfy a Concessionaire liability in the event of Concessionaire s failure to pay any rates, rentals, fees or charges of whatsoever nature due City and conditioned to ensure the faithful and full performance by Concessionaire of all its covenants, Terms, conditions and obligations of this Agreement. Upon request of City, Concessionaire shall restore the Security Assurance to its original Amount. The Security Assurance in an amount of $100,000 shall remain in full force and effect during the Term and any extended period thereof. The form, provisions and nature of the Security Assurance, and the identity of the surety, insurer or other obligor, shall be subject to the approval of City. In the event that City and Concessionaire hereafter agree to any amendment or modification of this Agreement, Concessionaire shall, if required by the Terms of the Security Assurance, obtain the consent of the surety, insurer or other obligor hereunder, as the case may 5

11 be, and shall adjust the amount of the Security Assurance to reflect a change in the rentals, fees or charges payable by Concessionaire hereunder. The failure of Concessionaire to furnish (and keep in full force and effect) the Security Assurance, to renew the same, to adjust the amount thereof, or to obtain the consent of surety, insurer or obligor as heretofore set forth, shall constitute an event of default under this Agreement. ARTICLE V - GENERAL OPERATING RIGHTS AND OBLIGATIONS Advertising Rights Subject to the terms and conditions of this Agreement, Concessionaire shall have only those rights and privileges and shall have those obligations as specified in this Agreement regarding the advertising concession in the Concession Premises. Such rights and obligations shall be to develop advertising displays and to sell the right to display commercial advertising in such displays or through other methods as approved by the City in writing Access Rights Concessionaire has the rights of reasonable ingress and egress to and from its Concession Premises over Airport roadways, including common-use roadways and public use areas, subject to any rules or security regulations which may have been established or shall be established in the future by the City, the Transportation Security Administration or the Federal Aviation Administration. Such rights of reasonable ingress and egress shall apply to Concessionaire's employees, guests, patrons, invitees, suppliers, and other authorized individuals. The rights of ingress and egress likewise apply to the transport of equipment, material, machinery, and other property Parking Rights Employee Parking Permits are available for purchase for use by Concessionaire's employees. The parking lots and rates shall be in common with employees of other concessionaires and users of the Airport Lease Rights If space is available, and at the sole option of the City, Concessionaire may lease additional storage and office space identified by the City as available for such purposes, at an annual rate to be paid monthly and set on a per square footage basis charged by the City for similar or equivalent space Retained Rights Concessionaire understands that the rights granted herein are not exclusive. The City retains the right to permit other Airport concessionaires and tenants to install displays and signs in and around the areas served or occupied by them for the purpose of advertising their products or services; to advertise, or negotiate separate contracts for advertising on baggage carts; for advertising broadcast through closed circuit or cable TV programs; for display advertising or product display in specified locations; and for advertising on public telephones. Additionally, the City retains the right to install, and to permit others to install, displays, or to disseminate information for public information, educational, or other noncommercial purposes. 6

12 ARTICLE VI - CONCESSIONAIRE'S OTHER OBLIGATIONS 6.1 Services, Displays and Equipment Concessionaire shall, at its sole expense, unless otherwise noted: At the commencement of this contract, upgrade the commercial advertising displays for the Airport according to location, design plans, and schedule approved by the City At the City's request, and where the City and Concessionaire agree it will be financially viable, provide additional commercial displays during the term of the contract Keep displays clean, stocked, and maintained in good repair Be responsible for the timely removal of all refuse resulting from its operations Provide the necessary local personnel to ensure an efficient operation and four (4)-day-a-week maintenance of displays and materials which meets the requirements of this Agreement Provide a fully qualified Boise area service manager and a local or toll free phone number by which they or their designee can be reached between the hours of 8:00 A.M and 5:00 P.M. Mountain Time, Monday through Friday inclusive Assign a fully qualified representative who will serve as liaison between Concessionaire and the City Maintain a sales organization with the capability to maximize sales at the Airport and with sufficient scope to sell advertising space at the Airport to local, regional, national, and international accounts Offer advertising customers a full range of modern design and production services Comply with Disadvantaged Business Enterprise (DBE) requirements of this Agreement Ensure all advertising displays comply with the Americans with Disabilities Act (ADA). 7

13 6.2 Standards of Service Concessionaire warrants that: Its operations at the Airport will conform to the highest standards of airport advertising standards All services will be offered and provided on a fair, equal, and nondiscriminatory basis Best efforts will be made to keep all available commercial display spaces one hundred (100) percent filled with revenue producing advertising All displays will be checked a minimum of four (4) days a week, more if necessary, kept continually clean and in good repair and any literature racks kept stocked Damaged displays will be repaired within the first five (5) business days after notification or removed from service until repaired. All repairs or replacements will be of a quality equal to or exceeding the original in materials and workmanship Any digital advertisements that are no longer under contract shall be removed within five (5) days. Any non-digital advertisements that are no longer under contract shall be removed within thirty (30) days. If not removed, Concessionaire is liable to City for the monthly amount that was in the previous contract with the advertiser. For example, if a non-digital ad is not removed for 30 days and the advertiser was paying concessionaire $1,000 per month, Concessionaire will be required to pay the City the percentage fee multiplied by $1,000 multiplied by one month and include it in the monthly concession report Whenever possible, displays will be installed at hours of minimum passenger activity within the Airport, or at such hours as are approved by the City All deliveries and movement of materials within the Airport, Terminal Building, and Concourses will be in a manner and location established by the City Concessionaire will be responsible for the conduct, demeanor, and appearance of its employees and invitees, and of those doing business with it. Upon receipt of any complaint, Concessionaire shall immediately take all reasonable steps necessary to remove the cause of the complaint Concessionaire shall resolve all complaints arising from its displays, respond to all inquiries concerning items in this Agreement, and record all comments received with respect to the Airport. A log of these activities shall be included in the monthly statement. 8

14 6.3 - Restoration of Service The City reserves the right to require Concessionaire to make any adjustments necessary to improve the appearance or quality of service rendered in connection with the sale of the advertising space, provisions of signs, and facilities. Failure to make such adjustments may result in termination of this Agreement. 6.4 Display Contracts All contracts for display advertising shall be solicited and entered into by Concessionaire in its own name. The City reserves the right to require prior written approval of all contracts. All agreements for advertising shall use a standard contract form which has been approved by the City. Each contract shall contain a clause wherein the advertiser consents to the assignment of all rights of Concessionaire in the contract to the City or its assigns upon any termination of this Agreement, and that the City may, at its sole discretion, accept or reject any assignment Rates Concessionaire shall make good faith efforts in every proper manner to maintain, develop and increase the sales of advertising developed throughout the term of this Agreement. Concessionaire shall determine rates, terms, and conditions under which advertising is to be sold and these shall be competitive with comparable facilities and exposures. Concessionaire will permit no free or discounted advertising without prior written approval by the City. Concessionaire shall not provide advertisers with bonus ads unless they are specifically provided for in the contract between the advertiser and Concessionaire Licenses and Permits Concessionaire must, at its own expense, identify, provide to the City, and maintain in force, any and all licenses and permits required for legal operation of all aspects of this Agreement. Vehicle Floor Displays may require a special permit from the City of Boise Fire Department Displays and Advertising Content All advertising displays shall be attractive and compatible with their surroundings. The displays will be maintained in top-quality conditions throughout the life of the contract. The advertising message shall be in good taste, professionally developed, and presented in a manner which enhances the image of the Airport. Concessionaire shall not pursue or sell advertisements that are false, deceptive or misleading, promote unlawful or illegal goods, services or activities, imply or declare an endorsement by the City of any service, product or point of view, promote alcohol, tobacco or smoking-related products, advertise images or information that may be considered violent, or otherwise inappropriate, especially to minors, promote escort services, dating services or adult entertainment businesses or establishments, contain sexual, nudity or any indecent behavior or implication or are political in nature. All advertising content shall be subject to approval by the City. Concessionaire will immediately remove from the Airport, upon notice and at its sole cost, any material deemed objectionable by the City, provided that the City has not given its prior written approval to such content. Concessionaire hereby waives any right to object on constitutional (whether state or federal) grounds, that such restriction constitutes a violation of any free speech, equal protection, or other constitutional basis. 9

15 6.8 - New Advertising Displays Before any display is installed, Concessionaire shall present to the Director for design review and approval, detailed plans or drawings of the proposed display equipment or unit and the time at which such display will be installed. In the event of rejection by the Director, Concessionaire shall amend and resubmit plans until written approval is granted. Upon completion of the installation, Concessionaire shall furnish the Director with a statement of the cost to design, construct, and install the displays. Any construction involving Airport property must be approved through the City permit process prior to construction Locations and Additional Displays The advertising displays shall be placed only in the Concession Premises according to an approved layout plan. From time to time, upon mutual agreement as to the financial viability of the project, Concessionaire may be required to design, construct, and install displays in additional Concession Premises. Concessionaire shall provide the displays at its own cost and shall be responsible for such additional units in the same manner as the others covered by this Agreement. Upon completion of the installation, Concessionaire shall furnish the City with a statement of the cost to design, construct, and install the displays Installation The cost of installation and all alterations to the Concession Premises, including electrical, shall be made at the expense of Concessionaire. All installations and alterations shall comply with all applicable codes and shall be submitted for review and coordinated through the City. No changes or installations shall be made to Airport facilities without written approval by the Airport. A City building permit may also be required Electrical Service The City will provide conduit and wiring for electrical energy, and will pay for reasonable amounts of electrical energy for the lighting of advertising material and operations of the displays, where such electrical energy is readily available. If the electrical service is not readily available, the cost of providing it, in a manner to be first approved by the City, shall be borne by Concessionaire. As part of the consideration of the City providing utilities, Concessionaire hereby expressly waives any and all claims for compensation for any and all loss or damage sustained by reason of any defect, deficiency, or impairment of the utility Hazard and Nuisance Abatement Any hazardous or potentially hazardous condition, nuisance, or annoyance shall be corrected immediately by Concessionaire upon observation by the Concessionaire or upon receipt of oral or written notice from the Director Airport Construction The City shall have the absolute right to make any repairs, alterations, and additions to the Terminal Building, Airport, or within adjacent areas. Subsequent costs and financial impact of any repairs, alterations, and additions to the Terminal Building which affect Concession Premises shall be borne by the City and Concessionaire according to mutually agreed upon terms and conditions prior to beginning of construction. 10

16 Relocation or Removal The City reserves the right to relocate area or areas in which Concessionaire is granted the privilege to conduct its business in the terminal. Such relocation demands shall be provided to Concessionaire in writing from the City within sixty (60) days of such needed action. Subsequent costs and financial impact of such relocation shall be borne by the City and Concessionaire according to mutually agreed upon terms and conditions prior to relocations Maintenance and Repairs Concessionaire agrees to perform the following maintenance and repairs: a. Ensure completion of maintenance and necessary general repairs on all of the improvements, fixtures and equipment placed or installed in the Concession Areas according to this Agreement b. When a display fixture is permanently removed, restore the area to a condition which incorporates the surrounding space as to wall coverings, painted surfaces, floor coverings, and other finished surfaces. c. Coordinate warranty work on digital advertising monitors and players owned by City. d. Upload, schedule, troubleshoot and monitor content of the digital advertising program. Concessionaire shall notify the Airport Maintenance Division by calling (208) and the City IT Department by calling (208) ext 0 to coordinate work requests for those maintenance items to be covered by City per section below City agrees to perform the following maintenance and repairs: a. Pay Concessionaire, on a reimbursement basis not to exceed $15,000 annually, for replacement light bulbs and ballasts for the backlit advertising displays and for the annual licensee fee for the digital advertising software. b. Install the replacement ballasts, as needed. c. Install light bulbs and perform specific cleaning on those displays requiring use of an articulating lift. d. Maintain internet connectivity to all digital players and other networked devices owned by City. e. Maintain all digital advertising monitors owned by City. Warranty work will be coordinated through Concessionaire. f. Physically reboot digital advertising players, if necessary. Warranty work will be coordinated through Concessionaire Failure to Maintain or Repair If Concessionaire refuses or neglects to undertake the maintenance repair, or replacements requested by the City; or if the City is required to make any repairs necessitated by the negligent acts or omissions of Concessionaire or its agents, The City shall have the right to conduct such maintenance or repairs on behalf of Concessionaire. Such work shall be paid for by Concessionaire within ten (10) days following demand by the City for said payment at the City's standard rates plus overhead which may be determined by the City. 11

17 Unsold Space Concessionaire will exercise good faith efforts and sound business practices to keep all spaces filled with revenue producing advertising. Display spaces for which advertising is not sold shall be treated in the following manner. The display unit will first be offered to the City for its own use at no charge. If the City does not wish to use the space, it shall be fitted with an educational, charitable, or other noncommercial public service message, or approved artistic filler--again at no charge. The terms "educational, charitable, or noncommercial" mean advertising by a nonprofit entity which is exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code of 2086, as amended. Such displays must be approved, in advance, by the City. Concessionaire shall be liable for percentage fee on the market value of the ad for any ads in displays that are unpaid for and not approved by the City. At no time shall a display be left empty. If requested by the City, Concessionaire will remove from the public areas any display unit for which advertising is not sold. Unsold spaces on the telephone boards shall be fitted with approved fillers prepared by Concessionaire. All public service messages and fillers shall be current in content and modern in design and shall be replaced if requested by the City. In the event Concessionaire later sells advertising space after the City has placed advertising in it under this Section, Concessionaire shall remove the free advertising upon commencement of contract affecting that space Consultation The City reserves the right to call upon the Concessionaire for advertising consulting services and advice with regard to the operation of the advertising program at Boise Airport. The Concessionaire s Concession Fee is reflective of these consulting services during the term of the agreement Title to Improvements Upon termination or expiration of the Agreement, all displays of whatever kind or nature installed upon Concession Areas will become and be deemed to be the property of the City and will remain on Concession Areas Reservations Center Phone Lines The City shall pay the monthly fees for the 100 telephone lines in the reservation center. ARTICLE VII - STATEMENTS, REPORTS AND AUDITS Monthly Statement By the fifteenth (15th) day of each month, Concessionaire shall furnish to the City a statement showing its Gross Receipts, as defined herein, for the preceding month. Said statement, a sample of which is attached at Exhibit B, is to be signed by an authorized management officer of Concessionaire. Along with the monthly statement, Concessionaire shall submit a copy of its monthly sales journal or trial balance Master List of Advertisers Along with the monthly statement, Concessionaire shall furnish to the City a complete and detailed master list of the names of the advertisers using advertising display space, along with the location of the spaces used, and the rates being charged such advertisers. Such list shall be kept 12

18 current and show all additions, deletions, revisions, and substitutions, space used and rates agreed upon between the advertisers and Concessionaire. In addition, a list of all filler and/or bonus ads shall be submitted Underpayments by Concessionaire If any examination or audit of Concessionaire s books, records, or supporting data discloses an underpayment by Concessionaire, the Concessionaire shall promptly pay the difference plus penalties as specified in Section 4.2 and all costs associated with performing the examination or audit. Further, Concessionaire is liable for the full costs and attorney's fees incurred if legal action by the city is necessary either to levy the performance bond or any other action necessary to collect the underpayment Report of DBE Compliance Within sixty (60) days following the end of each contract year or upon the City's request, Concessionaire shall present to the City a report of DBE compliance verifying that the Concessionaire is subcontracting with or purchasing materials from the DBEs identified to meet contract goals. The report shall be in the format attached as Attachment C or another format approved by the City Annual Audited Statement Within ninety (90) days following the end of each contract year of the term hereof, and at any time of cancellations, concessionaire shall prepare and submit to the City a certified annual statement prepared by an independent Certified Public Accountant, showing the total concession fee paid to the City of the said twelve (12) months. If the sums paid by Concessionaire during said period exceed the annual concession fee payments due for said annual period, the amount of such overpayment shall be credited to the next monthly payment due from Concessionaire. If the sums paid during the period are less than the payments due, the underpayment shall be subject to the delinquency charges discussed in Section Annual Reconciliation of Percentage Fee Payments Within fifteen (15) days of receipt of the statement required in Section 7.5, City shall prepare and submit to Concessionaire a statement showing the total Percentage Fee for the applicable twelve (12) month period; if the sums paid by Concessionaire during said period exceed the Minimum Annual Guarantee or the Percentage Fee payments, whichever is greater, such overpayment shall be credited to the next monthly fees thereafter due from Concessionaire. In the event Concessionaire is not a selected concessionaire for advertising services after the expiration of this Agreement, a payment will be made to Concessionaire, within thirty (30) working days, for any excess balance deposited with City at the time of Agreement termination or expiration City Audit of Advertisers To provide a satisfactory basis for confirming the accuracy of Concessionaire's reports, Concessionaire must establish and maintain books and records concerning the operation and services authorized by this agreement in accordance with generally accepted accounting principles. Concessionaire's books and records must, in the determination of the City of Boise, enable the Concessionaire to easily report and the City to accurately check payments due under this agreement. 13

19 Boise City will be able to inspect, copy, and audit Concessionaire's books, records, and supporting data on request during regular business hours. Boise City retains the right to transport Concessionaire's books, records, and supporting data to another location for inspection, copying, or audit or conduct said audit at Concessionaire's place of business. If Concessionaire's place of business is located outside Boise, Idaho, Concessionaire shall reimburse the City of Boise for costs incurred in conducting the audit. Included in, but not limited to, these related costs are transportation costs of the auditor and the City's per diem rate for each day of travel and on-site work required. The City will bill Concessionaire for these costs and reimbursement will be due at time of next monthly statement Public Records All books, figures, records, reports, statements, or similar items submitted to the City of Boise by Concessionaire are public information and are available for public review Retention of Records Concessionaire agrees that it shall keep available for a period of five (5) years following each year of the Term hereof the books and records of accounts of Concessionaire for each such year, showing the Gross Revenues of Concessionaire from business conducted at the Airport, the deductions and other pertinent information required by the provisions of this Concession Agreement. Such books and records of account shall be accessible during the usual business hours, to the City or its duly authorized agents or auditors, for the purpose of verifying information set forth in any annual statements or for the purpose of verifying the compliance by Concessionaire with the terms of this Concession Agreement, but for no other purposes. Upon written request, such books shall be made available at the Boise Airport, 3201 Airport Way, Boise ID Other Reports In addition to the certified statements heretofore provided to be furnished to the City, Concessionaire shall make available to the City or its authorized representative all records, books, (both primary and secondary) and other pertinent information as may be required concerning the concession. No such books or records shall be destroyed without prior written consent of the Airport Director. If any such books or records are not kept in the City of Boise, Concessionaire agrees and covenants to furnish the City such books and records upon thirty (30) days written notice. Same shall be delivered to the Airport Director, Boise Airport at 3201 Airport Way, Boise ID This paragraph may not be construed to require Concessionaire to submit data that is either confidential business information or trade secrets. ARTICLE VIII COMPLIANCE Laws, Rules, and Regulations Concessionaire, its officers, agents, employees, contractors, licensees, and any other person whom Concessionaire controls or has the right to control, shall comply with all present and future laws, ordinances, orders, directives, rules and regulations of the United States of America, the State of Idaho, the City of Boise and their respective agencies, departments, authorities or commissions, or in the case of the Airport, its Director or Deputy Director-Finance & Administration, which may either directly or indirectly affect Concessionaire or its operations on or in connection with its Designated Area or the Airport. 14

20 8.2 - Airport Rules and Regulations Concessionaire shall observe all Rules and Regulations governing the conduct and operation of the Boise Airport whether established and promulgated by the City, by the Boise Airport Commission, by a political subdivision of the State of Idaho having jurisdiction, by the State of Idaho, or by the United States and its agencies thereof. All Rules and Regulations now in existence, or as herein amended, or hereinafter promulgated and adopted, are incorporated herein and made a part hereof by reference Prompt Payment of Taxes and Fees Concessionaire covenants and agrees to pay promptly all lawful general taxes, special assessments, excises, license fees, and permit fees of whatever nature applicable to its operation at the Airport and to take out and keep current all licenses, municipal, state or federal, required for the conduct of its business at or upon the airport, and further covenants and agrees not to permit any of said taxes, assessments, excise fees, or charges to become delinquent. Concessionaire may, however, employ all legal means available to appeal unjust assessments Minimum Wages Concessionaire shall pay wages that are not less than the minimum wages required by any applicant federal and state statutes and local government ordinances to persons employed in its operations hereunder Governing Law This agreement is governed by the laws of the State of Idaho. Any disputes relating to this Agreement must be resolved in accordance with the laws of the State of Idaho Non-discrimination Covenant To the extent required by law, Concessionaire, for itself, its personal representative, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with its rights and privileges granted under this Agreement, as follows: a. No person, whether the recipient of services, and employee or an applicant for employment, on the grounds of race, religion, sex, color, age, physical handicap, marital status, sexual preference, physical appearance or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of Concessionaires facilities and services; and b. Concessionaire agrees that in the furnishing of its services to the general public at the Airport, no person on the grounds of race, religion, sex, color, age, physical handicap, marital status, sexual preference, physical appearance or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in such services; and c. Concessionaire shall use the Airport premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, 15

21 Nondiscrimination in federally-assisted programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended Alterations and Improvements No improvements, alterations, or installations shall be made or accomplished in or to the Concession Area without the prior written consent of the Airport Director. All improvements made to the Concession Area and additions and alterations thereto made to the Concession Area by Concessionaire shall be and remain the property of the Airport, upon termination of this Agreement (whether by expiration of the term, cancellation, forfeiture, or otherwise, whichever first occurs); at which time said improvements shall become the property of the Airport, provided, however, that any trade fixtures, signs and other personal property of Concessionaire not permanently affixed to the Concession Area shall remain the property of Concessionaire and shall so remain, unless Concessionaire shall fail, within ten (10) days following the termination of this Agreement, to remove its trade fixtures, signs, and other personal property in which event, at the option of the Airport, title to same shall vest in the Airport, at no cost to the Airport, or the Airport may elect to exercise its rights set forth in Article XII of this Agreement. ARTICLE XI ASSIGNMENT Assignment Concessionaire shall not assign this Agreement or any interest herein, or allow same to be assigned by operation of law or otherwise, or grant any rights to the Designated Area or any part thereof, or make any delegation of duties hereunder without the prior written consent of the City. The City reserves the right to deny any assignment or subcontracting by Concessionaire for any reason it deems in the best interest of the City. Any purported assignment or subcontract in violation hereof shall be void Merger or Consolidation Concessionaire must obtain the written consent of the City to keep this Agreement in effect prior to any consolidation, transfer or merger of ownership between Concessionaire and any other corporation or company City Consent In the event the City consents to any assignment on the part of Concessionaire for any rights or privileges granted in this Agreement, Concessionaire shall be responsible for any and all payments due the City as a result of operations from the assignment. ARTICLE X - INSURANCE AND INDEMNIFICATION General Information Concessionaire shall indemnify, save and hold harmless, and defend the City and its officers, Directors, Commissioners, employees, and agents against all claims of any nature whatsoever, including damage to the property of the City or injury to employees or agents of the City arising out of any operation of Concessionaire hereunder. 16

22 10.2 Standard Commercial General and Automobile Liability Insurance, Workers Compensation, Additional Insured Concessionaire shall maintain an occurrence form commercial general and automobile liability insurance policy or policies for the protection of Concessionaire and the City, its officers, Directors, Commissioners, agents, and employees, insuring Concessionaire and the City against liability for damages because of personal injury, bodily injury, death, or damage to property, including loss of use thereof, and occurring on or in any way related to the Concession Premises or occasioned by reason of the operations of Concessionaire on or from the Concession Premises with insurance limits of not less than $1,000,000 combined single limit or whatever limits Concessionaire purchases, whichever is greater. The limits of insurance shall not be deemed a limitation of Concessionaire's covenants to indemnify and save and hold harmless the City from any and all such losses, claims, actions, or judgments for damages to persons or property All insurance shall contain the stipulation that this insurance, as to the interest of the City only therein, shall not be invalidated by any act or neglect or breach of contract by Concessionaire Concessionaire certifies that Concessionaire and subject employees are covered by Workers' Compensation insurance in compliance with the appropriate Federal or State jurisdiction and laws. Concessionaire shall provide to the City within ten (10) days after contract award, a certificate of insurance evidencing coverage of all subject workers. The certificate and policy shall indicate that the policy shall not be terminated by the insurance carrier without thirty (30) days advance written notice to the City Concessionaire shall furnish to the City a certificate(s) of insurance evidencing the date, amount, and type of insurance that has been procured pursuant to this Agreement. All policies of insurance shall remain in full force during the term thereof and shall provide for not less than thirty (30) days written notice to the City and Concessionaire before such policies may be revised, not renewed, or canceled. Upon request, Concessionaire shall provide the City with a copy or copies of any insurance policy provided pursuant to this Lease. Insurance required under this contract shall be written with insurance carriers or underwriters acceptable to the City The City shall have the right to review the types of coverage and limits of insurance required herein from time-to-time. In the event the City determines that such types of coverage and/or limits should be increased or lowered, the City will provide notice to Concessionaire of such determination and Concessionaire shall, if the limits are increased, modify its coverage to comply with the new limits and provide the City with an updated certificate. 17

23 Advertising Liability Insurance Concessionaire must obtain and maintain, for the duration of the Agreement, Advertising Liability insurance coverage for the protection of the City, its Directors, Commissioners, agents and employees for an amount not less than $1,000,000 per occurrence Additional Insurance Requirements Concessionaire further agrees that with respect to the above-required insurance, the City, its Commissioners, Directors, officers, agents and employees shall: For all required coverage, except Workers Compensation, be named as additional insured, or an insured, as its interest may appear Be provided with thirty (30) days advance notice in writing of cancellation, termination, or expiration or material change Be provided with Certificates of Insurance evidencing the above-required insurance, prior to the commencement of this Agreement The City reserves the right to modify its insurance requirements to reflect operational and market conditions. ARTICLE XI - DEFAULT BY CONCESSIONAIRE Events of Default Each of the following shall constitute an event of default by Concessionaire: Concessionaire shall fail to pay any privilege fee or charge to the City as provided for in this Agreement and such failure shall continue for a period of ten (10) days after the date to Concessionaire of written notice from the City of such failure Concessionaire shall neglect or fail to perform or observe any of the terms, provisions, conditions, or covenants herein contained (except the payment provisions referenced in Article above, and on Concessionaire's neglect or failure to obtain or keep in full force and effect the insurance required by Article XI and the City chooses to cancel immediately), and if such neglect or failure should continue for a period of thirty (30) days after written notice from the City to Concessionaire of such neglect or failure, or if more than thirty (30) days shall be required because of the nature of the default, if Concessionaire shall fail within said thirty (30) day period to commence and thereafter diligently proceed to cure such default To the extent permitted by the United States Bankruptcy Code, insolvency of concessionaire; an assignment by Concessionaire for the benefit of creditors; the filing by Concessionaire of a voluntary petition in bankruptcy; and adjudication that Concessionaire is bankrupt or the appointment of a receiver of the properties of Concessionaire and the receiver is not discharged within thirty (30) days; the filing of an involuntary petition of bankruptcy and failure of Concessionaire to 18

24 secure a dismissal of the petition within thirty (30) days after filing; attachment of or the levying of execution on any interest in this Agreement and failure of Concessionaire to secure discharge of the attachment or release of the levy of execution within ten (10) days Concessionaire shall become a corporation in dissolution or voluntarily or involuntarily forfeit its corporate charter If Concessionaire shall fail to abide by all applicable laws, ordinances, rules, and regulations of the United States, State of Idaho, City of Boise and if such failure should continue for a period of thirty (30) days after receipt by Concessionaire of written notice of such failure If Concessionaire shall abandon all or any part of its Concession Area or if Concessionaire or its subcontractors, if any, shall discontinue the conduct of its operations in all or any part of its Concession Area Subject to the provisions of Article XI, if Concessionaire shall fail to repair or replace any of its equipment, trade fixtures, or other improvements installed by Concessionaire that have been destroyed by fire, etc., within sixty (60) days from the date of such damage or destruction Remedies on Concessionaire Default The City shall have the right to terminate this Agreement: (1) for any reason stated in this Agreement; (2) if the objectives and standards of the City, as set forth in this Agreement and the "Request for Proposals", are not being met. Such objectives and standards shall include, but are not limited to, operational standards, services rendered, product quality or management practices, rate requirements or, other reasons related to Airport objectives included in the selection criteria as deemed relevant by the City in its choice to exercise said revocation option. This right of early termination of the Agreement may be exercised by the City by giving Concessionaire not less than 120 days written notice of the effective termination date; or (3) in the event of a default under the provision of Section 10.1, inclusive. In the event the City elects to terminate this Agreement, the City may exercise any other remedy or remedies available under law or equity for such default. Any notice to terminate may be given before or within the grace period for default and may be included in a notice of failure of compliance. Suit(s) or action(s) for the recovery of the concession fees and other amounts and damages, or for the removal of Concessionaire from the Concession Area, may be brought by the City, from time-to-time, at the City's election, and nothing in this Agreement shall be deemed to require the City to await the date on which the Agreement expires. Each right and remedy in this Agreement shall be cumulative and shall be in addition to every other right or remedy in this Agreement or existing at law or in equity or by statute or otherwise, including, without limitation, suits for injunctive relief and specific performance. The exercise or beginning of the exercise by the City of any such rights or remedies shall not preclude the simultaneous or later exercise by the City of any other such rights or remedies. All such rights and remedies are nonexclusive. 19

25 ARTICLE XII TERMINATION Termination If the City terminates this Agreement as provided herein by reason of an event of default, Concessionaire and those holding under Concessionaire shall, no later than fourteen (14) days following such termination, remove its goods and effects from the Designated Area. If Concessionaire or any such claimant shall fail to effect such removal, the City may, at its option, exercise the rights set forth herein or may, without liability to Concessionaire or those claiming under Concessionaire, remove such goods and effects and may store the same for the account of Concessionaire, or of the owner thereof, at any place selected by the City, or at the City's election, and upon giving fifteen (15) days' notice to Concessionaire of date, time and location of sale, the City may sell the same at public auction or private sale. The City may conduct such sale on such terms and conditions as to price, payment, and otherwise as the City in its sole discretion may deem advisable. If, in the City's judgment, the cost of removing and storing or the cost of removing and selling any such goods and effects exceeds the value thereof or the probable sale price thereof, as the case may be, the City shall have the right to dispose of such goods in any manner the City may deem advisable Termination by Concessionaire In addition to all other remedies available to Concessionaire, this Agreement shall be subject to cancellation by Concessionaire should any one or more of the following events occur: The permanent abandonment of the Airport during the term of this Operating Agreement; or The issuance by any court of competent jurisdiction of any injunction preventing or restraining the use of the Airport in such a manner as to substantially restrict Concessionaire from conducting its advertising concession as specified in this Agreement and, not caused by any act or omission of Concessionaire, which injunction remains in force for a period of at least sixty (60) days; or The breach by the City of any of the material terms, covenants, or conditions of this Agreement to be kept, performed, and observed by the City, and the failure of the City to remedy such breach, subject to the City's right to litigate the issue or cure the breach, which cure or litigation shall stay this time period, for a period of sixty (60) days after written notice from Concessionaire of the existence of such breach or if more than sixty (60) days shall be required because of the nature of such breach, if the City shall fail within said sixty (60) day period to commence and thereafter diligently proceed to cure such default; or The assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport and its facilities in such a manner as to substantially restrict Concessionaire from installing and maintaining its advertising display units if such restriction be continued for a period of three (3) months or more. 20

26 Concessionaire Remedy on Termination Events In the event of any occurrence of the above events, Concessionaire shall be eligible for an abatement in its Fees as identified in Article VI from the time of default until the cessation of such events, or the cancellation of this Agreement by Concessionaire upon not less than ninety (90) days written notice to the City Removal of Property Concessionaire shall be responsible for all costs of removal, storage, and sale of property in association with this agreement, and the City shall have the right to reimburse itself from the proceeds of any sale for all such costs paid or incurred by the City. If any surplus sale proceeds shall remain after such reimbursement, the City may deduct from such surplus any other sum due to the City hereunder and shall pay over to Concessionaire any remaining balance of such surplus sale proceeds Holding Over If Concessionaire shall hold over after the expiration or termination of the Term or any extension thereof, and shall not have agreed in writing with the City upon the terms and provisions of a new Operating Agreement prior to such expiration, at the City's discretion, Concessionaire shall be deemed to be operating on a month-to-month basis or as a trespasser in the sole discretion of the City. In the event the City deems Concessionaire as a month-to-month holdover, Concessionaire shall remain bound by all terms, covenants, and agreements hereof, except that: (1) the operating rights and obligations shall be from month to month subject to the payment of all amounts in advance, the Privilege Fee being proportional to the previous Annual Privilege Fee; (2) the City shall have the right to adjust the payments, charges or use fees upon thirty (30) days written notice to Concessionaire; and (3) such month-to-month Operating Agreement may be terminated at any time by written notice from the City to Concessionaire. In the event the City deems Concessionaire as a trespasser, the City shall be entitled to exercise any rights pursuant thereto Airport Security ARTICLE XIII - GENERAL PROVISIONS Concessionaire agrees to observe all security requirements of 49 CFR part 1540 and part 1542, and the Airport Security Program, and to take such steps as may be necessary or directed by the City to ensure that subcontractors, employees, invitees, and guests observe these requirements If the City incurs any fines and/or penalties imposed by the Transportation Security Administration or any expense in enforcing the regulations of 49 CFR part 1540 and part 1542 and/or the Airport Security Program, as a result of the acts or omissions of Concessionaire, Concessionaire agrees to pay and/or reimburse all such costs and expense. Concessionaire further agrees to rectify at its own expense any security deficiency as may be determined as such by the City or the Transportation Security Administration. The City reserves the right to take whatever action necessary at Concessionaire's own cost to rectify any security deficiency, in the event Concessionaire fails to remedy the security deficiency. 21

27 Attorney's Fees In case the City or Concessionaire brings any action under this Agreement against the other party, and prevails in said action, then the prevailing party shall be entitled to recover from the other party its reasonable fees incurred as a result of said action. Such fees shall include, but not be limited to, expert witness fees, investigative fees, court reporter fees, court costs and attorney fees Amendment This Agreement constitutes the entire agreement between the parties. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same be in writing, dated subsequent to the date hereof and duly executed by the parties hereto Relationship of Parties Except as expressly stated herein, nothing contained herein shall be deemed or construed by the parties hereto, or by any third party, as creating the relationship of principal and agent, partners, joint venturers, or any other similar such relationship, between the parties hereto. The parties shall understand and agree that neither the method of payment, nor any other provision contained herein, nor any act of the parties hereto creates a relationship other than the relationship of the City and Concessionaire Approvals By Whenever this Agreement calls for approval by the City, such approval shall be evidenced by the written approval of the Director Disputes Any and all disputes arising under this Agreement, which cannot be administratively resolved, shall be determined according to the laws of the State of Idaho, and Concessionaire agrees that the venue for any such dispute either administrative or judicial shall be in the State of Idaho. Concessionaire agrees as a condition of this Agreement that notwithstanding the existence of any dispute between the parties, insofar as is possible under the terms of this Agreement, each party shall continue to perform the obligations required of it during the continuation of any such dispute, unless enjoined or prohibited by an Idaho Court of competent jurisdiction Subordination to the Agreement with the United States This Agreement is subject and subordinate to the provisions of any agreement heretofore or hereafter made between the City and the United States Government relative to the operation or maintenance of the Airport, the execution of which has been required as a condition precedent to the transfer of federal rights or property to the City for Airport purposed, or the expenditure of federal funds for the improvement or the development of the Airport, including the expenditure of federal funds for the development of the Airport in accordance with the provisions of the Federal Aviation Act of 2058, as it has been amended from time-to-time. The City covenants that it has no existing agreements with the United States government in conflict with the express provisions hereof. 22

28 Nonwaiver of Rights No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept, and observed by the other party shall be construed as, or shall operate as, a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept and observed by the other party Notices Notice to the City, provided for herein, shall be sufficient if sent by certified mail, return receipt requested, postage prepaid to: to: Boise Airport Properties & Business Development 3201 Airport Way, Suite, 1000 Boise, ID Notice to Concessionaire, if sent by certified mail, return receipt requested, postage prepaid The Younger Agency Liz Younger 5418 Longley Lane, Suite B Reno, NV Captions The headings of the articles of this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope or intent of any provisions of this Agreement and shall not be construed to effect in any manner the terms and provisions hereof or the interpretation or construction thereof Severability If one or more clauses, sections, or provisions of this Agreement shall be held to be unlawful, invalid, or unenforceable, all other clauses, sections, and provisions shall remain in effect and the parties hereto agree that the material rights of either party shall not be affected thereby Agent for Service of Process The parties hereto expressly understand and agree that if Concessionaire is not a resident of the State of Idaho, or is an association or partnership without a member or partner resident of said State, or is a foreign corporation, then in any such event Concessionaire does designate its State of Idaho registered agent as its agent for the purpose of service of process in any court action between it and the City arising out of or based upon this Agreement, and the service shall be made as provided by the laws of the State of Idaho by serving also Concessionaire's registered agent. The parties hereto expressly agree, covenant, and stipulate that Concessionaire shall also personally be served with such process out of this State by the registered mailing of such complaint and process to Concessionaire at the address set forth herein. Any such service out of this State shall constitute valid service upon Concessionaire as of the date of receipt thereof. The parties hereto further expressly agree that Concessionaire is amenable to and hereby agrees to the process so served, submits to the jurisdiction, waives any and all obligations and protests thereto, any laws to the contrary notwithstanding. 23

29 Waiver of Claims Concessionaire hereby waives any claim against the City and its officers, directors, Commissioners, agents, or employees for loss of anticipated profits caused by any suit or proceedings directly or indirectly attacking the validity of the Agreement or any part thereof, or by any judgment or award in any suit proceeding declaring this Agreement null, void or voidable, or delaying the same or any part thereof, from being carried out Right to Develop Airport The parties hereto further covenant and agree that the City reserves the right to further develop or improve the Airport and all landing areas and taxiways as it may see fit, regardless of the desires or view of Concessionaire and without interference or hindrance Liability of Agents and Employees No member, officer, agent, director, Commissioner, or employee of the City or employee or agent of Concessionaire shall be charged personally or held contractually liable by or to the other party under term of provisions of this Agreement or because of any breach thereof or because of its or their execution or attempted execution Successors and Assigns Bound This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto where permitted by this Agreement Right to Amend In the event that the Federal Aviation Administration or its successors requires modifications or changes in this Agreement as a condition precedent to the granting of funds for the improvement of the Airport, or otherwise, Concessionaire agrees to consent to such amendments, modifications, revisions, supplements, or deletions of any of the terms, conditions, or requirements of this Agreement as may be reasonably required. Any expenses resulting from such amendments, modifications, revisions, supplements or deletions, shall be borne solely by Concessionaire Gender Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires Incorporation by Reference All exhibits or documents specifically referenced in this Agreement are intended to be and hereby are specifically made a part of this Agreement In addition to other documents specifically referenced in this Agreement, the following are hereby referenced and incorporated: (1) the City's RFP, and any addendum issued pursuant thereto; (2) Concessionaire's Proposal to the extent accepted by the City; and (3) performance security. 24

30

31

32 ATTACHMENT A CONCESSION PREMISES 26

33 Attachment A List Boise Airport Concession Premises (as of 9/01/10) Pre Security Baggage Claim 84" x 36" Backlit (4 Baggage Carousels) 8 62" x 43" Backlit 24 4" x 9" Brochure Rack ' x 10' Wall Display 1 10' x 20' Floor Display 2 2-Sided Welcome Banner 1 Digital Display 4 Rotunda, 1st Floor - Reservation Center 20" x 34" Backlit 4 22" x 28" Backlit 8 20" x 16" Backlit 10 24" x 36" Backlit 5 28" x 22" Backlit 2 Brochure Rack 16 Phone Lines 3 phones 100 ext Digital Display 4 Escalator/Baggage Claim 72" x 34" Backlit 5 Meeter/Greeter Lobby 62" x 43" Backlit 6 Inset Display Case 3 120" x 43" Display Case 1 Digital Display 1 Post Security Concourse B 36" x 48" Backlit 9 124" x 40" Display Case 1 60" x 40" Display Case 1 96" x 48" Backlit 5 62" x 43" Backlit /2" x 11" Brochure 2 10' x 10' Fabric Display 2 2-Sided Welcome Banner 1 Food Court 10' x 10' Display Space 1 Floor Display Space by Escalators 1 62" x 43" Backlit (walkway to Con. B) 6 Digital Display 2 C Concourse Digital Display 1 C Concourse Escalator 84" x 48" Backlit Sponsorships WiFi Sponsorship Airport wide 1 Business Centers 2nd Floor pre-security 1 Concourse C 1

34