HomeMy WebLinkAboutC2017-039 - 2/21/2017 - Approved CORPUS CHRISTI INTERNATIONAL AIRPORT
IN-TERMINAL ADVERTISING CONCESSION AGREEMENT
This concession agreement ("Agreement") is entered into by and between the
City of Corpus Christi, a Texas home-rule municipal corporation ("City"), acting by and
through its City Manager or designee ("City Manager") and In-Ter-Space Services,Inc.,a
Pennsylvania corporation, doing business as Clear Channel Airports ("Concessionaire")
as of the date of the last signature("Effective Date").
WHEREAS, the City owns and operates the Corpus Christi International Airport,
located in Corpus Christi, Nueces County, Texas ("Airport"), acting by and through its
Director of Aviation or the Director of Aviation's designee ("Director");
WHEREAS, the Airport wishes to provide for the proper and efficient use of
advertising spaces inside the Airport terminal building; and,
WHEREAS, the City and Concessionaire desire to enter into a five-year
Agreement to provide in-terminal advertising services at the Airport;
NOW, THEREFORE, City and Concessionaire, in consideration of the mutual
covenants and conditions stated in this Agreement, agree as follows:
Section 1. Term; Option Term. The term of this Agreement ("Term") is for a period of
five years and commences upon the 120th day following the Effective Date, as
evidenced by the issuance of a notice to proceed by the Director, on behalf of the City,
containing the start and end dates of the Term. The Agreement may be extended for an
optional five-year period ("Option Term") upon mutual written consent of the parties. In
order to exercise the Option Term under the same terms and conditions as contained in
the Agreement, both parties must agree in writing to the exercise of the Option Term not
less than 180 days prior to the expiration of the initial Term. Exercise of the Option Term
by the parties may be effectuated by a letter agreement signed by both parties. In the
event the parties do not mutually execute a letter agreement to exercise the Option
Term, this Agreement terminates at the end of the initial Term.
Section 2. Advertising Zones.
A. Concessionaire shall have the non-exclusive right to use the advertising zones,
designated on Exhibit A, which exhibit is attached and incorporated into this
Agreement, for advertising in accordance with this Agreement. Notwithstanding the
foregoing, Concessionaire shall have the right of first refusal to any new forms,
concepts or methods of advertising in the advertising zones designated on Exhibit A,
provided, the Concessionaire is not then-presently in breach of this Agreement.
Exercise of this right of first refusal, however, is at all times conditioned upon the City's
prior reservation of the right to establish displays that promote the Coastal Bend region
when such display requests are from community related organizations, such as from
local educational institutions and nonprofit entities. City shall have the right to modify
Exhibit A, in consultation with Concessionaire, during the Term and any Option
Term of this Agreement. The advertising zones must be used by Concessionaire solely
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2017-039
2/21/17
M2017-029
In-Ter-Space Services Inc. INDEXED
for the purposes of general advertising, pursuant to Concessionaire's displays and
marketing plan as strictly agreed to by the City and incorporated in Exhibit A, and for no
other purpose unless preapproved in writing by the Director.
B. Concessionaire shall have the right to enter into agreements to allow third parties
to advertise at the Airport through use of the advertising zones. Concessionaire's
method of operation and the prices and rates charged to third parties shall be subject to
prior written approval of the Director.
C. City reserves the right to (i) install, or award a third-party contract to install,
television/video monitors and stand-alone kiosks for the purpose of promoting the City
and providing Airport and local community information to the traveling public; (ii) install,
or award a third-party contract to install, Internet-access kiosks which may have
associated advertising; and (iii) permit advertising placed directly on baggage carts
designed for individual use by passengers. In-terminal tenants shall retain their rights to
advertise their individual on Airport businesses in and on sites and spaces leased by
such Airport tenants.
Section 3. Fees, Payments, and Records.
A. Fees. In consideration of the foregoing, during the first 12 months of the Term, the
Concessionaire shall pay to the City the greater of: (i) the minimum annual guarantee
("Minimum Annual Guarantee") of$60.000 or (ii) 45% of the gross receipts derived from
its operations at the Airport ("Gross Receipts"). During the second through the fifth
contract years of the Term and any Option Term if exercised, the Concessionaire shall
pay to the City the greater of: (I) the Minimum Annual Guarantee of 85% of the previous
year's revenue paid to the Airport by Concessionaire but never less than $60.000 or (ii)
45% of the Gross Receipts. Fees are payable beginning on the start date of this
Agreement.
1. Gross Receipts. The term "Gross Receipts" as used in this Agreement means
all revenues derived by Concessionaire, including any agent of Concessionaire,
from its operations relating to advertising at the Airport from any source
whatsoever. It is expressly provided, however, that Gross Receipts does not
include:
a. The amount of any separately-stated federal, state, and local sales or use
taxes imposed upon Concessionaire's customers and collected by
Concessionaire (the sale less any applicable taxes will be reported to the City);
b. The amount actually paid by the Concessionaire as commissions or fees to
advertising agencies or selling agents not employed by Concessionaire (not to
exceed 15% on any particular transaction);
c. Up to 3% of Gross Receipts which are deemed uncollectible by the
Concessionaire after prudent collection efforts; provided, that the
Concessionaire shall document such uncollectible amounts in its annual
payment reports to the City. If the uncollected amounts are eventually
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recovered by the Concessionaire, the Concessionaire agrees to remit any
payments due of the recovered amounts in accordance with the terms of this
Agreement; and
d. Any direct costs by advertisers in connection with unaffiliated third party
design, fabrication or installation of any advertiser's specialty or custom
display/graphics. Concessionaire shall not mark-up any such pass-thru costs
paid by advertisers.
B. Payment of Fees. Concessionaire shall pay to the City, in advance and without
demand, on or before the 1st day of each calendar month for which fees are payable
during the Term of this Agreement, and any Option Term if exercised, an amount equal
to 1/12th of the Minimum Annual Guarantee, as further defined below and as is
applicable, plus any sales or other taxes due and payable in connection therewith
without deduction or set-off. Concessionaire shall further pay to the City, without
demand, on or before the 20th day of the month next following each calendar month for
which fees are payable during the Term of this Agreement, and any Option Term if
exercised, a sum of money equal to the amount, if any, by which 45% of the
Concessionaire's Gross Receipts for the previous calendar month exceeds 1/12th of the
Minimum Annual Guarantee applicable for such month, along with submission of a
detailed reconciliation report.
C. Monthly Reports. Concessionaire shall submit all reports, along with the required
fees, to the address shown in this Agreement until changed by written notification by the
City, or at such other place as the City may designate in writing from time to time.
Concessionaire shall provide the City with a statement, signed by an officer of
Concessionaire, in a form and with such detail as the City may reasonably request,
setting forth Concessionaire's Gross Receipts during such preceding calendar month
(for which payment is being remitted) and separately identifying all receipts derived by
Concessionaire during such calendar month which have been excluded from
Concessionaire's computation of Gross Receipts. All computations by Concessionaire in
the determination of Gross Receipts shall be made in accordance with generally
accepted accounting principles, and in the event of a disagreement, the City's
determination shall prevail.
D. Annual Certification and Adjustment. Within 60 days after the close of each 12-
month period for which fees are due and payable under this Agreement,
Concessionaire, at its own cost and expense, shall provide to City a written statement of
an independent certified public accountant certifying (i) the actual amount of Gross
Receipts for such 12-month period, (ii) the amount of fees already paid by
Concessionaire to the City for such period, and (iii) the amount, if any, by which the fees
payable for such period have been overpaid or underpaid by Concessionaire. If such
statement indicates that the fees for such period have been overpaid, and such
statement has been verified and finally accepted in writing by the City, then the amount
of such overpayment will be credited to the fees next due and owing from
Concessionaire, unless the Term (or Option Term, if applicable) of this Agreement has
expired, in which event such amount will be promptly refunded by the City to
Concessionaire. If such statement indicates that the fees for such period have been
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underpaid, then Concessionaire shall pay to the City, within 10 calendar days of
submission of the statement, the amount remaining due for such period, together with
interest at the rate of 18% per annum, or the maximum interest rate allowed by law,
from the date such amount should have been originally paid and remitted.
E. Books and Records; City's Riiht to Examine and Audit. Concessionaire shall at all
times during the Term and the Option Term, if exercised, and for a period of at least five
years following the termination or expiration of this Agreement, maintain complete and
accurate books and records of all receipts from its operations relating to the Airport in a
form consistent with generally accepted accounting principles and in a manner sufficient
to substantiate its calculation of payments due under the Agreement. Such books and
records must contain an itemized record of all Gross Receipts by such categories of
activities as shall be acceptable to City and of all other receipts derived by
Concessionaire from its operations relating to the Airport. All such books and records of
Concessionaire must be made available for inspection, examination, and copying by the
City, its representatives, and designated agents at a location specified by the City within
five days after written request, and this duty of Concessionaire shall continue for a
period of not less than five years after the termination or expiration of this Agreement.
City shall also have the right, at any time during this Agreement and for a period of five
years after the termination or expiration of this Agreement, upon reasonable written
notice to Concessionaire and at the City's expense, to cause an audit to be made of the
books and records of Concessionaire which relate to its operations relating to the
Airport to determine the correctness of the fees paid by Concessionaire to City for any
or all of the years covered by this Agreement. If, as a result of such audit, it is
established that additional fees are due from Concessionaire to City for the period of
time reviewed, Concessionaire shall pay to the City, within 10 days after the date of a
written demand from City, such additional fees, together with interest at the rate of 18%
per annum, or the maximum interest rate allowed by law, from the date such additional
fees should have been originally paid and remitted. Further, if such audit finds that
Concessionaire understated and underpaid the fees for any 12-month period by 3% or
more, then the entire expense of such audit shall be borne by Concessionaire. The
Concessionaire acknowledges and agrees that the City's rights under this paragraph
and Concessionaire's remittance obligations under this paragraph survive the
termination or expiration of this Agreement.
F. Additional Sums Due City. If the City has paid any sum or sums or has incurred
any obligation or expense for which Concessionaire agreed to pay or reimburse the
City, or if City is required or elects to pay any sum or sums or incurs any obligations or
expenses because of the failure, neglect, or refusal of Concessionaire to perform or
fulfill any of the terms or conditions of this Agreement, then the same shall be deemed
additional fees due under this Agreement by Concessionaire, and Concessionaire shall,
immediately upon demand by the City, reimburse the City all such sums and expenses.
G. Adjustments to the Minimum Annual Guarantee
1. If the number of recorded enplaned passengers at the Airport declines by 20%
or more in a 12-month period as shown in the Airport's general activity report,
Concessionaire's Minimum Annual Guarantee for that 12-month period will be
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reduced in percentage proportionate to the percentage of passenger decline;
provided, Concessionaire evidences the proportional decrease in advertising
revenue at the Airport for the same period. At the point the number of enplaned
passengers increases and the threshold is re-established over a rolling 12-month
period, the Minimum Annual Guarantee will be adjusted to the amount in effect at
the time of the reduction.
2. The monthly 1/12th payment of the Minimum Annual Guarantee due shall be
subject to a proportional reduction where a display case or other display
advertisement in an advertising zone designated on Exhibit A was visually
obstructed or subject to electric supply failure for more than three days without
fault of Concessionaire.
Section 4. Concessionaire's Obligations.
A. Concessionaire shall, at its sole expense, provide and install all displays and
related fixtures and equipment required to provide advertising and perform under this
Agreement. Such signs, fixtures, and equipment which Concessionaire may install must
be of high quality, safe, modern in design, attractive in appearance, and must be in
keeping with the general decor of the Airport and terminal.
B. Concessionaire shall at all times during this Agreement maintain and operate the
displays in a first-class manner and shall keep them in a safe, clean, orderly and
attractive condition satisfactory to City. Concessionaire shall maintain a sufficient
number of trained personnel to ensure the proper solicitation, promotion and
development of the market for advertising. All such personnel, while on or about the
Airport, shall be polite, clean, appropriately attired and neat in appearance.
C. Concessionaire shall charge reasonable prices for the advertising offered and will
not unfairly discriminate as between advertisers. Concessionaire will make a major
effort to obtain advertising business from local and state businesses, industries, hotels
and resorts. Concessionaire shall give first consideration to businesses, industries,
hotels and resorts located in Corpus Christi. In addition, Concessionaire shall include a
"City promotion"as part of its advertising program.
1. Concessionaire shall use commercially reasonable efforts to solicit and
procure advertising and keep all displays filled with revenue-producing advertising.
Concessionaire shall report, as required by the City, on its efforts and success in
attaining the advertising. If, at any time, City reasonably determines that
Concessionaire has failed to make such commercially reasonable efforts to solicit
and procure advertising, City, following reasonable notice to the Concessionaire to
cure and Concessionaire's failure to affect such cure, may terminate this
Agreement pursuant to Section 10. At times when an advertising display is not
under contract and not earning revenue, Concessionaire must fill such space with
an Airport or City promotion filler developed by the Concessionaire, approved in
advance by the Director, and made available at no charge.
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2. Concessionaire shall ensure that the subject matter of all advertising on the
displays is limited to those advertisements which propose a commercial
transaction or constitute a public service announcement. "Commercial transaction"
does not include purely political or religious messages lacking a proposed
business transaction. The content of the displays must not (i) advertise alcohol or
tobacco products; (ii) relate to an illegal activity; (iii) depict violence or contain
words or images that arouse anger, alarm or resentment to an ordinary person of
reasonable sensibilities; (iv) advertise services in direct competition with the City's
business objectives; (v) contain obscene matter or contain statements or words of
an obscene, indecent or immoral character, or contain any picture or illustration of
the human figure in such detail as to offend public morals or common decency; (vi)
be false, misleading or deceptive; or (vii) contain material that is offensive to an
ordinary person of reasonable sensibilities.
3. Each third-party contract, to include the style of advertising and the space to
be utilized by Concessionaire under such contract, is subject to the prior written
approval of the Director. No advertising contract entered into by the
Concessionaire or its agents may extend beyond the Term (or Option Term, if
exercised and applicable in context) without the express written consent of the
Director.
4. All third-party contracts for advertising will be between the Concessionaire and
the advertiser. The City must be shown as a beneficiary in each such contract. All
such agreements, displays, prices and rates charged are subject to the prior
written approval of the Director, and a copy of each such contract must be
provided to the Director. In the event of an early termination of this Agreement, the
City shall have the right to receive all proceeds due under such third-party
contracts for the period after such termination.
5. The City, acting through the Director, retains the right to reasonably require the
Concessionaire to physically adjust, relocate, or remove advertising displays,
fixtures, and equipment, in order to improve the appearance of advertising space
and facilities. If the Concessionaire is required to relocate or remove an advertising
display, the actual verifiable costs of relocation, removal and disassembling the
advertising display and re-assembling them on the new site shall be borne by the
City.
D. Concessionaire may not install nor operate vending machines for the sale of food,
candy, gum, soft drinks, tobacco products, newspapers, insurance contracts, nor any
other coin operated device including, but not limited to, telephones, television sets,
radios and amusement devices.
E. The Concessionaire shall obtain prior written approval from the Director before
installing any fixtures or equipment which requires electrical connections or any
changes in equipment installed at the Airport. If the electrical requirements for certain
displays are greater than the normal electrical output of the supply and distribution
system, the Concessionaire shall make all necessary changes and additions to the
electrical wiring at its sole cost and expense.
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F. Concessionaire shall retain ownership of all Concessionaire-installed displays and
fixtures. Provided that Concessionaire is not then in default under this Agreement, upon
termination or expiration of this Agreement, Concessionaire shall, at its own expense,
remove all of its personal property, including fixtures and equipment, from the Airport
within 15 days, provided, that such removal can be accomplished without material injury
to the Terminal. Concessionaire, at its sole expense, shall repair to the City's
satisfaction any damage caused to the Terminal as a result of such removal and return
each advertising space at the Airport to the same condition it was in at the time such
displays and fixtures were placed thereon by the Concessionaire, ordinary wear and
tear excepted. Any personal property of Concessionaire not so removed within the time
period set out in this paragraph becomes the sole property of City without further notice
to Concessionaire, and the City may dispose of such property by donation, salvage, or
destruction without compensation to Concessionaire.
G. Concessionaire shall at all times retain an active, qualified, competent and
experienced sales representative to supervise Concessionaire's advertising operations
and who is authorized to represent and act for Concessionaire. The City reserves the
right to interview the primary sales representative assigned to the management of the
operations at the Airport.
H. Concessionaire shall observe and obey all applicable federal, state, and local laws,
ordinances, rules, and regulations including, but not limited to, all rules and regulations
of the City applicable to Concessionaire's operations on and in connection with the
Airport as well as the Americans with Disabilities Act and any other federal acts
applicable to entities that operate at the Airport.
I. Concessionaire will include participation by disadvantaged business enterprises
("DBE"), as defined in 49 CFR Part 23, in its advertising program and provide evidence
of same upon request by the Director.
J. Concessionaire shall pay before delinquency any and all taxes levied or assessed
against it or by reason of its personal property located in the Airport advertising zones;
taxes levied or assessed because of Concessionaire's right to possession of the
advertising zones and fixtures, displays, and improvements therein; all applicable taxes
levied or assessed by any governmental entity or boy as a result of Concessionaire's
operations; and all taxes which may be levied or assessed as a result of the fees
payable by Concessionaire under this Agreement. All such taxes and assessments for
partial years shall be apportioned and adjusted on a time basis.
K. Concessionaire may use subcontractors in connection with the services performed
under this Agreement. When using subcontractors, however, the Concessionaire must
obtain prior written approval from the Director. In using subcontractors, the
Concessionaire is responsible for all of their acts and omissions to the same extent as if
the subcontractor and its employees were employees of the Concessionaire. All
requirements set forth as part of this Agreement are applicable to all subcontractors and
their employees to the same extent as if the Contractor and its employees had
performed the services.
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Section 5. Improvements to the Premises. The size, location, text, appearance,
plans, and specifications of Concessionaire's advertising displays are subject to the
advance approval of the Director. Following approval, such improvements must be
made or such fixtures and equipment installed in strict accordance with the approved
plans and specifications and in accordance with all applicable state and local building
and health codes and rules and regulations. Concessionaire shall obtain all necessary
licenses and permits to accomplish such work, and Concessionaire warrants to City that
all such improvements shall be free and clear of any claims, liens, and encumbrances.
Section 6. Performance Bond. Concessionaire shall provide to the City, upon
execution of this Agreement and prior to commencing operations under this Agreement,
a performance bond in an amount equal to one year of the then current Minimum
Annual Guarantee (the "Performance Bond"). The Performance Bond must be
conditioned to ensure the full and faithful performance by Concessionaire of its
obligations under this Agreement, including the timely payment of fees, and must stand
as security for the payment by Concessionaire of any claim by City against
Concessionaire. The Performance Bond must be in such form and with such company
licensed to do business in the State of Texas as is acceptable to the City in its
reasonable discretion. The Performance Bond must be maintained and kept in full force
and effect during the Term and any Option Term. If, at any time during this Agreement,
the Performance Bond amount is less than the then current Minimum Annual Guarantee
amount, upon notice to Concessionaire, Concessionaire shall immediately increase the
Performance Bond amount to the then required current Minimum Annual Guarantee
amount.
Section 7. Repairs, Alterations, and Maintenance.
A. City's Right to Repair or Alter Facilities. Notwithstanding any other provisions in
this Agreement, City retains the right to make any repairs, alterations and additions to
the Airport terminal ("Terminal") deemed necessary or required by the City in its sole
discretion. Should a portion or portions of the advertising zones be eliminated, the
Minimum Annual Guarantee will be reduced proportionately.
B. Repairs and Maintenance. The cost of maintenance and repair of the
Concessionaire's equipment and furnishings shall be borne solely by the
Concessionaire. The City shall maintain and repair the exterior structure and the
mechanical system of the Terminal.
C. Richt to Enter. Inspect. and Make Repairs to Concessionaire's Displays. The City
and its authorized officers, employees, agents, contractors, subcontractors and other
representatives have the right, at such times as may be reasonable under the
circumstances and with as little interruption of Concessionaire's operations as it
reasonably practicable, to enter, inspect, and make repairs to the Concessionaire's
displays, fixtures, and equipment as may be required for safety or security.
D. Utility Expenses. City shall provide at its expense the electricity needed to operate
Concessionaire's displays, fixtures, and equipment.
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Section 8. Indemnity and Insurance.
A. Indemnification. CONCESSIONAIRE SHALL INDEMNIFY, HOLD
HARMLESS AND DEFEND THE CITY OF CORPUS CHRISTI AND ITS
OFFICERS, EMPLOYEES AND AGENTS ("INDEMNITEES") FROM AND
AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DEMANDS, SUITS
AND CAUSES OF ACTION OF ANY NATURE WHATSOEVER ON
ACCOUNT OF PERSONAL INJURIES (INCLUDING WORKERS'
COMPENSATION AND DEATH CLAIMS), PROPERTY LOSS OR
DAMAGE OR ANY OTHER KIND OF LOSS OR DAMAGE,
INCLUDING ALL REASONABLE EXPENSES OF LITIGATION, COURT
COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES, WHICH
ARISE OR ARE CLAIMED TO ARISE OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR THE PERFORMANCE OF THIS
AGREEMENT BY CONCESSIONAIRE, REGARDLESS OF WHETHER
THE INJURIES, DEATH, LOSS OR DAMAGES ARE CAUSED OR ARE
CLAIMED TO BE CAUSED BY THE CONCURRENT OR
CONTRIBUTORY NEGLIGENCE OF INDEMNITEES, BUT NOT IF BY
THE SOLE NEGLIGENCE OF INDEMNITEES, ITS AGENTS OR
CONTRACTORS UNMIXED WITH THE FAULT OF CONCESSIONAIRE
OR ANYONE UNDER ITS CONTROL. CONCESSIONAIRE MUST, AT
ITS OWN EXPENSE, INVESTIGATE ALL CLAIMS AND DEMANDS,
ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND
ALL ACTIONS BASED THEREON WITH COUNSEL REASONABLY
SATISFACTORY TO THE CITY ATTORNEY, AND PAY ALL CHARGES
OF ATTORNEYS AND ALL OTHER COSTS AND EXPENSES OF ANY
KIND ARISING FROM ANY SAID LIABILITY, DAMAGE, LOSS,
CLAIMS, DEMANDS, SUITS, OR ACTIONS. THE INDEMNIFICATION
OBLIGATIONS OF CONCESSIONAIRE UNDER THIS SECTION
SURVIVES THE EARLIER TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
B. Liability Insurance. Concessionaire must secure and maintain in force, at
Concessionaire's sole expense, insurance policies with the limits and requirements as
indicated on the attached and incorporated Exhibit B. The amount of all required
insurance policies is not deemed to be a limitation on Concessionaire's agreement to
indemnify and hold harmless the City and, in the event Concessionaire or City becomes
liable in an amount in excess of the amount or amounts of the policies, then
Concessionaire must hold City harmless from the whole liability. The City shall have no
liability for any premiums charged for such coverage, and the inclusion of the City as a
named additional insured is not intended to, and shall not, make the City a partner or
joint venturer with Concessionaire in its operations at the Airport. Proceeds of any
liability insurance required by Concessionaire must be applied toward extinguishing,
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satisfying, or remedying the liability, loss, or damage with respect to which such
proceeds may be paid.
Section 9. Damage or Destruction.
A. Damage. If the Terminal is damaged by fire or any other cause covered by a
standard fire or extended coverage insurance policy, City shall have the option to repair
the damage at the City's expense. If the City elects to repair and the damage is such
that the Terminal is not rendered untenantable, Concessionaire shall continue to pay
the fees and percentage amounts stated in this Agreement. In the event the public is
denied access to the Airport or damage to the Terminal is so extensive as to render the
Terminal untenantable for a period of 30 consecutive days, then the City shall suspend
the Minimum Annual Guarantee, and percentage rent will be in effect until public access
to the Airport is restored or the Terminal is again made tenantable. In the event of total
destruction of the Terminal by fire or otherwise, or destruction or damage is so
extensive that the City deems it necessary to rebuild said building, or in the event City
elects not to repair or rebuild, Concessionaire may then terminate this Agreement by
giving the City 30 days advance written notice of its election to do so and, within 20
days thereafter, shall account for and pay the City the fees accruing up to the time of
the damage or destruction.
B. Limits of City's Obligations.
1. Terminal Only. It is understood that City's obligations shall be limited to repair
or reconstruction of the Terminal. Concessionaire shall be obligated, at its sole
cost and expense, to reconstruct, if necessary, all of its improvements and to
replace, if necessary, all of its fixtures, signage and equipment, and all such
improvements, fixtures, signage and equipment shall be of quality equal to that
originally installed by Concessionaire in the Terminal.
2. Damage or Destruction of Im_provements. Should Concessionaire's displays,
signage, fixtures, or equipment, or any part of them, be destroyed or damaged,
and if City elects to repair or replace the Terminal, Concessionaire's
improvements, and equipment will in all instances be repaired or replaced by
Concessionaire whether or not said damage or destruction is covered by
insurance. If Concessionaire fails to repair or replace such damaged
improvements subject to a schedule approved by the Director, the City shall have
the right, but not the obligation, to make such repairs or replacements and recover
from Concessionaire the cost and expense thereof.
Section 10. Termination by City.
A. No waiver of default by the City of any of the terms, covenants, or conditions of this
Agreement to be performed, kept, or observed by Concessionaire shall be construed to
be an act of waiver of any subsequent default. The acceptance of fees by the City for
any period or periods after a default of any of the terms, covenants, or conditions of this
Agreement to be performed, kept, and observed by Concessionaire shall not be
deemed a waiver of any right on the part of the City to terminate this Agreement for
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failure by the Concessionaire to so perform, keep or observe any of the terms,
covenants, or conditions of this Agreement.
B. In addition to any other termination rights contained in this Agreement, the City
shall have the right to terminate this Agreement, at any time, after the occurrence of any
one or more of the following events:
1. Non-payment of fees due to the City that remains unpaid 30 days after
same become due.
2. Abandonment by Concessionaire and discontinuance of operations under
this Agreement.
3. Non-performance of any covenant of this Agreement, excluding the
covenant of payments herein contained, and failure of Concessionaire to
remedy the breach within a period of 30 days after written notice from the
Director of the existence of said breach.
4. Concessionaire becomes permanently deprived of the rights, powers and
privileges necessary to the proper operation of the facilities specified in the
Agreement.
5. In the event of damage by fire or other casualty to the Terminal premises.
6. Concessionaire makes an assignment for the benefit of creditors or petitions
for or enters into an arrangement with its creditors.
7. Concessionaire assigns this Agreement without City's written consent.
8. Concessionaire, as reasonably determined by the City, has failed to make
such commercially reasonable efforts to solicit and procure advertising, City,
following reasonable notice to the Concessionaire to cure and Concessionaire's
failure to affect such cure.
C. Additionally, if the City determines that modifications to this Agreement are
required in order to qualify for federal or state funding for the services to be rendered by
the Concessionaire under this Agreement and if Concessionaire shall fail to consent to
such modifications, or if Concessionaire is unable to comply within a reasonable time
with applicable federal or state laws and regulations governing the grant of such funds
for services to be rendered under this Agreement, then the City shall have the right, by
written notice to Concessionaire of its intent, to terminate this Agreement.
Section 11. Termination by Concessionaire. Concessionaire shall have the right to
terminate this Agreement, by giving 30 days' advance written notice to City of such
termination, after the occurrence of any one or more of the following events:
1. The use of the Terminal for regularly-scheduled passenger service is
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discontinued on a permanent basis.
2. The lawful assumption by the United States government or any authorized
agency thereof of the operation, control, or use of the Airport or any substantial
part thereof in such a manner as to substantially restrict Concessionaire for a
period of at least 90 days from operating in the Terminal.
3. City defaults in the performance of any of the terms, covenants, or
conditions to be performed by it under this Agreement and fails to cure such
default within a period of 30 days following receipt of written demand from
Concessionaire to do so, or if, by reason of the nature of such default the same
cannot be remedied within such 30-day period, City shall have failed to
commence the remedying of such default within the 30-day period or, having so
commenced, shall have failed thereafter to continue with diligence the
remedying of such default.
Section 12. Early Termination. In the event either party terminates this Agreement in
accordance with the provisions of Sections 10 or 11, such termination does not affect
such party's right to damages as a result of the other party's default under this
Agreement or any other remedy to which it is entitled by law by reason of such default.
No such termination relieves the defaulting party of any obligation for the payment of
fees or other charges due as of the date of such termination, provided, that there is a
recognized duty to mitigate damages.
Section 13. Assignment. Concessionaire shall not sell, assign, transfer, convey,
sublet, mortgage, pledge, or encumber its interest in this Agreement or any of its rights
and privileges hereunder or allow any such sale, assignment, or transfer to occur by
operation of law, or subcontract for the performance of any of the services to be
provided by Concessionaire under this Agreement, without the City's prior written
consent. The performance of this Agreement by the Concessionaire is the essence of
this Agreement, and the City's right to withhold consent to such assignment is within the
sole discretion of the City Manager on any ground whatsoever. The above prohibition
does not apply with respect to any entity with which Concessionaire may merge or
consolidate or which may acquire substantially all of the Concessionaire's assets.
Section 14. Non-discrimination.
A. Concessionaire, for itself, its officers, employees, representatives, successors in
interests, and assigns, as part of the consideration of this Agreement, covenants and
agrees that: (i) no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of the Airport; (ii) in the construction of any improvements on,
over, or under such land and the furnishing of services thereon, no person on the
grounds of race, color, or national origin shall be excluded from participation in, denied
the benefits of, or otherwise be subject to discrimination; (iii) Concessionaire shall
operate and use the advertising zones in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations ("CFR"),
Transportation, Subtitle A, Office of the Secretary of Transportation, Part 21, Non-
Page 12 of 17
Discrimination in Federally-Assisted Programs of the Department of Transportation -
Effectuation of Title VI of the Civil Rights Act of 1964 (as may be amended from time to
time) (the "Regulations").
B. In the event of breach of any of the above nondiscrimination covenants, the City
shall have the right to terminate this Agreement, to reenter and repossess the
advertising zones and the facilities thereon, and hold the same as if this Agreement had
never been made or issued. This provision does not become effective until the
procedures of 49 CFR Part 21 are followed and completed, including expiration of
appeal rights.
C. Concessionaire shall furnish its accommodations and services on a fair, equal, and
not unjustly discriminatory basis to all users thereof, and Concessionaire shall charge
fair, reasonable, and not unjustly discriminatory prices for each unit or service, provided,
that Concessionaire may be allowed to make reasonable and nondiscriminatory
discounts, rebates, or other similar type of price reductions to volume purchasers.
D. Non-compliance with the above subsections by Concessionaire shall constitute a
material breach of this Agreement and, in the event of such non-compliance, the City
shall have the right to terminate this Agreement without liability therefore or, at the
election of the City or the United States, either or both shall have the right to judicially
enforce these provisions.
E. Concessionaire agrees that it shall insert the above subsections in any sub-
agreement, third-party agreement, or sublease by which Concessionaire grants a right
or privilege to any person, firm, or corporation to render accommodations or services to
the public on the Airport.
Section 15. Affirmative Action. Concessionaire shall undertake an affirmative action
program as required by 14 CFR Part 152, Subpart E, to ensure that no person shall on
the grounds of race, creed, color, national origin, or sex be excluded from participating
in any employment activities covered in 14 CFR Part 152, Subpart E. Concessionaire
shall require that its covered sub organizations provide assurances from their sub
organizations, as required by 14 CFR Part 152, Subpart E, to the same effort.
Section 16. Miscellaneous Provisions.
A. Aareements with the United States and City of Corpus Christi. This Agreement
shall be subject to all restrictions of record affecting the Airport and the use thereof; all
federal, state, and City laws, rules, and regulations affecting the same; and subject and
subordinate to the provisions of any and all existing agreements between the City of
Corpus Christi and the United States of America, and their agencies, boards, or
commissions, and to any future agreements between or among the foregoing that may
be relative to the operation or maintenance of the Airport, the execution of which may
be required as a condition precedent to the expenditure of federal, state, or City funds
for the development of the Airport, or any part thereof. All provisions of this Agreement
shall be subordinate to the right of the United States to occupy or use the Airport, or any
part thereof, during time of war or national emergency.
Page 13 of 17
B. Right to Amend Pursuant to Requirements for Funding or Improvements. In the
event the Federal Aviation Administration, or its successor agency, require
modifications or changes in this Agreement as a condition precedent to the granting of
its approval or to the obtaining of funds for improvements at or of the Airport,
Concessionaire hereby consents to any and all such modifications and changes as may
be reasonably required.
C. Compliance with Laws. Rules and Regulations. Concessionaire and all persons
operating under the rights and privileges granted under this Agreement shall observe
and obey all federal, state, and local laws, rules, and regulations with respect to the use
of the Airport and Terminal, as well as any directives issues by the Director pertaining to
the same, which are now in effect or which may hereafter be put into effect.
D. Remedies: Attorney Fees and Costs. All remedies provided in this Agreement are
deemed cumulative and additional, and not in lieu of or exclusive of each other or of any
other remedy available at law or in equity arising under this Agreement. In the event
either party is required to institute proceedings in a court of law to enforce its rights
under this Agreement, the prevailing party in such proceedings is entitled to recover all
costs incurred and reasonable attorney fees, whether incurred at the trial or appellate
level, if so awarded by written judgment of the court.
E. Fiscal Year. Concessionaire recognizes that the continuation of any contract after
the close of any fiscal year of the City (the City's fiscal year ends each September 30th)
is subject to budget approval and appropriations providing for such contract item as an
expenditure in the fiscal budget. The City does not represent that a budget item for this
Agreement will be actually adopted, as that determination is within the sole discretion of
the City Council at the time of adoption of each fiscal budget.
F. Conflicts of Interest. Concessionaire represents and warrants to the City that no
member, officer, employee, or agent of the City has any interest, direct or indirect, in the
business of Concessionaire to be conducted under this Agreement and that no such
person shall have any such interest at any time during the term of this Agreement.
G. Notices. All notices required or permitted to be given under this Agreement must
be given either by hand delivery or by regular United States certified mail, postage
prepaid, addressed to the following:
IF TO CITY:
Corpus Christi International Airport
Attn: Director of Aviation
1000 International Drive
Corpus Christi, TX 78406-1801
Page 14 of 17
IF TO CONCESSIQNAIRE:
In-Ter-Space Services, Inc. dba Clear Channel Airports
Attn: Airport Development Director, Thaddeus Glenn
7450 Tilghman St., Suite 104
Allentown, PA 18106
Either party may change its address during this Agreement by providing written notice to
the other party in a manner set out in this paragraph.
H. Regulation by City. The rights and privileges granted to Concessionaire under this
Agreement and the use by Concessionaire of the advertising zones are at all times
subject to the reasonable rules, regulations, and directives of the City as the same are
now or may hereafter be prescribed through the lawful exercise of its power.
I. Licenses and Permits. Concessionaire shall, at its own expense, procure and
keep in force during this Agreement all necessary licenses, registrations, certificates,
permits and other authorizations required by law in order for Concessionaire to render
its services under this Agreement. Further, Concessionaire shall pay all taxes and
license, certification, permit, and examination fees and any other charges of any kind
which may be assessed, levied, exacted, or imposed by governmental authorities
having jurisdiction over Concessionaire's real and personal property, its operations,
Gross Receipts, income under this Agreement as it relates to Concessionaire, and as to
the rights and privileges granted to Concessionaire pursuant to this Agreement and the
improvements made by Concessionaire on the Airport or in the Terminal, and
Concessionaire shall make and file all applications, reports, schedules, and returns
required in connection with the same as may be due to any governmental authority on
or before the due date of such item.
J. Taxes. The Concessionaire covenants to pay all applicable federal and state
payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other taxes in
accordance with Circular E "Employer's Tax Guide", Publication 15, as it may be
amended. Upon request, the City Manager shall be provided proof of payment of these
taxes within 15 days of such request.
K. No Agency: Independent Contractor. Concessionaire is not authorized to act as
the City's agent under this Agreement and shall have no right or authority, express or
implied, to act for or bind the City. Concessionaire shall perform the advertising services
as an independent contractor and furnish such services in its own manner and method,
and under no circumstances will any employee, agent, or representative of the
Concessionaire be considered an employee of the City.
L. Amendments. This Agreement may be amended only in writing and signed by
persons authorized to execute the same by both parties. Exhibit A may be amended, as
needed, throughout the Term of this Agreement and any Option Term, if exercised.
M. Precedence of Contract Documents. In case of a conflict in the contract
documents, first precedence shall be given to the fully executed Agreement and
Page 15 of 17
Exhibits A and B, as each may be amended; second precedence will be given to the
City's issued Request for Proposals ("Exhibit C"), including written questions, answers,
and addenda, all of which is incorporated by reference into this Agreement as if set out
fully here in its entirety; and third precedence will be given to the Concessionaire's
submitted advertising proposal, as may have been clarified in writing ("Exhibit D"), the
content of which exhibit is incorporated by reference into this Agreement as if set out
fully here in its entirety.
N. Headings. The section and paragraph headings in 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 provision of this Agreement.
0. Binding. This Agreement inures to the benefit of and shall be binding upon the
parties and their successors and assigns.
P. Severability. Each provision of this Agreement is severable and if, for any reason,
any provision or any part thereof is determined to be invalid by a court of law or contrary
to applicable law, such invalidity or unenforceability shall not impair the operation of or
affect those portions of this Agreement that are valid and enforceable, but this
Agreement shall be construed and enforced in all respects as if the invalid or
unenforceable provision or part thereof had been omitted.
Q. Applicable Law and Venue. This Agreement has been entered into in, and shall be
construed and interpreted in accordance with the laws of, the State of Texas. Any legal
action in connection with this Agreement must be commenced and maintained in a court
of proper jurisdiction in Nueces County, Texas.
R. Entire Agreement. This Agreement and its exhibits constitute the entire agreement
between the parties with respect to the subject matter of this Agreement.
Page 16 of 17
EXECUTED IN DUPLICATE ORIGINALS on this I day of MR-1;7c-lt--, 2014fr
ATTEST: CITY OF CORPUS CHRISTI
7\)%2-6Le-e- lAt/V---G‹14- ..
.) C -.Yine.
Rebecca Huerta Margie C. ose
City Secretary City Manager
Approved as to legal form: < �� , 201 .,61- abett-yALt ,
Assista ity Attorne
for th ' Attorney
CONCESSIONAL'
By: -; „7- ---7------
/
Name: EU erf L 4 La V1
Title: I/4)1r IZ.e.5l 7n a.l rire6i d Q +-
Date: / Z/Z0//6
i1L Li
Attached and Incorporated by Reference:
Exhibit A-Advertising Zones (two pages) SECRETAR
Exhibit B - Insurance Requirements (three pages)
Incorporated by Reference Only: (copies available upon request)
Exhibit C -- City's Request for Proposals
Exhibit D - Concessionaire's Proposal
Page 17 of 17
Corpus Christi international Airport • CRP- Area of Detail: Baggage Claim and Ticketing
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A2 • Tension Fabric Display
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A8 . Tension Fabnc Display
A10. Themed Tension Fabric Display
A13 - Double -Sided Tension Fabric Display
A14 - Double -Sided Tension Fabnc Display
A15 - Double -Sided Tension Fabric Display
A16 - Double -Sided Tension Fabric Display
017 - Tension Fabnc Display
918 . Soffit Tension Fabnc Display
A19 - Tension Fabric Display Gridwall Reservation Center
A21 - Tension Fabnc Display
A22 - Themed Tension Fabric Display
A23 - Themed Tension Fabric Display
A24 - Themed Tension Fabric Display
A28 - Soffit Tension Fabric Display
A29- Soffit Tension Fabric Display
A30 - Soffit Tension Fabnc Display
A31 - Soffit Tension Fabnc Display
A32 - Soffit Tension Fabric Display
A33 - Soffit Tension Fabric Display
A34 - Soffit Tension Fabnc Display
O Wall Wrap
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A27 - Wa8 Wrap
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A3 - 65` LCD Screen
A9 - 65' LCD Screen
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Corpus Christi International Airport • GRP- Area of Detail: Level 2
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B4 - Soffit Tension Fabnc Display
B5 - Tension Fabric Display
B6 - Tension Fabric Display
B7 - Tension Fabric Display
B8 - Tension Fabric Display
910 - Tension Fabric Display
911 - 50118 Tension Fabric Display
B12. 5on8 Tension Fabnc Display
B13 - Tension Fabric Display
B14 - Tension Fabric Display
815 - Tension Fabric Display
916 - Tension Fabric Display
B17 - Tension Fabric Display
BIB -Tension Fabric Display
B19 - Tension Fabric Display
820 - Solid Tension Fabnc Display
A Product Display Case
B9
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B1 - Iconic
"HIS ETiliOIT A HETIWY MODIFIES ALL PREVIOUS EY-iiiTTFF
AB SPEC!Fi" T? Rh? FOLLOWING LOCATIONS ONCE:
IIF THE CI IAFJGES ARE OBVIOUS AND JUST 1 FEW ON THE
UPDATED EXHIBITS IEXHIIIT 1.5 12, 1.3. ETC.). THEN 0
WOULD 10T DE NECESSARY TO CALL OUT THE
SPECIFICS IF THE CHANGES ARE MORE INVOLVED THEN
THE CHANGES SHOULD DE SPECIFIC/OETAILEDI IE
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2
EXHIBIT "B"
INSURANCE REQUIREMENTS
ADVERTISING CONCESSIONAIRE'S LIABILITY INSURANCE
A. Concessionaire must not commence work under this Agreement until all
insurance required has been obtained and such insurance has been
approved by the City. Advertising Concessionaire must not allow any
subcontractor to commence work until all similar insurance required of any
subcontractor has been obtained.
B. Concessionaire must furnish to the City's Risk Manager and Director of Aviation
two copies of Certificates of Insurance with applicable policy endorsements
showing the following minimum coverage by an insurance company(s)
reasonably acceptable to the City's Risk Manager. The City must be listed as
an additional insured on the General Liability and Auto Liability policies by
endorsement, and a waiver of subrogation endorsement is required on all
applicable policies. Endorsements must be provided with Certificate of
Insurance. Project name and/or number must be listed in the Description Box
of the Certificate of Insurance.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-day advance written notice of Bodily Injury and Property Damage
cancellation, non-renewal, material Per occurrence - aggregate
change or termination required on all
certificates and policies.
Commercial General Liability including: $1,000,000 Per Occurrence
1. Commercial Broad Form $2,000,000 Aggregate
2. Premises—Operations
3. Products/Completed Operations
4. Contractual Liability
5. Independent Contractor
6. Personal Injury-Advertising Injury
AUTO LIABILITY(including) $500,000 Combined Single Limit
I. Owned
2. Hired and Non-Owned
3. Rented/Leased
WORKERS' COMPENSATION Statutory
All states endorsement required if the
Concessionaire is not domiciled in State
of Texas.
EMPLOYER'S LIABILITY $500,000/$500,000/$500,000
Page 1 of 3
PERSONAL PROPERTY INSURANCE Concessionaire, at their own expense,
shall be responsible for insuring all
owned, leased or rented personal
property.
C. In the event of accidents of any kind related to Concessionaire's operations relative
to this Agreement, Concessionaire must furnish the Risk Manager with copies
of all reports of any accidents within 10 days of the accident.
IL ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Concessionaire must obtain workers'
compensation coverage through a licensed insurance company. The
coverage must be written on a policy and endorsements approved by the
Texas Department of Insurance. The workers' compensation coverage
provided must be in an amount sufficient to ensure that all workers'
compensation obligations incurred by the Concessionaire will be promptly met
An All States Endorsement shall be required if Concessionaire is not domiciled
in the State of Texas.
B. Concessionaire shall obtain and maintain in full force and effect for the
duration of this Agreement, and any extension of same, at the
Concessionaire's sole expense, insurance coverage written on an
occurrence basis by companies authorized and admitted to do business in
the State of Texas and with an A.M. Best's rating of no less than A-VII.
C. Concessionaire shall be required to submit a copy of the replacement Certificate
of Insurance to City at the address provided below within 10 days of any
change made by the Concessionaire or as requested by the City.
Concessionaire shall pay any costs incurred resulting from said changes. All
notices under this Exhibit B shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Manager
P.O. Box 9277
Corpus Christi, TX 78469-9277
D. Concessionaire agrees that,with respect to the above required Insurance,
all insurance policies are to contain or be endorsed to contain the
following required provisions:
• List the City and its officers, officials, employees, and volunteers as additional
insureds by endorsement with regard to operations, completed operations, and
activities of or on behalf of the named insured performed under contract with
the City, with the exception of the workers' compensation and property policy;
Page 2 of 3
• Provide for an endorsement that the 'other insurance" clause shall not apply to
the City of Corpus Christi where the City is an additional insured shown on the
policy;
• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of the City; and
• Provide 30 calendar days advance written notice directly to City of any,
cancellation, non- renewal, material change or termination in coverage and not
less than 10 calendar days advance written notice for nonpayment of premium.
E. Within five calendar days of a cancellation, non-renewal, material change or
termination of coverage, the Concessionaire shall provide a replacement
Certificate of Insurance and applicable endorsements to the City. City shall have
the option to suspend Concessionaire's performance should there be a lapse in
coverage at any time during this Agreement. Failure to provide and to maintain
the required insurance shall constitute a material breach of this Agreement
F. In addition to any other remedies the City may have upon Concessionaire's failure
to provide and maintain any insurance or policy endorsements to the extent and
within the time required in this Exhibit B, the City shall have the right to order
Concessionaire to stop work hereunder and/or withhold any payment(s) which
become due to Concessionaire under the Agreement until Concessionaire
demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to
which the Concessionaire may be held responsible for payments of damages to
persons or property resulting from Concessionaire's or its subcontractor's
performance of the work covered under this Agreement.
H. It is agreed that Concessionaire's insurance shall be deemed primary and non-
contributory with respect to any insurance or self-insurance carried by the City
of Corpus Christi for liability arising out of Concessionaire's operations under this
Agreement.
I. It is understood and agreed that the insurance required in this Exhibit B is in
addition to and separate from any other obligation contained in this Agreement.
2015 Insurance Requirements
Aviation Dept
Advertising Concessionaire
Agreement 10/12/2015 ds Risk
Management
Page 3 of 3
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-152552
In-Ter-Space Services, Inc.
Allentown, PA United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 01/10/2017
being filed.
City of Corpus Christi Date ckn wledged
3 Provide the identification number used by the governmental entity or state agency to track or identify the c ntra and provide a
description of the services,goods,or other property to be provided under the contract.
RFP#89
Advertising Concession Program at Corpus Christi International Airport
Nature of interest
4 Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party. o
X
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
COMMOMNEALTH OF PENNSYLVANIA
NOTARIAL SEAL
ELIZABETH HANNAH OMAOPOULO>s � / �
SIJ , - ,efcy
NoIT Public / == s/
UPPER MACUNGIE TiNR LEHIGH COUNTY
My Commission Expires Oct 20,2019 Signature of a ' agent• contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said OC 6�tca7 this the / o day of dnY49'f/y
20 / ,to certify which,witness my hand and seal of office.
67,. ()�/
-ignature of officer• roistering oath Panted name of officer adminRstering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277